Burgess; Secretary Department of Veterans' Affairs and (Freedom of Information)

This matter concerned an application under s 57A of the *Freedom of Information Act 1982* (Cth) for review of a decision by the Information Commissioner. The Commissioner had determined that a policy schedule for professional indemnity insurance, issued to the Veterans Indemnity and Training Association (VITA) by CGU Insurance Ltd, was not an exempt document under s 55K of the Act. The Department of Veterans Affairs, which partially funded VITA and its insurance, had requested and received a copy of the document from VITA with the understanding that it would be kept confidential. The applicant, Mr Burgess, sought access to this document.

The central legal issue before the Tribunal was whether the policy schedule, with premium details redacted, was exempt from disclosure under s 45(1) of the *Freedom of Information Act 1982* (Cth). This provision states that a document is exempt if its disclosure would found an action for breach of confidence by a person other than a Commonwealth agency. The Tribunal was therefore required to consider whether the disclosure of the document would breach an obligation of confidence owed by the Department to VITA.

The Tribunal reasoned that for an action for breach of confidence to be founded, three elements must be established: (1) the information must have the necessary quality of confidence; (2) the information must have been imparted in circumstances importing an obligation of confidence; and (3) there must be an unauthorised use or disclosure of the information to the detriment of the party communicating it. The Tribunal found that the policy schedule possessed the necessary quality of confidence, having been provided by VITA to the Department with an explicit understanding of confidentiality. Furthermore, the circumstances of its provision imported an obligation of confidence, and VITA had not authorised its disclosure to third parties. The Tribunal concluded that the disclosure of the document would indeed found an action for breach of confidence.

Consequently, the Tribunal set aside the decision of the Information Commissioner and determined that the policy schedule was an exempt document under s 45(1) of the *Freedom of Information Act 1982* (Cth).