Wagdy Hanna and Associates Pty Ltd and Australian National University - [2000] AATA 828

DECISION AND REASONS FOR DECISION [2000] AATA 828

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/280

GENERAL ADMINISTRATIVE DIVISION       )
           Re      WAGDY HANNA AND ASSOCIATES PTY LTD
  Applicant
           And    AUSTRALIAN NATIONAL UNIVERSITY

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Air Marshal I.B. Gration (Member)

Date18 September 2000
PlaceCanberra

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal: (a) sets aside the decision under review in so far as documents 2.1, 2.5, 2.8 and 2.10 of the scheduled documents are concerned, and in substitution therefor, decides that those documents are to be released in their entirety, save and except for the sentence contained in document 2.1 at the third dot point under the heading "Lester Firth and Associates" which is to remain deleted; and (b) as regards all other documents, the Tribunal affirms the decision under review.

(Signed)
J.A. KIOSOGLOUS
(Senior Member)
CATCHWORDS
FREEDOM OF INFORMATION – release of documents relating to Australian National University library tender – ongoing commercial interests considered – trade secrets considered – adverse and unreasonable effects – public interest
Freedom of Information Act 1982 ss.43, 45
Re The Staff Development and Training Centre and Secretary, Employment, Workplace Relations and Small Business [2000] AATA 78
Lansing Linde Ltd v Kerr (1990) 21 IPR 529
Corrs Pavey Whiting & Byrne v Collector of Customs(Vic) and Another (1987) 74 ALR 428
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163

REASONS FOR DECISION

18 September 2000 Senior Member J.A. Kiosoglous MBE Air Marshal I.B. Gration (Member)

This is an application by Wagdy Hanna and Associates Pty Ltd (the applicant) for review of a decision of a delegate of the Australian National University (ANU) dated 31 July 2000 (Exhibit R1) which affirmed a decision of another delegate of the respondent dated 12 November 1999 (T49) to refuse to release a number of documents contained in a "Schedule of Exempt Documents" (attached to Exhibit R1) which related to the tendering process by which a contract for the ANU's Hancock Building Extension Project was awarded.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T49), together with seventeen exhibits, ten lodged by the applicant (Exhibits A1-A10) and seven lodged by the respondent (Exhibits R1-R7). In addition, the Tribunal heard evidence from Mr Wagdy Hanna, Architect, Mr P. May, Architect and Mr W. Williams, Director, Facilities & Services, ANU. The applicant was represented by Mr Wagdy Hanna, and the respondent was represented by Mr K. Grime, of counsel.
The issue before the Tribunal is whether or not the documents contained in the Schedule should be released under the Freedom of Information Act 1982 (the FOI Act).
history of the application
The applicant, along with three other architectural firms, was invited to tender in 1998 for the architectural work component of the proposed extension to the Australian National University (ANU) library, housed in the Hancock building (the Hancock Building Extension Project). Following receipt of the tenders and interviews with each tendering party, the ANU awarded the tender to May Flannery Architects (which has become May Russell Architects as of 30 June 2000) on 14 April 1998 (T4).
As a result of this, the applicant requested a number of documents relating to the "request for tender for Architectural Services on the Hancock Building Extension Project" on 15 April 1998 (T5). Following consultation with various third parties, the ANU legal office received various responses.
Collard Clarke Jackson, one of the tendering firms, responded on 18 May 1998 (T26) (inter alia):
"… The details contained in our submission do not appear to be appropriate to exempt us from disclosure so we therefore must agree."
May Flannery Architects responded on 18 May 1998 (T28) (inter alia):
"…
We are unwilling to give concurrence to the University to release copies of our submission to the applicant. The following comments are provided in support of this position:
1 The submission contain intellectual property

The submission contains
(i) original ideas which are of commercial value to this company, and
(ii) information containing commercial value pertaining to this company only.
The ideas and commercial information were submitted for the purpose of gaining commercial advantage and can be used again by this company in future submissions to future possible clients.
The original work and commercial information was therefore submitted on a "commercial-in-confidence" basis. The University did not state in the tender information, that information submitted would ever be released publicly.
…"

The other tendering firm, Lester Firth and Associates (LFA (Aust) Pty Ltd), responded on 28 May 1998 (T31) (inter alia):
"…
LFA claims full exemption from disclosure on the grounds that our tender documents
1) are Commercial in Confidence.
2)are protection against unauthorised disclosure under applicable Codes of Tendering and Trade Practice Legislation.
3)were never intended, either expressly or by implication, for disclosure to any party other than the Australian National University and then solely for the purpose of the tender assessment at hand.
4)were provided to the ANU in confidence and good faith, without any prior indication that the highly valuable professional and commercial content might be disclosed to any third party, much less actual or potential competitors.
5)contain sensitive material provided by other consultants as members of our team, none of whom have agreed to disclosure of their tender material by the ANU or others to any third parties.
I confirm that unauthorised disclosure of our documents in whole or in part will adversely affect our business interests and activities, as it would:
a)reveal trade secrets and confidential intellectual property.
b)reveal information of high commercial value that will be destroyed or significantly diminished if disclosed.
c)reveal confidential or privileged information regarding the Business Management, Financial, Legal, Insurance and personal details relating to this firm, associated consultants and staff.
I also confirm that for this firm, unauthorised disclosure of confidential commercial or professional information through tender, post-tender or other undeclared procedures is regarded as a serious breach of trust and would be subject to action for full recovery of resulting loss or damage using all available remedies.
I trust that the ANU will fully observe it's ethical and legal obligations in this matter and respect the commercial and intellectual property of external professional consultants, as it would those of the ANU academic, research and consultant community.
…"
On 15 June 1998 Mr S. Herrick, Head of the University Legal Office, determined that the vast majority of requested documents should not be made available, with exemption claimed pursuant to sub-paragraph 43(1)(c) of the FOI Act. (T32) The applicant's tender documents and the selection committee report (with some deletions) (T14A) were made available to the applicant.
The applicant met with representatives of the ANU on 23 June 1998 to discuss continuing concerns and, subsequent to the meeting, Mr W. Williams recorded in a file note dated 26 June 1998 (T34) (inter alia):
"…
We again attempted to explain the reasons for the University choosing a firm other than Wagdy Hanna and Associates for the Hancock Extension project. We stressed the fact that we had selected initially four architects to make submissions on the basis that any one of those four would probably perform to the satisfaction of the University. Various selection criteria, eg experience, etc., were mentioned in the briefing document. We indicated that the final decision was difficult and that, on balance, the Division had to guided [sic] by the views of the users. In this process, a short list of two – May Flannery and [name deleted] – was determined (although we did not mention specifically the name of the firm other than May Flannery). Mr Horan seemed to suggest that we were using extraneous factors to make a choice. We stressed that, given that the choice was difficult, we had to work on the basis of the users' preference. We believe that this is quite appropriate. It would certainly not be appropriate for the Division to select a firm of architects to work on the project without strong input from the users. …'
On 30 June 1998 the applicant requested review of the decision of 15 June 1998 (T36). An internal review conducted by Professor D. Green, the University's Deputy Vice-Chancellor, resulted in the release of the tender prices received by the ANU (T38). The Commonwealth Ombudsman, as a result of a complaint by the applicant also became involved in the matter (T37), both in relation to delays in complying with the freedom of information request, and with the tender process itself.
On 29 September 1999 (T43), the applicant lodged a fresh application for release of:
"…
1.        All documents provided by, or related to, the successful tenderer.
2.All documents dealing with the assessment of the successful tenderer and ours.
3.        All documents related to negotiations with the successful tenderer.
4.        All documents relating to changes in the successful tenderer's tender.
5.        All documents relating to the contract with the successful tenderer.
…"
The ANU again consulted the successful tenderer, May Flannery Architects, who responded on 26 October 1999 (T48) in the same terms as their letter of 18 May 1998 (T28). On 12 November 1999, Mr S. Herrick determined not to release the requested documents, stating (inter alia) (T49):
"…
The University has considered the successful tenderer's response and its own position in this matter. The following sets out each of the specific documents sought together with the University's responses:
1. All documents provided by, or related to, the successful tenderer.
These documents relate to business affairs and come within the exemption set out in section 43 of the FOI Act, in particular section 43(1)(c).
2.All documents dealing with the assessment of the successful tenderer and ours [i.e. Wagdy Hanna and Associates Pty Ltd].
The Selection Committee Report has already been supplied to you with sections exempt under section 43(1)(c) of the FOI Act not shown. Warwick Williams provided this Report to you in April 1998. The only other documents in existence in relation to this report are notes of a meeting of the Committee. These notes are deemed internal working papers and are therefore exempt under section 36 of the FOI Act.
3.All documents related to negotiations with the successful tenderer.
These documents relate to business affairs and come within the exemption set out in section 43 of the FOI Act, in particular section 43(1)(c).
4.All documents relating to changes in the successful tenderer's tender.
No documents in existence.
5.All documents relating to the contract with the successful tenderer.
These documents relate to business affairs and come within the exemption set out in section 43 of the FOI Act, in particular section 43(1)(c).
…"
That letter also advised the applicant of his appeal rights, including a right to appeal to the Tribunal. The letter erroneously omitted to mention that an internal review had to take place prior to a Tribunal review. On the first day of the hearing (31 July 2000), it was discovered that no internal review had taken place, and the matter was adjourned until later in the day in order for a review to take place in the morning. This occurred, thus enabling the hearing to proceed.
the documents
The documents in question are referred to in the "Schedule of Exempt Documents" attached to Exhibit R1 and comprise:
1.1A letter dated 29 September 1993 sent anonymously during the tendering process, referring to a 1993 project undertaken by May Flannery
1.2      Tender document of May Flannery dated 20 March 1998
1.3      Copy of page 77 of May Flannery tender document
1.4      Copy of 1.3 in the sense of an annexure to a letter to the Ombudsman
2.1Internal Memorandum of respondent from Mr P. Gray to Mr W. Williams dated 6 April 1998, which concerns assessment of the tenderers and being documents released to the applicant but with deletions
2.2Internal Memorandum by Mr C. Coughlan dated 22 March 1998 concerning assessment of tenders, released with deletions to the applicant
2.3Copy of 2.2
2.4Handwritten table concerning assessment of tenderers, released to the applicant with deletions
2.5Copy of 2.1
2.6Copy of 2.2
2.7Copy of 2.4
2.8Copy of 2.1
2.9Handwritten assessment of tenders incorporating 2.4 with an additional page concerning assessment of tenderers, released to the applicant with deletions
2.10Copy of 2.1
4.1Fax from May Flannery to respondent dated 2 April 1998 enclosing page 34 of tender document 1.2. Fax released to the applicant without enclosure

applicant's evidence and submissions

Mr Hanna, on behalf of the applicant, provided detailed written submissions to the Tribunal, encompassing a statement of issues (Exhibit A1), hearing submission (Exhibit A4) and concluding submission. It is unnecessary to set out such submissions herein but, suffice to say, the Tribunal has given them careful scrutiny. In presenting his submissions he spoke at some length to the Tribunal, outlining his case, and for current purposes, the Tribunal summarises the applicant's case as follows, largely drawing upon the oral evidence of Mr Hanna.
Mr Hanna stated that, having been invited to tender for the ANU library project, he expected a degree of transparency and fairness which was not forthcoming. He considered that the ANU assessment of tender process had been shallow and superficial. He further stated that the release of the documents will help clear his name around the small architectural market in Canberra, and that, if the ANU considers its processes to be above board, then it should have no problem in releasing the documents.
He referred to the values the ANU purports to subscribe to, evidenced by their annual reports, Quality Management Policy, Policy on Selection of Project Managers and Architects (Exhibit A8), Tender Procedure (Exhibit A10), Mission, Values and Goals (Exhibit A7) and International Best Practice.
He took the Tribunal through the applicant's tender, noting the price variations and stated that the applicant's tender had significant "value adding" which was missing from the successful tenderer's tender. He further stated that given the price differential:
"…
We are seeking that part of May Flannery Tender and a tangible evidence of the ANU assessment, based on fact not gut feeling, that justifies a premium of 22.68% over and above an invited tenderer's price which the ANU admits can do the job.
…"

(page three of applicant's concluding submission)

He referred the Tribunal to the submission of Dr N. Sneddon to the Australian Senate, in which is stated the following (inter alia) (Exhibit A4 – hearing submission at p6):
"…
The idea of publishing entire contracts may seem somewhat revolutionary. Contracts are traditionally, and by their nature, "private". The answer to this is that the government has chosen a "private" mode of achieving public objectives: there is therefore a mix of private and public. It is a mistake to assume that the private should somehow prevail over the public in connection with government contracting activities. The paramount consideration, when the government engages in any activities, is the public's right to scrutinise, no matter what form of service delivery the government chooses. This is a fundamental aspect of our democratic system that cannot be thwarted by the use of contract.
…"
Mr Hanna submitted that the ANU should disclose the claimed documents, as it was in the public interest to have open and accountable tendering procedures, and that the applicant, being "the public", had a right to full disclosure.
He told the Tribunal that May Flannery's objections were not made out, and noted that Collard Clarke Jackson, an architectural firm with a long history, had no such objections. He stated that, given the changes from May Flannery to May Russell, there are now a large number of people who are aware of the tender and style of tender document, such that it is now common knowledge. He also submitted that, because of the change in company name, there is no longer any need to protect the "third party's" interests.
He referred the Tribunal to Re The Staff Development and Training Centre and Secretary, Employment, Workplace Relations and Small Business [2000] AATA 78 wherein Deputy President Forgie stated (inter alia):
" …
140 In the context of the administration of any programme of government, there is a public interest in ensuring that it operates efficiently and effectively, in terms of both outcomes and process, that it is administered fairly and without favour, that public money is properly spent and accounted for and that the programme meets its stated objectives. At the same time, there is a public interest in openness of the administration of the program so that, in so far as it is possible to do so, those who are affected by it can be aware of the criteria and processes by which they or their claims (in whatever form) are assessed. The public interest in openness extends to a public interest in the Australian people's being informed of such matters and being able to have confidence that the programme is administered in this manner. A further public interest lies in ensuring that unwarranted attacks are not raised upon the integrity of Australia's public servants who administer a programme.
…"
The Tribunal also notes at this stage that in respect of "commercial value", Deputy President Forgie stated at paragraph 117 of Re Staff Development (inter alia):
"…
… The essence of the meaning of "commercial value" is that the information must have a worth to a person other than the agency which possesses the information. To have "commercial value" in the sense in which it is used in paragraph 43(1)(b), it is not enough that the information in the document enables an agency to make, for example, sound economic or commercial decisions. Such information may be concerned with the proper and efficient operations of an agency. … It is concerned with protecting from disclosure that information for which the agency could obtain some worth were it to exchange it with another. It is concerned with commercial value and not with the internal operations or management of an agency.
…"

At paragraph 137, Deputy President Forgie stated (inter alia):
"Were that to occur, would those adverse effects be unreasonable? In Searle Australia Pty Ltd, the Full Court of the Federal Court said:
"If it be in the public interest that certain information be disclosed, that would be a factor to be taken into account in deciding whether a person would be unreasonably affected by the disclosure; the effect, though great, may be reasonable under the circumstances. To give two examples: if the relevant information showed that a business practice or produce posed a threat to public safety or involved serious criminality, a judgment might be made that it was not unreasonable to inflict that result though the effect on the person concerned would be serious. Of course, the extent and nature of the effect will always be relevant, often decisive. Whether the effect of the disclosure is unreasonable cannot be assessed without taking into account all relevant factors: see Colkovski v Australian Telecommunications Corp. (1991) 29 FCR 429 at 438, 4441" (page 125)"

Mr Hanna submitted that, in line with this reasoning, a reverse onus should be applied, such that the presumption must be in favour of disclosure. He submitted that the "May" side of the May Russell merger was substantially smaller, such that the release of one tender document could not have any dramatic impact.
He submitted that he was not interested in obtaining the 1993 letter (exempt document 1.1) sent anonymously during the tender process.
mr p. may
Mr Peter May has been a practising architect for fourteen years. In his evidence he told the Tribunal that he is now a director of May Russell Architects Pty Ltd, trading as May Russell Architects; and that, prior to its winding up on 30 June 2000, he had been a director of Peter May David Flannery Pty Ltd, trading as May Flannery architects. He stated that the business and intellectual property of May Flannery was wholly transferred to May Russell, and included the rights to items such as the tender document used in the Hancock Library Extension Project.
In relation to his objections to the release of the documents relating to May Flannery's successful tender, Mr May stated that the style and presentation of the tender document is the result of many years' work and there is substantial intellectual property in its format and layout. He told the Tribunal that he has had client feedback that the style of tender document he submits is well received. He further stated that such intellectual property was still used and represents working capital. His concern is to style, layout and content, in that there is a lot of information contained in the tender document about methodology and company processes.
He stated that his companies (both past and present) would put in some 40-50 tenders per year, and be awarded some 10-20% of such tenders. He further stated that he has worked on approximately seven library projects. He stated that this was his firm's first successful contract with ANU, and that ANU has since awarded his firm another contract.
mr w. williams
Mr Warwick Williams is the Director, Facilities and Services, at the ANU. He told the Tribunal that, given budgetary constraints, it is important that the respondent obtain as much information as possible from prospective tenderers about their proposal and background. He stated that he was concerned that, if such information was made freely available by the respondent, it would not receive such detailed tenders in the future, which would adversely affect the quality of its selection process. He also detailed the concerns flowing from the small size of the Canberra market, and not wanting that market to lose confidence in the ANU's ability to keep information confidential.
He stated that the standard tendering process at the ANU was to invite tenders, and include at least one firm from whom a tender had not previously been sought. The tenders then go to a consultation committee, and briefing sessions are held with the parties submitting tenders. His main concern is making sure that there is sufficient documentation arising out of the committee. He recalled one occasion on which he refused to sign off on a tenderer proposed by a committee because the committee had not provided adequate documentation of its reasons for decision. On that occasion, he sent the matter back to the committee to start over again.
He stated that, in selecting the tenderer in this particular case, the views of the library user-group had been particularly important, given that the architect and user-group would have a close working relationship. He rated the value of the tender document as high, as it was central to the decision to award the tender. He stated that the differential in price had been discussed with the committee and user-group, but in the end both were happier, for various reasons, to accept the higher price of May Flannery, noting though, that it was not the highest bid received.
He stated that he was concerned as to the release of the documents because there is material of a private nature referring to May Flannery, and because of comments in the documents made by the selection committee in relation to other third parties. He considered that, if it became known that as a matter of course the ANU released information, then that would affect the ANU's commercial interests.
respondent's submissions
Mr Grime submitted, on behalf of the respondent, that section 45 of the FOI Act was not relevant, and this was not a public interest test case. He further submitted that the tender prices have been released, and this was consistent with the policy documents referred to by the applicant.
He submitted that the May Flannery documents fell within the definition of "trade secret" and "commercial value". He further submitted that the intellectual property in the tender document is recognised as an asset.
In respect of "trade secret", the Tribunal was referred to Deputy President Forgie's reference in Re Staff Development at paragraph 112to Lansing Linde Ltd v Kerr (1990) 21 IPR 529 at p536 wherein Staughton LJ commented (inter alia):
" …
It appears to me that the problem is one of definition: what are trade secrets, and how do they differ (if at all) from confidential information? Mr Poulton suggested that a trade secret is information which, if disclosed to a competitor, would be liable to cause real (or significant) harm to the owner of the secret. I would add, first, that it must be information used in a trade or business, and, secondly, that the owner must limit the dissemination of it or at least not encourage or permit widespread publication.
…"
He submitted that, in relation to sub-paragraph 43(1)(c) of the FOI Act, the phrase "unreasonably affect business affairs" refers to the subjective view of the person who holds the business. He further submitted that it was a rational and not fanciful expectation of Mr May that his commercial interests might be affected by the release of the tender documents, especially given the size and competitiveness of the Canberra market.
He further submitted that the change in business name did not remove the prejudice flowing to a third party interest, referencing Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) and Another (1987) 74 ALR 428 at p454 wherein Gummow J states (inter alia):
" …
The tribunal did not reach any conclusion upon the question of exemption under s 40(1)(d), in view of its holding as to s 45, although it indicated a preliminary view on the subject. Nor did it rule upon exemption claimed under s 43(1)(c)(i). The tribunal did, at the hearing, express views as to the meaning of the phrase "in respect of business affairs" as it occurs therein. As I have mentioned, this was that events of pre-1984 were of historical interest. The matter was debated before us and I should express my conclusion. This is that the mere circumstance that an event is a past event does not mean that it cannot be in respect of present business affairs. The expression "in respect of" is of wide and general import like the expressions "in relation to" and "with respect to" (Victoria v Commonwealth (1971) 122 CLR 353 at 399-400; Fountain v Alexander (1982) 150 CLR 615 at 629; 40 ALR 441 at 450; Foord v Whiddett (1985) 60 ALR 269 at 282). It would be open to find that a disclosure of past events could have the effect described in s 43(1)(c)(i). Whether this was so in the present case would depend upon the view the tribunal took of the evidence.
A question would then arise as to the meaning of "lawful" in the expression "lawful business … affairs" in s 43(1)(c). This was not argued before us and I say nothing about it. Nor do I deal with s 40(1)(d). This also can be left to the tribunal.
…"

discussion and findings

The Tribunal would note from the outset that its role is limited in this instance to considering only the application for release of the specified documents. It cannot enter into any outstanding issues between the parties as to the bona fides of the tender process. It notes that the Commonwealth Ombudsman has been involved, and may or may not have some continuing involvement. In any event, there are other avenues of redress available in respect of such grievances.
Prior to the hearing, many of the documents that were in dispute had been provided to the applicant, some with deletions made. The Tribunal only proceeds in this application to consider those specified in the "Schedule of Exempt Documents", which is attached to Exhibit R1.
In relation to document 1.1, the applicant indicated at hearing that he did not seek to have access to that particular letter, as the private business of May Flannery does not concern him. Accordingly, by consent, the Tribunal affirms the decision under review in respect of document 1.1.
The remaining documents fall into two categories. There is the actual tender document of May Flannery and parts thereof (documents 1.2 to 1.4 and 4.1) and the internal working documents of the respondent dealing with the tenderers. Of this latter group, documents have been released with deletions, and it is in respect of the deletions that exemption is sought.
In relation to the May Flannery tender document, the respondent claims exemption pursuant to sub-paragraphs 43(1)(a), (b) and (c) of the FOI Act. Sub-paragraph 43(1)(a) of the FOI Act provides:
"43.(1) A document is an exempt document if its disclosure under this Act
would disclose:
(a) trade secrets;
…"
In Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163 at p172-173, the Full Federal Court considered sub-paragraph 43(1)(a) of the FOI Act, citing with approval Staughton LJ in Lansing Linde and holding further that "Information may be a secret whether or not it is of a technical character.".
In Lansing Linde, Staughton LJ as previously stated, outlines three relevant criteria:
(a)Will the release of the secret information to a competitor cause real or significant harm to the owner?
(b)Is the information used in a trade or business?
(c)Does the owner of the business seek to limit the dissemination or at least not encourage or permit widespread publication?
The Tribunal notes the commentary in Searle at p174 that it is not appropriate to slavishly follow any legal criterion. It provides (inter alia):
"…`
The determination in any particular case of the question whether information is a trade secret is a determination of fact. … The question must be determined by the Tribunal, having regard to the content of each of the relevant documents but free of any requirement that the information contained in the document be of a technical character.
…"
The Tribunal is satisfied that the May Flannery tender document is a document (or information) used in the performance of a trade or business. The tender document is used for the purpose of obtaining architectural work, and forms the point of initial contact between the firm and the prospective client.
The Tribunal is further satisfied that May Flannery seeks to limit the publication or dissemination of that information. The Tribunal does not accept the applicant's contention that the tender document has been made "public" by the fact of the breakup of May Flannery. It was clear from Mr May's evidence that the intellectual property in the tender document, and more generally relating to a generic tender document, went with him upon the dissolution of May Flannery as part of the agreement reached between Mr May and Mr Flannery. The fact that both Mr Flannery and Mr May are now with separate and bigger firms does not mean that such information is "public". As the Tribunal pointed out at the hearing, it is not as if such information is posted on a bulletin board, or indeed that the employees of those firms would have an interest in such information. More specifically, the intention is to restrict publication such that competitors do not get hold of such information.
The Tribunal accepts Mr May's evidence that he only releases such information to prospective clients with the expectation that it will remain in confidence.
As to the question of whether the release of such information would cause real or significant harm to the owner, the Tribunal notes that Mr May considers there to be significant commercial value in the document. In particular, he cites the style of presentation and the content, the latter of which includes things such as past client lists and project management strategies. Whilst this could be said to be only a subjective assessment, the Tribunal accepts his evidence as credible that clients have told him that his style and presentation of tender document were significant factors in influencing their decision. Moreover, Mr Williams gave evidence to the effect that the May Flannery tender document had a "high value" as it was a basis upon which the committees' discussion was based. The Tribunal also notes the comments from the undeleted part of document 2.2 of the Schedule, wherein Mr Coughlan, Planning Officer, notes:
"…
In the opinion of the Planning Officer the May Flannery submission stands out for the clarity of its presentation and the manner it addresses the major issues. Of the four submissions, it gives the strongest impression of being prepared specifically as a response to this project, rather than having been cobbled together from previous submissions for other projects."
The Tribunal has also had the opportunity to view the May Flannery tender document and assess its worth. The Tribunal concludes that the May Flannery tender document has significant commercial value to May Flannery, as it is clear from the evidence that the clarity and manner of presentation, and ability thereby to effectively address the major issues involved, is a valuable asset which potentially gives May Flannery a commercial advantage in the competitive architectural environment of Canberra. Having viewed the documents, the Tribunal accepts that both in terms of generic style and layout, and in terms of content, including manner of address and disclosure of client lists and the like, the release of the May Flannery document to the public (and therefore May Flannery's competitors) would potentially cause real and significant harm in eroding any commercial advantage that particular style and content gives to May Flannery.
Of course May Flannery is a past concern, the directors going their separate ways sometime in 1999, and the company structure being wound up on 30 June 2000. Mr Hanna contends that, since that particular third party is no longer in existence, there can be no harm in releasing the tender document. In rebutting this proposition, Mr Grime referred the Tribunal to Corrs Pavey wherein Gummow J expresses an opinion in relation to the phrase "in respect of business affairs" as that phrase appears in sub-paragraph 43(1)(c)(i) of the FOI Act (at p454 as quoted above in paragraph 38). The distinction to be made, of course, between that case and the present one, is that the former concerned events in the past, not companies in the past. From the Tribunal's perspective, the important point to be made in relation to the scope of sub-paragraph 43(1)(a) of the FOI Act, is that (as noted in Searle) "trade secret" is spoken of by reference to an "owner". It is the effect upon the "owner" of the trade secret that is the relevant test. In this case, both the "third party" (or company) involved and the "owner" of the trade secret has changed. A change in ownership of a trade secret does not extinguish a trade secret, it only indicates that the asset in question (that being the intellectual property) has been passed on. Clearly in this case, there was a commercial transaction between Mr May and Mr Flannery which resulted in the transfer of the intellectual property in the May Flannery "trade secrets" (which includes, by virtue of these reasons, the library extension tender document) to May Russell. There is still an "owner" of the trade secret therefore, for the purposes of sub-paragraph 43(1)(a) of the FOI Act. The Tribunal is satisfied that the current owner (May Russell) satisfies the requirements of sub-paragraph 43(1)(a) of the FOI Act, for the same reasons as stated in paragraph 52 herein. It remains information of which May Russell seeks to limit the publication, and which May Russell uses in its "trade". The release of the information would also potentially harm May Russell's commercial interests, by removing the advantage, the style and format of the tender document gives that firm.
Accordingly, the Tribunal is satisfied and so finds that the tender document (1.2) and its constituent parts (1.3, 1.4 and 4.1) can be considered "trade secrets" for the purposes of sub-paragraph 43(1)(a) of the FOI Act. The Tribunal finds, on this basis, that the documents should be exempted from disclosure pursuant to this sub-paragraph.
In relation to the other documents sought by the applicant, the Tribunal notes that much of that information has already been released. In respect of the internal memorandum from Mr Gray to Mr Williams (document 2.1), exemption is claimed pursuant to sub-paragraph 43(1)(c)(i) of the FOI Act. Paragraph 43(1)(c) provides (inter alia):
"(c) information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his business or professional affairs or concerning the business, commercial or financial affairs of an organisation 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 organisation or undertaking in
respect of its lawful business, commercial or financial affairs; or
…"
A version of document 2.1 appears in the section 37 documents at T14A with a number of deletions. Subsequently, the document was re-released with the only remaining deletions being comments made by the Committee in respect of the other two firms. The Tribunal notes Collard Clarke Jackson's comments in respect of their tender information appearing in their letter dated 18 May 1998 (T26) and Lester Firth and Associates' comments on their tender information in their letter dated 28 May 1998 (T31). The comments made by the Committee are, of course, in a different category to the actual tenders of those companies. The Tribunal does not consider that, save and except for one dot point therein, those portions of the documents satisfy the requirements of sub-paragraph 43(1)(c)(i) of the FOI Act. The applicant has only sought "documents dealing with the assessment of the successful tenderer and ours" (T1/5). Such documents will necessarily canvass the submissions of the other two firms. Save and except for the third dot point under Lester Firth and Associates, the Tribunal cannot see how the release of the other parts of the document would be detrimental to either firm's business or professional affairs, or how such would be detrimental to the University's business or professional affairs. Given Collard Clarke Jackson's position as regards its tender documents, the Tribunal does not consider that the release of the information in the second dot point would be detrimental as regards sub-paragraph 43(1)(c)(i) of the FOI Act; and the Tribunal so finds.
Accordingly, the Tribunal finds that document 2.1 of the exempt documents should be released, save and except for the sentence contained at the third dot point under the heading "C. Lester Firth and Associates". That third dot point will remain exempted, as it satisfies sub-paragraph 43(1)(c) of the FOI Act in the Tribunal's opinion.
Document 2.2 has been released save and except for revealing the names of the firms that provided the bids of $354,500 and $435,500. The Tribunal is satisfied that the release of the names of these firms would cause unreasonable adverse affect to the businesses concerned, in that the publication of who submitted what tender price (and the higher price in particular) may affect that company in terms of being invited for future tenders. Accordingly, the Tribunal so finds the deleted portions of document 2.2 to be exempt pursuant to section 43(1)(c) of the FOI Act.

Document 2.3 is a copy of 2.2 and the deleted portions are exempted for the same reasons.
Document 2.4 has been released with the information relating to Lester Firth and Associates and Collard Clarke Jackson being deleted. The Tribunal is satisfied that the deleted information concerns commercial matters relating to third parties, and that the release of such would reveal aspects of those third parties' ongoing business activities that would be potentially adverse to their ongoing businesses. In particular, the information concerns delivery methods and costings, and identifies other parties with whom the respective tenderers intended to contract in the event of a successful tender. It would be unreasonable to release that information, as it may be used in future tenders by those companies, and may give them an advantage over their competitors in such future tendering. Accordingly, it would be unreasonable and adverse to their interests to release such information publicly, thereby enabling their competitors to access that information.
Document 2.5 is a copy of document 2.1 and is to be released for the same reasons and subject to the same exemptions applied to document 2.1.
Document 2.6 is a copy of document 2.2 and the deleted portions are exempted for the same reasons.
Document 2.7 is a copy of document 2.4 and the deleted portions are exempted for the same reasons.
Document 2.8 is a copy of document 2.1 and is to be released for the same reasons and subject to the same exemptions applied to document 2.1.
Document 2.9 is a copy of document 2.4 with an additional page. The deleted portions of the page identical to document 2.4 are exempted for the same reasons as document 2.4. In respect of the remainder of the document, the Tribunal finds that it contains information of a similar nature to document 2.4, and the deleted portions should remain deleted for the reasons given in relation to document 2.4.
Document 2.10 is a copy of document 2.1 and is to be released for the same reasons and subject to the same exemptions applied to document 2.1.
Document 4.1 is a fax (which has been released) enclosing page 34 of the May Flannery tender document (document 1.2). Given the Tribunal has found document 1.2 is not to be released pursuant to the FOI Act, it makes the same finding in respect of document 4.1 given that document 4.1 is part of document 1.2.
decision
For the reasons given, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal:
(a)sets aside the decision under review in so far as documents 2.1, 2.5, 2.8 and 2.10 of the scheduled documents are concerned, and in substitution therefor, decides that those documents are to be released in their entirety, save and except for the sentence contained in document 2.1 at the third dot point under the heading "Lester Firth and Associates" which is to remain deleted; and
(b)as regards all other documents, the Tribunal affirms the decision under review.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Air Marshal I.B. Gration (Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  31 July 200 & 1 August 2000
Date of Decision  August 2000
Counsel for the Applicant        Mr Wagdy Hanna
Solicitor for the Applicant         -
Counsel for the Respondent    Mr K. Grime
Solicitor for the Respondent    Elrington Boardman Allport