Macrossan & Amiet Solicitors and Queensland Health (Department of Health)
(1999 S0116, 27 February 2002)
In 1998, Queensland Health (QH) issued an invitation for legal firms to tender to become part of a panel of solicitors providing legal services to QH and its Health Service Districts. The applicant firm submitted a tender for the Mackay Health Service District, but was unsuccessful. The applicant then applied to QH, under the FOI Act, for access to tenders for that District by other firms. Following consultation with the other five tenderers, all of which objected to the disclosure of information to the applicant, QH refused access to the tender documents of other firms in their entirety.
The Deputy Information Commissioner decided that only some parts of the tender documents of other firms qualified for exemption under s.44(1) or s.45(1)(c) of the FOI Act. The s.44(1) matter comprised personal information about some staff members of the various firms. The Deputy Information Commissioner found that disclosure of information of that type would not advance the public interest in the accountability of QH for the proper conduct of the tender process.
The Deputy Information Commissioner decided that some parts of the matter in issue qualified for exemption under s.45(1)(c) of the FOI Act (although not under s.45(1)(a) or s.45(1)(b), as QH and some of the tenderers had argued). That matter comprised information, not generally available or known to the industry, which could adversely affect a tenderer's competitive position, such as details of specific, non-litigious legal work performed for identifiable clients, and details of the basis of charging for legal services submitted by the tenderers.
Two of the other tenderers sought to rely on s.46(1)(a) or (b) of the FOI Act, although QH had found that there was no obligation of confidence attaching to the tender documents. The Deputy Information Commissioner decided that the failure of any of the tenderers to specify that particular information in their tender documents was submitted in confidence (notwithstanding an express invitation to tenderers to do so) told against the existence of an obligation of confidence; but if (notwithstanding that failure) equity might recognise an obligation of confidence in respect of information of genuine commercial sensitivity, such an obligation would not extend beyond the information found to be exempt under s.45(1)(c).