Recent Cases: Commonwealth

'VR' and Department of Defence (Freedom of information) [2020] AICmr 50 (14 September 2020)

The FOI applicant had applied to the Department of Defence (“Department”) for a copy of emails sent or received by a named officer between a specified period of time containing specified terms.  The Department undertook consultations under the Freedom of Information Act 1982 ("FOI Act") and then made its decision to grant the FOI applicant access to documents in part.  One of the third parties consulted with (“IC review applicant”) objected to the disclosure and sought internal review of the Department’s decision.  The Department made an internal review decision to grant access to five documents in part and to remove some additional material from one document deciding it was exempt under s 47F of the FOI Act.

The applicant sought review by the Information Commissioner ("Commissioner") of the Department's decision to grant access.

Business affairs exemption: s 47G

The Commissioner examined an unedited copy of the documents and was satisfied that the material related to the IC review applicant's business, commercial or financial affairs and was therefore conditionally exempt under s 47G(1)(a) of the FOI Act.   

Unreasonable adverse effect

The Commissioner held that the documents contained material that was sensitive in nature.  The Commissioner agreed with the IC review applicant that disclosure could reasonably be expected to cause damage to the IC review applicant’s business as defence officials would be less likely to volunteer for leadership roles within the IC review applicant and members of defence, their families and veterans would be deterred from seeking support services out of fear that their personal information and their communications may be disclosed.  This would also decrease the viability of the IC review applicant as an enterprise.

Public interest: s 11A(5)

The Commissioner considered that the factors against disclosure outweighed the factors in favour of disclosure.  The Commissioner agreed that disclosure would enhance transparency, accountability and public debate.  However, disclosure of the material would affect the operations of the Department by interfering with the Department’s ability to obtain confidential information as well as prejudice the protection of an individual’s right to privacy.  The Commissioner found that greater weight should be given to the effect of disclosure on the lawful business, commercial or financial affairs of a private business and the management function of the Department, including the ability of the Department to manage its personnel.  There was a strong public interest in protecting the ability of the Department to manage its staff, particularly in relation to its ability to maintain confidentiality around information relevant to highly sensitive issues.

HELD:

The Commissioner set aside the decision of the Department and held that the material in the documents that were the subject of the review that the IC review applicant contended was exempt under s 47G, was exempt.  The Commissioner affirmed the remainder of the Department’s decision.

'VO' and Northern Australia Infrastructure Facility (Freedom of information) [2020] AICmr 47 (11 September 2020)

The applicant applied to the Northern Australia Infrastructure Facility (“NAIF”) for access to documents relating to an investment proposal that sought financial assistance for the proposed North Galilee Basin Rail Project.  The decision under review was ultimately the third made by the NAIF (“Decision”), and determined that 55 documents were exempt in part and 18 documents exempt in full, under one or more of ss 42, 45, 47(1)(b), 47C, 47E(d) and 47F of the Freedom of Information Act 1982 (Cth) ("FOI Act"). 

The applicant sought review by the Information Commissioner ("Commissioner") of the 68 documents to which exemptions were claimed in full or in part in that final decision.

Legal professional privilege (s 42)

On examining the documents claimed to be exempt under s 42, the Commissioner noted that they related to legal advice sought or received from the Australian Government Solicitor, which had been independently consulted to provide legal advice.  Therefore, the Commissioner agreed that the documents were brought into existence for the dominant purpose of giving or receiving legal advice and attracted legal professional privilege.  The Commissioner agreed that privilege had not been waived and determined that s 42 of the FOI Act applied.    

Material obtained in confidence exemption (s 45)

The Commissioner was satisfied that the information was provided on a confidential basis to the NAIF by a third party who was a potential proponent. Further, it was apparent from the third party’s objections to disclosure of the documents that disclosure of the material had not been authorised.  In addition, the information claimed to be exempt under this provision satisfied all five criteria set out in the FOI Guidelines issued by the Commissioner’s office under s 93A of the FOI Act (“FOI Guidelines”) in relation to this exemption. The Commissioner found that the documents claimed to be exempt under s 45 were properly claimed as exempt under that provision. 

Certain operations of agencies exemption (s 47E(d))

The Commissioner found that the NAIF’s submissions were framed in general terms and the FOI Guidelines required an agency to apply the public interest test to the particular document to decide whether an exemption claim should be upheld at that time.

Given the NAIF did not provide sufficient particulars to substantiate, among other things, the basis on which disclosure of the documents would affect its operations in the required manner, the Commissioner was not satisfied that the disclosure of the documents would have the predicted substantial adverse effect on the NAIF’s operations in the context of receiving and assessing investment proposals.

Commercially valuable information exemption (s 47(1)(b))

Despite the submissions made by both the NAIF and the relevant third party commercial entity, the Commissioner found that s 47(1)(b) did not apply, as the documents were general rather than technical in nature.  The documents did not contain any information as to how the third party designs or develops its commercial operations or the viability or profitability of the business. Further, due to the age, specific content and nature of the material in the documents, the Commissioner thought it unlikely that a genuine ‘arm’s-length’ buyer would be prepared to pay to obtain the information contained in those documents. 

The Commissioner also noted that the submissions of the NAIF and the third party did not identify with sufficient particularity what the commercial value of the documents were said to be, or how disclosure would reduce the value of their business operations or commercial activity.

Business affairs exemption (s 47G)

The Commissioner agreed the documents at issue related to the business affairs of NAIF. However, the Commissioner gave greater weight to the factors in favour of disclosure.  The Commissioner considered that disclosure would further transparency and accountability with respect to the NAIF’s assessment of investment proposals.  In addition, the Commissioner noted that neither the NAIF nor the commercial third party provided any evidence to support their contentions, nor adequately explained how or why disclosure of the relevant material would, or could reasonably be expected to have the claimed unreasonable adverse effect on the third party’s lawful business, commercial or financial affairs. 

Prejudice the future supply of information (s 47G(1)(b))

The Commissioner took into consideration the third party’s objection to the release of the information they provided to the NAIF, but was not satisfied that the claim of prejudice was made out.  The Commissioner found it is in the interests of a commercial entity to provide accurate information to the NAIF when seeking financial assistance for their project, and to be responsive to the NAIF’s requests for information relevant to the eligibility criteria for financial assistance.

Deliberative processes exemption (s 47C)

The Commissioner agreed that the documents claimed under this exemption contained deliberations in the form of advice and recommendations on matters relevant to the NAIF’s consideration of the third party’s investment proposal, so meeting the conditional exemption.  The Commissioner also noted that the material was not purely factual in nature nor operational information.  The Commissioner then proceeded to consider relevant public interests.

Public interest: s 11A(5)

The Commissioner determined that factors for disclosure outweighed the factors against disclosure.  In particular, that disclosure would enhance the scrutiny of government decision-making and further promote the objectives of the FOI Act. 

HELD:

The Commissioner affirmed the NAIF’s decision in respect of the documents claimed to be exempt in parts or in whole under ss 42 and 45 of the FOI Act.  However, the other exemptions claimed on Commissioner review did not apply.