GSA Industries (Aust) Pty Ltd and Brisbane City Council; GS Technology Pty Ltd (Third Party)

GSA Industries (Aust) Pty Ltd and Brisbane City Council; GS Technology Pty Ltd (Third Party)
(1994 L0009, 20 November 1995) 

This is the second decision published in respect of this external review application.  The first decision, GSA Industries (Aust) Pty Ltd and Brisbane City Council (1994) 2 QAR 49, concerned documents held by the Council concerning alleged infringements of certain patent rights and copyrights to which the third party claimed entitlement. 

This case illustrates the approach taken when the respondent agency presses no objection to disclosure of a document; and the practical evidentiary burden to establish a case for exemption then falls upon a third party who maintains an objection to disclosure.  The third party had initially raised an objection to disclosure of documents concerning communications between it and the Council in connection with a tender which the third party had lodged with the Council.  During the course of the external review, the third party withdrew its objection to disclosure of some of those documents and the Information Commissioner authorised the Council to disclose them.  The respondent subsequently agreed that a further document, referred to in one of the documents disclosed, but which had not been dealt with in the respondent's initial response to the applicant's FOI access application, fell within the terms of the initial FOI access application.  This document recorded a discussion between a Director of the third party and representatives of the Council, clarifying details of the third party's tender.  The respondent raised no objection to its disclosure.  The third party objected to its disclosure, but in its submission, did not nominate any exemption provision said to be applicable. 

The Information Commissioner found that the document in issue fell within the terms of the applicant's initial FOI access application; and that none of the submissions of the third party, in support of its objection to disclosure of the document, contained any evidence or argument relevant to the application of the exemption provisions of the FOI Act.  The Information Commissioner briefly considered the possible application of s.44(1), s.45(1)(a), s.45(1)(b), s.45(1)(c) and s.46(1) of the FOI Act before concluding that the document was not exempt matter.