GIPA: The Role of Commercial Interests in Access Applications

Key Points: 

• Persons or organisations whose interests will be prejudiced by the disclosure of government information may object to that information being released.

• Key considerations against releasing government information include the extent to which that information, if released, would prejudice the commercial interests of the affected individual.

Access Applications under the Government Information (Public Access) Act 2009 (NSW) (‘GIPA Act’) are a common avenue for citizens to obtain government information, however, this information might not be released in its entirety if its disclosure would adversely affect the commercial interests of a concerned party (such as a non-government organisation whose information would be released as part of the disclosure). This was considered in Elf Farm Supplies Pty Ltd v Department of Planning and Environment [2018] NSWCATAD 277.

Background

Elf Farm Supplies Pty Ltd (‘Applicant’) is a mushroom compost producer/supplier which drafted and submitted a report to the Department of Planning and Environment (‘Department’). This report was attached to the Applicant’s request to modify a development approval granted by the Department for the purpose of building a new plant in Mulgrave, NSW.

Shortly after the Department received this request, an anonymous person requested access to the report through a GIPA Act Access Application. The Department consulted the Applicant (GIPA Act s 54), which objected to the report’s disclosure. After considering the Applicant’s objections the Department decided to provide a redacted version of the information to the anonymous person.

The Applicant sought internal review of the Department’s decision. Following internal review, the Department’s decision was affirmed. The Applicant then applied for a recommendation from the Information Commissioner. The Commissioner gave a recommendation for the Department to make a new decision considering the Applicant’s objections; however, this recommendation was also rejected by the Department. In turn, the Applicant applied for a review of this decision to the Tribunal pursuant to GIPA Act s 100 as an entity aggrieved by a reviewable government decision.

The Applicant appealed the Department’s decision claiming that there was an overriding public interest against the report’s disclosure because it was commercially valuable and disclosure would consequently prejudice the Applicant’s interests. The Applicant’s preferred position was that the report not be released at all or, if it was released, that further redactions would be made. Conversely, the Department argued that releasing the report in its redacted form would adequately protect the Applicant’s commercial interest while also stimulating public debate about odour emissions (an issue of public concern) and that the value of this debate outweighed the prejudicial effects that disclosure would have on the Applicant. The Tribunal accepted the Applicant’s argument and varied the Department’s decision, ordering that the report should be released subject to further redactions which the Applicant requested.

This Tribunal’s decision was predicated on its conclusion that releasing the information would make it reasonably likely that the Applicant would be commercially disadvantaged.

Public interest considerations against disclosure: Commercial Interests of the Applicant

The Applicant argued, and the Tribunal agreed, that there was an overriding public interest against disclosure because releasing the requested document would:

“(c) diminish the competitive commercial value of any information to any person; and

(d) prejudice any person’s legitimate business, commercial, professional or financial interest [1].”

The Applicant provided evidence from an expert who contended that whereas some details in the report might be known to others in the industry, the integration of various factors in the context of the plant would not be known to competitors and are therefore commercially valuable.

The Tribunal accepted the expert evidence and its contention that the information was commercially valuable to the Applicant because of the large cost of producing the report and because it was comprised of the Applicant’s acquired knowledge (including extensive research, consultancy advice and 50 years of experience).

Ultimately, releasing this information would have distributed the Applicant’s large investment (financial or other) in this report to its competitors, nullifying the ‘effort and cost borne’ by the Applicant in procuring this information, diminishing its commercial advantage [2]. The Tribunal held that this would have a prejudicial effect on the Applicant’s business, commercial and financial interests. Accordingly, the Tribunal ordered that the report could be released, but that any sections ‘of competitive commercial value to [the Applicant]’ would be redacted.

Takeaway

If requested information will prejudice the commercial interests of an organisation, the organisation will have the right to appeal the decision, argue why it should not be disclosed (commercial or otherwise) and possibly have the Government Agency’s decision to release the information revoked or varied. However, even though an organisation has the right to appeal this decision, it is important that they obtain compelling evidence (preferably expert evidence) to support their argument that the requested disclosure would in fact prejudice their commercial interests.

[1] Government Information (Public Access) Act 2009 (NSW) s 14 (Table 4(c)-(d)).