The Freedom of Information Act 1982 (Cth) (FOI Act) gives anyone the right to access documents and information held by government. While the aim is to increase transparency and public participation in government processes, recently, we have seen an increase in FOI requests for access to business documents of private sector companies which happen to be held by government.
Governments can hold information about private companies for a number of reasons – for example, materials provided in response to a tender, under a contract, as part of regulatory reporting. Some of this information can be highly commercially sensitive. All can be accessed through the FOI process – which will include publication of the information to the world at large[1] - unless an exemption applies. It does not matter if this information belongs to the Commonwealth government or another entity like private companies who deal with the government – as long as the document is in the government’s possession.
When this happens, Commonwealth government agencies are required to consult with any ‘affected third party’. This process gives the party an opportunity to provide their views about whether the documents (or parts of the documents) should be released, and in particular, about what harm could be suffered if a competitor (and the public generally) gains access to this information.
As a general proposition, the agencies holding this information are often sympathetic to the commercial concerns about releasing this type of information to the public, and open to accepting that exemptions need to be applied to protect business documents.
However, an independent review of the agency’s decision can be sought by the Office of the Australian Information Commissioner (IC). We have seen a number of IC decisions taking a strict approach to applying exemptions (consistent with their role in the scheme) which practically has allowed business documents (or at least, parts of these documents) to be disclosed, even when they are claimed to be confidential in nature, unless there is compelling evidence that specific harm or damage will result from release.
This alert provides an overview of the relevant provisions of the FOI Act and guidance for responding to third party consultation letters issued by agencies, to best ensure your confidential commercial information is protected from release.
Responding to third party consultation requests
The FOI Act regime proceeds from the starting position that documents held by the Commonwealth government and its agencies should be released. This starting position is only deviated from if a specific exemption applies. Usually, this requires the ‘public interest’ test to be satisfied. This can be achieved by demonstrating that the harm or damage an entity would suffer from release would outweigh any public benefit.
Where an FOI request for access to documents includes business documents, the agency needs to engage in consultation with any affected third party, prior to those documents being released.[2]
What is within scope?
Generally, a person has a legally enforceable right to access documents held by Australian Government Ministers, most Commonwealth agencies and in some circumstances, contractors of the government.
If you have:
- provided documents or information to the Commonwealth government (think regulatory reporting)
- contracted with the Commonwealth government (contracts, services, RFQ responses, proposed pricing models)
- otherwise had some involvement with the Commonwealth government (have you sent an email to a Department about your taxes, hosted an event for a Minister?)
your commercial information could be produced pursuant to an FOI Act request because it is part of a document of the Commonwealth.
Any document held by the relevant agency can be the subject of a request if those documents fall within the scope of the Applicant’s request for access, at the time the request is made. You may not be actually told what the scope of the FOI request is – only that one has been made and that documents containing your information come within scope. Those documents must then be disclosed if an exemption does not apply.
If the scope of the request captures ‘business documents’ – including in relation to the business, commercial or financial affairs of someone who has transacted with government – then the agency needs to consult with any affected third party prior to making a decision about whether or not to release documents.
Importantly, the scope of a request extends only to documents that were held and within scope at the time the request for access was made. This means that, for example, variations to contracts executed after the date of the request for access are not within scope and should not be handed over.
What if you don’t want your documents handed over?
As set out above, the starting position is that the documents that come within scope will be disclosed, not just to the person who made the FOI request but published on the internet on the agency’s disclosure log. However, access does not need to be given if the decision maker determines a document or parts of a document are ‘exempt’ within the meaning of the FOI Act.
For business documents, the most common exemptions are:
- s 47 (documents disclosing trade secrets or commercially valuable information)
- s 47F (public interest conditional exemptions – personal privacy)
- s 47G (public interest conditional exemptions – business)
- 47G(1)(a) – disclosure would, or could reasonably be expected to, unreasonably affect business, commercial or financial affairs
- 47G(1)(b) – disclosure could be expected to prejudice the future supply of information to the Commonwealth or an agency
- s 22 (irrelevance).
In responding to a third-party consultation letter, it is important to particularise and evidence how one or more exemptions apply to each aspect of the document (or at least, those aspects of the documents you are most concerned about). This needs to include what is the harm that would be suffered if the information or document was released and ideally, be supported by examples.
It is common for parts of documents to be exempt and redacted, and for other parts to be released. For example, as a common position, we are seeing the IC requiring commercial parties to justify why an exemption applies to each clause of a contract, rather than simply accepting that an exemption applies to the document as a whole.
Protecting your business information
Once a response to a third-party consultation is provided (or at least the opportunity to respond), the agency will make a decision about whether to release the documents, either in whole or with parts redacted.
If either you or the person requesting the materials do not agree with the agency’s decision, a request for independent review of the decision can be made to someone else within the agency, or to the IC.
In our recent experience, the IC is unlikely to accept a general assertion from a third party that an exemption applies, in particular that a document is simply ‘confidential’. There needs to be a robust and specific explanation about why this is the case, ideally supported by examples.
We have also seen the IC requiring third parties to provide an explanation for each part of a document, rather than accepting that exemptions apply to the entire document in the absence of a robust explanation about why that is the case. For example, we have seen claims that entire contracts are confidential not succeed, and the IC require an explanation about why each clause is subject to an exemption.
The IC decision can also take some time, with some decisions taking a number of years. This may affect the ‘potency’ of information being requested and make it harder to later claim an exemption. For example, if the documents contain information about business arrangements that are no longer in place, then the IC may find they are no longer confidential.
If you are unhappy with the IC decision, it is possible to appeal to the Administrative Appeals Tribunal. At this stage, your organisation needs to be willing to file evidence (or support the agency to file evidence – this would likely need to be affidavit evidence) that makes out the relevant exemption, and there are complex jurisdictional issues which apply to third parties which need to be navigated.
Contact KWM
KWM works closely with agencies and affected third parties to provide support and guidance in responding to requests for access to business documents made under the FOI Act.
We are also experienced in the FOI regimes of the States and Territories, as well as the Commonwealth.
Please contact us if you’d like to understand any aspect of this alert in more detail or explore how you can leverage our experience and expertise.
FOI Act, s 3(1).
FOI Act, s 27.
