Webber and Toowoomba City Council; International Generating Company Ltd (Third Party); Normandy Pacific Energy Limited (Fourth Party)

Webber and Toowoomba City Council; International Generating Company Ltd (Third Party); Normandy Pacific Energy Limited (Fourth Party)
(1998 L0024, 4 November 1999) 

The matter in issue comprised parts of documents relating to an agreement by the respondent to sell waste water to the third parties, who were the developers of the Millmerran power station. 

The Information Commissioner found that the matter in issue did not qualify for exemption under s.45(1)(b) or s.45(1)(c) of the FOI Act.  Quite apart from the fact that, at the time the Information Commissioner gave the decision, the Millmerran power station had been given final approval to proceed by the Queensland Government and the third parties could no longer be considered to be in competition with other power station developers for the development of a power station in south-east Queensland, the Information Commissioner was not satisfied in any event under s.45(1)(b) of the FOI Act that the matter in issue could be said to have possessed a commercial value which could reasonably be expected to be diminished by its disclosure. 

As to s.45(1)(c) of the FOI Act, the Information Commissioner was not satisfied that disclosure of the matter in issue could reasonably be expected to have an adverse effect on the business, commercial or financial affairs of the third parties or the respondent, particularly given that the power station had received government approval to proceed.  For the sake of completeness, the Information Commissioner briefly discussed the public interest balancing test incorporated in s.45(1)(c) and noted that, even if the respondent or the third parties had been able to establish that the requirements for exemption under s.45(l)(c)(i) and (ii) were satisfied in respect of the matter in issue, there were strong public interest considerations favouring disclosure of the matter in issue which it would have been necessary to take into account in applying the public interest balancing test incorporated in s.45(1)(c).