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'E' and National Offshore Petroleum Safety and Environmental Management Authority [2012] AICmr 3 (11 January 2012)

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Decision and reasons for decision of
Freedom of Information Commissioner, Dr James Popple

Summary of case details
Applicant: 'E'
Respondent: National Offshore Petroleum Safety and Environmental Management Authority
Other parties: Geoff Winestock
Decision date: 11 January 2012
Application number: MR11/002204
Catchwords: Freedom of information – Scope of review of access grant decision – (CTH) Freedom of Information Act 1982ss 27, 47, 47G, 53B, 54A, 54M, 57A
  Freedom of information – Whether documents affecting business affairs conditionally exempt from release – Whether adverse effect of release unreasonable (CTH) Freedom of Information Act 1982 s 47G

 

Contents

 Summary

1. I affirm the decision of the National Offshore Petroleum Safety Environmental Management Authority (NOPSEMA)[1] of 22 June 2011 to grant access to the documents requested under the Freedom of Information Act 1982 (the FOI Act).

 Background

2. On 22 November 2010, Mr Geoff Winestock, a journalist with the Australian Financial Review, wrote to NOPSEMA requesting access to documents under the FOI Act. NOPSEMA identified two of the documents within the scope of Mr Winestock's FOI request as containing information concerning the business affairs of the IC review applicant (‘E').

3. On 14 March 2011, NOPSEMA wrote to the IC review applicant inviting it to make submissions under s 27 of the FOI Act. On 25 March 2011, the IC review applicant wrote to NOPSEMA, submitting that NOPSEMA should not give Mr Winestock access to the two documents because they were exempt documents under ss 37(2)(a), 47C, 47G(1)(a) and (b) of the FOI Act.

4. On 18 April 2011, NOPSEMA gave the IC review applicant notice of its decision to give Mr Winestock full access to both documents. On 23 May 2011, the IC review applicant applied to NOPSEMA for internal review of its decision to grant access. On 22 June 2011, NOPSEMA affirmed its original decision to give Mr Winestock full access to both documents.

5. On 22 July 2011, the IC review applicant sought IC review of this decision under s 54M of the FOI Act.

6. On 23 November2011, Mr Winestock applied to be a party to the IC review and was joined as a party under s 55A of the FOI Act. He chose not to make any submission to this IC review.

 Decision under review

7. The decision under review is NOPSEMA's internal review decision of 22 June 2011 to affirm its original decision of 18 April 2011 to give Mr Winestock full access to the two documents identified as containing information concerning the business affairs of the IC review applicant.

 The scope of IC review of access grant decisions

8. Section 27 of the FOI Act relevantly provides:

27 Consultation – business documents
Scope
(1) This section applies if:
(a) a request is made to an agency or Minister for access to a document containing information (business information) covered by subsection (2) in respect of a person, organisation or undertaking; and
(b) it appears to the agency or Minister that the person, organisation or proprietor of the undertaking (the person or organisation concerned) might reasonably wish to make a contention (the exemption contention) that:
(i) the document is exempt under section 47 (trade secrets etc.); or
(ii) the document is conditionally exempt under section 47G (business information) and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
(2) This subsection covers the following information:
...
(b) in relation to an organisation or undertaking-information about the business, commercial or financial affairs of the organisation or undertaking.
...
Opportunity to make submissions
(4) The agency or Minister must not decide to give access to the document unless:
(a) the person or organisation concerned is given a reasonable opportunity to make submissions in support of the exemption contention; and
(b) the agency or the Minister has regard to any submissions so made.

9. In its submissions to NOPSEMA, and in this IC review, the IC review applicant contends that the documents in question are exempt under the following provisions of the FOI Act:

  • s 37 – documents affecting enforcement of law and protection of public safety
  • s 47C – deliberative processes, and
  • s 47G – business.

10. But s 27 provides for consultation in relation to an ‘exemption contention', which expressly relates only to the following provisions:

  • s 47 – trade secrets or commercially valuable information, and
  • s 47G – business.

The IC review applicant's submissions in relation to the application of s 47G are the only submissions that support the exemption contention. (It does not assert that the documents are exempt under s 47.) Its submissions in relation to ss 37 and 47C do not relate to the exemption contention.

11. The question arises whether, in this IC review, I am obliged or empowered to consider whether the documents in question are exempt other than in relation to the exemption contention: that is, other than under ss 47 or 47G.

12. A similar question was considered by the Full Court of the Federal Court in Mitsubishi Motors Australia Ltd v Department of Transport (1986) 12 FCR 156. The provisions of the FOI Act considered in that case have since been amended or repealed, and the right of review considered was to the Administrative Appeals Tribunal (the Tribunal). But the Court's approach is applicable to the amended provisions of the FOI Act and to IC review.

13. When Mitsubishi Motors was decided, s 27 of the FOI Act was in similar terms to its current wording. It applied to a request for ‘a document containing information concerning a person in respect of his business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking'. It provided for consultation with specified persons who ‘might reasonably wish to contend that the document is an exempt document under section 43'. Section 43 (since repealed) was in similar terms to the current ss 47 and 47G. Section 59(1) of the FOI Act (since repealed) gave a person who had made submissions under s 27 the right to seek review by the Tribunal if the agency or minister decided that the document was not exempt under s 43.[2]

14. In Mitsubishi Motors, Bowen CJ and Beaumont and Wilcox JJ held that s 59(1) provided ‘a right of review only in respect of a decision that a document is not exempt under s 43'.[3] Responding to the argument that this interpretation was too restrictive, the Court said:

Decisions as to exemptions are taken, in the first instance, by the relevant agency or Minister. A decision to refuse access is reviewable, upon the application of the applicant for access, by the Tribunal; but the general policy of the Act is against providing under the Act itself any procedure for administrative review of a decision to grant access. The sole exception to this general policy is in relation to the ground of exemption provided by s 43. The reason for such exemption presumably was that the ground necessarily requires a qualitative judgment about the effect of disclosure upon the business affairs of someone other than the agency or Minister, a judgment which may be difficult to make without assistance from that person. But this is a strictly limited exception to the general rule. To limit review at the instance of a third party to a claim under s 43 is to accord with the general policy of the Act.[4]

15. The current procedure in the FOI Act (ss 27, 47 and 47G) is analogous to the procedure that the Court considered in Mitsubishi Motors (ss 27 and 43). And limiting IC review, at the application of a third party consulted under s 27, to a claim under ss 47 and 47G still accords with the general policy of the Act.[5]

16. A decision to give access to a document after consultation under s 27 is an example of an ‘access grant decision' under s 53B of the FOI Act. An access grant decision involves consultation with an ‘affected third party' (s 53C) which might be a State (ss 26A and 26AA), the Commonwealth (s 26AA), a person or their legal representative (ss 27 and 27A), or an organisation (s 27). The consultation procedure in each of these provisions gives the affected third party an opportunity to contend only that a specified exemption or exemptions should apply,[6] (and, for conditional exemptions, that access would be contrary to the public interest). Similarly, review of an access grant decision, taken after a consultation under any of these provisions (not just under s 27), is restricted to consideration of the relevant exemption or exemptions. This applies to internal review (s 54A), IC review (s 54M), and review by the Tribunal (s 57A).

17. In this IC review, I must consider the IC review applicant's submissions only in relation to the application of s 47G, and not its submissions in relation to ss 37 and 47C.

 The business exemption (s 47G)

18. Section 47G(1) of the FOI Act provides:

47G Public interest conditional exemptions-business(1) 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, Norfolk Island 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.

19. I have read the two documents that are the subject of this IC review, which are:

  • a briefing, dated 9 September 2009, from the Chief Executive Officer of NOPSEMA to the Minister for Resources and Energy, about an investigation by the Western Australian Department of Industry and Resources into a fire that occurred on Varanus Island on 3 June 2008 as a result of a ruptured gas pipeline, and
  • an extract from a letter (four appendices), dated 26 September 2009, to the Minister concerning NOPSEMA's involvement in that investigation.

20. The IC review applicant contends that s 47G(1)(a) should apply to both of these documents, and s 47G(1)(b) should apply to the second.

 Would or could unreasonably adversely affect

21. Section 47G(1)(a) will apply if disclosure of the information in the documents ‘would, or could reasonably be expected to, unreasonably affect [the IC review applicant] adversely in respect of [its] lawful business ... affairs'.

22. The IC review applicant submitted that:

  • the documents contain information and evaluative comments about the IC review applicant's business affairs and its operations
  • the information could be construed by a third party in a way adverse to its interests
  • release of the information could reasonably be expected to be used to adversely affect its business affairs
  • in a commercially sensitive environment, any adverse commentary used inappropriately or out of context from release to the world at large may diminish its reputation and put it at risk of commercial disadvantage from uninformed public debate.

23. The IC review applicant's submissions on this point go to establishing that disclosure of the information in the two documents would adversely affect its lawful business affairs. But it is a requirement of s 47G(1)(a) that the adverse effect be unreasonable.

24. The Australian Information Commissioner has issued Guidelines under s 93A to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act. Part 6 of the Guidelines explain that:

The test of reasonableness [in s 47G(1)(a)] 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's activities pose a threat to public safety may have a substantial adverse effect on that business but it may be reasonable in the circumstances to disclose it. Similarly, it would not be unreasonable to disclose information about a business that revealed unlawful conduct.[7] These considerations necessitate a weighing of a public interest (public safety) 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.[8]

25. The documents concerned are now over two years old. The incident to which they relate occurred over three years ago. The incident raised questions of public safety and has been the subject of public debate. I agree with NOPSEMA's assessment that the documents contain only a limited level of detail relating to the IC review applicant, which is expressed in neutral terms.

26. For all of these reasons, the threshold is high for deciding that the effect of disclosure upon the IC review applicant's business would be unreasonable.  An affected third party seeking IC review of an access grant decision bears the onusof establishing that access should be refused (s 55D(2)).[9]The IC review applicant in this case has not provided any reasons why the adverse effect that it says will result from disclosure would be unreasonable.

 Could prejudice the future supply of information

27. Section 47G(1)(b) will apply if disclosure of the information in the documents ‘could reasonably be expected to prejudice the future supply of information to ... an agency for the purpose of the administration of a law of the Commonwealth ... or the administration of matters administered by an agency'.

28. The IC review applicant submitted that the second document (appendices to a letter) includes information provided to NOPSEMA by the IC review applicant ‘beyond what is strictly required by law':

[The IC review applicant] provides more fulsome information to the government on the understanding that such information will remain confidential. If such information were released pursuant to an FOI request, it is likely that only the information specifically required to be produced would be provided rather than the fulsome information presently provided.

29. NOPSEMA argues, in response, that the information contained in that document was ‘information usually collected by [NOPSEMA] in the application of its legislated powers to inspect and to require improvements to health and safety', and that the IC review applicant had been legally required to provide that information to NOPSEMA.

30. It is not apparent to me that there is any material in that document that the IC review applicant would not be required to provide to NOPSEMA. Three of the four appendices relate to the IC review applicant's operations. They set out NOPSEMA's past regulatory activities at a broad and factual level. The fourth appendix is a summary of the legislative framework relevant to NOPSEMA's operations. The IC review applicant has not identified what material in these appendices derives from information that it provided to NOPSEMA, much less what material it provided even though it was not legally required to do so.

31. The IC review applicant has not discharged the onus on it to establish that access should be refused.

 Findings

32. Neither of the two documents is conditionally exempt under s 47G. Accordingly, there is no need to consider the public interest test under s 11A(5).

 Decision

33. Under s 55K of the FOI Act, I affirm NOPSEMA's decision of 22 June 2011 to grant access to both documents.

 

Dr James Popple
Freedom of Information Commissioner

11 January 2012

Review rights

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Appeals Tribunal. The AAT provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. The current application fee is $777, which may be reduced or may not apply in certain circumstances. Further information is available on the AAT's website (www.aat.gov.au) or by telephoning 1300 366 700.


[1] At all times relevant to this IC review, NOPSEMA was the National Offshore Petroleum Safety Authority (NOPSA). On 1 January 2012, NOPSA became NOPSEMA (Offshore Petroleum and Greenhouse Gas Storage Act 2006, s 645).

[2] Section 27 of the FOI Act was repealed and substituted, and ss 43 and 59 were repealed, by the Freedom of Information Amendment (Reform) Act 2010 with effect from 1 November 2010.

[3] (1986) 12 FCR 156, 161.

[4] (1986) 12 FCR 156, 161–2.

[5] See, for example, s 3(4): ‘The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost'.

[6] In ss 26A and 26AA, the exemption is s 47B; in s 27, ss 47 and 47G; and in s 27A, s 47F.

[7] Searle Australia Pty Ltd v Public Interest Advocacy Centre [1992] FCA 241, [52]; 36 FCR 111, 125.

[8] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (2010) [6.165].

[9] By contrast, in IC review of access refusal decisions, the onus is on the agency or minister to establish that access should be refused (s 55D(1)). This dichotomy exemplifies the pro-disclosure policy of the FOI Act.