Hopkins and Department of Transport
(1995 S0034, 28 November 1995)
Presotto and Department of Transport
(1995 S0094, 28 November 1995)
This case involved the application of s.46(1)(a) (disclosure which would found an action for breach of confidence) and the principles set out in B and Brisbane North Regional Health Authority (1994) 1 QAR 279. Two sets of applicants sought access to valuations obtained by the Department of Transport for the purposes of the partial resumption of the applicants' land, for road-widening purposes. In the course of the external review, the Department agreed to give the applicants access to valuations obtained by the Department from one firm of valuers, but continued its refusal to give access to valuations from a second firm of valuers. This second set of valuations was claimed to be exempt under s.46(1)(a), on the basis that the Department was obliged not to disclose the valuation without the consent of the valuers (notwithstanding that it was the Department, as a client, which had paid the valuers a fee for the preparation and supply of the valuations).
The Information Commissioner rejected the Department's contention that there was an equitable obligation of confidence owed by the Department to the valuers. The Information Commissioner considered that, in the usual case, a valuation prepared for a client by a valuer becomes the property of the client who has paid for it, and that the client may do with the valuation what the client pleases. The Information Commissioner noted that an obligation of confidence owed by a professional person to his or her client is a recognised incident of relationships between many kinds of professional persons (in this case, a valuer) and their clients, but that the relationship does not ordinarily give rise to an obligation of confidence owed by a client to the professional. The Information Commissioner also considered that s.6 of the Valuers Registration Regulation 1992 Qld is consistent with the Commissioner's view that it is the right of the client (rather than the valuer) to control the use and dissemination of a valuation that the client has paid to obtain. The Information Commissioner found nothing unusual in the circumstances of the case, nor any information of special value to the valuers, which took the case outside the ordinary incidents of the relationship of valuer and client.
The Information Commissioner considered that a number of disclaimer clauses contained in the valuation reports did not alter the position. Those disclaimer clauses implicitly acknowledged the possibility of further dissemination by the client of the valuation reports it had paid to obtain (and sought to limit any professional liability of the valuers to losses sustained by its client, rather than any third parties who may use or rely on the valuation reports). The Information Commissioner acknowledged that it was possible that one disclaimer clause was intended to permit the valuers to have some control of the manner and form in which its valuations could be further disclosed by the Department, but found that, if this was the intention of the clause, the provisions of the FOI Act would override any contractual reservation made by the clause: the forms by which access may be obtained to documents of an agency being prescribed by s.30.