Electrical Trades Union (Simpson) and Treasury Department
(210511, 24 August 2009)
Section 11A Application of Act to GOCs
Section 45 Matter relating to trade secrets, business affairs and research
This external review concerned an application by the applicant, Mr Peter Simpson, Deputy Secretary Electrical Trades Union, for access to a document of Queensland Treasury, prepared by a consultant and referred to as the ‘Hay Report’ (Report), to which access was deemed to have been refused on internal review.
Hall Payne Lawyers applied for external review on behalf of the applicant, providing detailed arguments in support of their client’s position that the Report was not exempt from disclosure.
During the course of the review, Assistant Commissioner Corby sought further information from the consultant, Hay Group Pty Limited (Hay Group), invited Hay Group to apply to become a participant in the external review and exercised her discretion to allow Hay Group to participate in the review. Assistant Commissioner Corby also exercised her discretion to allow certain government owned corporations (GOCs) to participate in the review.
Each participant provided submissions in respect of the application of exemption provisions of the Freedom of Information Act 1992 (FOI Act) to the Report, and had an opportunity to respond to the relevant submissions of other participants.
Section 11A of the FOI Act
Following consideration of the Report, the submissions of the GOCs, and the requirements of sections 11A of the FOI Act, Assistant Commissioner Corby found that:
· the Report was not a document received, or brought into existence, by any of the GOCs
· it was therefore unnecessary for her to consider whether any of the GOCs were carrying out their ‘excluded activities’ when the Report was brought into existence.
Section 45(1)(a) of the FOI Act
Following consideration of the Report, the submissions of each participant, and the requirements of sections 45(1)(a) of the FOI Act, Assistant Commissioner Corby found that the following factors established that the Category A Matter was Hay Group’s trade secrets:
· Hay Group takes appropriate steps to confine dissemination of the relevant information (including requiring clients to observe requirements of confidentiality)
· while the Report was prepared during what was arguably a different market for employment services (having regard to the current economic climate), the Category A Matter has not lost either its ‘secret character’ or value to Hay Group’s business
· the relevant information would be advantageous for trade rivals to obtain
· the monetary resources used by Hay Group to develop the Category A Matter
· the skill and intellectual process employed by Hay Group in developing the Category A Matter.
Accordingly, Assistant Commissioner Corby found that the Category A Matter including:
· the method of, and analysis of, pay comparison
· the identity of the ‘organisation group’ used to conduct the pay comparison and the entities which form part of the organisation group
· the fact of that particular ‘organisation group’ being used to conduct the pay comparison
· the application of Hay Group’s job evaluation methodology in the specific circumstances of the consultation (including the collective data of the ‘organisation group’ and the results obtained),
comprised Hay Group’s trade secrets and is exempt from disclosure under section 45(1)(a) of the FOI Act.
Section 45(1)(c) of the FOI Act
Following consideration of the Report, the submissions of each participant, the requirements of sections 45(1)(c) of the FOI Act, and relevant public interest considerations, Assistant Commissioner Corby found that:
· the Category B Matter concerned the ‘money resources’ of the GOCs and in the context of the Report, the management of human resources within the GOCs in respect of the commercially competitive market for senior executives.
· disclosure of the Category B Matter in the context of the Report could reasonably be expected to have an effect on those affairs which in turn could reasonably be expected to impact adversely on the operating costs of each individual GOC and the conduct of their business
· having regard to the particular reporting requirements of the GOCs and the existing accountability requirements placed on the GOCs, in this case, the public interest considerations of general transparency, accountability, public awareness, scrutiny and participation in administration carry little weight
· there is a public interest favouring non-disclosure of the Category B Matter which is inherent in the wording of section 45(1)(c) of the FOI Act
· there is a public interest in protecting the ‘financial interests’ of the State which favours non-disclosure of the Category B Matter.
Accordingly, Assistant Commissioner Corby found that:
· the Category B Matter concerns the business, commercial and financial affairs of the GOCs
· disclosure of the Category B Matter could reasonably be expected to have an adverse effect on those affairs
· the public interest considerations favouring non-disclosure of the Category B Matter outweigh those public interest considerations favouring disclosure of the Category B Matter
· the Category B matter is therefore exempt from disclosure under section 45(1)(c) of the FOI Act.
Decision
Assistant Commissioner Corby varied the decision under review by finding that the entire report is exempt from disclosure by virtue of:
· the Category A Matter being exempt from disclosure under section 45(1)(a) of the FOI Act
· the Category B Matter being exempt from disclosure under section 45(1)(c) of the FOI Act
· the Report consisting of only Category A Matter and Category B Matter.