Swickers Kingaroy Bacon Factory Pty Ltd and Department of Primary Industries; McNaught (Third Party)

Swickers Kingaroy Bacon Factory Pty Ltd and Department of Primary Industries; McNaught (Third Party)
(1996 S0095, 27 November 1998) 

This was a 'reverse-FOI' application challenging the decision of the Department to give the third party access to two documents.  One of the documents was a consultancy report prepared for Swickers by officers of the Department, concerning a proposed effluent irrigation scheme at Swickers' Kingaroy premises. 

The Information Commissioner found that information in the report which was supplied by Swickers, or which would reveal information supplied by Swickers, was the subject of an express written contractual term as to confidentiality, and was exempt matter under s.46(1)(a) of the FOI Act.  The Information Commissioner discussed the possible application of the public interest exception to an action for breach of confidence, as referred to in the judgments of the High Court of Australia in Esso Australia Resources Ltd v Plowman & Ors (1995) 183 CLR 10, but found that it did not apply in this case.  The Information Commissioner found that there was no implied contractual obligation, and no equitable obligation, that would restrain the Department from disclosing other parts of the consultancy report to the third party. 

Further, the Information Commissioner decided that, at a time when the effluent irrigation scheme was already operating, disclosure of the consultancy report (subject to deletion of the matter the Information Commissioner found to be exempt under s.46(1)(a) of the FOI Act) could not reasonably be expected to prejudice the business, professional, commercial or financial affairs of any person or agency, and hence a case for exemption under s.45(1)(c) could not be established.  The Information Commissioner also found that no part of the report concerned the personal affairs of any person, and so rejected a claim that it was exempt matter under s.44(1). 

The other document in issue was an Environmental Management Program (EMP), based in part on the consultancy report.  The EMP had already been provided to a local authority for the purposes of obtaining rezoning approval, and had been placed on public display.  The Information Commissioner rejected Swickers' claim that the EMP was exempt under s.44(1), s.45(1)(c) or s.46(1) of the FOI Act.