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'L' and Department of Agriculture Fisheries and Forestry [2013] AICmr 23 (13 March 2013)

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Decision and reasons for decision of Acting Freedom of Information Commissioner, Toni Pirani

Summary of case details
Applicant:

'L'

Respondent: Department of Agriculture Fisheries and Forestry

Other parties:

Animals Australia Inc

Decision date: 13 March 2013
Application number: MR12/00281
Catchwords:

Freedom of information — Public interest conditional exemption — business — whether disclosure could harm the business, commercial or financial affairs of an organisation where it cannot be identified — (CTH) Freedom of Information Act 1982s 47G

 

  Contents

 Summary

  1. I affirm the decision of the Department of Agriculture, Fisheries and Forestry (the Department) of 24 July 2012 to grant access to documents, modified by deletions, requested under the Freedom of Information Act 1982 (the FOI Act) by Animals Australia Ltd.

 Background

  1. On 25 March 2012, Animals Australia applied to the Department for access to:

    ... documents held by the Department which relate to animal welfare incidents at export abattoirs, and reports compiled by the Department based on those documents and other information relevant to animal welfare at those abattoirs.

    In particular, and in an effort to narrow the request I seek the following:

    • Copies of all reports received from export abattoirs under the 'Animal Incident Welfare Reporting' system introduced in January 2006 (Meat Notice 2005/12), for the years 2009, 2010 and 2011.
    • Reports or documents that detail the subsequent action taken by the Department, the abattoir or other parties to address the adverse animal welfare issues reported.
    • Recent 'Audit Analysis' reports prepared by DAFF using the 'National Establishment Verification System' to assess animal welfare at export registered abattoirs ...
  2. One of the documents located by the Department was an animal welfare incident report (and covering emails) describing an incident involving the identification and subsequent destruction of a number of animals on the IC review applicant's premises.
  3. The Department redacted the documents to remove information that it believed could identify the applicant. This included names, email addresses, locations, and distinctive marks on photographed animals. The Department provided the document, with proposed deletions, to the applicant for comment.
  4. The applicant objected to disclosure of the modified documents. Despite these objections, on 12 June 2012 the Department decided to release the documents.
  5. The applicant sought internal review on 3 July 2012, submitting that because of particular features of its business it could be identified as the subject of the animal welfare incident report through a process of inference and deduction. On 24 July 2012, the Department affirmed its initial decision.
  6. By letter dated 7 August 2012 the applicant sought IC review of the Department's internal review decision under s 54M of the FOI Act.

 Decision under review

  1. The decision under review is the internal review decision of the Department of 7 August 2012 to release the animal welfare incident report relating to the applicant, modified by deletions under s 22(1)(b)(i).

 The business exemption (s 47G)

  1. The applicant argues that the documents are exempt under s 47G, on the basis that the applicant's business reputation would be damaged if it was publicly linked to the animal welfare incident report.
  2. Section 47G relevantly states that a document is conditionally exempt if its disclosure 'would disclose information ... concerning the business, commercial or financial affairs of an organisation', and 'would, or could reasonably be expected to, unreasonably affect ... that organisation ... in respect of its lawful business, commercial or financial affairs'.
  3. The information in the documents concerns the applicant's business, commercial or financial affairs: it relates to an incident that occurred on the applicant's premises in the course of its business activities. The first limb of the test in s 47G is satisfied.
  4. However, I am not satisfied that the second limb of the test in s 47G has been met. The second limb of the test in s 47G is met only where an unreasonable adverse effect 'would', or 'could reasonably be expected to' occur. In Attorney-General's Department v Cockcroft it was stated that the words 'could reasonably be expected to' should receive their ordinary meaning, and that '[i]t is preferable to confine the inquiry to whether the expectation claimed was reasonably based'.[1]
  5. 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. The Guidelines explain that the phrase 'could reasonably be expected':

    ... refers to an expectation that is based on reason. Mere assertion or speculative possibility is not enough.[2]

  6. Under s 55D(2) of the FOI Act, the applicant bears the onus of establishing that a decision to refuse access to a document is justified. In this case, the applicant needs to demonstrate that its business, commercial or financial affairs would be, or could reasonably be expected to be, harmed by disclosure of the document in issue.
  7. The applicant claims that its business will be harmed by negative media commentary as a consequence of the report's release. I am satisfied that if the applicant were publicly linked to the report its business, commercial or financial affairs could reasonably be expected to be prejudiced to some degree. However, the Department has modified the document by deletion as described at [4] above, in an attempt to de-identify the report such that the applicant cannot be linked to it.
  8. If the applicant cannot be linked to the report, then the adverse effect identified above could not reasonably be expected to occur.  The applicant has put forward an argument about how it could be identified from the documents. Its argument relates to distinctive features of its business. I am unable to describe those features in detail in these reasons, as to do so would allow the applicant's business to be identified.
  9. In general terms, the applicant has stated that through 'a process of deduction [Animals Australia] or other parties who obtain the document will be able to determine that the document relates to [the applicant]'. The applicant submits that I should consider the likelihood that the document could be linked to it.
  10. The applicant has not described exactly how the process of deduction it refers to would occur. I am unconvinced by the submissions made by the applicant that the distinctive feature of its business referred to at [16] above would simplify the task of linking it to the report. On the basis of the information before me, I think that the likelihood that the applicant will be linked to the documents in issue is low.
  11. I find that the applicant could not be identified from the documents themselves, or from reasonable further enquiries. I view the applicant's claim that it might be identified from the report and thereby become the subject of negative media commentary to be, in the words of the Guidelines, a 'mere assertion or speculative possibility'.
  12. The applicant has not discharged its onus under s 55D(2). Therefore the documents, as edited for release by the Department, are not conditionally exempt under section 47G.

 Scope of an access grant IC review

  1. The applicant also argued that the documents should be exempt under section 47J.
  2. In an IC review of an access grant decision, I am only able to consider exemption contentions relating to the exemptions listed in the consultation provisions of the FOI Act.[3]
  3. In this case, the relevant consultation provision is s 27, which expressly relates only to the exemptions in s 47 (trade secrets or commercially valuable information) and s 47G (business). Therefore, in this IC review I may not consider the other exemption contention argued by the applicant.

 Findings

  1. The documents (modified by deletions) are not conditionally exempt under s 47G. Accordingly, there is no need to consider the public interest test under s 11A(5).

 Decision

  1. Under s 55K of the FOI Act, I affirm the Department's decision of 7 August 2012.

Toni Pirani
Acting Freedom of Information Commissioner

13 March 2013

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 $816, 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]Attorney-General's Department v Cockcroft (1986) 64 ALR 97, 106.

[2]Guidelines, [6.163].

[3]'E' and National Offshore Petroleum Safety and Environmental Management Authority [2012] AICmr 3, [8]–[17].