Save Our Foreshore Inc. and Whitsunday Shire Council

Save Our Foreshore Inc. and Whitsunday Shire Council
(2005 F0454, 31 March 2006)

Section 46(1)(a) – Breach of Confidence; Sufficiency of Search

The applicant sought access to a number of documents relating to a proposed development. The Council refused access to an Infrastructure Agreement relating to the development under s.46(1)(a).  The Agreement contained a confidentiality clause that created a contractual obligation of confidence. The applicant claimed that a public interest exception should apply to the contractual obligation of confidence because of the interest of a large number of people in the development and concerns regarding Council conduct in relation to such development. 

Assistant Commissioner Rangihaeata found that the applicant's claims were not sufficient for a public interest exception to apply, because the Agreement that was the matter in issue gave effect to decisions made by Council, and resolutions by Council were already publicly available for inspection.  AC Rangihaeata therefore decided to affirm the decision under review by finding that the matter in issue qualified for exemption from disclosure under s.46(1)(a) of the FOI Act. 

During the course of the review the applicant raised issues relating to the existence of other documents responsive to the FOI access application, and produced Council minutes that referred to multiple agreements and leases in support of such claims.  AC Rangihaeata found that the Infrastructure Agreement contained a number of sub-agreements and leases, and that the Council minutes did not establish that further documents existed that were responsive to the FOI access application.  The applicant also sought access to documents that may be held by another Council, however such documents were not within the scope of the review of the decision made by Whitsunday Shire Council.