Cardwell Properties Pty Ltd; Williams and Department of the Premier, Economic and Trade Development; North Queensland Conservation Council Inc (Third Party)
(1995 S0006, 29 June 1995)
This was a ‘reverse-FOI’ application in which developers sought to challenge the decision of the Department to grant access to communications made by the developers to various government agencies in the course of negotiations over a proposed development project. The case involved the application of principles set out in Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491 concerning s.45(1)(c) of the FOI Act. The Information Commissioner found that the matter in issue was not commercially sensitive in nature, but was for the most part rehearsal of the history of negotiations concerning the development project, complaints about inaction, and requests for urgent action. The developers provided no submission or evidence to demonstrate a likely adverse effect on their business, commercial or financial affairs through disclosure, or that disclosure would prejudice the future supply to government of like information. The Information Commissioner found that neither kind of detriment could reasonably be expected to result from disclosure of the matter in issue. The Information Commissioner also considered that, given the size of the proposed development and its significance to the social, economic and physical environment of the Cardwell region, the public interest factors in favour of disclosure would outweigh any factors against disclosure.
The case also required an application of the principles set out in B and Brisbane North Regional Health Authority(1994) 1 QAR 279, concerning s.46(1) of the FOI Act. The Information Commissioner found that the requirements of s.46(1)(a) were not met with respect to any of the matter in issue, in particular determining that equity would not regard disclosure by the Department to be an unconscionable use of the information in issue. In this context the Information Commissioner discussed the recent High Court decision of Esso Australia Resources Ltd v Plowman (1995) 69 ALJR 404 which recognised the existence of a “public interest exception” to obligations of confidence said to attach to information held by government, even where the information was supplied by persons outside government. For instance, Mason CJ (with whom Dawson and McHugh JJ agreed) said that the obligation of confidence in issue in the Esso case was “necessarily subject to the public’s legitimate interest in obtaining information about the affairs of public authorities”.
The Information Commissioner also found that no part of the matter in issue was exempt under s.46(1)(b), because prejudice to future supply of like information could not reasonably be expected to result from disclosure, and in any event disclosure would be in the public interest.