Readymix Holdings Pty Ltd and Port of Brisbane Corporation; Brisbane Mini Mix Pty Ltd (Third Party)

Readymix Holdings Pty Ltd and Port of Brisbane Corporation; Brisbane Mini Mix Pty Ltd (Third Party)
(2003 F0501, 15 December 2003) 

The matter in issue consisted of documents relating to a development application lodged by the third party with the respondent seeking approval to construct and operate a concrete batching plant on land at Pinkenba vested in the respondent, including the development application itself and the development approval issued by the respondent.

The respondent refused access to the matter in issue on the basis that it was received or brought into existence by the respondent in carrying out its commercial activities, and thus excluded from the application of the FOI Act by s.11A of the FOI Act and s.486 of the Transport Infrastructure Act 1994 Qld.  Alternatively, the respondent claimed that the matter in issue qualified for exemption from disclosure under s.45(1)(c) of the FOI Act.  The third party also claimed that the matter in issue qualified for exemption under s.45(1)(c) of the FOI Act.  Additionally, the third party claimed that the matter in issue qualified for exemption under s.44(1) of the FOI Act. 

Section 11A of the FOI Act 

The respondent, a GOC, had leased land to the third party, and had approved an application by the third party to develop a concrete batching plant on that land.  The respondent argued that these activities were undertaken by it in pursuit of its commercial activities, and that associated documents including those in issue were excluded from the application of the FOI Act by s.11A and s.486 of the Transport Infrastructure Act.

The Deputy Information Commissioner found that the process of leasing the respondent's land, and of processing development applications received by the respondent relating to the respondent's land, were materially different and conceptually distinct activities.  The Deputy Information Commissioner noted that, at the time the development application was lodged by the third party, the respondent was required, under the relevant provisions of the Transport Infrastructure Act then in force, to assess development decisions as against criteria set out in a Ministerially-approved 'land use plan'. 

The Deputy Information Commissioner referred to the provisions of the land use plan which applied at the relevant time, and noted that the respondent was required to take into account a variety of non-commercial factors (such as environmental management, residential amenity and local traffic flows) in assessing development applications for land in the Pinkenba precinct.  The Deputy Information Commissioner therefore considered that, while leasing of land may comprise an activity conducted on a commercial basis, the actions of the respondent in receiving, assessing and approving/rejecting a development application must properly be characterised as a public regulatory activity, not as an activity conducted on a commercial basis.  Accordingly, the Deputy Information Commissioner decided that the documents in issue were not excluded from the application of the FOI Act. 

In view of the above finding, it was therefore necessary for the Deputy Information Commissioner to consider the respondent's and third party's claims for exemption under s.45(1)(c) and s.44(1) of the FOI Act. 

Application of s.44(1) of the FOI Act 

The third party claimed that the documents in issue qualified for exemption under s.44(1) of the FOI Act.  The Deputy Information Commissioner observed that the words "personal" and "person" as contained in s.44(1) refer only to natural persons, and that accordingly s.44(1) has no application to companies, businesses, clubs or other organisations, which are incapable of having personal affairs as that term is used in s.44(1) of the FOI Act.  The Deputy Information Commissioner therefore found that the documents in issue did not qualify for exemption from disclosure under s.44(1) of the FOI Act. 

Application of s.45(1)(c) of the FOI Act

Both the respondent and the third party claimed that the documents in issue qualified for exemption under this section. 

The Deputy Information Commissioner accepted that the documents in issue concerned the business, commercial or financial affairs of the third party (but was not satisfied that any of the matter contained in the documents could be characterised as information concerning the business, commercial or financial affairs of the respondent).  The Deputy Information Commissioner was not satisfied that disclosure of the documents in issue could reasonably be expected to have an adverse effect on the business, commercial or financial affairs of the third party. 

The Deputy Information Commissioner rejected an argument by the third party that disclosure of a small segment of matter in issue, relating to cement trucks to be operated by the third party from the plant, could reasonably be expected to have an adverse effect on the third party's business, commercial or financial affairs.  Otherwise, the Deputy Information Commissioner was not satisfied that the respondent or the third party had supplied sufficient evidence or explanation to establish a reasonable basis for expecting that disclosure of any of the documents in issue could reasonably be expected to have an adverse effect on the third party's business, commercial or financial affairs.  The Deputy Information Commissioner found that the test for exemption imposed by s.45(1)(c)(ii) was not satisfied, and that the documents in issue did not qualify for exemption under s.45(1)(c) of the FOI Act. 

If it had become necessary to apply the public interest balancing test incorporated in s.45(1)(c), the Deputy Information Commissioner observed that the public interest in enhancing the accountability of the Corporation for its decision-making in respect of development applications, and in enabling any interested member of the public to understand how the impacts of a proposed development on the community and environment had been assessed, would have weighed strongly in favour of a finding that disclosure of the documents in issue would be in the public interest.