OFFICIAL
Reasons for decision
In making my decision, I have had regard to the following:
• the terms of your FOI request and your reasons for seeking an internal review;
• the content of the document/s that fall within the scope of your request;
• the reasons set out in the original decision makers decision letter;
• consultations with third parties iri accordance with the FOI Act and submissions
made by those third parties;
• the relevant provisions of the FOI Act; and
• the FOI Guidelines issued by the Office of the Australian Information Commissioner
(FOI Guidelines).
Your submissions
You submitted the following exemptions did not apply to the documents.
Document obtained in confidence
Subsection 45(1) of the FOI Act provides:
1. A document is an exempt document if its disclosure under this Act would found an action, by
a person ( other than an agency or the Commonwealth), for breach of confidence.
A document is exempt from release under subsection 45(1) of the FOI Act if its disclosure
would form the basis of legal action for breach of confidence. In other words, this exemption
applies if a person who provided confidential information could bring an action for breach
of confidence to prevent disclosure, or to seek compensation for loss or damage arising from
disclosure.
The FOI Guidelines provide:
[5.158] A breach of confidence is the failure of a recipient to keep confidential, information which has
been communicated in circumstances giving rise to an obligation of confidence. The FOi Act expressly
preserves confidentiality where that confidentiality would be actionable at common law or in equity.
[5.159] To found an action for breach of confidence (which means s 45 would apply), the following five
criteria must be satisfied in relation to the information:
•
it must be specifically identified
•
it must have the necessary quality of confidentiality
•
it must have been communicated and received on the basis of a
mutual understanding of confidence
•
it must have been disclosed or threatened to be disclosed, without authority
•
unauthorised disclosure of the information has or will cause detriment.
As mentioned above, the documents sought in your request were obtained by Finance from
the third-party provider, auDA. The information has been specifically identified as having
contractual confidentiality obligations and the provision of this information is subject to the
terms of the contract between Finance and the third-party provider.
The information sought has the necessary quality of confidentiality being that the
information is only known to individuals at auDA and a limited number of Finance
employees that require this knowledge to perform their role within the department. The
quality of the confidentiality has not diminished, nor has it been waived, and the obligation
of Finance to retain the quality of confidentiality as per the contract terms has not reduced.
2
OFFICIAL
The information is owned by the third-party and is subsequently provided to Finance under
the terms of the contract. There is a mutual understanding and agreement that the information
is confidential in nature. Access to the information is otherwise restricted. I am not aware of
any party having acted inconsistently with their obligations to uphold confidentiality over
the information.
It is vital that Finance can provide assurance to third parties for the purposes of the FOI Act,
that information communicated in confidence will remain confidential. If Finance is unable
to uphold the treatment of confidential information owned by third parties, there is a risk of
detriment to the ability of Finance to obtain such information in the future.
Therefore, I consider that the documents and information that is within scope of your request
is exempt from release under subsection 45(1) of the FOI Act, as it contains material that
was obtained in confidence.
Review and appeal rights
You are entitled to request an external review by the Office of the Australian Information
Commissioner (OAIC) of my decision within 60 calendar days, being on or before
Monday
29th April 2024. The process for review and appeal rights is set out at
Attachment C.
If you have any questions regarding this request, please contact the FOI Team.
Peter Qui
First Assistant Secretary
ICT Division
;:=i(epartment of Finance
/f February 2024
3
