Wanless Wastecorp Pty Ltd and Caboolture Shire Council; JJ Richards & Sons Pty Ltd (Third Party)

Wanless Wastecorp Pty Ltd and Caboolture Shire Council; JJ Richards Pty Ltd (Third Party)
(2002 L0004, 30 June 2003) 

Matter in issue comprised documents relating to the tender process conducted by the respondent agency for provision of waste collection services, including the successful tender submission lodged by the third party – application of s.44(1), s.45(1)(a), s.45(1)(b), s.45(1)(c) and s.46(1) of the FOI Act. 

The respondent invited tenders for the provision of waste collection services in November 2000.  In response, the applicant (the incumbent service provider), the third party and two other firms lodged tender submissions with the respondent.  The third party was selected as the successful tenderer. 

The matter in issue in this review consisted of: 

·       parts of the successful tender submission and other documents lodged by or relating to the third party; and 

·       various documents (or parts of documents) created by the respondent in assessing the tender submissions of the two other (i.e., aside from the applicant) unsuccessful tenderers. 

The respondent claimed that the bulk of the matter in issue was exempt from disclosure under s.45(1)(b) of the FOI Act, and that some matter was exempt under s.45(1)(c).  The third party claimed that the matter in issue relating to it or lodged by it with the respondent, including parts of its tender submission, was exempt under various of sections 44(1), 45(1)(a), 45(1)(b), 45(1)(c), 46(1)(a) and/or 46(1)(b). 

Section 44(1) of the FOI Act 

The third party argued that résumés of members of its staff appearing in a section of its successful tender submission related to the personal affairs of those staff members, and therefore qualified for exemption from disclosure to the applicant under s.44(1) of the FOI Act.  Relying upon the reasoning expressed by the Information Commissioner in Re Pope and Queensland Health (1994) 1 QAR 616 at p.660, the Deputy Information Commissioner rejected this argument.  The Deputy Information Commissioner found that the résumés were properly to be characterised as information concerning the employment affairs, rather than the personal affairs, of the relevant staff members, and that they did not qualify for exemption under s.44(1) of the FOI Act. 

Section 45(1)(a) of the FOI Act 

The third party argued that two sections of its tender submission – an "Environmental Plan" and a "Workplace Health and Safety Plan" - both comprised 'trade secrets', and attracted exemption from disclosure to the applicant under s.45(1)(a) of the FOI Act.  The Deputy Information Commissioner rejected the third party's argument.  The Deputy Information Commissioner noted that the third party had made no effort to bring to the attention of the respondent the supposed 'secrecy' of these documents, and did not consider that either plan possessed the characteristics of a trade secret.  He decided that the plans did not qualify for exemption under s.45(1)(a) of the FOI Act. 

Section 45(1)(b) of the FOI Act 

Both the Council and the third party argued that the bulk of the matter in issue possessed a commercial value to the third party, and qualified for exemption under s.45(1)(b) of the FOI Act.  The Deputy Information Commissioner did not accept these arguments.  The Deputy Information Commissioner was unable to identify an inherent commercial value in any of the relevant information (which comprised matter such as straightforward technical drawings, unaudited financial accounts publicly accessible through the ASIC registry, an industrial relations policy, a contents listing of a register of internal quality assurance documents, a draft advertising campaign, and a Multimedia Package in the nature of an electronic promotional brochure), and found that it had not been established that there was a market for the sale of any of the information.  The Deputy Information Commissioner recognised that the third party must have invested substantial time and money in creating certain documents, such as the Multimedia Package; however, in finding they did not qualify for exemption under s.45(1)(b), he observed that the investment of time and money was not, of itself, a sufficient indicator of the fact that information has a current commercial value. 

One document, in the nature of a customer list, was found not to have commercial value, because the identities of the holders of major contracts for waste management with local government authorities were effectively common knowledge in the industry. 

Section 45(1)(c) of the FOI Act 

The third party argued that any of the material in issue which related to or was lodged by it with the Council, and which was not found exempt under sections 45(1)(a) or (b) ought be considered for exemption under s.45(1)(c) of the FOI Act.  The Council claimed that parts of the Contractor Report qualified for exemption under this section. 

The Deputy Information Commissioner accepted that all matter in issue which was subject to a claim for exemption under s.45(1)(c) of the FOI Act concerned the business, commercial or financial affairs of the third party or unsuccessful tenderers (apart from the applicant).  The Deputy Information Commissioner did not accept, however, that disclosure of most of those documents could reasonably be expected to have an adverse effect of the kind required under s.45(1)(c)(ii). 

The third party was required, by operation of the Corporations Act 2001 Cth, to lodge annual returns with the Australian Securities and Investments Commission (ASIC), copies of which were then publicly available from the ASIC registry on payment of the requisite fee.  A series of unaudited financial statements appearing in the third party's tender submissions and the Contractor Report were found to be materially identical to such publicly-accessible information, and the Deputy Information Commissioner found that there was no basis therefore upon which it could be argued that disclosure of this matter under the FOI Act could reasonably be expected to have an adverse effect of the kind required under s.45(1)(c)(ii) of the FOI Act. 

Additionally, the Deputy Information Commissioner did not consider that other matter supplied by or relating to the third party qualified for exemption under s.45(1)(c), given much of that information's general and/or promotional nature. 

The Deputy Information Commissioner did, however, decide that some parts of the third party's tender submission, and information contained in other documents relating to the third party qualified for exemption under s.45(1)(c) of the FOI Act.  That matter comprised information such as pricing information in respect of recyclable waste; credit information; detailed business systems and service standards, and a detailed education program, which the third party was capable of offering; and the third party's collection route mapping system.  The Deputy Information Commissioner was satisfied that disclosure of that matter could reasonably be expected to afford a competitor of the third party (such as the applicant) a competitive advantage, and impose upon the third party a corresponding competitive disadvantage, so as to adversely impact on the third party's business, commercial or financial affairs, within the meaning of the first limb s.45(1)(c)(ii) of the FOI Act. 

Additionally, the Deputy Information Commissioner found that all matter relating to other unsuccessful tenderers qualified for exemption under s.45(1)(c) of the FOI Act. The Deputy Information Commissioner was satisfied that disclosure of this information (which related to alternative tender pricing and structure - matter which, unlike conforming tender prices - was not publicly disclosed during the tender process; levels of customer satisfaction; and general information relating to each unsuccessful company's tender strategies), could reasonably be expected to have an adverse effect upon the business, commercial or financial affairs of those unsuccessful tenderers within the meaning of the first limb s.45(1)(c)(ii) of the FOI Act. 

In relation to the second prejudicial effect contemplated by s.45(1)(c)(ii), being that of prejudice to the future supply of information to government, the Deputy Information Commissioner noted the competitive nature of the waste management industry, and the reliance upon government contracts in that industry, in rejecting submissions by the respondent and third party to the effect that waste management companies generally could reasonably be expected to refrain from supplying information which would otherwise advance their prospects of successfully tendering for government contracts. 

While acknowledging general public interest considerations such as ensuring accountability of local government agencies for their decisions to award contracts pursuant to public tender processes, the Deputy Information Commissioner considered that disclosure of the matter found by him to qualify prima facie for exemption under s.45(1)(c) would not enhance the Council's accountability for its decision to award the contract to the third party (especially having regard to the extent of the matter already disclosed, or to be disclosed, under the FOI Act), to an extent that warranted a finding that disclosure would, on balance, be in the public interest. 

Section 46(1)(a) of the FOI Act 

The third party argued that certain parts of its tender submission  - such as details of staff turnover, an industrial relations policy, the 'customer list' detailing previous experience, details of its maintenance regime and the Multimedia Package – were communicated in confidence and thus qualified for exemption under one of sections 46(1)(a) or 46(1)(b). 

In relation to s.46(1)(a), the Deputy Information Commissioner was not satisfied that all the matter claimed to be exempt possessed the 'necessary quality of confidence' as required by this provision.  In any case, the Deputy Information Commissioner was satisfied that none of this matter was communicated in circumstances which imported an obligation on the part of the respondent to keep the matter confidential.  In making this finding, the Deputy Information Commissioner took into account the fact that, despite an explicit request in the Conditions of Tender circulated by the respondent, the third party, a large and sophisticated commercial entity, had failed to endorse any of the relevant matter as comprising matter communicated in confidence. 

The Deputy Information Commissioner was not satisfied that any of the matter claimed to be confidential was of such commercial sensitivity that its very nature should have required the respondent to treat it in confidence.  The Deputy Information Commissioner noted that any information which had that level of commercial sensitivity was adequately protected by his findings under s.45(1)(c) of the FOI Act, and the remainder would not have attracted an equitable obligation binding the respondent to treat it in confidence.

Section 46(1)(b) of the FOI Act 

The Deputy Information Commissioner did not accept that matter relating to the third party qualified for exemption under this provision.  Referring largely to his findings in relation to s.46(1)(a), the Deputy Information Commissioner noted that much of the relevant matter was not confidential.  In any case, in view of the fact that the Conditions of Tender had expressly sought indications from tenderers of what was claimed to be confidential matter, and had cautioned against any absolute assurance that matter would be treated confidentially, and yet no part of the third party's tender submission had been endorsed as matter communicated in confidence, there was no basis for a finding that the respondent understood and accepted that the third party had sought confidential treatment in respect of the relevant information. 

The Deputy Information Commissioner noted, in respect of the third requirement for exemption under s.46(1)(b), that he did not consider that waste management companies generally would withhold information that would otherwise advantage their tender, and in doing so injure their prospects of winning government contracts, if the matter in issue were disclosed under the FOI Act.