Kalinga Wooloowin Residents Association Inc and Department of Employment, Economic Development and Innovation; City North Infrastructure Pty Ltd (Third Party) (310542)

Kalinga Wooloowin Residents Association Inc and Department of Employment, Economic Development and Innovation; City North Infrastructure Pty Ltd (Third Party)
(310542, 19 December 2011)

Section 12 Right to Information Act 2009  – ‘document of an agency’

Section 47(3)(a) Right to Information Act – refusal of access

Section 47(3)(b) Right to Information Act – refusal of access

Section 48 Right to Information Act – exempt information

Section 49 Right to Information Act – contrary to public interest

The applicant applied to the former Department of Infrastructure and Planning (DIP) for access under the Right to Information Act 2009 (Qld) (RTI Act) to documents relating to the appointment of Mr Shane McDowall (formerly the Deputy Coordinator General within DIP) to the board of City North Infrastructure Pty Ltd (CNI).

DIP withheld access to 10 pages on the basis the documents were not ‘documents of an agency’ within the meaning of section 12 of the RTI Act, and therefore not subject to the Act.

The applicant applied to the Information Commissioner for external review of DIP’s decision.

The Department of Local Government and Planning (Department, which held authority to deal with the review following the abolition of DIP) accepted the Information Commissioner’s preliminary view that the documents were subject to the RTI Act, and advised that it was prepared to grant the applicant access to the documents.

CNI objected to disclosure of the information in issue, on the grounds:

·          relevant documents were not ‘documents of an agency’, and therefore not subject to the RTI Act or, alternatively,

·          if the documents were subject to the RTI Act, access should be refused as:

o         the documents comprised exempt information under sections 47(3)(a) and 48 of the RTI Act, as documents the disclosure of which would found an action for breach of confidence, and/or

o         the documents comprise information the disclosure of which would, on balance, be contrary to the public interest under sections 47(3)(b) and 49 of the RTI Act.

‘Document of an agency’

Applying the principles set out in Holt and Reeves and Education Queensland and Anor. (1998) 4 QAR 310 and Price and Nominal Defendant (1999) 5 QAR 80,  the Information Commissioner was satisfied the information in issue comprised ‘documents of an agency’ subject to the RTI Act, as the documents were in the physical possession of the Department.

Exempt information – breach of confidence

The Information Commissioner was not satisfied the information in issue had been communicated in circumstances so as to fix the recipient with an equitable obligation of confidence.  The Information Commissioner was not satisfied that a confidentiality obligation contained in one of the documents in issue applied to the information.  The Information Commissioner also noted that there was nothing particularly sensitive about any of the information in issue so as to suggest an implicit mutual understanding of confidence.

Additionally, the Information Commissioner was not satisfied CNI had demonstrated the requirement of detriment necessary to establish the breach of confidence exemption.

Applying the principles relating to claims of confidence by government actors as set out in Commonwealth of Australia v John Fairfax and Sons Ltd(1980) 147 CLR 39 and Esso Australia Resources Ltd & Ors v Plowman & Ors (1995) 183 CLR 10, the Information Commissioner considered that, as a proprietary company wholly owned by government, CNI was required to demonstrate that disclosure of the information in issue would be contrary to the public interest. 

The Information Commissioner was not satisfied disclosure of the information in issue in this case would be contrary to the public interest.  The Information Commissioner also noted that there were various public interest considerations favouring disclosure of the information, including enhancing the transparency and accountability of CNI as a government-owned, taxpayer-funded entity entrusted with delivering significant public infrastructure.

For these reasons the Information Commissioner found that disclosure of the information in issue would not found an action for breach of confidence, and was therefore not exempt information.

Contrary to public interest

The Information Commissioner also considered whether disclosure of the information in issue would, on balance, be contrary to the public interest.  The Information Commissioner noted that:

·     CNI is a monopoly provider of project management functions to government, and as such is an entity that could not be said to be susceptible to competitive harm, and

·     much of the information in issue was relatively innocuous and/or generic information.

In these circumstances, the Information Commissioner was not satisfied that either of the public interest harm factors raised by CNI  - adverse effect on business affairs and disclosure destroying/diminishing commercial value – arose for consideration in this case.

The Information Commissioner also noted that there were various public interest factors favouring disclosure – including enhancing the accountability of both CNI and the government, and the transparency of CNI’s operations – deserving of substantial weight.  The Information Commissioner considered disclosure of the information in issue would not, on balance, be contrary to the public interest.

The Information Commissioner set aside the Department’s decision, and substituted a decision that:

·     the documents were documents of an agency within the meaning of section 12 of the RTI Act and subject to the Act, and

·     the applicant was entitled to access the documents in accordance with the right of access contained in section 23 of the RTI Act.