Sexton Trading Co Pty Ltd and Department of Health; TK Crow Furnishings Pty Ltd (Third Party)
Sexton Trading Company Pty Ltd and South Coast Regional Health Authority; T K Crow Furnishings Pty Ltd (Third Party)
(1994 S0030, 18 December 1995)
This case involved application of s.45(1)(c)(ii), and principles set out in Cannon, to the prices quoted by the successful tenderer (the third party) for a contract to supply curtains and blinds to the Authority. The Authority initially contended that disclosure of the prices could reasonably be expected to have an adverse effect on the affairs of the third party or to prejudice the future supply of such information to government, and that disclosure would not, on balance, be in the public interest. In the course of the external review, the Authority withdrew its objection to disclosure but the third party maintained its objection.
The Information Commissioner noted that the Queensland government's State Purchasing Policy required that the names of successful tenderers, a brief description of the goods/services offered, and the contract value, be published in the Government Procurement Gazette, and supplied to an applicant on request. However, the third party contended that it had responded to a tender document which omitted reference to that policy, and was therefore entitled to contest the disclosure of what it regarded as sensitive commercial information (despite evidence that it would have been aware of the purchasing policy from other successful tenders).
The Information Commissioner rejected the third party's claim that disclosure could reasonably be expected to have an adverse effect on its business or commercial affairs. The Information Commissioner found that the matter in issue recorded the total prices tendered by the third party for the supply of specific items, and did not disclose component elements of the tender prices, profit margins, or costs at which the third party could obtain materials from its suppliers. Having regard to the effluxion of time since the tender was lodged, the Information Commissioner was not satisfied that disclosure of the total prices tendered by the third party for specific items, could reasonably be expected to have an adverse effect on the business or commercial affairs of the third party.
The Information Commissioner also concluded that there was no reasonable basis for an expectation that disclosure of the matter in issue would prejudice the future supply of such information to government, noting that there was no shortage of firms willing to compete for government contracts in accordance with the conditions as to disclosure of details of successful tenders set out in the State Purchasing Policy. As neither limb of the requirement set out in s.45(1)(c)(ii) was satisfied, the Information Commissioner found that the matter in issue was not exempt under s.45(1)(c).