Patullo and Whitsunday Shire Council

Application number:
2004 F0600
Decision date:
Tuesday, May 31, 2005

Patullo and Whitsunday Shire Council
 (2004 F0600, 31 March 2005) 

Commercial affairs – matter affecting financial or property interests – confidential information 

The applicant sought access to a Deed of Agreement between the Council and two private companies.  The Deed related to the settling of legal proceedings initiated by the Council against the companies, and the sale and development of a Council-owned airport. 

AC Barker found that the Deed did not qualify for exemption under sections 45(1)(b), 46(1)(a), 46(1)(b) or 49 of the FOI Act.  As regards s.45(1)(b), AC Barker noted that neither the Council nor the company still a party to the dealings discussed in the Deed had made any attempt to describe or explain the commercial significance of the Deed, or how it would be destroyed or diminished if it were to be disclosed.  AC Barker noted that the Deed was nearly four years old, and that the fact and thrust of the Deed had been the subject of press commentary.  AC Barker was satisfied that the Council had not discharged the onus imposed on it by s.81 of the FOI Act to demonstrate that its decision was justified, and found that the Deed did not qualify for exemption under s.45(1)(b) of the FOI Act. 

Applying the principles stated in B and Brisbane North Regional Health Authority (1994) 1 QAR 279, AC Barker found that claims for exemption under s.46(1)(a) and s.46(1)(b) were not made out, taking into account the age of the Deed, the nature of the information it contained and the media attention it had attracted. 

AC Barker also rejected an objection to disclosure under s.49 of the FOI Act raised originally by the company still a party to the dealings discussed in the Deed, during consultation with the Council.  AC Barker noted that the Council had not sought to rely on the provision and that, as s.49 is aimed at protecting the financial or property interests of the State or an agency, an attempt by a private sector entity to rely on this provision is misconceived. 

AC Barker set aside the decision under review.