Patrick and Secretary, Department of Climate Change, Energy, the Environment and Water - [2024] ARTA 7

Patrick and Secretary, Department of Climate Change, Energy, the Environment and Water (Freedom of information) [2024] ARTA 7 (27 November 2024)
Applicant/s:  Rex Patrick
Respondent:  Secretary, Department of Climate Change, Energy, the Environment and Water
Other Party:  Snowy Hydro Limited

Tribunal Number: 2023/7985

Applicant:Rex Patrick
Respondent: Minister for Climate Change and Energy
Other Party: Snowy Hydro Limited

Tribunal Number: 2024/1812

Tribunal:Deputy President Britten-Jones
Place:Adelaide
Date:27 November 2024

Decision:The Tribunal affirms the decisions under review.

..................[SGD]......................................................
Deputy President Britten-Jones
Catchwords
FREEDOM OF INFORMATION – review of decisions of the Secretary, Department of Climate Change, Energy, the Environment and Water and the Minister for Climate Change and Energy – the documents in contention are exempt from disclosure under s 45 of the Freedom of Information Act 1982 – decision under review are affirmed
Legislation
Freedom of Information Act 1982 (Cth)
Corporations Act 2001 (Cth)
Snowy Hydro Corporatisation Act 1997 (Cth)
Snowy Mountains Hydro-Electric Power Act 1949 (Cth)
Public Governance, Performance and Accountability Act 2013 (Cth)
Public Governance, Performance and Accountability Rule 2014 (Cth)
Cases
State Electricity Commission of Victoria v City of South Melbourne (1968) 118 CLR 504
Patrick; Secretary, Department of Defence and Naval Group [2021] AATA 4627
Austin v Attorney-General’s Department (1986) 12 FCR 22
Patrick and Secretary, Department of Industry, Science and Resources [2024] AATA 2689
Corrs Pavey Whiting & Byrne v Collector of Customs [1987] FCA 266; (1987) 14 FCR 434
Ammon v Consolidated Minerals Ltd(No 3) [2007] WASC 232
Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; (2010) 265 ALR 281
Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1990) 22 FCR 73
Western Desert Puntukurnuparna and Aboriginal and Torres Strait Islander Commission [1997] AATA 205
Secondary Materials
Department of Finance (Cth), Commonwealth Government Business Enterprises - Governance and Oversight Guidelines, (Resource Management Guide No. 126, January 2018)
J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (5^th ed, 2014)
Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s 93A of the Freedom of Information Act 1982 (November 2023 and May 2024)
Statement of Reasons

The applicant has made requests pursuant to the Freedom of Information Act 1982 (Cth) (FOI Act)[1] for access to documents relating to the Snowy Hydro 2.0 project for the design and construction of a new, underground power station (the Snowy Hydro 2.0 Project). Some of the documents requested have been released in full or in part. The documents that remain in contention are:
(a)Snowy Hydro Project updates and reports prepared by the other party (Snowy Hydro) which I will refer to as the Snowy Hydro Documents;
(b)documents relating to the Snowy Hydro Project prepared by the Department of Climate Change, Energy, the Environment and Water (the Department) which I will refer to as the Derived Documents; and
(c)a 10-page letter from Snowy Hydro to the Shareholder Ministers dated 29 August 2023 (the Reset Letter).
[1] All references to legislation are to the Freedom of Information Act 1982 (Cth) unless otherwise stated.
The applicant has been provided with a redacted version of the documents in contention.
The decisions under review are:
(a)in 2023/7985, a decision of a delegate of the first respondent made on 3 July 2023, affirmed on internal review on 1 August 2023; and
(b)in 2024/1812, a decision of a delegate of the second respondent made on 22 November 2023.
The respondents claims that the redacted parts of the documents in contention are exempt from disclosure under s 45 of the FOI Act. In the alternative, the respondents claim that they are exempt under s 47(1)(b). In the further alternative, the respondents claim that they are conditionally exempt under s 47G and that access to the documents would be contrary to the public interest under s 11A(5). Snowy Hydro supports the respondents’ claims and object to the release of the documents in contention.
For the reasons that follow I am satisfied that the documents are exempt under s 45 and that the decisions under review should be affirmed.
Background
Snowy Hydro is an unlisted public company, limited by shares and incorporated under the Corporations Act 2001 (Cth). Pursuant to the Snowy Hydro Corporatisation Act 1997 (Cth) (the SHC Act), the Snowy Mountains Hydro-electric Authority was corporatised and its assets, liabilities and employees were transferred to Snowy Hydro.
The SHC Act:
(a)repealed the Snowy Mountains Hydro-electric Power Act 1949 (Cth) and transferred the assets and liabilities of the Snowy Mountains Hydro-electric Authority to Snowy Hydro;
(b)provides in s 7 that the Commonwealth may acquire shares in Snowy Hydro;
(c)provides in s 8 that Snowy Hydro:
(i) is not, and does not represent, the Crown; and
(ii) is not an instrumentality or agency of the Crown; and
(iii) is not entitled to any immunity or privilege of the Crown; and
(iv) is not a public authority for any purpose and is taken not to have been constituted or established for a public purpose or for a purpose of the Commonwealth;
(d)requires the financial statements and reports of Snowy Hydro to be laid before Parliament.
The shares in Snowy Hydro are held by the Commonwealth which is the sole shareholder. The Minister for Finance and the Minister for Climate Change and Energy (Shareholder Ministers) represent the Commonwealth as the shareholder in Snowy Hydro.
Snowy Hydro owns and operates the Snowy Mountains Hydro-electric Scheme situated in New South Wales.
Snowy Hydro is a Government Business Enterprise (GBE) and is subject to the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA), the Public Governance, Performance and Accountability Rule 2014 (Cth) (PGPA Rules) and the Commonwealth GBE Governance and Oversight Guidelines, Resource Management Guide No. 126 (RMG-126) published by the Department of Finance.
As a GBE, Snowy Hydro was obliged pursuant to clause 3.12 of RMG-126 to provide quarterly progress reports. Pursuant to clause 3.14, these progress reports are confidential to the Shareholder Ministers, their advisors and the Shareholder Departments.
On 2 April 2019, the Commonwealth and Snowy Hydro entered into an Equity Subscription Agreement (ESA) which was varied on 27 August 2020 and 18 August 2021. Under the ESA, the Commonwealth subscribed for equity in Snowy Hydro for the purposes and development of the Snowy Hydro 2.0 Project.
Pursuant to clause 8.1 of the ESA ‘each party agrees to keep the Confidential Information confidential and not to disclose it to anyone without the consent of the other party’ except in certain prescribed circumstances including where the information is in the public domain. Confidential information is defined in clause 1.1 as ‘the terms of this agreement’ and ‘information given by one party to the other under this Agreement where the disclosing party marks it as confidential when the information is given and provided the receiving party did not already know that information at the time it was provided.’ Snowy Hydro was obliged pursuant to clause 3.7 of the ESA to provide rolling progress reports with respect to financial performance and operations.
In 2023 Snowy Hydro undertook a comprehensive review of the Snowy Hydro 2.0 Project which culminated in what is known as the Snowy 2.0 Reset (the Reset).
Evidence
The parties relied upon numerous witness statements provided to the Tribunal. Leonie Maria Horrocks and Andrew Paul Higgs gave oral evidence and were cross examined.
Ms Horrocks is Branch Head of the Energy Enablers Branch of the Department which oversees and monitors Snowy Hydro’s performance. She affirmed affidavits on 9 July 2024 and 15 August 2024 and provided oral evidence to the Tribunal. She has reviewed the documents in contention and gave evidence that:
(a)The Snowy Hydro Documents were marked as confidential and were provided to the Department pursuant to RMG-126 or the ESA;
(b)The Department was not aware of the information contained in the Snowy Hydro Documents until that information was provided to it;
(c)The Derived Documents contain information the Department summarised from information provided by Snowy Hydro.
Mr Higgs is the General Manager, Commercial at Snowy Hydro. He provided a witness statement dated 26 June 2024 and gave oral evidence to the Tribunal. He has reviewed the documents in contention and gave evidence with respect to them as follows:
(a)they contain information about the Snowy Hydro 2.0 Project concerning scheduling, finance and cost, and risk and mitigation measures;
(b)they have not been disclosed publicly;
(c)their disclosure would likely cause detriment to Snowy Hydro;
(d)there was an understanding and agreement between Snowy Hydro and the Commonwealth that commercially sensitive and confidential information provided by Snowy Hydro to the Commonwealth would be kept confidential;
(e)the Snowy Hydro Documents are annexed to and summarised in the Derived Documents.
Section 45 – documents containing material obtained in confidence
Section 45(1) provides:
A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency or the Commonwealth), for breach of confidence.
The Office of the Australian Information Commissioner has issued Guidelines (FOI Guidelines) under s 93A which requires the Tribunal to have regard to the Guidelines in making its decision. With respect to a breach of confidence, the Guidelines say:
5.186 A breach of confidence is the failure of a recipient to keep confidential, information which has been communicated in circumstances giving rise to an obligation of confidence. The FOI Act expressly preserves confidentiality where that confidentiality would be actionable at common law or in equity.
5.189 To found an action for breach of confidence (which means s 45 would apply), the following five criteria must be satisfied in relation to the information:
• it must be specifically identified
• it must have the necessary quality of confidentiality
• it must have been communicated and received on the basis of a mutual understanding of confidence
• it must have been disclosed or threatened to be disclosed, without authority
• unauthorised disclosure of the information has or will cause detriment.
Snowy Hydro relies upon the obligation of confidence expressed in the ESA.
Applicant contentions
The applicant contends that the information sought is ‘public information’ because Snowy Hydro should not be treated ‘as a regular company’ as it is owned by the Commonwealth and is duty bound (unfettered by confidentiality obligations) to provide information to the Shareholder Ministers, the Auditor-General and to Senate Estimates.
I respond to the first proposition of the applicant that Snowy Hydro should not be treated as a regular company. In my view, the status of Snowy Hydro as a body corporate incorporated pursuant to the Corporations Act 2001 (Cth) is clear. Further, it is clear from the SHC Act that Snowy Hydro is not the Crown and that therefore Snowy Hydro’s information is its own and is not public information. In State Electricity Commission of Victoria v City of South Melbourne,[2] it was argued that property of the State Electricity Commission of Victoria (SECV) was ‘the property of Her Majesty’. It was noted by the High Court that the SECV, although a statutory corporation, did have a special relationship with the government of Victoria. However, the approach taken by the High Court was to consider the relevant statute as follows:[3]
It is now well established (see Launceston Corporation v. Hydro-Electric Commission (1959), 100 CLR 654) that the principal consideration in determining a question such as here confronts us is the language of the particular statute which is claimed to constitute the property of a statutory corporation “the property of Her Majesty” rather than a priori reasoning about the relationship of the Crown to corporations set up by statute to perform stated public functions. Accordingly we have gone first to the relevant statutory provisions. Nevertheless, as was pointed out in the case just cited, there is evident in modern authorities a strong tendency to regard a statutory corporation formed to carry on public functions as distinct from the Crown unless Parliament has by express provision given it the character of the Crown.
[2] (1968) 118 CLR 504.
[3] Ibid 510.
Section 8 of the SHC Act makes it clear that, despite being owned by the Commonwealth, Snowy Hydro is distinct from the Commonwealth and is not a public authority for any purpose. It follows that I reject the contention of the Applicant that the information held by Snowy Hydro is public information. It also follows that Snowy Hydro is not ‘an agency or the Commonwealth’[4] for the purposes of s 45 and that Snowy Hydro is capable of bringing an action for breach of confidence against the Commonwealth.
[4] Section 45 applies to a person “(other than an agency or the Commonwealth)”.
The second proposition of the applicant is to the effect that Snowy Hydro has statutory obligations of disclosure which are inconsistent with its claimed confidentiality. The obligation under s 91 of the PGPA to report to Shareholder Ministers does not negate the confidential nature of the documents in issue because disclosure to the Shareholder Ministers does not equate to disclosure to the public. Clause 3.14 of RMG-126 maintains the confidentiality of progress reports provided to Shareholder Ministers. Powers of compulsion by the Auditor-General or applicable in Senate Estimates do not detract from the Commonwealth’s obligations of confidentiality which will be determined based on current circumstances and not some hypothetical future disclosure.
A further contention by the applicant is that as a matter of statutory construction and law, s 45 does not apply to the documents in issue.
The applicant contends that the terms of s 45 are ambiguous and that they do not cover business information which is protected by s 47 and s 47G both of which require consultation under s 27 with any third party who may be affected by disclosure. The applicant contends that if s 45 was to be used to protect business information then the Parliament would have included an obligation to consult a business entity that might reasonably wish to make a contention that information in the document is exempt under s 45. The applicant draws support from s 45(2) which says that subsection (1) does not apply to a document to which s 47C(1) applies. He says that a similar exception must apply to s 47 and s 47G. The applicant also relies upon the Explanatory Memorandum for the Freedom of Information Bill 1981 which says that s 45 (as it then was):
… is intended to protect confidential relationships which would not be within the specific protection afforded by such clauses as clause 41 (personal privacy) and clause 43 (business confidences).
I rejected this contention by the applicant in Patrick; Secretary, Department of Defence and Naval Group[5] when I said that s 45 in Division 2 of Part IV of the FOI Act operates as a stand-alone provision unaffected by the conditional exemptions other than s 47C(1) as expressly stated in s 45(2); and that ‘if it was intended by the legislature that s 45(1) was not to apply to a document to which any of the other conditional exemptions apply, then it would have said so and created a further “carve out” provision’.
[5] [2021] AATA 4627 at [27] (‘Naval Group’).
Further to what I have previously said in the Naval Group case, s 32 provides that a provision in Part IV (which includes ss 45, 47 and 47G):
(a)shall not be construed as limited in its scope or operation in any way by any other provision of this Part by virtue of which documents are exempt documents, or are conditionally exempt; and
(b)shall not be construed as not applying to a particular document by reason that another provision of this Part of a kind mentioned in paragraph (a) also applies to that document.
The effect of the applicant’s contention is to read down s 45 so as to give it a narrower application because of ss 47 and 47G. This approach was rejected by the Full Court of the Federal Court in Austin v Attorney-General’s Department[6] who stated:
The unqualified application each exemption is intended to have is confirmed by s 32 which excludes any restrictive implication from the terms of any other exemption.
Each exemption is to be given the meaning its own terms fairly convey.
[6] (1986) 12 FCR 22 at 26.
The applicant’s contention is also not supported by [5.185] of the FOI Guidelines which says:
The exemption operates as a separate and independent protection for confidential relationships which may, but need not necessarily, also fall within the scope of other specific exemptions, for example, ss 47F (personal privacy) and 47G (business documents).
Another contention of the applicant that I have previously rejected is that s 45 only applies where disclosure would found a claim for breach of confidence in equity. In Naval Group[7] I found that an action for breach of confidence, as referred to in s 45, includes an action for breach of contract.
[7] Naval Group (n 5) [29]-[43].
The final and alternative contention of the applicant is that s 45 is not satisfied in the circumstances of this case.
As a preliminary point the applicant contends that the Tribunal needs to consider whether Snowy Hydro would in fact bring proceedings against the Commonwealth for breach of confidence. For example, the applicant says that it is necessary for the Tribunal to turn its mind to whether the shareholder ministers would permit proceedings to be commenced or continued. This is another contention that I have previously rejected. In Patrick and Secretary, Department of Industry, Science and Resources[8] I said:
Under s 61(b) of the FOI Act the respondent has the onus of establishing that its decision was justified or that the Tribunal should give a decision adverse to the applicant. If the evidence before the Tribunal is not sufficient to found an action for breach of confidence then the respondent will not have satisfied the onus. That does not mean that the respondent would have to prove that it will be successful in such an action. Section 45 only requires evidence to support a finding that the disclosure of the document would found an action for breach of confidence. In Western Desert Puntukurnuparna and Aboriginal and Torres Strait Islander Commission,[9] the Tribunal considered what it means to found an action for breach of confidence and concluded at [62] with respect to s 45 as follows:
The terms of the section do not require an agency to consider the likelihood that an action will be commenced against them, the merits of the action, defences to the action or the outcome of the action. Such requirements would place far too onerous a burden on an agency. The section only requires the agency to consider whether disclosure would found an action for breach of confidence.
[8] [2024] AATA 2689 at [31].
[9] [1997] AATA 205.
Consideration of the claim for exemption under s 45
The requirement in s 45 that disclosure of the document would found an action for breach of confidence is to be determined by reference to the five criteria in Corrs Pavey Whiting & Byrne v Collector of Customs[10] as set out in the FOI Guidelines at [5.189]. I turn now to those five criteria.
Can the information be identified with specificity?
[10] [1987] FCA 266; (1987) 14 FCR 434 at 443 (‘Corrs’).

The information in question is contained within the redactions made to the documents identified by the respondent in answer to the access request. The applicant has been provided with a redacted version of the documents in contention. There is no doubt that the applicant considers that the respondent has overreached in terms of the redactions made and the claims as to confidentiality but nevertheless, the information over which the claims are made has been identified as those contained within the redactions which is an adequately specified identification. It is very clear from the redacted documents provided to the applicant what information is being claimed as exempt from disclosure. The identification of the redacted passages enables the Tribunal to determine whether the information in those passages would found an action for breach of confidence.
Does the information have the necessary quality of confidence?
The ESA obliges Snowy Hydro to provide reports to the Commonwealth that include ‘without limitation’ a financial performance report and an operational report. The documents in issue were provided pursuant to the ESA and have the necessary quality of confidence because they have been treated confidentially between Snowy Hydro and the Commonwealth and not disclosed to the public. Further, the nature of the information in the documents in issue is that it is commercially sensitive information provided under a cloak of contractual confidentiality. In addition to the obligation of confidence under the ESA, the information in the documents in issue was governed by RMG-126 and thereby obtained the necessary quality of confidence because of the express statements of confidentiality in clause 3.14. The evidence from Ms Horrocks and Mr Higgs supports that the information in the documents in issue is confidential and commercially sensitive.
Included within the Snowy Hydro Documents are documents 2, 7, 10, 11, 12, 15, 16 and 23 which are major project updates, operational reports and a shareholder update all of which were provided by Snowy Hydro to the Department under its reporting obligations in clause 3.7 of the ESA. These documents had confidentiality markings and were kept confidential by both Snowy Hydro and the Commonwealth.
Also included within the Snowy Hydro Documents is document 6 which is the ‘Confidential Quarter 2 FY2023 Progress Report’, which was expressly stated as being confidential in clause 3.14 of RMG-126. This document was also provided under the general reporting obligations of the ESA.
The Snowy Hydro Documents come within the definition of confidential information in the ESA because they contain information marked as confidential and given by Snowy Hydro to the Commonwealth and because Snowy Hydro did not already know the information at the time it was provided. Much of the information in the Snowy Hydro Documents was based on or derived from information provided to Snowy Hydro by contractors[11] on expressly confidential terms. This information was treated confidentially and not disclosed to the public.[12]
[11] Referred to as FGJV.
[12] See affidavit of Mr Higgs at [16]-[21] and [33]-[37].
The applicant contends that the respondent has not satisfied the burden of proof with respect to the information and refers to the publicly available information on the Snowy Hydro website and elsewhere. I reject that contention based upon the evidence given by Ms Horrocks and Mr Higgs. I accept the evidence given for the respondent that the information in the Snowy Hydro Documents has been treated confidentially and has not been disclosed to the public. Accordingly, I find that the Snowy Hydro Documents have the necessary quality of confidence.
Ms Horrocks deposes that the Derived Documents were prepared by the Department for internal purposes within the Commonwealth and to brief the Minister for Climate Change and Energy who is a Shareholder Minister. The Derived Documents were treated confidentially and not disclosed to the public. It follows from my finding that the information in the Snowy Hydro Documents had the necessary quality of confidence that so too does the same information contained in the Derived Documents.
The Reset Letter is marked commercial-in-confidence and contains sensitive commercial information including costings related to the reset of the Snowy Hydro 2.0 Project. Snowy Hydro sent the Reset Letter to the Shareholder Ministers as an update on the Snowy Hydro 2.0 Project. The applicant contends that the Reset Letter was not sent under the ESA. I reject that contention because the ESA obliges Snowy Hydro to provide reports to the Commonwealth that include ‘without limitation’ financial performance reports and operational reports. The Reset Letter provides such a report and comes within the definition of confidential information in the ESA. Gayle Beck was the head of shareholder relations at Snowy Hydro from November 2021, and he provided a witness statement dated 21 June 2024 setting out the confidential nature of the communications with the Shareholder Ministers. The information provided to Shareholder Ministers such as the information in the Reset Letter was shared on the basis that it was confidential and commercially sensitive and it was treated in that way.
Has the information been communicated and received on a mutual understanding of confidence?
I consider that the information in the documents in issue was communicated and received on a mutual understanding of confidence. This arises from the express statements as to confidentiality in the ESA and RMG-126, the markings of confidentiality on the documents and they way that the documents were treated as confidential and not disclosed to the public. Mr Higgs deposes expressly to this understanding of confidence at paragraphs 38 and 39 of his affidavit. Ms Horrocks deposes to the understanding of confidence at paragraph 11 on page 8 of her first affidavit.
Is disclosure threatened without authority?
Snowy Hydro has not authorised disclosure, nor is disclosure authorised under the ESA or RMG-126. Therefore, I am satisfied that any disclosure would be without authority.
Will disclosure cause detriment?
Snowy Hydro contends that there is no fifth element of a claim for breach of an equitable obligation of confidence that disclosure would result in detriment to the claimant.
The learned authors of Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (5th ed),[13] proposed that it is safer to apply the statement of principle by the Full Federal Court in Optus Networks Pty Ltd v Telstra Corporation Ltd,[14] in which the Court adopted a previous formulation by Gummow J[15] and said that there are four elements to a claim for breach of confidence in equity, not including detriment.
[13] At [42]-[100].
[14] [2010] FCAFC 21; (2010) 265 ALR 281, 290 [39].
[15] Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1990) 22 FCR 73, 87.
This issue may be resolved in the future by a higher authority but the current FOI Guidelines at [5.188] makes it clear that all five criteria must apply to the information. Accordingly, I will approach the matter by reference to the FOI Guidelines which provides that all five criteria must be satisfied in order to found an action for breach of confidence.
The Commonwealth and Snowy Hydro took steps to protect the confidential information that was provided under the ESA. A breach of that contractual obligation will of itself cause detriment. Further, I accept the evidence of detriment to Snowy Hydro given by Mr Higgs in his affidavit from paragraph 40 to 76. Mr Higgs was cross examined but his evidence of detriment was not impaired. Mr Higgs has given detailed evidence which refers to the particular detriment arising on numerous grounds if the confidential information in the documents in issue was disclosed:
(a)disclosure would discourage the fulsome and free flow of information between Snowy Hydro and the FGJV contractors;
(b)there is a potential for misuse of information by subcontractors, which could result in delays and additional costs or impact commercial negotiations;
(c)disclosure would give the competitors of Snowy Hydro an insight into its resources, capabilities, market position and vulnerabilities;
(d)disclosure would diminish the commercial value of the design information.
Mr Higgs also gave specific evidence of the detriment flowing from disclosure of the information in the Reset Letter.
Conclusion
I am satisfied with respect to the five criteria in Corrs.[16] It follows that s 45 is made out because disclosure of the redacted information in the documents in issue would found an action for breach of confidence. That information is exempt from disclosure and access should not be given to the applicant.
[16] Corrs (n 10) 443.
Order
The order of the Tribunal is to affirm the decisions under review.
It is unnecessary for the Tribunal to consider the further claims for exemption under s 47 and s 47G.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

..................[sgd]......................................................
Associate
Dated: 27 November 2024

Date(s) of hearing: 19, 20 and 21 August 2024

Applicant’s Representative: Self-represented

Solicitors for the Respondent: King & Wood Mallesons

Solicitors for the Other Party: Allens

Date(s) of hearing:	19, 20 and 21 August 2024
Applicant’s Representative:	Self-represented
Solicitors for the Respondent:	King & Wood Mallesons
Solicitors for the Other Party:	Allens