The applicant applied for external review of a decision by Fraser Coast Regional Council (Council) refusing him access to raw survey data under section 45(1)(b) of the Freedom of Information Act 1992 (FOI Act).
Assistant Commissioner Corby made the following findings in relation to a number of preliminary issues raised by the applicant:
· Council had not made a valid internal review decision.
· The Office of the Information Commissioner is not bound to follow internal review decisions of agencies.
· Council had created a document in response to the applicant’s freedom of information application (FOI Application), however that document was a post-application document and could not be considered as part of the matter in issue in the external review.
· The FOI Act was not designed to provide for the determination of private legal disputes concerning how information held by an agency was obtained. Assistant Commissioner Corby did not have jurisdiction to investigate or make any finding or comment in relation to whether the survey data was unlawfully obtained or whether trespass had occurred and it was not necessary to determine that issue before the FOI Act could operate.
· The survey data was a document of the agency for the purpose of the FOI Act. It was not necessary to determine whether the applicant owned the information contained in the document for the purposes of the FOI Act.
· Even if the survey data could be characterised as information relating to the applicant’s ‘personal affairs’ (although no finding was made on this issue), this in itself did not automatically entitle the applicant to access the information under the FOI Act as the right of access to documents under the FOI Act was subject to certain exemption provisions.
· Council was the respondent agency in the review for the purpose of the FOI Act and it was appropriate that Council provide submissions on the relevant issues in the review.
· The procedures to be followed on external review are within the discretion of the Information Commissioner (or delegate).
Section 45(1)(b) – Matter relating to business affairs
Assistant Commissioner Corby applied the principles in Cannon and Australian Quality Egg Farms Limited(1994) 1 QAR 491 and found that:
· the survey data had a commercial value to the surveying company
· disclosure of the Survey Data under the FOI Act could reasonably be expected to destroy or diminish its commercial value.
Accordingly, the survey data was found to be exempt from disclosure in its entirety under section 45(1)(b) of the FOI Act.
Section 28A – Document unlocatable
The applicant also sought access to an agreement between Council and the surveying company. Council located an agreement and provided it to the applicant with its decision.
After considering the information provided by Council in relation to the agreement, Assistant Commissioner Corby found that the document that Council had released to the applicant in accordance with its decision was not the agreement to which the applicant sought access.
Assistant Commissioner Corby then considered whether the document the applicant requested existed. After applying the principles from PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009), Assistant Commissioner Corby found that access to the relevant document should be refused under section 28A(2) of the FOI Act because the document should have been in Council’s possession but it could not be located.