Case note: 'AUR' and Comcare (Freedom of Information)

This recent decision of Freedom of Information (FOI) Commissioner, Tori Pirani provides practical guidance on applying the following FOI Act exemptions: sections 47(1)(b) – Documents disclosing commercially valuable information and 47G – Public interest conditional exemptions—business.

The decision under review was a decision by Comcare to refuse access to certain documents relating to Comcare’s management of Services Australia’s workers compensation claims. The FOI request sought access to:

1. The third-party insurance company’s policies used to manage Comcare ’s Services Australia workers compensation claims.
2. The third-party insurance company’s claims management instructions.
3. The third-party insurance company’s contract management manual and other contract plans.

Following consultation with the third-party insurance company who objected to the release of certain material under ss 47(1)(b), 47G, and 47F (personal information) of the FOI Act, Comcare ultimately refused access to certain material under these provisions

47(1)(b) – Documents disclosing commercially valuable information

The FOI Guidelines provide at paragraph [5.234] that, for material to be exempt under s 47(1)(b), it must satisfy the following criteria:

• The document must contain information that holds commercial value.
• The commercial value of the information would be or could reasonably be expected to be destroyed or diminished if it were disclosed.

In her decision, the Commissioner assessed the material in question under these criteria and was not satisfied that the material was exempt under s 47(1)(b). This was because the material, while dealing with the internal business affairs of the third-party insurance company, was between five to seven years old.

While recognising that the information held some commercial value to the company, the Commissioner was not convinced that anyone would pay to obtain the information, and that due to the age of the document, was not satisfied that the information within the document retained its commercial value. The Commissioner was therefore not satisfied that disclosure would reduce the profitability or viability of the company’s business operations.

47G(1)(a) – Documents unreasonably disclosing information concerning the lawful business, commercial or financial affairs of an organisation or undertaking

The FOI Guidelines provide at paragraph [6.177] that s 47G of the FOI Act conditionally exempts documents where disclosure would disclose information concerning the business, commercial or financial affairs of an organisation or undertaking, where the disclosure of the information:

• would, or could reasonably be expected to, unreasonably affect the person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs (s 47G(1)(a)) or
• could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency (s 47G(1)(b)).

In considering this exemption, the Commissioner noted that a balance is required between the public and private interests in considering the release of such information. This however should not be conflated with the public interest test, which arises after the material has been deemed to be exempt.

This exemption is intended order to protect the interest of third parties that deal with the Government. As noted by the Commissioner in her decision, this exemption depends on the effect of the disclosure, as opposed to the precise nature of the information itself. However, in order for the exemption to apply, the documents must concern an entity’s ‘money making affairs’.

After considering the material, the Commissioner found that the majority of the material could not be exempted under this provision. The Commissioner was not satisfied that the disclosure of the majority of the material could allow the third-party insurance company’s competitors to replicate its service delivery model, due to the material at issue not being sufficiently detailed or complex, and also due again to the material being between five and seven years old.

The Commissioner did however find that that the company’s contract management manual and document regarding data security controls were conditionally exempt under s 47G(1)(a) of the FOI Act. This is because release of the Contract Management Manual would disclose the company’s agreement with Comcare and directly inform their competitors of this agreement. The Commissioner was further satisfied that the document regarding data security controls would risk compromising the company’s security.

Public interest test

Although the Commissioner was satisfied that certain material was conditionally exempt, upon applying the public interest test, the Commissioner ultimately found that, on balance, that the public interest of disclosure outweighed the interests of the third-party insurance company. This was despite putting some weight to the submission that disclosure may prejudice the commercial competitive activities of the company. The Commissioner again noted that due to the age of the documents, she could not be satisfied of the extent of the prejudice to the company’s commercial competitive activities.

In light of this, the Commissioner made the decision to release the material at issue that she had found to be conditionally exempt under s 47G(1)(a) of the FOI Act.

Key takeaways

In considering whether material should be exempted from release under ss 47(1)(b) and 47G of the FOI Act, agencies should consider the documents in their full context.

While material may have been arguably commercially sensitive at the time the document was originally created, the age of documents will be a relevant consideration in determining whether documents remain sensitive, and whether material should or should not be exempted from release.

Importantly, even if material is found to be conditionally exempt, it may still be found that release would nonetheless not be contrary to the public interest.

When undertaking consultation with third party entities, government agencies should make clear that third party entities should provide detailed and specific evidence as to the prejudice that may occur if the relevant material is released, to assist the agency in making the correct and preferable decision.

Note: We do not discuss the Commissioner’s consideration of s 47F of the FOI Act. You can read the full decision here.