Government agencies and your trade secrets

THERE have been a number of recent newspaper articles and other publications reporting and commenting on a recent decision of the Freedom of Information Commissioner regarding an application to obtain information from the Department of Water and Catchment Protection.

The information related to operations conducted by a Western Australian company.

Reporting and commentary on the FOI Commissioner’s decision had created some confusion.

This note attempts to shed some light on this issue.

The company applied to the FOI Commissioner to review a decision of the Department of Environment to release information concerning the company’s operations.

The information sought to be released under the Freedom of Information Act was found to be of ‘commercial value’ to the company, as distinct from information that may be commercially sensitive.

Information that has commercial value is exempt from disclosure by virtue of Schedule 1, clause 4 (2) of the FOI Act.

On finding that the information is exempt under that clause because of its commercial value to the person or organisation, the FOI Commissioner is not required under the FOI Act to consider public interest arguments.

While the term ‘commercial value’ is not defined in the interpretation provisions of the FOI Act, it has been defined through case law and includes information that ‘is valuable for the purposes of carrying on the commercial activities of a person or organisation and may attach to information that concerns the nature of techniques used in, and the actual results of, tests carried out.

Information that is commercially sensitive to an organisation may not necessarily be of ‘commercial value’ as that term is used in the FOI Act.

Secondly, it has been reported that the information, subject to this decision, was ‘emissions data’.

That reference to emissions data is too broad.

The scope of information found to be exempt from release to the public was much more limited and specific to the company’s operating procedures.

It is incorrect to say, therefore, that ‘emissions data’, as that term is generally understood, was held to be exempt.

When releasing information to government agencies, that may otherwise be seen as necessary to comply with statutory or voluntary reporting requirements, companies will need to ensure that this information in itself, or when combined with information already in the public domain, is not of commercial value or does not represent a trade secret.


Gretta Lee - 9429 7506

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