C H Real Estate Pty Limited (t/a Raine & Horne Commercial, Penrith) v Penrith City Council
[2005] NSWADT 147
•06/30/2005
CITATION: C H Real Estate Pty Limited (t/a Raine & Horne Commercial, Penrith) v Penrith City Council [2005] NSWADT 147 DIVISION: General Division PARTIES: APPLICANT
CH Real Estate Pty Limited (t/a Raine & Horne Commercial, Penrith)
RESPONDENT
Penrith City CouncilFILE NUMBER: 043331 HEARING DATES: 28/02/2005 SUBMISSIONS CLOSED: 02/28/2005 DATE OF DECISION:
06/30/2005BEFORE: O'Connor K - DCJ (President) APPLICATION: access to documents - business affairs - Freedom of Information Act - access to documents - business affairs MATTER FOR DECISION: Principal matter LEGISLATION CITED: Freedom of Information Act 1982 (Cth)
Freedom of Information Act 1989
Ombudsman Act 1974CASES CITED: Re Organon (Australia) Pty Ltd and Department of Community Services and Health; Public Interest Advocacy Centre (1987) 13 ALD 588
Re Pfizer Pty Ltd & anor and Department of Health, Housing and Community Services (1993) 30 ALD 647
Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37
Wittingslow Amusements Group v Environment Protection Agency (NSWSC, 23 April 1993)
Raethel v Director General, Dept of Education and Training [1999] NSWADT 108
Schlebaum (No 2) v Director General, Dept of Community Services & anor [2001] NSWADT 214
Re Attorney General's Dept and Cockcroft (1986) 64 ALR 97REPRESENTATION: APPLICANT
J Drummond of counsel instructed by Bateman Battersby, solicitors
RESPONDENT
S Britten, solicitor, Penrith City CouncilORDERS: 1. The respondent's determination is varied; 2. The respondent is to refuse to grant access to the information itemised in para [60] of the Tribunal's reasons
1 CH Real Estate Pty Ltd (CH) trades as Raine & Horne Commercial, Penrith. It is the applicant in these proceedings. In September 2003, after a competitive tender process, it was engaged by Penrith City Council (the Council) to act as the Council’s agent for the marketing, promotion and sale of a large parcel of industrial land owned by the Council, known as Proposed Lot 100 Regentville Road and Mulgoa Road, South Penrith.
2 One of the unsuccessful tenders, Pullman & Williams, Commercial and Industrial Real Estate Agents, Penrith (P & W) applied to the Council under the Freedom of Information Act 1989 (FOI Act) for access to the tender documents submitted by the other tenderers, including CH. The exemption category of direct relevance to the request was cl 7 of Schedule 1 to the FOI Act, the business affairs exemption:
- ‘ 7 Documents affecting business affairs
(1) A document is an exempt document:
(a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or
(b) if it contains matter the disclosure of which:
- (i) would disclose information (other than trade secrets) that has a commercial value to any agency or any other person, and
(ii) could reasonably be expected to destroy or diminish the commercial value of the information, or
- (i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and
(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.
3 The Council consulted CH, as required by s 32:
- ‘ 32 Documents affecting business affairs
(1) This section applies to a document that contains:
(a) information concerning the trade secrets of any person, or
(b) information (other than trade secrets) that has a commercial value to any person, or
(c) information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any person.
(2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 7 of Schedule 1.
(3) If:
(a) an agency determines, after having sought the views of the person concerned, that access to a document to which this section applies is to be given, and
(b) the views of the person concerned are that the document is an exempt document by virtue of clause 7 of Schedule 1,
the agency shall:
(c) forthwith cause written notice to be given to the person concerned:
- (i) that the agency has determined that access to the document is to be given, and
(ii) of the rights of review and appeal, and the rights of complaint to the Ombudsman, conferred by this Act and the Ombudsman Act 1974 in relation to the determination, and
(iii) of the procedures to be followed for the purpose of exercising those rights, and
4 Following consultation, the Council granted P & W access to the document of one of the unsuccessful tenderers, but refused to grant access to CH’s document. P & W exercised its right to complain to the Ombudsman. By report dated 19 August 2004, the Ombudsman recommended to the Council that it redetermine the access application, as permitted by s 52A of the FOI Act; and grant P & W access to CH’s tender document.
5 Council proceeded to make a further determination on 7 September 2004, and decided to give P & W access to the entire document. The Council’s Public Officer (Mr Hackett) stated in his letter of advice to CH that:
- ‘The reason why I have now determined to release these documents is primarily because of advice contained within the Ombudsman’s Report that documents contained within your above submission [the tender document] did not contain ‘intellectual property and would disclose trade secrets’. Additionally, as the sale of the property in question concluded approximately 6 months ago, it is considered that the reasons that prevented the non-release of those documents to the Applicant at that time (confidential items relating to the proposed sale of the property in question) are no longer relevant considerations.’
6 These were the only reasons given, and the Council advised CH of its right to apply for external review by the Tribunal. By application filed 8 October 2004, CH exercised that right: s 53(3)(b)(ii), FOI Act. This decision deals with that application.
7 The Tribunal held a confidential hearing of CH’s application on 28 February 2005. Relevant Council officers attended the hearing to assist as desired, stating that the Council would submit to the outcome. P & W elected not to attend the hearing. It notified the Tribunal that it relied on the Ombudsman’s report.
8 CH maintains the contention that it made unsuccessfully to the Ombudsman and to the Council on redetermination. In its view the tender document contains its intellectual property. A rival would, if it obtained access to the document, be able to exploit CH’s know-how to its advantage, thereby adversely affecting CH’s ability to compete in future for similar appointments.
9 The Tribunal had the following documents before it:
- (i) a history of the matter provided by the Council, including the request by P & W and the various decisions taken (confidential to the Tribunal as to the attachment)
(ii) the tender document (confidential exhibit)
(iii) Ombudsman’s report, dated 19 August 2004 and the covering letter forwarding the report to Council with comments, dated 22 September 2004
(iv) written outline of applicant’s submissions
(v) Affidavit of Paul Kennedy, a principal of CH (confidential).
10 The Ombudsman’s report was mainly concerned with administrative deficiencies in the way Council handles FOI applications which were revealed by the case. The report was critical of the reliance placed by Council on cl 7(1)(a), the ‘trade secrets’ category of exemption. The relevant paragraphs of the Ombudsman’s report are [6.3.1-6.3.6], [7.2.1-7.2.4] and [7.3.1-7.3.10].
11 The report noted that the document had over 100 pages, and described them at [6.3.3] as dividing up as follows:
- (i) 67 pages were ‘copies of previously published brochures of successful property sales handled by the company’
(ii) 5 pages were ‘tables of publicly available information about sales in the Penrith area’
(iii) 6 pages contained ‘publicly available details of the company and its personnel’
(iv) the covering sheet of the document, the contents page, and covering letter to Council
(v) various pages that consisted of ‘such publicly available material as a description of the property and the site, a market review including market consumption rates, market trends, sales achievements, industrial properties sold by the agent, development site statistics and target market.’
12 In these proceedings CH has not been concerned to protect the whole document. It accepts that a large proportion of the document consists of promotional information of a general kind. The document has 116 pages numbered from 0 (the covering page) to 115 (markings have been placed on the document to signify this, as the actual page numbering ends at page 27). The material to page 28 is the tender-specific comment. The material from page 29 onwards comprises descriptions of ‘key personnel’ (pp 29-31); description of ‘the company’ (pp 32-33); copies of advertisements for recent auctions (pp 34-43); summary of recent deals achieved in the Penrith area (pp 44-45); pictures of ‘our team’ (p 46); more auction and sales advertisements involving Raine & Horne, Commercial Penrith (pages 47 to 115).
13 CH sought to protect the following pages, and relies on the following exemption categories:
- Pages 6 to 9; 10; 11-14; 16: cl 7(1)(a), trade secrets; cl 7(1)(b), information of commercial value; cl 7(1)(c), prejudicial disclosure of business information.
- Pages 15; 17-18; 19; 20-21; 22-26 and 28: cl 7(1)(a); cl 7(1)(b); and cl 7(1)(c).
14 The above division into two groups was made on the basis that the first group involved comments and assessments directly derived from CH’s internal database, and the second, though ‘not based’ upon the database (see counsel’s written submissions, p 4), was the result of extensive work and development over many years and thereby had significant value.
15 The next claims relate to:
- Page 1 (Contents page): cl 7(1)(b) only.
- Page 2 (Executive Summary): cl 7(1)(b); cl 7(1)(c).
- Pages 29 to 31 (Key Personnel): cl 7(1)(b); cl 7(1)(c).
- Pages 68-115: The Complete Commercial Guide: cl 7(1)(b); cl 7(1)(c).
16 The third and fourth items in the latter list were not seriously pressed at hearing, and they are not further considered. Pages 29 to 31 contain biographies of the people intended to work on the sale, and the Complete Commercial Guide is a long listing of auction and sales advertisements in relation to properties handled by Raine & Horne in recent times. While there may be some discomfort to CH in having such a list known to its competitors it is not the kind of information that could, tenably, be said to fall within categories (b) or (c) of cl 7(1). These two items are not further considered in this decision.
17 CH took issue in its submission to the Tribunal with the following statements in the Ombudsman’s report:
- - There is no information contained in the submission that appears to meet the essential pre-condition for a ‘trade secret’, i.e. that it was secret information, created by CH through their intellectual effort and based on their particular formula or strategy and that would not have become publicly available during the course of the marketing campaign.
- The ‘pricing and sales process of this company’ as disclosed in the submission would be fairly standard practice in the industry in most respects. In the areas of real estate marketing, it is reasonable to assume that, by their very nature, the methods used would be public or at least common knowledge within the industry.
18 CH objected strongly to the Ombudsman’s repeated characterisation of the information in issue as ‘publicly available’ material and nothing more. It acknowledges that it has derived information from public sources, but its contention is that it has reprocessed and re-presented it in such a way that it now has a proprietary character. The way in which it has reprocessed and re-presented the data would, it submits, reveal to a rival information about the intellectual methods it uses in formulating submissions.
19 The Ombudsman’s observation relating to the pricing and sales process of the company, in the Tribunal’s opinion, tends to oversimplify CH’s case. Real estate agents, like other commercial parties interested in the operation of complicated markets, have techniques of a well-known kind for the gathering and analysis of data much of which data is public in origin. That does not therefore mean that the reprocessed data and any higher-order analytical tools developed by a business which it then applies to the data might not themselves have a proprietary character. Similarly the output data resulting from the use of those tools may have a proprietary character.
20 Mr Kennedy, the principal of CH, gave oral evidence in addition to his affidavit evidence. He referred to the pace of development and growth that is occurring in Western Sydney. He has been involved in the industrial property market for 38 years, 21 years of which have been devoted to major retail. A measure of his standing is found in the fact that he has been appointed to a number of official economic development committees in the Penrith area.
21 Mr Kennedy explained that CH had sought over many years to establish itself as an agency of expertise in relation to the marketing and sale of industrial and commercial land in the Western Sydney region, especially in the Penrith district. It had established and maintained a massive database relating to the zoning and sales history of property of this kind. It compiled information as to the precise type of industrial or commercial use to which land sold had been put, the overall distribution of uses of that kind as well as broader social information to do with demographic and population trends. This work had made it possible for it to more effectively market new sites, identify types of purchasers and make estimates as to likely price. It had maintained demographic and other broader social information about population trends.
22 It had invested over many years a great amount of effort and staff time into keeping track of this information and feeding it into its internal databases. It acknowledged that much of the information was in its original form retrievable from publicly available databases. But the way in which it had reprocessed and reconfigured it was what it sought to protect. By way of example it referred the Tribunal to various graphs contained in the parts of the document which it sought to protect which detailed various patterns and trends drawn from its database.
23 Mr Kennedy explained how he had tried over recent years to develop analytical tools which assist him in forecasting trends and needs in the Penrith market. He placed before the Tribunal the primary internal document from which the data that was used in the marketing proposal was drawn. He is concerned that if the data contained in the marketing proposal is made known, P & W, and any other rivals that get access to the document, will be able to reason back from that material and work out the factors which CH concentrates on when examining its input data, and also derive a closer understanding of the kind of input data it seeks out.
24 Mr Kennedy points to the fact that CH got it almost exactly right as to what price the parcel of land was likely to fetch. He attributes that ability largely to the sophistication of its data capture and analysis practices. He says that CH had invested almost $600,000 in staff time alone in capturing data and developing its analytical models. It would, in his opinion, place that investment very much at risk if the key parts of the document in dispute were to be known.
25 Business Affairs Exemption. Cases raising the business affairs exemption often involve a consideration of each of three categories of exemption found in cl 7. An example is Re Organon (Australia) Pty Ltd and Department of Community Services and Health; Public Interest Advocacy Centre (1987) 13 ALD 588. An importer of a product (intrauterine contraceptive devices) had, as required, given information to a regulatory body in connection with an application for a permit to import. A community legal service acting for users of the product sought access to this information under the Commonwealth Freedom of Information Act 1982. The importer objected; and the regulatory body refused to release the material. The community legal service applied for review of the decision.
26 The documents in dispute were described by the Administrative Appeals Tribunal as all forming part of Organon’s ‘marketing application’ to the relevant government body. It was noted that Document 3 included information of a statistical nature, provided in response to a specific request. The AAT upheld the refusal to release four documents on the basis, respectively, that the withheld information constituted ‘trade secrets’ (Documents 1 and 2 in the proceedings), had ‘commercial value’ (Documents 1, 2 and 3), and that disclosure could reasonably be expected to unreasonably affect adversely the business affairs of the company as well as the future supply of information to the government (Document 5).
27 A later Federal case along similar lines is Re Pfizer Pty Ltd & anor and Department of Health, Housing and Community Services (1993) 30 ALD 647. In that case the manufacturer was concerned to prevent information submitted to the Department as part of the approvals process relating to its pharmaceutical product being disclosed to generic manufacturers. The AAT held that data concerning the manufacture, analysis, formulation, quality control, distribution and sales of the product was exempt both on the basis that it contained trade secrets and that it was information of commercial value, the disclosure of which would prejudice the agency’s ability to get similar information in future.
28 Trade Secrets. In this case, the Ombudsman noted that there were a ‘limited number of pages’ of the document which consisted of ‘information that had not been made public, at least at the time the submission was given to Council’. It went on to state that this material could have been protected, at least until the sale process was complete, under the internal working documents exception (cl 9 of Schedule 1 to the Act). The Ombudsman considered that apart from that information, there was nothing in the document that met the essential precondition for a ‘trade secret’, that it was secret information created by CH through its intellectual effort and based on its own formula or strategy that would not have become publicly available during the course of the marketing campaign. Counsel for CH noted that the Ombudsman produced no evidence to support this assessment.
29 The Ombudsman’s interpretation misunderstands, the Tribunal considers, the position being put by CH. CH’s position was that scrutiny of the part of the tender document it wishes to protect would reveal to an informed observer the methods it uses to analyse, organise and present relevant data. CH’s concern, as the Tribunal understood its submissions, was not so much to protect the bald data, but rather to protect the intellectual processes it applies to that data.
30 In reaching the conclusion that the ‘trade secrets’ category of exemption was not established, the Ombudsman was guided by the meaning of ‘trade secret’ given by Gowans J in Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 at 49. These dicta were also relied upon, to support the opposite conclusion, by counsel for CH.
31 In that case the plaintiff was a manufacturer who dominated the rubber glove market in Australia and in a number of overseas markets. It had sued a rival company for misuse of trade secrets and confidential information after senior employees had moved to the rival and taken advantage, it asserted, of secrets and knowledge they had acquired while in the plaintiff’s employment about, in particular, its automated glove-making machines. Its manufacturing technology involved some processes that were well known, with aspects being the subject of public patents. But there were other aspects which it had devised internally and saw as unique. To that end, the plaintiff had imposed strict secrecy policies on all employees. The defendant’s reply was that the only knowledge used by the rival was knowledge of the usual kind possessed by employees with their skills and qualifications. The Court found for the plaintiff.
32 The importance of the case for present purposes lies in its discussion of a situation where it is recognised that some, at least, of the information that may fall to be protected belongs to the public domain. The Court said at 49 that in assessing whether a particular set of processes, designs or machinery qualifies for protection as confidential information or a trade secret:
- ‘Its subject matter may not be a process in common use, or something which is public property and public knowledge, but if it is the result of work done by the maker upon materials which may be available for the use of anybody, so as to achieve a result which can only be produced by somebody who goes through the same process, it will be sufficient. All of its separate features may have been published, or capable of being ascertained by actual inspection of any member of the public, but if the whole result has not been achieved, and could not be achieved, it will not fail to qualify by reason of the publication. It may derive from a maker in another country without losing its character, if it is used, or entitled to be used, by the owner alone in the country in which the owner operates. There is no suggestion of the need for invention. Little can be gathered of the degree of secrecy required beyond what is implied in what is said. But it is a fair inference from what is said that the employer must have kept the matter to himself and from his competitors. The emphasis in the cases is on confidence.’
33 In the present case, the Ombudsman saw as significant that CH had given the information it now sought to protect to an external third party, the Council, in order to win the tender. In the Tribunal’s view, it is not a determinative consideration that the business seeking to protect its information as confidential or as a trade secret has shared that knowledge with an external party in strictly defined circumstances. In the modern world, businesses regularly have to expose their confidential information and secrets to regulatory bodies. The same is necessary when bidding confidentially for work.
34 This very situation was present in the two cases already mentioned, Re Organon and Re Pfizer. The external party in these cases was a regulatory agency of government. The businesses were obliged to provide information, otherwise confidential, in order to advance their applications. It will often be the case in a tender process that a bidder will supply information, otherwise confidential, to advance their bid. This should not be fatal, in the way suggested by the Ombudsman, to continuing to press a claim that a particular method or technology constitutes a trade secret. These are all instances of limited necessary exceptions that do not, the Tribunal considers, constrain the right to contend that the information remains a trade secret or confidential as against the rest of the world.
35 In Re Organon the AAT reviewed the case-law on ‘trade secrets’ including Ansell Rubber, and at 593 listed the following characteristics as relevant to the assessment of whether particular information constituted a ‘trade secret’:
- (a) whether the information is of a technical character;
(b) the extent to which the information is known outside the business of the owner of that information;
(c) the extent to which the information is known by persons engaged in the owner’s business;
(d) measures taken by the owner to guard the secrecy of the information;
(e) the value of the information to the owner and to his competitors;
(f) the effort and money spent by the owner in developing the information;
(g) the ease or difficulty with which others might acquire or duplicate the secret.
36 In the present case there is substantial evidence going to factors (e) and (f). The position is more problematic as to the other factors. In particular, the Tribunal has doubts as to the issue of the ‘ease or difficulty’ with which others might acquire or duplicate ‘the secret’. In the Tribunal’s opinion, based on the relatively limited material before it, if a rival were prepared to invest the resources that CH has in data capture, they may well then apply techniques of analysis quite similar to those that have been employed by CH. This is not an area of intellectual analysis of the same complexity as the development of automated rubber glove making technology and technology for inserting flock inside the gloves (Ansell Rubber), the creation of intrauterine contraceptive devices that are safe to human health (Re Organon) or the kind of pharmaceutical products under notice in Re Pfizer.
37 The Tribunal is satisfied that the claim for exemption under cl 7(1)(a) is not established; and, to that extent, the Tribunal agrees with the Ombudsman’s report.
38 Information of Commercial Value. In RePfizer the AAT noted at 676, in relation to the equivalent Federal exemption, that the question is not whether there is a reasonable basis for the claim to exemption but merely ‘whether the commercial value of the information could reasonably be expected to be destroyed or diminished if it were disclosed’. Powell J said in Wittingslow Amusements Group v Environment Protection Agency (NSWSC, 23 April 1993) at p 29 that an objective of this exemption is: ‘To protect a person or companies … from commercial disadvantage which they might suffer if commercially sensitive or commercially valuable information … was to be disclosed.’
39 The Tribunal is required to satisfy itself as to two matters in respect of the information in issue – first that the document contains ‘information that has a commercial value’; and, secondly, that disclosure ‘could reasonably be expected to destroy or diminish the commercial value of the information’.
40 As to the first matter, it is clear from the evidence that much of the information has commercial value. It has taken CH over six years to collect, collate and analyse the underlying data from which some of the information in issue has been derived; and it has spent a considerable sum in doing that work (it says that it has spent well in excess of $1m when all costs as well as staff time are counted).
41 The Tribunal is satisfied that it has developed an internal resource of sophistication and complexity. It deals with a complex market environment, and goes well beyond the kind of simple index-style documentation that might be developed in connection with residential sales activity in a long-established residential area.
42 The Tribunal must be satisfied, on the evidence, as to the second matter – that disclosure could reasonably be expected to destroy or diminish the commercial value of the information. In this instance the Tribunal accepts the main point made by CH that disclosure of the contents of the key elements of the document would enable a competitor to work out, or come close to working out, what data CH compiles and most importantly what analytical methods it applies to that data in order to design its marketing and sales strategies.
43 Adverse Effect on Business Affairs. Clause 7(1)(c) tends to cover similar ground to cl 7(1)(b).
44 Here again the Tribunal must satisfy itself of two matters: first, does – in this instance – the information concern CH’s ‘business’, ‘commercial’ or ‘financial’ affairs; and secondly, could disclosure – in this instance – ‘be reasonably expected to have an unreasonable adverse effect on those affairs’.
45 CH seeks to protect the contents page, the executive summary page, the market overview and the promotion cost summary. It notes that within the material there is information concerning the names of clients, the income and commissions of CH as well as the way it conducts its marketing and sales programs on behalf of clients. It does not oppose release of the part headed ‘Key Personnel’ and the part headed ‘The Complete Commercial Guide’.
46 The breadth of the terms ‘business, professional, commercial or financial affairs’ has been noted in a number of cases (see, for example, Raethel v Director General, Dept of Education and Training [1999] NSWADT 108 at [43]); and it has also been noted that they can be overlapping categories not to be read down by reference to each other (Schlebaum (No 2) v Director General, Dept of Community Services & anor [2001] NSWADT 214 at [36]).
47 The next question is could disclosure ‘reasonably be expected to have an unreasonable adverse effect on those affairs’. The adverse effect to which CH points is that if disclosure were permitted the effort and cost borne by CH in developing the document and its contents would be lost, and competitors would be free to adopt both the information and content for duplication in their own submissions. What is required of the decision-maker assessing this question is a judgment as to whether the claimed disadvantage is ‘reasonable as distinct from something that is irrational, absurd or ridiculous’: Re Attorney General’s Dept and Cockcroft (1986) 64 ALR 97 at 106, and Re Organon at [27].
- Assessment
48 As to Page 1, the contents page: This page provides a summary of the matters dealt with in the report. It has some commercial value, especially to a competitor in that it shows how CH organises its submissions. While its format is not of great uniqueness, it does reveal CH’s own method of organising its submissions. The Tribunal is satisfied, on balance, that disclosure could reasonably be expected to diminish the value of that information. Clause 7(1)(b) applies.
49 As to Page 2, Executive Summary, the following items are ones of commercial value and involving business affairs, which meet the second requirements of cl 7(1)(b) and cl 7(1)(c): item 1, the second line; item 2, the second line; item 5, the second line; item 6, the second line. The rest does not, in the Tribunal’s opinion, warrant protection under either heading.
50 As to Pages 6-10: This represents the core part of the document. The Tribunal is satisfied that data is presented here that is derived from underlying confidential data which has been compiled at great effort and cost. It is satisfied that it has commercial value, especially the trends and pricing information. It is satisfied that the second requirements of each of cl 7(1)(b) and (c) are met.
51 As to Pages 11-14: This material relates to CH’s sales handling activities in commercial land over a number of years. The form in which it is organised involves a reprocessing of data that is different from the public sources from which it is derived, and it includes substantial additional information known internally to CH. It meets each of the requirements of cl 7(1)(b) and (c).
52 As to Page 15: This is simply a pitch for the method of sale ultimately adopted, public auction, and a pitch for the choice of auctioneer. The reference to clients for whom the auctioneer has acted involves major organisations. There is no suggestion that they have sought confidentiality in respect of that information. The page does not warrant protection under either cl 7(1)(b) or (c).
53 As to Page 16: This is mostly in the nature of a pitch. In light of the connection demonstrated in evidence between the choice of ‘target markets’ and the internal database, the third paragraph itemising those markets should be protected under cl 7(1)(b).
54 As to Pages 17-18: This sets out the methodology to be employed in bringing the site to market, marketing it and conducting the sale. Though the general parameters would be well understood by experienced real estate agents, the particular details of the strategy involve the business and commercial affairs of CH. They have some commercial value. The Tribunal is satisfied, on the evidence, that release could reasonably be expected to diminish the commercial value to CH of that information, in that its competitive edge in any future contests with other real estate agents would be diminished. The second requirement of cl 7(1)(c) is satisfied for the similar reasons.
55 As to Page 19: These are advices to clients of a relatively standard kind, but again for the reasons given in relation to Pages 17-18, the material should be protected.
56 Pages 20-21: This is simply a pitch about how good Raine & Horne is, and the value of its spread and international market. It is a typical pitch of a large-scale franchise operation. The two requirements of cl 7(1)(b) are not met; nor the second requirement of cl 7(1)(c).
57 Pages 22-25: This is the advertising and promotion strategy. It again has many familiar elements. The material needs, the Tribunal thinks, to be examined as a whole. As a whole it mixes individually common elements in a particular way. The commercial value, and competitive edge that CH sees it as possessing, derives from the particular way it is mixed. The Tribunal is satisfied, on the evidence, that the first requirements of cl 7(1)(b) and (c) are met. On balance, however, the Tribunal is not satisfied that pages 22-24 should be protected. The strategy there revealed is one that would have been readily capable of identification by anyone who presented during the sales period. The Tribunal has considered separately page 25, marked ‘Innovative Approaches’. Again it contains strategies that would have been readily capable of identification by anyone who presented during the sales period. The second requirements of cl 7(1)(b) and 7(1)(c) are not met.
58 Page 26 (Promotional Costs and Commission Fee) and associated Page 28 (Promotional Costs): The price information revealed here is specific to the client relationship with the Council. This is information that is covered, clearly in the Tribunal’s view, by cl 7(1)(c).
59 In conclusion, the Tribunal notes that the Ombudsman’s report focused primarily on problems in the FOI decision-making practices of the Council. As to the question of exempt matter, understandably it only dealt in detail with the trade secrets exemption. The Council should have been more guarded than it was in simply adopting the Ombudsman’s recommendation in circumstances where the other heads of exemption in cl 7 had not been closely examined.
- Summary of Information to be Exempted
60 The following pages or passages should not be released, as they are covered by either or both of clauses 7(1)(b) and (c) (note again that the cover page is Page 0 within the page count):
- Page 1, contents page.
- Page 2, exempt only the following passages: item 1, the second line; item 2, the second line; item 5, the second line; item 6, the second line.
- Pages 6 to 10: the whole.
- Pages 11-14: the whole.
- As to Page 16: exempt only the third paragraph.
- As to Pages 17-18: the whole.
- As to Page 19: the whole.
- Page 26 and associated Page 28: the whole.
- 1. The respondent’s determination is varied.
2. The respondent is to refuse to grant access to the information itemised in para [60] of the Tribunal’s reasons.
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