Fairfield Constructions Pty Ltd; Fairfield Land Pty Ltd and Department of Environment and Resource Management (210812)

Fairfield Constructions Pty Ltd; Fairfield Land Pty Ltd and Department of Environment and Resource Management
(210811 and 210812, 23 December 2009)

The applicant companies applied to the Department of Environment and Resource Management for access to documents relating to the removal of a parcel of land from the Environmental Management Register (EMR). 

The matter in issue in the review comprised part of a report prepared for the applicants by a Third Party (C&R Consulting Pty Ltd) concerning the removal of land from the EMR (the Report).  The Third Party objected to the release of the Report.

Assistant Commissioner Henry (AC Henry) considered whether the Report was exempt from disclosure under sections 45(1)(a), 45(1)(b), 45(1)(c) and 45(3) of the Freedom of Information Act 1992 (Qld) (FOI Act).

Section 45(1)(a) Matter relating to trade secrets, business affairs and research

AC Henry considered the application of section 45(1)(a) of the FOI Act having regard to the parties’ submissions and found that:

·       the Third Party disseminated the Report by previously providing it to a director of one of the applicant companies

·       there was no evidence that the Report was provided on a confidential basis

·       the relevant information did not have, or had lost its ‘secret character’ because its dissemination was not confined

·       there was no evidence the Third Party took any steps to guard the secrecy of the information contained in the Report

Accordingly, AC Henry was satisfied that the matter in issue was not exempt from disclosure under section 45(1)(a) of the FOI Act.

Section 45(1)(b) Matter relating to trade secrets, business affairs and research

AC Henry considered whether the information contained in the Report had commercial value in either of the senses described in Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 and if it did, whether its disclosure could reasonably be expected to destroy or diminish that commercial value.

AC Henry found that:

·       the information contained in the matter in issue did not comprise information having a commercial value in either of the senses described in Cannon

·       even if the information did possess intrinsic commercial value, its disclosure could not reasonably be expected to destroy or diminish that commercial value as the effect of disclosure would be to release a Report which had already been disclosed to a director of both applicant companies

·       the matter in issue was not exempt from disclosure under section 45(1)(b) of the FOI Act.

Section 45(1)(c) Matter relating to trade secrets, business affairs and research

Having considered the content of the matter in issue, AC Henry was satisfied that the information itself did not concern the business, professional, commercial or financial affairs of the Third Party. 

Accordingly, AC Henry found that the matter in issue was not exempt from disclosure under section 45(1)(c) of the FOI Act.

Section 45(3) Matter relating to trade secrets, business affairs and research

Based on the available information, AC Henry found that the matter in issue was prepared by the Third Party in relation to the remediation of land and could not be described as ‘research’ as that term was defined in O’Dwyer and the Workers’ Compensation Board of Queensland (1995) 3 QAR 97.

Accordingly, AC Henry was satisfied that the matter in issue was not exempt from disclosure under section 45(3) of the FOI Act.