Re Mangan and the Treasury

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 898

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/150

GENERAL ADMINISTRATIVE DIVISION		)
Re		Michael Mangan

Applicant

And The Treasury

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date15 September 2005

PlaceSydney

Decision The decision under review is affirmed.

..............................................

Professor GD Walker
  Deputy President 

9. On 18 November 2004, an internal review of the decision time affirmed that the two documents are commercially sensitive and should remain exempt under s 43 of the FoI Act (T22). This decision was communicated to Mr Mangan by letter dated 10 December 2004, the letter also advising him of his appeal rights to the Administrative Appeals Tribunal (T23 p63). On 3 February 2005, the applicant lodged an application with the tribunal for a review of that decision.

10.     At the hearing, the applicant appeared in person and the respondent was represented by Madeline Campbell, senior executive lawyer, Australian Government Solicitor’s office, Canberra. The documents provided to the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), together with the evidence provided to the tribunal at the hearing. The respondent also lodged with the tribunal prior to the hearing, portions of the T documents over which it sought a s 35(2) confidentiality order under the AAT Act, such confidentiality order being granted by Senior Member Allen on 11 April 2005. At the hearing, the applicant gave oral evidence in person. He called no other witnesses. Two witnesses gave oral evidence in person for the respondent, Michael Rosser and Michael Parshall.

Relevant Legislation

11.     The relevant legislation in this matter is the Freedom of Information Act 1982. Section 43 provides:

Documents relating to business affairs etc.

(1) A document is an exempt document if its disclosure under this Act would disclose:

(a)       trade secrets;

(b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or

(c)information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information:

(i) the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs; or

(ii) the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.

(2) The provisions of subsection (1) do not have effect in relation to a request by a person for access to a document:

(a) by reason…