Walker Group Holdings Pty Ltd and Secretary, Department of Climate Change, Energy, the Environment and Water (Freedom of information) - [2023] AATA 3920

Walker Group Holdings Pty Ltd and Secretary, Department of Climate Change, Energy, the Environment and Water (Freedom of information) [2023] AATA 3920 (17 November 2023)
Division:GENERAL DIVISION
File Number(s): 2022/8898; 2022/8916
Re:Walker Group Holdings Pty Ltd
APPLICANT

AndSecretary, Department of Climate Change, Energy, the Environment and Water
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:17 November 2023
Place:Sydney

The Tribunal decides that:
-In relation to document 4d, the reviewable decision is affirmed; and
-In relation to documents 18 and 18a, the reviewable decision is set aside, and in substitution it is decided that the documents in issue are exempt pursuant to section 47 of the Freedom of Information Act 1982 (Cth)

.............................[SGD]......................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – relevant third party under s 27 - exemptions claimed under ss 47 (commercially sensitive information) and ss 47G (conditional exemption) – decision varied
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Freedom of Information Act 1982 (Cth) ss 47, 47G
CASES
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
News Corporation Ltd v National Companies and Securities Commission [1984] FCA 400
McKinning and Department of Immigration and Citizenship [2012] ALCmr 34
‘VO’ and Northern Australia Infrastructure Facility (Freedom of information) [2020] AICmr 47
‘YR' and Tertiary Education Quality and Standards Agency [2021] AICmr 70,
SECONDARY MATERIALS
Australian Information Commissioner’s Guidelines
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
17 November 2023
BACKGROUND:

I note the Respondent’s Statement of Facts, Issues and Contentions contains a helpful factual summary of this matter, much of which is replicated below.
By application to the Administrative Appeals Tribunal on 27 October 2022, the Applicant seeks review of two internal review decisions made by the then Department of Agriculture, Water and the Environment, now the Department of Climate Change, Energy, the Environment and Water (the Department), to grant access to certain documents under the Freedom of Information Act 1982 (Cth) (FOI Act) by a third party (the access Applicant).
The Applicant was consulted as a relevant third-party, under section 27 of the FOI Act, in respect of certain documents falling within scope of each internal review decision and contends that the Department erred in granting access to certain documents, which the Applicant opposed the disclosure of. It is the Applicant’s contention that the relevant documents are exempt, or conditionally exempt, under Part IV of the FOI Act and that access should be refused on that basis.
2022/8898
On 10 February 2021, the Department received an access application made by the access Applicant under section 15 of the FOI Act, which captured documents relating to the Toondah Harbour Development (the Project) as follows:
‘1. The "proposed letter" referred to in document 1 of my FOI 200709, including all drafts and the final version.
2. Any response to this letter from the Queensland Minister/their office referred to in Andrew McNee's email dated 5 March 2020.
3. Any correspondence sent or received by departmental staff or the federal environment minister or her office in relation to this proposed letter, including correspondence in any way related to its preparation or any records of meetings where matters relevant to this proposed letter were raised. Please confine your searches to the period covering 1 December 2019 to 1 June 2020.
4. Any response sent by the former Queensland environment minister, Steven Miles to the letter at document 1a in my FOI 200709.
Correspondence includes emails, letters, messages, texts, whatsapp messages, briefs, departmental advice. I also request any notes from meetings or phone calls in any way related to points 1, 2 and 3.
Please note that where a document is captured on the topics written above that also mentions other topics, the scope of my request is for the full document and I do not consent to section 22 redactions of other information contained within these documents.
I also do not consent to the department's usual practice of redacting the names of any officers or staff under section 22 or section 47F.
For completeness, I do not require any documents that only discuss, or refer to, the proposed letter in passing.’
On 9 April 2021, the Department consulted the Applicant, pursuant to section 27 of the FOI Act, on the basis that the documents falling within scope of an FOI request contained business information of the Applicant. These documents are referred to as documents 4d and 4e.
On 14 April 2021, the Applicant requested an extension of time to provide its submissions, and stated its objections to the release of the documents on the basis that they should be exempt in full pursuant to sections 47 and 47G of the FOI Act.
On 20 April 2021, the Applicant provided a further response to the Department’s consultation notice and raised objections to the release of the two documents on the basis that the documents should be exempt in full pursuant to section 47 and section 47F, and section 47G of the FOI Act.
On 27 April 2021, the Department made its FOI access decision in respect of the access request and the 14 documents identified as being within the scope of that request. As part of the decision the Department granted the access Applicant access to document 4d in full and part access to document 4e, having found that document 4e was subject to partial exemption under sections 47F, 42 and 47B of the FOI Act.
The Department did not agree with the Applicant’s position that either document 4d or 4e should be subject to exemption under sections 47 or 47G of the FOI Act. The access Applicant was advised that the documents would not be provided until such time as the Applicant’s third-party review rights under section 27 of the FOI Act were exercised or expired.
On 27 April 2021, the Applicant was notified of the Department’s FOI access decision and that the Department did not agree with the Applicant’s submissions in respect of documents 4d and 4e.
On 17 May 2021, the Applicant sought internal review of the Department’s decision in respect of the Department’s decision not to exempt any material under sections 47 and 47G of the FOI Act and did not otherwise object to the Department’s applied redactions of the Applicant’s employees’ names under section 47F of the FOI Act.
On 16 June 2021, the Department affirmed its original decision by the Internal Review Decision. The Internal Review Decision did not accept the Applicant’s submissions that the two documents contained information which was exempt, or conditionally exempt, under sections 47 or 47G of the FOI Act, and affirmed the primary decision to grant the access Applicant full access to document 4d and part access to document 4e.
On 15 July 2021, the Applicant sought IC review under section 54M(2) of the FOI Act.
On 30 September 2022, the Office of the Australian Information Commissioner (OAIC) exercised its discretionary power under section 54W(b) of the FOI Act to not undertake a review, and to allow the Applicant to apply directly to the Tribunal for review of the Department’s decision.
By an application to the Tribunal dated 27 October 2022, the Applicant seeks review of the internal review decision. This review is commenced under section 57A(1)(b) of the FOI Act.
2022/8916
On 5 November 2020, the Department received another access application made by the same access applicant under section 15 of the FOI Act, which also captured documents that related to the Project. The scope of the FOI request was as follows:
‘I am submitting an additional FOI related to Moreton Bay to be considered as a separate application to 200709, which is under assessment for only two documents and currently out for third party consultation.
For this application, I seek access to the following:
Briefs and correspondence sent or received by senior executive officers that proposed or considered changes to the boundary of the Moreton Bay internationally important wetland. I seek documents in the date range January 1 2016 – July 1 2020. Please exclude publicly available correspondence from the public, community feedback, media alerts and media briefings. Please remove duplicates. Please remove any other publicly available documents. I am also seeking only correspondence sent or received by the following senior executive officer: James Tregurtha.
I’ve been advised by Indi that given the number of documents to search through totals 201 (according to earlier searches by the department), this scope should be acceptable. Please let me know if there are any issues.’
On 15 January 2021, the Department consulted with the Applicant pursuant to section 27 of the FOI Act on the basis that four documents falling within scope of the access request (documents 11, 13, 18 and 18a), contained business information of the Applicant.
On 18 January and 22 January 2021, the Applicant responded to the Department’s consultation notice and objected to the disclosure of the consultation documents in full on the basis that the documents are exempt in full pursuant to sections 47(1)(b), 47G(1)(a) and 47G(1)(b) of the FOI Act.
On 8 February 2021, the Department made its FOI access decision in respect of the access request and the 29 documents identified as falling within scope of this request. As part of that decision, the Department granted the access applicant part access to documents 11, 13, 18 and 18a, subject to partial exemption under section 47F of the FOI Act. The Department did not agree with the Applicant’s position that any of these 4 documents should be subject to exemption under sections 47 or 47G of the FOI Act. The access applicant was advised that they would not be provided with access to these documents until such time as the Applicant’s third-party review rights under section 27 of the FOI Act were exercised or expired.
On 23 February 2021, the Applicant was notified of the Department’s FOI access decision and that the Department did not agree with the Applicant’s submissions in respect of documents 11, 13, 18 and 18a.
Following an internal review application by the Applicant, on 16 April 2021, the Applicant affirmed its original decision by the IR Decision.
On 18 May 2021, the Applicant sought IC review under section 54M(2) of the FOI Act.
On 30 September 2022, the OAIC exercised its discretionary power under section 54W(b) of the FOI Act to not undertake a review and to allow the Applicant to apply directly to the Tribunal for review of the Department’s decision.
By an application to the Tribunal dated 27 October 2022, the Applicant seeks review of the IR Decision 21132. This review is commenced under section 57A(1)(b) of the FOI Act.
ISSUES:
Prior to the hearing, the Applicant notified the Tribunal and the Respondent that it only continued to press its objection in relation to:
(a)Document 4d, specifically the entries dated:
(i)16 September 2015;
(ii)6 June 2017;
(iii)19 June 2018;
(iv)3 April 2019, second entry.
(b)Documents 18 and 18a.
Consequently, the parties agreed that the only issues before the Tribunal were whether the documents in issue were exempt under section 47 and 47G of the FOI Act.
LAW:
Pursuant to section 61(2)(a) and (b) of the FOI Act, the Applicant bears the onus of establishing to the Tribunal that a decision to refuse access to a document is justified, or that the Tribunal should make a decision that is adverse to the access applicant
Section 11A(4) of the FOI Act provides that the agency or Minister is not required by the FOI Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.
Section 47:
Section 47 of the FOI Act states, relevantly, as follows:
(1) A document is an exempt document if its disclosure under this Act would disclose:
(a) trade secrets; or
(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.
(2) Subsection (1) does not have effect in relation to a request by a person for access to a document:
(a) by reason only of the inclusion in the document of information concerning that person in respect of his or her business or professional affairs; or
(b) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an undertaking where the person making the request is the proprietor of the undertaking or a person acting on behalf of the proprietor; or
(c) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an organisation where the person making the request is the organisation or a person acting on behalf of the organisation.
(3) A reference in this section to an undertaking includes a reference to an undertaking that is carried on by:
(a) the Commonwealth or a State; or
(b) an authority of the Commonwealth or of a State; or
(c) a Norfolk Island authority; or
(d) a local government authority.
The words ‘could reasonably be expected to’, as they appear in section 47(1)(b) of the FOI Act, requires the decision maker to assess the likelihood of harm occurring as a consequence of the disclosure of the document. They are intended to have their ordinary meaning, and require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure could have the effect claimed.[1] While the decision-maker need not establish that disclosure ‘would’ have the outcome predicted, the mere risk, possibility or chance of prejudice does not qualify as a reasonable expectation, and that there must, on reasonable grounds, be at least a real, significant or material possibility of prejudice.[2]
[1] Attorney-General’s Department v Cockcroft (1986) 10 FCR 180;
[2] News Corporation Ltd v National Companies and Securities Commission [1984] FCA 400;
The guidelines published by the Information Commissioner under section 93A of the FOI Act (combined February 2022) (FOI Guidelines), provide the following commentary in respect to section 47 of the FOI Act:
5.198 These exceptions reflect that no harm would result from disclosure of documents to the individual or entity that they concern. But the exemption may apply if the information jointly concerns the trade secrets or valuable commercial information of another individual or organisation or another person’s undertaking and that information is not severable from the document.
Trade Secrets
5.199 The term ‘trade secret’ is not defined in the FOI Act. The Federal Court has interpreted a trade secret as information possessed by one trader which gives that trader an advantage over its competitors while the information remains generally unknown.
5.200 The Federal Court referred to the following test in considering whether information amounts to a trade secret: • the information is used in a trade or business
• the owner of the information must limit its dissemination or at least not encourage or permit its widespread publication
• if disclosed to a competitor, the information would be liable to cause real or significant harm to the owner of the information.
5.201 Factors that a decision maker might regard as useful guidance but not an exhaustive list of matters to be considered includes;
• the extent to which the information is known outside the business of the owner of that information
• the extent to which the information is known by persons engaged in the owner’s business
• measures taken by the owner to guard the secrecy of the information
• the value of the information to the owner and to his or her competitors
• the effort and money spent by the owner in developing the information
• the ease or difficulty with which others might acquire or duplicate the secret.
Information having a commercial value
5.205 It is a question of fact whether information has commercial value, and whether disclosure would destroy or diminish that value. The commercial value may relate, for example, to the profitability or viability of a continuing business operation or commercial activity in which an agency or person is involved. The information need not necessarily have ‘exchange value’, in the sense that it can be sold as a trade secret or intellectual property. The following factors may assist in deciding in a particular case whether information has commercial value: • whether the information is known only to the agency or person for whom it has value or, if it is known to others, to what extent that detracts from its intrinsic commercial value
• whether the information confers a competitive advantage on the agency or person to whom it relates — for example, if it lowers the cost of production or allows access to markets not available to competitors
• whether a genuine ‘arm’s-length’ buyer would be prepared to pay to obtain that information
• whether the information is still current or out of date (out of date information may no longer have any value)
• whether disclosing the information would reduce the value of a business operation or commercial activity — reflected, perhaps, in a lower share price.
In respect of the age of information being considered, in the decision of McKinnon and Department of Immigration and Citizenship [2012] AICmr 34, the then Australian Information Commissioner McMillan considered the application of section 47(1)(b) with respect to documents between 20 and 30 months old and which related to a commercial negotiation that may have concluded, finding at [46] that “For the exemption to apply I would need to be satisfied that the information still retained commercial value and that disclosure at this time would diminish that value. I am not able to be satisfied on those matters on the basis of the submissions received from the Department and Serco.”
At paragraph [106] of the decision of ‘VO’ and Northern Australia Infrastructure Facility (Freedom of information) [2020] AICmr 47, the Tribunal found that documents were not exempt under section 47 as the parties had failed to identify with reasonably particularity, what the commercial value of the documents is said to be and how disclosure would reduce the value of its business operations or activities. In making their decision, the Tribunal considered the following factors: the age, the specific content, the nature of the material and whether a genuine arm’s length buyer would be prepared to pay to obtain the information.
In ‘YR' and Tertiary Education Quality and Standards Agency [2021] AICmr 70, the Information Commissioner was not satisfied that the Agency had discharged the onus of establishing that its redactions under section 47 was justified because it was not apparent that the information in the documents had a commercial value. The Commissioner also gave weight to the fact that some of the material was publicly available, and the material was over four years old. On that basis, the Commissioner was not satisfied that the relevant material was exempt under section 47(1)(b) of the FOI Act.
Section 47G:
Section 47G of the FOI Act states as follows:
(4) A document is conditionally exempt if its disclosure under this Act would disclose information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, in a case in which the disclosure of the information:
(a) 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
(b) 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.
(5) Subsection (1) does not apply to trade secrets or other information to which section 47 applies.
(6) Subsection (1) does not have effect in relation to a request by a person for access to a document:
(a) by reason only of the inclusion in the document of information concerning that person in respect of his or her business or professional affairs; or
(b) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an undertaking where the person making the request is the proprietor of the undertaking or a person acting on behalf of the proprietor; or
(c) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an organisation where the person making the request is the organisation or a person acting on behalf of the organisation.
(7) A reference in this section to an undertaking includes a reference to an undertaking that is carried on by:
(a) the Commonwealth or a State; or
(b) an authority of the Commonwealth or of a State; or
(c) a Norfolk Island authority; or
(d) a local government authority.
(8) For the purposes of subsection (1), information is not taken to concern a person in respect of the person’s professional affairs merely because it is information concerning the person’s status as a member of a profession

Section 47G of the FOI Act also requires the decision maker to assess the likelihood of harm occurring as a consequences of the disclosure of the document, by assessing whether the disclosure of the document would, or ‘could reasonably be expected to’ have the effect claimed.
The FOI Guidelines provide the following commentary in respect to section 47G of the FOI Act:
Elements of exemption
6.184 The operation of the business information exemption depends on the effect of disclosure rather than the precise nature of the information itself. Nevertheless, the information in question must have some relevance to a person in respect of his or her business or professional affairs or to the business, commercial or financial affairs of an organisation or undertaking (s 47G(1)(a)).
Unreasonable adverse effect of disclosure
6.185 The presence of ‘unreasonably’ in s 47G(1) implies a need to balance public and private interests. The public interest, or some aspect of it, will be one of the factors in determining whether the adverse effect of disclosure on a person in respect of his or her business affairs is unreasonable. A decision maker must balance the public and private interest factors to decide whether disclosure is unreasonable for the purposes of s 47G(1)(a); but this does not amount to the public interest test of s 11A(5) which follows later in the decision process. It is possible that the decision maker may need to consider one or more factors twice, once to determine if a projected effect is unreasonable and again in assessing the public interest balance. Where disclosure is not unreasonable, the decision maker will need to apply the public interest test in s 11A(5). This is inherent in the structure of the business information exemption.
6.186 The test of reasonableness applies not to the claim of harm but to the objective assessment of the expected adverse effect. For example, the disclosure of information that a business’ activities pose a threat to public safety, damage the natural environment; or that a service provider has made false claims for government money may have a substantial adverse effect on that business but may be reasonable in the circumstances to disclose. Similarly, it would not be unreasonable to disclose information about a business that revealed serious criminality. These considerations require a weighing of a public interest against a private interest, preserving the profitability of a business, but at this stage it bears only on the threshold question of whether the disclosure would be unreasonable.
6.190 The AAT has distinguished between ‘truly government documents’ and other business information collected under statutory authority. The first category includes documents that have been created by government or that form part of a flow of correspondence and other documents between the government and business. The AAT concluded that such documents inclined more to arguments favouring scrutiny of government activities when considering whether disclosure would be unreasonable. By implication, the exemption is more likely to protect documents obtained from third party businesses.
6.191 Where disclosure would result in the release of facts already in the public domain, that disclosure would not amount to an unreasonable adverse effect on business affairs.
Prejudice future supply of information
6.199 There must be a reasonable likelihood that disclosure would result in a reduction in both the quantity and quality of business information flowing to the government…
6.200 Where the business information in question can be obtained compulsorily, or is required for some benefit or grant, no claim of prejudice can be made. No prejudice will occur if the information in issue is routine or administrative (that is, generated as a matter of practice).
6.201 The agency will usually be best placed to identify, and be concerned about the circumstances where the disclosure of documents might reasonably be expected to prejudice the future supply of information to it.
Section 47G of the FOI Act is a conditional exemption prescribed under Part IV, Division 3 of the FOI Act, meaning that a public interest test is also required when considering the application of this exemption.
Section 11A(5) of the FOI Act provides that an agency must give a person access to a document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
The public interest test is set out in section 11B of the FOI Act and states as follows (our emphasis added):
Scope
This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5).
This section does not limit subsection 11A(5).
Factors favouring access
Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
Irrelevant factors
The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(b) access to the document could result in any person misinterpreting or misunderstanding the document;
(c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
Guidelines
In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A
The FOI Guidelines provide the following in respect of the public interest test:
The Public interest test
6.4 There is a single public interest to apply to each of the conditional exemptions. This public interest test is defined to include certain factors that must be taken into account where relevant, and some factors which must not be taken into account. 6.6 It is not necessary for a matter to be in the interest of the public as a whole. It may be sufficient that the matter is in the interest of a section of the public bounded by geography or another characteristic that depends on the particular situation. A matter of public interest or benefit to an individual or small group of people may also be a matter of general public interest.
6.5 The public interest test is considered to be: • something that is of serious concern or benefit to the public, not merely of individual interest
• not something of interest to the public, but in the public interest
• not a static concept, where it lies in a particular matter will often depend on a balancing of interests
• necessarily broad and non-specific, and
• related to matters of common concern or relevance to all members of the public, or a substantial section of the public.
DECISION:
Turning first, to the material in document 4d. There are four entries which are relevant.
(a)16 September 2015
(b)6 june 2017
(c)19 june 2018
(d)The second entry of 3 April 2019
The Applicant argued, in relation to the document dated 16 September 2015, that the entry was made in the context of a pre-referral meeting that was not a public meeting.
The 6 June 2017 entry related to the Department receiving the proposal on the second referral, which was found to be unacceptable.
The entry of 19 June 2018, reflected the view of the relevant Queensland Government Department, that the referral would not be assessed under the Bilateral Agreement between the Commonwealth and the Queensland Government. The Applicant said that this might be seen to infer that the proposal was being assessed under less stringent requirements than would otherwise be the case.
The final entry in issue, that of 3 April 2019, second entry, reflected the view of the Department in relation to the significant issues remaining to be dealt with.
The Applicant argued that the entries would be covered by the provisions of section 47(1)(b) and 47G(1) because they related to the Applicant’s involvement in a competitive tender process and to information which is of value to the Applicant and which could be used by competitors to undermine the Applicant’s proposal in relation to the development in question. Particularly as the assessment process was ongoing and not at an end.
The Applicant also claimed that the information was conditionally exempt, as it related to the Applicant’s business affairs and could be expected to have an adverse impact on the Applicant if it were to be released.
In this regard the Tribunal’s attention was drawn to Mr Saba’s affidavit at paragraph 21 where he stated:
I believe that, if the access documents are disclosed, the information will most likely be revealed through media reports and utilised by actions groups, for example, Birdlife Australia, Redlands 2030 and the Australian Conservation Foundation, to campaign against the approval of the Project under the EPBC Act. There will then be a competing and potentially inconsistent disclosure of information to the public in relation to the Project, in circumstances in which the information disclosed, for example, is out of date, confidential and may be inconsistent with the documents which the EPBC Act requires be disclosed to the public for the purpose of public consultation, including the soon to be released final EIS, and which set out accurate, relevant and up to date information about the Project.
And also to paragraphs 24-25 of Mr Saba’s statement.
I had a genuine expectation and belief that Walker’s communications and meetings with the Department which related to commercial sensitive, business information and other matters which were not intended for the public domain at the pre-referral stage (up to and including the 2022 public consultation period) were confidential as between Walker and its representatives on the one hand and the Department on the other.
It was said that disclosure of document 4d would be a disincentive, not just to the Applicant, but to other developers, to the disclosure of any information to the Commonwealth beyond what was strictly necessary. The Applicant submitted that such disclosures may serve as a deterrent to embark on a project at all.
The Respondent argued that the information did not meet the requirements of section 47 or section 47G. In particular, the Respondent claimed that the information was of no commercial value, and even if it were of some commercial value, disclosure of the information would not diminish its value.
The Tribunal’s attention was drawn to the relevant case law, namely McKinning and Department of Immigration and Citizenship [2012] ALCmr 34 where the Commissioner said:
For the exemption to apply I would need to be satisfied that the information still retained commercial value and that disclosure at this time would diminish that value.
In particular, the Respondent pointed out that the entry of 16 September 2015 related to a pre-referral meeting with a list of attendees. This was said to be of no commercial value, and that even if it were found to be of some commercial value, disclosure would not diminish that value as it was eight years old.
The entry of 6 June 2017 related to a recommendation to the Minister and the following entry of 19 June 2018 related to the outcome of that recommendation. The second referral, to which these entries relate, did not in fact proceed. Accordingly the Respondent argued it was of no commercial value and that even if there were commercial value it would not be diminished by disclosure.
The Respondent said the entry of 19 June 2018 was simply a factual statement of no commercial value, even though it may have been sensitive at the time.
In relation to the April 2019 entry, the Respondent said this was a statement of fact and had no commercial value, as it simply related to how information was to be provided. Again, the Respondent said that even if it had been of commercial value at the time, that value would not be diminished by disclosure now.
Having considered the material, along with the relevant case law I find that the entries in question were historical and factual, and that they are not currently, of themselves, of any commercial value, and accordingly disclosure as of today would not diminish any value.
It may be that the entries might be of interest to a competitor or to those who oppose the development in question, but it is difficult to see how factual entries, such as a list of attendees at a meeting, steps in a process or the outcome of steps at a particular time could have a commercial value within the meaning of section 47 of the FOI Act. Put simply, the material does not have those qualities necessary to meet the requirements of the relevant section.
Even if, the Tribunal found that there was commercial value in the various entries as of the date those entries were made, as at the date of this Tribunal’s decision, the Tribunal finds that given the elapse of time disclosure would not diminish whatever the commercial value of the documents may have been.
The Tribunal finds this to be the case even though the process of considering the Applicant’s proposal is ongoing. The Applicant’s competitors, and any potential objectors would know that the process was ongoing and although the various entries may be of interest to them it is difficult to see any value in the various entries beyond that.
Even if the Tribunal were to take a very wide view as to commercial value, it is difficult to see any value in these entries. There was, in the opinion of the Tribunal, no evidence, even on the broadest interpretation that these entries were of commercial value to the Applicant within the meaning of the section.
The Tribunal also finds that the documents do not fall within the provisions of s 47G(1)(b), as for the reasons outlined above, the disclosure of the information could not be reasonably expected to prejudice the future supply of information to the Commonwealth.
The Tribunal notes that Mr Saba’s affidavit and its relation to expectations as to confidentiality. However, the various entries were simply historical notes in relation to an ongoing process and must be expected in any ongoing approval process. In this context the disclosure of such factual information is highly unlikely to have any impact on future disclosure of information to the Commonwealth.
DOCUMENT 18 AND 18A:
These documents may be seen as to some extent overlapping, but in this regard I accept the statement of Mr Saba that the documents are not in fact, the same, and I also find that this is apparent on the face of the documents.
I note that these documents relate to third party assessments and were prepared as part of the Applicant’s involvement in the tender process. Those who prepared the documents were independent specialists and the Applicant paid for their work.
I note the statement of Mr Saba where he said as follows:
[in relation to Document 18] That document is an email from Stephen Davis of Davis Advisory to James Tregarthy of the Department dated 15 February 2016 attaching a draft letter about the assessment of the impacts of the Project on the ecological character of the Moreton Bay Ramsar Site.
[in relation to Document 18a] That document is a letter marked ‘discussion draft’ prepared by Davis Advisory for discussion purposes with the Department and Walker about the Project referral. It is a lengthy and detailed document that was prepared at Walker’s instruction and expense. It also sets out, with detailed reasons, the legal advice of Davis Advisory that the Project referral does not pose a credible risk of irreversible loss or serious damage to the ecological characteristics of the Moreton Bay Ramsar site. Walker did not intend to waive privilege over Davis Advisory’s legal advice, and only shared it discretely with a Department representative to respond to specific ecological issues relating to the Project.
There was some argument between the parties regarding whether the documents were ‘draft’ or ‘discussion only’ and not intended for publication.
In this regard in paragraph 23 of his statement, Mr Saba said as follows:
Documents 11, 18 and 18a, and arguably documents 4d, were prepared as part of confidential meetings held between representatives of Walker and the Department during the various stages of the EIS process for the Project. All the access material relates to periods before public consultant and none of the information where objection to the release is pressed, is in the public domain.
In any event, this issue is not determinative.
The Applicant claimed that its commercial interests would be damaged by disclosure of the documents.
The Applicant also claimed that the documents would be conditionally exempt because they clearly relate to commercial activities and could be expected to have an unreasonably adverse effect. Including being a possible advantage to competitors and third parties who could use the documents in order to damage the Applicant’s reputation.
The Applicant argued that disclosure of this information would be likely to prejudice the future supply of information to the Commonwealth, if parties were not able to rely on confidentiality and would be against the public interest.
The Respondent submitted that the documents were historical and that the advice in those documents related to the first referral, which was withdrawn by the Applicant. The Respondent argued that the documents had no commercial value as of the date of the hearing – some eight years later, where the Applicant is now dealing with a third referral.
The Respondent also argued that the documents are already in the public domain. In this regard, the Tribunal notes Ms Tipene’s affidavit of May 2023, where she states follows:
The Respondent has undertaken a further review of the FOI decisions relevant to these proceedings and other similar FOI decisions which have been previously published on the FOI Disclosure Logs of the Respondent and the Department of Agriculture, Water and the Environment.
Following this review, the Respondent has identified certain information that is already in the public domain and that it considers to be relevant to the Applicant’s objections in these proceedings.
The Respondent argued that disclosure of the documents in question may lead to some embarrassment or discomfort to the Applicant, but that the Applicant must demonstrate that disclosure of the information in question would adversely affect the Applicant’s business.
The Respondent also argued that disclosure of this information would be unlikely to prejudice the provision of future information to the Commonwealth, because of the historical nature of the information and because there was limited, if any, prospect of damage to the Applicant’s business interests.
Having considered all of the information, the Tribunal is of the opinion that the information contained in documents 18 and 18a fall within the provisions of section 47 of the Act. The documents were prepared as a result of the Applicant seeking, and paying for, advice from relevantly qualified third-party professionals. Even though the advice may have been sought in relation to the first referral it is likely that the information or parts of it may still be relevant given the ongoing and continuous nature of the tender process.
In particular, the material, in the opinion of the Tribunal, would still have the potential to damage the Applicant’s commercial interests, by providing information relevant to the way in which the Applicant was approaching the development at the time, and may still inform its current approach, given the ongoing nature of the process. The Tribunal also accepts that even if the information is outdated, it could be used by the Applicant’s competitors, or those who oppose the development to damage the Applicant’s commercial interests.

Although some of the information may be in the public domain, the Tribunal finds that the entirety of the information contained in 18 and 18a are not in the public domain. It is not the task of the Tribunal to go through and redact various parts of the documents, and indeed the Tribunal has not been asked to do so.
In this regard I accept the evidence of Mr Saba, who, in his affidavit, said the following:
It was my expectation and belief that the pre-referral process with the Department under the EPBC Act was confidential for the purpose of reducing the burden and complexity of the referral process by enabling the parties to take part in open and frank discussions to facilitate the disclosure of often sensitive and commercial-in-confidence information. One advantage of facilitating confidential discussions in this forum and before public consultation is that it can help ensure that the referral contains all the appropriate and necessary information required and addresses any preliminary advice or concerns provided by the Department before it is formalised.
The Applicant also claimed that the documents were conditionally exempt. In this regard, to the extent that it is necessary to do so, the Tribunal finds that the documents would also be conditionally exempt in that the disclosure of the documents would likely be prejudicial, and that disclosure of such documents would be likely to prejudice the supply of information to the Commonwealth. Where it was not compulsory for such material to be disclosed but where disclosure was important to proper consideration of the issue and where the inability to have frank and open discussions would be expected to adversely prejudice the proper consideration and efficient disposal of the matter in which the Commonwealth was involved.
Clearly this would not be in the public interest as it is likely to involve a great deal of additional time and expense for the Commonwealth and adversely impact on the Commonwealth’s capacity to partner or work closely with third parties in the private sector.

I certify that the preceding 83 (eighty -three) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

.............................[SGD]........................................
Associate
Dated: 17 November 2023

Date(s) of hearing: 4 October 2023

Counsel for the Applicant: Ms Houda Younan

Solicitors for the Applicant: Douglas Bishop

Solicitors for the Respondent: Ms Chantal Tipene

Date(s) of hearing:	4 October 2023
Counsel for the Applicant:	Ms Houda Younan
Solicitors for the Applicant:	Douglas Bishop
Solicitors for the Respondent:	Ms Chantal Tipene