Recent Cases: Commonwealth

'ADW' and Department of Health and Aged Care (Freedom of Information) [2023] AICmr 59 (13 July 2023)

ADW ("applicant") applied to the Department of Health and Aged Care ("Department") for access to documents.  The Department identified 31 documents falling within the scope of the request and refused access to 29 of those documents in full, relying on the exemptions in s 47(1)(b) of the FOI Act.  The remaining documents were refused access in full under the business affairs exemption in s 47G of the FOI Act.

The applicant sought internal review of the Department's decision to some but not all of the disputed documents.  The Department made its decision and provided the applicant with access to one document in full and 34 documents in part, relying on the trade secret or commercially valuable information exemption in s 47(1)(b) of the FOI Act.

The applicant then sought an Information Commissioner ("Commissioner") review.  Subsequently, the Commissioner advised the Department that they would review their decision under s 54Z of the FOI Act.

At a later date, the Department made a revised decision and found 37 documents falling within the scope of the request.  In making its decision, the Department granted access to 1 further document in full, 7 documents in part and refused access to the remaining materials.

The applicant confirmed that they wished to proceed with the review.  As a result, the Department made a further revised decision under s 55G of the FOI Act.  In this instance, the Department provided access to a further 7 documents - 3 in full and the remaining in part.  In making its decision, the Department relied on the exemptions in ss 47(1)(b) and 47F of the FOI Act.  However, the applicant advised that they wished to continue with the IC review.

Issues

The Commissioner's primary consideration was whether the documents sought were exempt under the claimed provisions.  The Commissioner also considered whether the Department had complied with s 24A of the FOI Act.

Reasoning

Documents may be edited to delete irrelevant material - s 22

The applicant submitted that the nature of the edits made to the documents raised concerns as to whether a proper assessment had been undertaken.  The Commissioner found that, to the exception of the applicant's name, the edited documents removed information concerning third parties, therefore were appropriately edited for the purposes of s 22.

Whether reasonable steps taken to locate documents - s 24A

The Department submitted that the documents sought were held by a third party organisation rather than the Department itself and that it had taken reasonable steps to locate them.  Nevertheless, during the review the Department went on to engage with the organisation to locate the documents.  Where the documents were not held by the Department at the time of the FOI request, it relied on the adequacy of searches conducted by the organisation itself.

Having considered evidence of searches by the Department and in consideration of the fact that the request involved documents held by a third-party organisation, the Commissioner was satisfied that the Department took all reasonable steps to search for documents falling within the scope of the request.

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

The Department submitted that the third-party organisation shared the information in the documents with it on the basis that the information would be treated confidentially. Additionally, the Department submitted that the information was crucial to the organisation’s operations as a provider of health services as it provided them with a competitive advantage in that market.

While the applicant acknowledged that the release of some information might provide competitors with a competitive advantage, it rejected the contention that this would deem the entire document exempt. 

In order to meet this exemption, the Commissioner considered the passage of time and whether the documents currently retain commercial value.  It agreed that the performance reviews, financial and audit reports contained important information.  However, the Commissioner was not satisfied that a sufficient explanation had been provided to explain why the information in the documents continued to retain commercial value, given the passage of time.

Having regard the age of the documents and their contents, the Commissioner could not substantiate that disclosure of the documents would confer a competitive advantage on the third-party organisation. Therefore, the Commissioner held the document was not exempt for the purposes of s 47(1)(b) of the FOI Act.

Personal privacy exemption - s 47F

The Commissioner considered the reasons for and against disclosure of the personal information in the documents.  Where the names of individuals had been disclosed to the applicant in other documents falling within the scope of their request, and where the context of the information is connected to those names known, this was a factor weighing in favour of disclosure. 

Where there was no evidence of names or information not being known or disclosed to the applicant in other documents these factors weighed against disclosure.  The Commissioner also considered that there was greater weight against disclosure with consideration of the sensitivity of the information and the potential impact on privacy of the individuals.  

On weight up the factors for and against disclosure under s 47F of the FOI Act, the Commissioner was required to determine whether disclosure at this time would be contrary to the public interest.  The Commissioner acknowledged disclosure would promote the objects of the FOI Act, however the right to privacy for individuals was of significance, the documents included health information and, while this may have been known to the applicant, the sensitivity of this information and the expected objection to disclosure of the information (as consultation had not occurred), outweighed the factors in favour of disclosure.  Therefore, information of some individuals was found to be conditionally exempt under s 47F.

Walker Group Holdings Pty Ltd and Australian Conservation Foundation Incorporated (Freedom of information) [2023] AATA 2307 (1 August 2023)

The Australian Conservation Foundation Incorporated (“ACF”) requested access to certain documents from the Department of Climate Change, Energy, the Environment and Water (“Department”).

The Department consulted Walker Group Holdings (“applicant”), whose business affairs were identified in the documents, on the basis that the Department considered that the applicant might have made a contention that the documents were exempt under s 47 of the FOI Act or conditionally exempt under s 47G of the FOI Act.

The applicant made all of those contentions.  However, the Department decided to grant access to the documents and subsequently the applicant sought an IC review.

During the course of the review, the Commissioner held that it was in the interests of the administration of the FOI Act, pursuant to s 54W that the Administrative Appeals Tribunal (“Tribunal”) determines the matter. Seven documents were in issue in the two separate reviews at the Tribunal.

Issues

The primary issue was whether the seven documents were exempt under the claimed exemptions. 

Held 

None of the seven documents in issue were exempt under s 47 of the FOI Act. 

Reasoning

Adversely affect business - s 47G(1)(a)

The Tribunal rejected the claimed conditional exemption of s 47G(1)(a) in relation to documents 1, 1b, 1c and the remaining four documents in question. 

The applicant’s submission that the information contained in Document 1 contained false, misleading or inaccurate statements that could have had an adverse effect on his commercial affairs was not accepted.  Rather, the Tribunal held that the applicant had the means to correct the statements himself as had been demonstrated by the review itself.  The applicant submitted that it’s future business dealings and lawful business would be unreasonably affected by the disclosure through the information in the documents being disclosed in an isolated manner, without context, where legislation includes a public disclosure regime which requires detailed documentation to respond to a mandated terms of references and where that statutory procedure could be undermined by this disclosure out of context.  In response to these allegations, the Tribunal reiterated the wording of s 47G(1)(a), highlighting that the provision requires an ‘adverse’ effect, rather than an ‘unreasonable’ effect.  Further, the Tribunal stated that a decision to release documents under the FOI Act does not involve a warranty that a document released will be other than what it purports to be.  The FOI Act is not to be construed in a way so that documents released become a part of another legislative approval process and release of documents under that process without context produces an unreasonable affect without more information. 

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

Given that the information was put forth by the applicant in pursuit of obtaining approval under the EPBC Act, the Tribunal found it unlikely that fear of disclosure under the FOI Act would result in a refusal by the applicant and other developers like the applicant to give information to the department and engage openly with it in the future.  The Tribunal held that there was no evidence presented to support the claims made or to suggest that the applicant had any misconceptions about the provisions of the FOI Act.  Therefore, the Tribunal rejected the claimed exemptions under s 47G(1)(b) in relation to all seven documents in question.