Rolfe and Banana Shire Council
(210609, 9 October 2009)
The applicant requested information from Banana Shire Council (Council) relating to various tender processes (FOI Application).
A number of issues were informally resolved during the course of this external review and Council located and agreed to provide a number of additional documents to the applicant. The decision related to the issues which were remaining for determination.
Section 44(1) of the FOI Act - Matter affecting personal affairs
The first issue related to whether information about employees’ courses of study as it appeared in documents provided to Council as part of tender submissions was exempt from disclosure under section 44(1) of the Freedom of Information Act 1992 (Qld) (FOI Act).
Acting Assistant Commissioner Jefferies considered the principles in Stewart and Department of Transport (1993) 1 QAR 227 and Griffiths and Building Services Authority (Unreported, Queensland Information Commissioner, 31 August 1998) (Griffiths) and decided that, for the reasons set out in Griffiths, the relevant matter in issue:
· related to employees’ courses of study and was therefore characterised as concerning the employees’ personal affairs
· was prima facie exempt from disclosure under section 44(1) of the FOI Act.
In relation to the public interest question, the Acting Assistant Commissioner decided that:
· the public interest in Council being accountable for the tender process in this matter was met by disclosure of a significant amount of the information in the tender documents
· disclosure of the information concerning employees’ courses of study did not advance the public interest in Council’s accountability in this tender process
· there were no public interest considerations favouring disclosure of the information.
Section 45(1)(c) of the FOI Act - Matter relating to business affairs
The second issue related to whether information relating to the tenderers’ business systems and service standards as it appeared in the tender submissions was exempt from disclosure under section 45(1)(c) of the FOI Act.
Acting Assistant Commissioner Jefferies considered the principles in Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491 and Wanless Wastecorp and Caboolture Shire Council; JJ Richards & Sons Pty Ltd (Third party) (2003) 6 QAR 242 (Wanless) and decided that:
· The relevant information did not relate to the standard legal requirements for businesses operating in the field of quarrying and cartage of materials. Rather, the information detailed how the tenderer would propose to implement some significant aspects of service delivery under the contract and what the tenderer had the capability to offer.
· Disclosure of the matter in issue in this review could reasonably be expected to confer a competitive advantage on the tenderers’ competitors (with a corresponding adverse effect on the tenderer) by enabling a competitor to match or exceed the detailed business systems and service standards contained in the documents.
· The matter in issue was prima facie exempt from disclosure under section 45(1)(c) of the FOI Act, subject to any relevant public interest considerations.
In relation to the public interest question, the Acting Assistant Commissioner decided that:
· the public interest in Council being transparent and accountable for the tender process in this matter was met by disclosure of a significant amount of the information in the tender documents
· disclosure of this particular information did not advance the public interest in Council’s accountability or transparency.
Accordingly, the matter in issue was exempt from disclosure under section 45(1)(c) of the FOI Act.
Section 28A(1) of the FOI Act – Document nonexistent or unlocatable
The third issue related to whether access to the relevant contracts for each tender given out by Council could be refused under section 28A(1) of the FOI Act.
Council provided submissions stating that the requested documents did not exist and explaining why they had not been created.
Acting Assistant Commissioner Jefferies considered the principles in PDE and the University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) and decided that:
· there were reasonable grounds for Council to be satisfied that the letters of acceptance and contracts did not exist
· access to the requested documents could be refused under section 28A(1) of the FOI Act.
Scope of the FOI Application
The fourth issue related to whether the additional documents the applicant requested on external review fell outside the scope of the FOI Application.
Acting Assistant Commissioner Jefferies noted that under section 25(2)(b) of the FOI Act an applicant must, at the time of making the FOI application, provide sufficient information concerning the documents sought to enable a responsible officer of an agency to identify the documents.
Acting Assistant Commissioner Jefferies decided that:
· The FOI Application was broadly worded in terms of the types of documents to which the applicant sought access but it was specifically confined to documents created during the tender process up until the formation of the relevant contract with the successful tenderer.
· The FOI Application did not extend to documents created after the formation of the contract, that is, documents created as a result of the performance of the contract.
· The parameters of the FOI Application could not reasonably encompass the other documents the applicant requested on external review.