Ekaton Corporation Pty Ltd v Chapman & Department Of HEALTH. Department Of Health v Chapman - [2010] SADC 150

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Freedom of Information Act)
EKATON CORPORATION PTY LTD v CHAPMAN & DEPARTMENT OF HEALTH. DEPARTMENT OF HEALTH v CHAPMAN
[2010] SADC 150
Judgment of His Honour Judge Brebner
9 December 2010
EQUITY - GENERAL PRINCIPLES - EQUITABLE DOCTRINES AND PRESUMPTIONS
BREACH OF CONFIDENCE - ELEMENTS OF BREACH OF CONFIDENCE
Appeal and application for leave to appeal against a determination of the Ombudsman - Freedom of information - Ombudsman determined that certain information was not subject to the equitable obligation of confidence - Appeal allowed in part.

EKATON CORPORATION PTY LTD v CHAPMAN & DEPARTMENT OF HEALTH. DEPARTMENT OF HEALTH v CHAPMAN
[2010] SADC 150
Introduction

This is an appeal and an application for leave to appeal against a determination of the Ombudsman. Both the appeal and the application raise closely related issues and they were heard together for convenience.
Both the appeal and the application turn on the proper construction and application of the Freedom of Information Act 1991 (the Act) and the First Schedule to the Act (the Schedule). Both have their origins in an application made by a Ms Chapman to the Department of Health (the Department) for access to information relating to negotiations between the Department and Ekaton Corporation (Ekaton) about a proposed development. The Department in fact held a number of letters and other documents relating to the negotiations. One of these letters (the letter) is the subject matter of both the appeal and the application.
The Department ultimately denied Ms Chapman access to any part of the letter. She sought a review of this determination. The Ombudsman conducted the review. He determined that Ms Chapman was to be denied access to certain specified parts of the letter and that she was to be granted access to the balance of the letter.
The appeal and the application challenge this determination. The Department complains that the Ombudsman should not have granted Ms Chapman access to any part of the letter. Ekaton adopts this complaint. Ekaton also complains that even if the Ombudsman was correct in denying Ms Chapman access to some parts of the letter, he did not go far enough and he should also have denied her access to contain additional parts of the letter.
Ekaton appeals as of right and the Department seeks leave to appeal. Ms Chapman is the respondent to both the appeal and the application and the Department is second respondent to Ekaton’s appeal.
For reasons which will become apparent, the Department’s application for leave to appeal raises questions of general importance about the construction and application of the Act, leave to appeal will be granted accordingly and I will refer the Department’s application as an appeal in the balance of these reasons.
Background
Ekaton owns the Frewville Shopping Centre. The Frewville Shopping Centre abuts the grounds of the Glenside Hospital (the Glenside site). The Government proposes to redevelop the Glenside site. This proposal includes the construction of a shopping centre on a portion of the Glenside site known as Precinct 4. Ekaton and the Government have entered into negotiations regarding this proposal. The Government have given Ekaton first option to purchase Precinct 4 for this purpose. Ekaton also proposes to redevelop the Freville Shopping Centre.
The fact that Ekaton intends to redevelop the Frewville Shopping Centre and the fact that the Government have given Ekaton first option to purchase Precinct 4 are in the public domain but the details of precisely how Ekaton proposes to undertake the development are not.
Ekaton is a member of the Chapleys Retail Group (Chapleys) and the names of the two entities are often used interchangeably. A Mr Nicholas Chapley is a principal of Chapleys.
Pursuant to the Act, Ms Chapman applied to the Department for access to information relating to the negotiations between the Department and Ekaton.
Relevantly Miss Chapman applied to the Chief Executive Officer of the Department (the CEO) for access to information in relation to the negotiations being ‘correspondence between the Department and / or the Minister of Health and the Chapleys, or any other documents relating to the Government’s interest in acquiring a suburban shopping centre in order to effect improvements to an adjacent intersection and relating to its intentions in relation to a heritage wall and to its intentions as to the purchase of the land. ” The land referred to is the portion of the Hospital grounds that the Government proposes to sell.
The Act and confidentiality
It is now convenient to set out the relevant provisions of the Act and the Schedule and to say something about the construction of the pivotal clause of the Schedule. Hopefully it will make these reasons easier to follow if I do not set them out in strict numerical order.
The objects of the Act are to be found in s3 which relevantly provides:
3—Objects
(1) The objects of this Act are, consistently with the principle of the Executive Government's responsibility to Parliament—
(a) to promote openness in government and accountability of Ministers of the Crown and other government agencies and thereby to enhance respect for the law and further the good government of the State; and
(b) to facilitate more effective participation by members of the public in the processes involved in the making and administration of laws and policies.
(2) The means by which it is intended to achieve these objects are as follows:
(a) ensuring that information concerning the operations of government (including, in particular, information concerning the rules and practices followed by government in its dealings with members of the public) is readily available to members of the public and to Members of Parliament; and
(b) conferring on each member of the public and on Members of Parliament a legally enforceable right to be given access to documents held by government, subject only to such restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions) and the preservation of personal privacy; and
Parliament then declares its intentions as to the interpretation and administration of the Act in s3A and declares the rights of individuals seeking information in s12 in the following terms:
3A—Principles of administration
(1) It is the intention of the Parliament—
(a) that this Act should be interpreted and applied so as to further the objects of this Act; and
(b) that a person or body exercising an administrative discretion conferred by this Act exercise the discretion, as far as possible, in a way that favours the disclosure of information of a kind that can be disclosed without infringing the right to privacy of individuals.
12—Right of access to agencies' documents
A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act.
The determination of applications for access to documents is dealt with in s19 and s20 which relevantly provide:
19—Determination of applications
(1) After considering an application for access to a document, an agency must determine—
(a) whether access to the document is to be given (either immediately or subject to deferral) or refused; and
(b) if access to the document is to be given—any charge payable in respect of the giving of access; and
(c) any charge payable for dealing with the application.
20—Refusal of access
(1) An agency may refuse access to a document—
(a) if it is an exempt document; or
(4) If—
(a) it is practicable to give access to a copy of a document from which the exempt matter has been deleted; and
(b) it appears to the relevant agency (either from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy,
the agency must not refuse to give access to the document to that limited extent.
“Document” is defined by s4 to include “anything in which information is stored or from which information may be reproduced; and “exempt document” is also defined by s4 as “a document that is an exempt document by virtue of Schedule 1; and Schedule 1 provides:
13—Documents containing confidential material
(1) A document is an exempt document—
(a) if it contains matter the disclosure of which would found an action for breach of confidence; or …………(immaterial).
It is to be noted that a document is exempt if it merely contains matter which would found an action for breach of confidence and it follows that it is not necessary for a document to be wholly comprised of such matter before it can attain exempt status.
It thus follows from s20(1)(a) of the Act and clause 13(1)(a) of the Schedule that an agency may, in its discretion, refuse access to a document which contains any such matter.
For the purposes of the Act it is now well settled that “matter which would found an action for breach of confidence” is information which would found an action for equitable breach of confidence. The circumstances in which an action for equitable breach of confidence will arise were considered by Gummow J, as a member of the Federal Court, in Coors Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 74 ALR 428 where his Honour summarised the relevant principles in these terms at 437:
“It is now well settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff: (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; and must also be able to show that (ii) the information has the necessary quality of confidence (and is not for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import and obligation of confidence; and (iv) there is actual or threatened misuse of this information…..”
As will be seen later in these reasons, this test has been accepted and applied in South Australia. It thus follows that a document will be exempt for the purposes of the Act if it contains information which satisfies the test formulated by Gummow J in Coors’ Case. For the remainder of these reasons I will refer to such information as “confidential information”.
Departmental determination of the application
The designated Freedom of Information officer of the Department considered Ms Chapman’s application. Mr Chapley was a person interested in the application within the meaning of the Act. In conformity with s27 of the Act the officer concerned consulted Mr Chapley and considered submissions from an individual who appears to have been representing the Chapleys. The officer was informed that the Chapleys regarded their discussions with the Department as “commercial in confidence” and that they considered that disclosure of any of the information sought by Ms Chapman could be commercially disadvantageous to them.
The officer determined that a number of documents in the Department’s possession were within the ambit of the application and he made determinations in relation to each of them. In particular he determined that the letter was an exempt document and he refused to allow Ms Chapman access to it or to any part of it. Ms Chapman then sought and internal review of some aspects of this determination pursuant to s29(2) of the Act. The CEO ultimately confirmed the original determination.
The Ombudsman’s determination
Ms Chapman then applied for a review of the CEO’s determination. S39(1)(a) of the Act provides that reviews of the kind sought by Ms Chapman are to be conducted by the Ombudsman and S39(11) and (12) set out the Ombudsman’s powers on review:
S39-External Review
…
(11) On an application under this section, the relevant review authority may (based on the circumstances existing at the time of the review) confirm, vary or reverse the determination the subject of the review.
(12) If, in conducting a review under this section, the relevant review authority is satisfied that a document is an exempt document, the relevant review authority does not have power to make a determination that access is to be given to the document (but may, if it thinks fit, offer, together with its reasons for its determination, reasons why the agency might give access to the document despite its exempt status).
…
The Ombudsman conducted the review sought by Ms Chapman. In conformity with s39(13) of the Act the Ombudsman consulted with representatives of the Chapleys who informed him that in relation to the letter Mr Chapley had “proceeded on the general understanding which he believed was ordinarily understood that where parties were discussing matters of a private nature that there was the generally and readily understood and agreed understanding that those discussions would be kept private / confidential and not disclosed to anyone else without the other party’s agreement”.
The Department and the Chapley’s submitted to the Ombudsman that the letter was an exempt document because it contained confidential information and that access to the whole of the letter should be denied accordingly. However, and in the alternative, it was also submitted that certain parts of the letter should be deleted if the Ombudsman ultimately concluded that the letter was not exempt in its entirety.
The Ombudsman published extensive reasons. He correctly recognised that the test in Coor’s Case applied. He outlined the elements of the test and the submissions about the nature and ingredients of each element. He then applied the test to each item of information contained within the letter and he determined that a number of paragraphs and sentences contained confidential information and he further determined that this information was exempt from disclosure accordingly. He also determined that the balance of the letter was not comprised of confidential information and that this information ought to be disclosed. He made no determination as to whether or not the letter itself was an exempt document within the meaning of Clause 13 of the Schedule.
The Ombudsman informed the Department and the Chapleys of his determination and he provided them with a copy of the letter with the confidential information highlighted.
The appeals
As mentioned, the grounds of appeal advanced by the Department and Ekaton overlap to some extent.
The Department’s grounds complain that the Ombudsman was wrong in law in not determining that the letter was an exempt document within the meaning of Clause 13 of the Schedule and that he erred in his application of the elements of the test.
Ekaton’s grounds repeat these complaints and further complain that the Ombudsman erred in his application of the test in that he should have found that some further specified information contained within the letter was also subject to the obligation of confidence (the contested information).
After the appellate proceedings were commenced, affidavits of Mr Chapley and the CEO were filed pursuant to leave granted by a Master of the Court.
The nature of the appeals
The appeals were heard and determined in the Administrative and Disciplinary Division of the Court. s 42E of the District Court Act 1991 provides as follows:
42E—Conduct of appeal
(1) The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal—
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
The appeals thus involve an examination of the Ombudsman’s determination on the material before him, and the additional material that has been received, conducted subject to the various requirements of s42E.
The material to be considered
Relevantly, the material before the Ombudsman comprised:
·A news release issued by the Premier dated 20^th September 2007.
·A news release issued by the Chapleys dated 2^nd October 2007.
·A community communiqué issued by the Minister for Mental Health dated March 2008.
·The master plan for the proposed re-development of the Glenside Hospital Campus.
·Letters from counsel for Ekaton and counsel for the Department to the Ombudsman relating to the review. These letters amounted to written submissions and a copy of a letter to the Department relating to the original application was annexed to one of these letters. These letters are before me but they have not been made available to counsel for the respondent.
The additional material now before me consists of the affidavits of Mr Chapley and the CEO referred to above.
Construction
The starting point is the proper construction of the relevant sections of the Act and of Clause 13 of the Schedule as set out above.
Some of the relevant principles of construction were recently considered by Gray J in R v Seigneur (Question of Law Reserved) (No 1 of 1999) 103 SASR 207 at [19]-[24] and the following summary of those principles is derived from his Honour’s reasons: the usual or general approach is purposive, each word must prima facie be given some meaning, the context is not confined to the words of the Act and extrinsic materials, including the Second Reading Speech of the introducing Minister, may be used to determine the purpose to which the Act is directed. A construction which will avoid an unreasonable result will be preferred if it is reasonably open: Luke v Inland Revenue Commissioners [1963] AC 557 at 577 as approved in Macalister v R (1990) 169 CLR 324 at 330. Also s22 of the Acts Interpretation Act 1915 provides that if more than one construction is reasonably open than a construction which would “promote the purpose or object the Act ………must be preferred”.
When ss12, 19 and 20 of the Act and Clause 13(a) of the Schedule are read together in light of the objects of the Act, it is plain that Parliament must have intended:
·That an agency is obliged to disclose a document in its possession on request unless the document is exempt.
·That that which is not exempt from disclosure must ordinarily be disclosed.
·That if a document contains any confidential information then it is an exempt document.
·That if an agency determines that a document is an exempt document, it is nonetheless obliged to go on and determine if it contains any non-confidential information which would not found an action for breach of confidence and, if so, whether the document would remain intelligible if the confidential information were to be edited out. If the document would remain intelligible after editing, then the agency must allow access to an edited copy if it appears that the applicant would wish to have access to such a copy.
·That a document would only be exempt in its entirety if it was wholly comprised of confidential information, or if it would be unintelligible if the confidential information were to be edited out.
·That these considerations and obligations govern an application at first instance, an internal review and an external review.
·That on external review the Ombudsman may confirm, vary or reverse the particular determination.
Coor’s Case

As some of the submissions focus on the Ombudsman’s application of the test in Coor’s Case (the test) it is convenient to deal with the elements of the test before proceeding further.
As set out above, the test has four elements
1.The information must be capable of being identified with specificity.
2.The information must have the necessary quality of confidence.
3.The information must have been received in circumstances which import an obligation of confidence.
4.There must be actual or threatened misuse of the information.
Specificity
The requirement that the information must be capable of being identified with specificity will be satisfied if it can be identified with the certainty which would be necessary for a court to make an order and identification of information in global or general terms is insufficient: O’Brien v Komesaroff (1982) 150 CLR 310 at 225.
The quality of confidence
The requirement that the information must have the necessary quality of confidence was considered by Debelle J (with whom Perry J agreed) in Coulthard v South Australia (1995) 63 SASR 531 where his Honour summarised the position at 547 in these terms:
The first question is whether the information conveyed in the statements was confidential. There can be no breach of confidence in revealing to others something which is already common knowledge: Coco v A N Clark (Engineers) Ltd (at 47). Confidential information is that which is not public property or public knowledge or otherwise in the public domain: Saltman Engineering Co v Campbell Engineering Co (at 215); Woodward v Hutchins [1971] 1 WLR 760; [1977] 2All ER 751. It is a question of degree whether information previously disclosed to a limited public has been made generally available: Attorney-General v Guardian Newspapers Ltd (No 2) (at 177) per Simon John Donaldson MR. Equity will intervene only to protect a confidence if the circumstances are of sufficient gravity; it will not intervene merely to protect trivial tittle-tattle, however confidential: Coco v A N Clark (Engineers) Ltd (at 48): nor “pernicious nonsense”: Church of Scientology of California v Kaufman [1973] RPC 635 at 638. In other words, a duty of confidence will only be imposed where the information is “a proper subject for protection”: Hubbard v Vosper [1972] 2 QB 84 at 95.
However, the fact that information is in the public domain in one context will not necessary mean that it cannot enjoy the quality of confidence in another and it will be a matter of fact and degree in each case. As Lord Green put it in Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215: “It is perfectly possible to have a confidential document, ……… which is the result of work done by the maker upon materials available to anybody; but what makes it confidential is the fact that the maker of the document has used his brain and thus produced a result which can only be produced by somebody who goes through the same process.” (emphasis added).
As Debelle J also said in Trevorrow v South Australia (No 4) (2006) 94 SASR 64 at [80], “Where a person has obtained confidential information, the court will restrain a wrongful use of that information. In doing so, the court is enforcing the obligation conscience arising from the circumstances in or through which the information was communicated or obtained.” (citations omitted). It can thus be seen the courts enforce the obligation by protecting the information itself.
The obligation of confidence
The test of whether information has been received in circumstances which import an obligation of confidence was considered by Megarry J (as he then was in Coco v A. N. Clark (Engineers) Ltd (1969) RPC 41 where his Honour said at 48:
“Any reasonable man standing in the shoes of the recipient of the information would have realised in reasonable grounds the information was given to him in confidence then this should suffice to impose upon him the equitable obligation of confidence. In particular, where information of commercial or industrial value is given on a business like basis and with an avowed common object in mind, such as a joint venture or the manufacture of articles by one party for the other, I would regard the recipient as carrying a heavy burden if he seeks to repel a contention that he was bound by an obligation of confidence.”
(emphasis added).
As formulated by his Honour, this element of the test is entirely objective and it focuses on the question of what the recipient of the information ought to have realised and his Honour’s formulation has been accepted and applied in South Australia: Trevorrow v South Australia (No 4) (ibid) at [39], Coulthard v South Australia (ibid) at 548.
Actual or threatened misuse
This element of the test is sometimes expressed as a requirement that there must be an actual or threatened detriment to the confider: Coulthard v South Australia (ibid) at 547. However, the need for this requirement to be satisfied has been doubted: Coulthard v South Australia (ibid) at 546; N P Generations v Feneley (2001) 80 SASR 151 at [21]; Trevorrow v South Australia (ibid) at [160].
In any event it has been held that and it would appear that disclosure of a persons affairs, thus exposing “his actions to public discussion” might amount to sufficient detriment: Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39 at 52.
Determination of the appeals
Consistent with s42E District Court Act, as set out above, the outcome of the appeals turns on a consideration of the Ombudsman’s determination when viewed in the light of the material which was before him and the additional material which is now before me. In considering his determination I must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms and I must give due weight to his determination and I must not depart from it unless there are cogent reasons for doing so.
The material
I will deal first with the material which is before me.
When the press releases of the Premier and the Chapleys and the communiqué of the Minister for health (collectively called the releases) are read in conjunction with each other, they have the practical effect of releasing the following relevant information into the public domain:
·That the Government planned to re-develop the Glenside Hospital site.
·That the Government intended to retain 58 percent of the site and to sell the balance for residential and retail developments.
·That the Chapleys would be given the first option to purchase the land which was to be sold thus enabling them to re-develop the Frewville Shopping Centre.
·That the Chapleys recognised that they held this option and that once negotiations were finalised they intended to develop the land and that any improvements were likely to include a new supermarket, stores, cafés, restaurants and parking.
Consistently with the principles referred to in [40]-[41] above, the information contained in the releases is relevant to the question of whether any of the information contained in the letter is in the public domain, but the information contained in the releases is not necessarily determinative of the question of whether any of the information in the letter possesses the necessary quality of confidence or not.
In his affidavit the CEO asserts that the letter was received by an officer of the Department, that it concerned negotiations between the Chapleys and the Government and that its contents were such that both the officer and the Department were required to keep its contents confidential.
Mr Chapley says in his affidavit that he has extensive experience in commercial property development, particularly supermarkets, and that Ekaton provides amenities over and above those that are ordinarily available in other supermarkets. He says that there is a long history of negotiations between Ekaton and the Government in relation to the Frewville Shopping Centre and that he has always understood these negotiations to be confidential. He says that he wrote the letter, that he expected that it would be kept confidential by the recipient, that he believed that the recipient and the department regarded the letter as confidential and that he would not have written it in the terms in which he did if he had contemplated that sections of it might be released. He also says that the possibility that sections of the letter might be released will inhibit future negotiations.
Mr Chapley then goes on to spell out why a current commercial advantage held by the Chapleys might be lost if the letter, or any of the information which it contains, were to be released. He says that negotiations of the kind referred to in the letter are commercially sensitive, that the Frewville Supermarket has a number of direct and formidable competitors who might well take advantage of any information they might acquire about the Chapleys intentions.
The situation is governed by the test and not by the expectations of the parties. Equity might well regard information as lacking the necessary quality of confidence or as having been imparted in circumstances which do not impose an obligation of confidence even though the parties themselves might have regarded the information as confidential. Consistently with the principle set out in [43]-[44], the expectations of the CEO and Mr Chapley cannot be determinative of the questions of whether the letter itself, or any of the information included in it, is confidential information of the kind which equity will protect. However, their views are plainly relevant to the question of what a reasonable person in the position of the recipient of the letter would or should have realised. Similarly, Mr Chapley’s views about the potential loss of commercial advantage to Ekaton are plainly relevant to the question of whether there is any potential for misuse if the letter, or any of the information within it, is released however, his views must be considered on their apparent merits and they are not of themselves determinative of the question of misuse.
As set out above, the Ombudsman applied the test to his construction of the terms of the letter and determined that some of the information it contained was confidential within the meaning to the test. He then determined that Ms Chapman should be granted access to a copy of the letter with the confidential information edited out.
The Ombudsman was plainly correct in determining that the letter did contain at least some confidential information and counsel for Ms Chapman, Mr Lawson QC, did not contend otherwise. However, the Ombudsman did not make any specific finding that the letter was an exempt document for the purposes of the Act.
The Department’s appeal
The primary submission of counsel for the Department, Mr Macintosh, was that the Ombudsman erred in failing to make a specific determination that the letter was an exempt document within the meaning of Clause 13(a) of the Schedule. Even giving significant weight to the Ombudsman’s determination it is plain that he erred in this regard because the document is in fact an exempt document for the simple reason that it contains confidential information. Cogent reasons thus exist to depart from this aspect of the Ombudsman’s determination, Mr Mackintosh’s submission succeeds accordingly and I determine that the letter is an exempt document for the purposes of the Act. Whether this error on the part of the Ombudsman has any practical consequences is another matter.
Mr Mackintosh submitted, in effect, that in any event s20(4) was not available to the Ombudsman and that he erred in determining that an edited copy of the letter should be made available to Ms Chapman. He then submitted that if a document is exempt for the purposes of the Act because it contains confidential information then, on a proper construction of the Act, the whole of the document must be regarded as subject to the equitable obligation of confidence and none of the information it contains can ever properly be released. Therefore, he submits, none of the information in the letter can ever be released. Accordingly, he submits, the entire letter is to be regarded as confidential information and one is precluded from breaking it down into its constituent parts in order to determine if it contains any non-confidential information or not. He thus submits that s20(4), has no application to documents which are exempt because they contain confidential information.
As Mr Lawson submits that, if Mr Mackintosh is correct, then s20(4) would have no work to do. The first Schedule to the Act declares a number of classes of documents to be exempt for the purposes of the Act of which documents containing confidential information are but one. It is plain form its terms that s20(4) is unlimited in its application and if Parliament had intended that s20(4) was to have no application to documents containing confidential information, then it would have expressly said so in s20(4) or made some other provision exempting documents containing confidential information from the ambit of the operation of s20(4).
As set out in [42], the equitable obligation of confidence protects information and not the document which contains it. It is necessarily implicit in this that if a document contains information which is subject to the obligation of confidence and also other information which is not, then equity will protect the former but not the latter.
This is reflected in the Act. In my view Parliament intended that when documents contain confidential information, and are thus prima facie exempt, each separate item of information within the document must then be considered in order to determine whether the document is wholly comprised of confidential information or not. To repeat and expand on [36]: When Clause 13(a) and s20(4) are read together in the light of the objects of the Act, it is plain that Parliament recognised that a document might contain some information which was subject to the obligation of confidence and other information which was not and that it intended that if a document contained some item or items of confidential information, thus rendering the document exempt, then that was not to be the end of the matter and the balance of the document was to be released subject to certain preconditions being met. To put it another way, it is plain that Parliament intended that the Act would protect the same information that equity would protect but that it would not protect other information contained in the same document which equity would not protect, thus striking a balance between the competing interests of confidentiality on the one hand and openness in government on the other.
In this regard Mr Mackintosh also submitted that a construction which favoured the release of non-confidential information would inhibit commercial negotiations between government and the private sector in that those who are minded to enter negotiations with government might not do so if they are concerned that their information might be released if they do. Assuming for the purposes of the argument that this is a relevant consideration, this aspect of the submission overlooks the fact that the Act still protects information which equity would protect and, even though detriment might not be an element of the test, it is plain from the cases that equity will protect information which might cause commercial detriment if released.
It follows that the Act still provides protection for truly confidential information imparted during the course of negotiations. In this regard it is to be assumed that both government and the private sector will be aware of the Act and of the kind of information which it protects and that which it does not and that the parties will thus be able to structure their negotiations accordingly. It also follows that if it is only non-confidential information that is liable to disclosure, then there can be no real inhibition on negotiation of the kind suggested.
Also in this regard Mr Mackintosh sought to draw an analogy with legal professional privilege. He submitted that if a document is subject to legal professional privilege then no part of it can ever properly be disclosed and that the same considerations must apply to documents which are exempt from disclosure because they contain information which equity would protect.
Again, if this submission is correct, then s20(4) would have no work to do.
The basic submission that the letter is indivisible and that none of the information it contains could ever properly be released must be rejected.
Finally, and in the alternative, Mr Mackintosh submits that the letter would be unintelligible if the confidential information were to be edited out and it is thus not practicable within the meaning of s20(4) to give access to the letter with the exempt material deleted. There is no doubt that the letter contains many items of information which would not found an action for equitable breach of confidence. The letter is thus not comprised wholly of confidential information and in my view the letter remains intelligible and has no tendency to mislead when the confidential information is edited out. It might not then provide much by way of information, but that is immaterial.
Even if I were to give no weight whatsoever to the Ombudsman’s apparent determination that s20(4) was available to him, cogent reasons to depart from this aspect of his determination do not exist. For the reasons set out above, the letter is not exempt in its entirety. The appeal by the Department must be dismissed.
Ekaton’s appeal
In so far as Ekaton’s grounds of appeal adopts the Department’s grounds and arguments, those grounds must also fail for the reasons set out above.
Mr Ericson, counsel for Ekaton identified the contested information as being:
·The fourth paragraph of the third page (item one).
·The second sentence in the second paragraph of the fourth page (item two)
·The third paragraph of the fourth page (item three)
·The second sentence in the fourth paragraph of the fourth page (item four)
Three of these items of contested information make some reference to some of the concepts which are included in the Masterplan. Each of these concepts is thus in the public domain.
The Ombudsman did not specifically deal with each item of contested information, however, it is necessarily implicit in his reasons that he did not regard any of them as possessing the necessary quality of confidence and that he must have regarded each of them as being in the public domain.
Similarly, in determining whether any of the information contained in the letter was communicated in circumstances which would give rise to an obligation of confidence, he did not deal with each item of the contested information. He gave no specific reasons as to why items one and four were not communicated in circumstances which gave rise to the necessary obligation. He regarded items two and three as mere “…sales pitch(es) of the kind that any entity would employ if they were seeking involvement in a venture of this kind with the government .” and “To the extent that these passages contain the Chapley’s ‘proposals’, I consider them to be general and of the type that may be proposed by any entity who had read the government’s ‘Masterplan’ for the Glenside Hospital site.”
Similarly again, he made no specific findings as to detriment or potential misuse which might arise out of the release of any of the items of contested information.
In determining the appeal in accordance with the principles set out in [30]-[31] I must give due weight to the Ombudsman’s determination and I must not depart from it unless there are cogent reasons to do so. As the Ombudsman correctly identified the test in Coor’s Case to be the guiding principle, I will give significant weight to his determination.

Each item of contested information can plainly be identified with the necessary degree of specificity.
As mentioned, three of the items contested information make reference to information which is in the public domain and the Ombudsman must have regarded the remaining item as also being in the public domain. However, and as discussed in [41]-[42] above, the fact that information is in the public domain will not necessarily deprive it of the essential quality of confidence and information which is the product of the communicator applying his own skill and judgment to information which is publicly available may nonetheless posses the quality of confidence if it could only be produced by someone who goes through the same process. As also discussed in [43]-[44], the obligation of confidence is likely to arise where commercially valuable information is communicated on a business like basis where both parties have a common purpose in mind. The threshold questions with respect to each item of contested information thus become questions of whether the information was the product of Ekaton’s endeavours and whether a reasonable person in the position of the recipient would have realised that the information was given to him in confidence.
Each item of contested information must be read as a whole and in the context of the letter as a whole and against the background of the fact that negotiations had been taking place between Ekaton and the Department.
Thus construed, it is plain that the critical information contained in each item of confidential information represents the product of the application of Ekaton’s endeavours and initiative to some of the concepts in the Masterplan and the information conveyed in each item goes further than a mere recitation of some of the concepts contained in the plan. Although Ekaton’s competitors might ultimately have produced the same results by the application of their own skill and initiative to the Masterplan, the chances of any of them doing so cannot be predicted with any degree of certainty and access to the contested information would plainly assist them in formulating their own proposals. It follows that although the contested information contains references to information which is in the public domain, the actual notions which are being conveyed are not. It follows that the contested information possesses the necessary quality of confidence and that the Ombudsman erred in determining otherwise.
As mentioned, the fact that Ekaton and the Department had entered into negotiations regarding the Glenside site was public knowledge and the letter itself is plainly a commercial communication in furtherance of these negotiations. In these circumstances, a reasonable person in the position of the recipient of letter would regard each item of contested information as being information which was being communicated to the Department in furtherance of those negotiations, that it was thus information which was being given on a business like basis and that as it was information which represented Ekaton’s own individual approach to the various aspects of the Masterplan which it mentions, it was thus information which Ekaton had communicated on a confidential basis because it would not want its competitors to find out about it because that might deprive Ekaton of a potential commercial advantage.
The fact that items two and three might be capable of being characterised as “sales pitches” cannot deprive them of their quality of confidence or prevent the creation of the obligation of confidence and I am not aware of any authority to the contrary. If the information has the necessary quality of confidence and if it is communicated in circumstances which create the obligation of confidence then these two elements of the test are satisfied and the fact that the information might have been communicated in terms which tend to make a particular proposal seem more attractive to the recipient is irrelevant. Indeed it would be contrary to the policy considerations underlying the existence of the equitable obligation of confidence to find otherwise.
It follows that the contested information was communicated in circumstances which created an obligation of confidence and that Ombudsman again erred in determining to the contrary.
If detriment or misuse is a necessary element of the test, then it is made out. Release of the contested information would undoubtedly lead to discussion of Ekaton’s proposals amongst it competitors and amongst members of the public with an interest in the Glenside site and release of the information might cause commercial detriment to Ekaton if its competitors adopted its proposals.
The contested information is thus confidential information within the meaning of the test in Coor’s Case. In making this determination I have given significant weight to the determination of the Ombudsman and his construction of the various items of information contained within the letter but, notwithstanding this, I have come to the conclusion that he was plainly wrong in not determining that the contested information was confidential. Cogent reasons to depart from this aspect of his determination thus exist. Accordingly I determine that the contested items of information are exempt material for the purposes of the Act.
The letter remains intelligible if the contested information is edited out and it is plain that Ms Chapman would seek a copy of the letter so edited.
Orders
Accordingly I order as follows:
1.     The Department’s application for leave to appeal will be granted but the appeal is dismissed.
2.     Grounds one, two and three of Ekaton’s appeal are dismissed.
3.     Ground four of Ekaton’s appeal is allowed and the determination of the Ombudsman is varied by determining that the second sentence of the second full paragraph on page four, the third paragraph on page four, the second sentence in the fourth paragraph on page four and the fourth paragraph on page three of the letter are subject to the equitable obligation of confidence and exempt from disclosure accordingly.
I will provide a copy of the letter with this additional exempt material underlined in red to counsel for the Department and for Ekaton.