12 April 2013
Mr Jeremy Cooper-Stout
Right To Know
By email:
xxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Cooper-Stout
Freedom of Information Decision on Access
FOI Reference Number: 12/13-27
1.
I refer to your application (complying with section 15) under the
Freedom of Information
Act 1982 (
FOI Act) received by the Fair Work Commission (
the Commission) on 13
February 2013.
2.
I am authorised to make a decision in relation to your request pursuant to section 23 of
the FOI Act.
Your request
3.
You requested access to documents concerning:
any and all documents created [up to 13 February 2013] discussing the cost implications
of changing the name of Fair Work Australia to the Fair Work Commission.
Particularly documents which provide information how the cost of transitioning branding
material and options for doing so, if possible.
Timeframe for processing this request
4.
Your request (complying with section 15)
was received by the FWC on 13 February 2013.
The statutory time limit for this request commenced on the day following the day on which
your request
was received (section 15(5)).
5.
The statutory time frame for processing your request was extended for 30 days to consult
with third parties as the nature of the documents identified as being relevant to your
request relate to the business affairs of third parties (section 15(6)). Accordingly the
relevant date to process your request expires 15 April 2013.
Decision on access to documents
6.
A search of the records of this agency was conducted and 23 documents relevant to your
above request were identified. Of those I have decided to release 6 documents in full and
17 documents in part.
11 Exhibition Street
Telephone: (03) 8661 7777
Melbourne VIC 3000
International: (613) 8661 7777
GPO Box 1994
Facsimile: (03) 9655 0401
Melbourne VIC 3001
Email: xxxxxxxxx@xxx.xxx.xx
7.
I have decided that certain documents contain material that is conditionally exempt under
subsection 47G(1) of the FOI Act (business affairs) and, pursuant to subsection 11A(5) of
the FOI Act, is not required to be disclosed because disclosure at this time would be, on
balance, contrary to the public interest.
8.
In reaching my decision, I took the following material into account:
documents falling within the scope of your request;
the FOI Act;
submissions made by third parties consulted under sections 27 of the FOI Act;
factors relevant to my assessment of whether or not disclosure of the relevant
documents would be in the public interest;
consultations with Commission staff about:
o the nature of the documents;
o the organisation’s operating environment and functions; and
the guidelines issued by the Australian Information Commissioner under section
93A of the FOI Act.
9.
I have decided that certain documents, as referred to in the Schedule of Documents,
contain material that is exempt or irrelevant. In this regard, subsections 22(1) and (2) of
the FOI Act provide that:
Scope
(1)
This section applies if:
(a) an agency or Minister decides:
(i) to refuse to give access to an exempt document; or
(ii) that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an edited copy) of
the document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section
11A (access to documents on request); and
(ii)
the edited copy would not disclose any information that would
reasonably be regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the edited
copy, having regard to:
(i) the nature and extent of the modification; and
(ii) the resources available to modify the document; and
(d)
it is not apparent (from the request or from consultation with the applicant)
that the applicant would decline access to the edited copy.
Access to edited copy
(2) The agency or Minister must:
(a)
prepare the edited copy as mentioned in paragraph (1)(b); and
(b)
give the applicant access to the edited copy.
10.
In accordance with section 22, I have deleted exempt and irrelevant material from the
abovementioned documents where possible and have decided to release to you the
balance of the documents. Such deletions are identified in the Schedule of Documents.
Reasons for Decision -
Section 47G of the FOI Act
11.
Subsection 47G(1) of the FOI Act provides that:
(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.
12.
I have found that certain documents, as referred to in the Schedule of Documents,
contain material that is exempt for release under paragraphs 47G(1)(a) and (b) of the FoI
Act. The material to which I have refused access relates to the financial aspect of the third
party businesses as it contains:
Commercial in confidence quotations for rebranding work and various office
stationery requested by the Commission from companies who were ultimately not
successful in obtaining a contract for work from the Commission.
I have decided this material is exempt for the following reasons:
Disclosure of companies’ commercial in confidence quotations could reasonably
be expected to adversely affect those companies in respect of their lawful
business commercial or financial affairs. If these quotations were made publically
available, it could reasonably be expected to impact on the business relationships
the relevant companies have with their other clients. Quotations are individually
tailored to each client on a competitive basis and if these were available to a
company’s other clients, this would adversely affect future business sought by the
company with those clients. Such consequences are unreasonable as disclosure
would have an adverse effect on their business, in circumstances where the
Commission has chosen another provider and the business has not received any
benefit from the provision of the quotation.
Disclosure of quotations could reasonably be expected to prejudice the future
supply of information to an agency for the purpose of the administration of matters
administered by the agency. A number of the businesses who provided the
relevant quotations are small businesses who are likely to be deterred from
providing quotations to the Commission in the future, resulting in a reduction in the
quantity of quotations able to be sought by the Commission. If the Commission is
no longer able to attract smaller businesses to provide quotations for work, the
Commission will be forced to seek supply of services only from regular larger
operators. If the Commission is only able to attract business of a larger suppliers,
this will prejudice the operations of the agency as it will create a less competitive
market for the supply of services to the Commission, which will lead to increased
costs and budgetary implications as well as reduction in the quality and range of
services available to the Commission.
13.
On this basis, I have decided that the personal information as referred to in the Schedule
of Documents is conditionally exempt under subsection 47G(1) of the FOI Act.
14.
Under subsection 11A(5) of the FOI Act, the department must give you access to these
documents unless in the circumstances it would be, on balance, contrary to the public
interest to do so.
15.
When weighing up the public interest for and against disclosure under subsection 11A(5)
of the FOI act, I have taken into account the following factors in favour of disclosure:
The extent to which disclosure would:
o Promote the objects of the FOI Act, by providing access to documents of a
government agency;
o Inform debate on a matter of public importance, by informing the public on
particular costs associated with changing the name of a government
agency;
o Promote effective oversight of public expenditure, by holding the agency
accountable to costs in its choice of service provider.
I consider that the factors in favour of disclosure as outlined above are not considerably
advanced by disclosure. This is because the factors in favour of disclosure are advanced
by a number of other mechanisms, such as the fact that the number of and type of
businesses from whom the Commission has received quotations is being disclosed, as is
the quotation from the company who was successful in obtaining the contract. On this
basis, I consider that disclosure of the unsuccessful quotations is unlikely to advance
effective oversight of public expenditure or inform the debate on a matter of public much
further than the released information will already do.
16.
However I have weighed against these factors the following factors indicating that access
would be contrary to the public interest:
The extent to which disclosure would:
o Could reasonably be expected to prejudice an agency’s ability to obtain
similar information in the future, by deterring small businesses from
providing quotations for services for fear of their commercial in confidence
information being made public;
o Could reasonably be expected to result in procurement practices which are
contrary to the Commonwealth Procurement Rules. If unsuccessful
tenders for services below the relevant procurement threshold (limited
tender) are disclosed, this will be necessarily exclusionary to small
businesses whose business would be affected by the disclosure of same.
The result of this would be that the agency could lose the most financially
beneficial option for the provision of services. This would be contrary to
rules of procurement including value for money, encouraging competition
and efficient, effective, economical and ethical procurement;
o Could result in a breach of confidence by the Commission. As the
quotations are provided on a commercial in confidence basis, the act of
disclosing such information could subject the Commission to an action in
breach of confidence or affect the reputation of the Commission as an
agency which meets its obligations in respect of information provided on
an understanding of confidence.
I consider that the factors against disclosure are likely to have a real and significant
impact on the Commission which would be contrary to the public interest. Requests for
similar quotations for printing and other work are commonly made by the Commission
when publications are required to be produced throughout the year and the effect of such
disclosure will therefore be ongoing and not just a one-off occurrence. It is pertinent to the
operation of the agency that external stakeholders can deal with the Commission on a
basis of trust and confidence. I do not consider there are any other factors which would
negate the effects caused by the factors indicating disclosure is contrary to the public
interest.
17.
Based on these factors, I have decided that in the circumstances of this particular matter,
the public interest in disclosing the information in the above-mentioned documents is
outweighed by the public interest against disclosure.
18.
I have not taken into account any of the irrelevant factors set out in subsection 11B(4) of
the FOI Act in making this decision.
Yours Sincerely
Sarah Attrill
Freedom of Information/Privacy Officer
Fair Work Commission
Schedule of Documents
Document
Date
Description
FOI exemption
Decision
number
Email attaching quotation from Magnetic Design
1.
20 November
S 47G (business
Release in part
2012
information)
Email attaching quotation from Hush Creative Design
2.
21 November
S 22 (irrelevant
Release in part
2012
information)
Email Chain - Greater than Design quotation
3.
28 November
S 47G (business
Release in part
2012
information)
S 22 (irrelevant
information)
Email to DEEWR Re: Fair Work Amendment Bill
4.
28 November
S 22 (irrelevant
Release in part
2012
information)
Email Re: Rebranding Project
5.
3 December
S 22 (irrelevant
Release in part
2012
information)
S 47G (business
information)
Email chain - Estimated cost spreadsheet for the
6.
4 December
S 22 (irrelevant
Release in part
implementation of the Fair Work Amendment Act 2012
2012
information)
Email Re: Rebranding Project
7.
5 December
S 22 (irrelevant
Release in part
2012
information)
S 47G (business
information)
Email to DEEWR Re: FWC - Estimated cost of
8.
10 December
Release in full
implementating name change
2012
FWC Quarterly Executive Forecast Report Second Quarter
9.
January 2013
S 22 (irrelevant
Release in part
information)
Invoice approval
10.
8 January
S 22 (irrelevant
Release in part
2013
information)
Email attaching quotation from Commerce Press
11.
21 January
S 47G (business
Release in part
2013
information)
Email chain - Commerce Press quotation
12.
23 January
S 47G (business
Release in part
2013
information)
FWC email request for quotation from D&D Digital Printing
13.
24 January
Release in full
2013
FWC email request for quotation from Complete Office
14.
24 January
Release in full
Supplies
2013
FWC email request for quotation from Big Print
15.
24 January
Release in full
2013
Email chain - D&D Digital Printing quotation
16.
30 January
S 47G (business
Release in part
2013
information)
Email quotation from Big Print
17.
31 January
S 47G (business
Release in part
2013
information)
FWC -Senate Estimates Brief February 2013 - Name
18.
February 2013
S 22 (irrelevant
Release in part
Change & FW Act Amendments
information)
Email attaching quotation from Print Logistics
19.
6 February
S 47G (business
Release in part
2013
information)
Email chain - Complete Office Supplies quotation
20.
7 February
S 47G (business
Release in part
2013
information)
Email attaching quotation from Commerce Press
21.
11 February
S 47G (business
Release in part
2013
information)
Email chain attaching Purchase Service Request
22.
18 February
Release in full
2013
Invoice approval
23.
7 March 2013
Release in full
Relevant Provisions of the Freedom of Information Act 1982
22 Access to edited copies with exempt or irrelevant matter deleted
Scope
(1) This section applies if:
(a) an agency or Minister decides:
(i)
to refuse to give access to an exempt document; or
(ii)
that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b) it is possible for the agency or Minister to prepare a copy (an
edited copy) of the
document, modified by deletions, ensuring that:
(i) access to the edited copy would be required to be given under section 11A
(access to documents on request); and
(iii)
the edited copy would not disclose any information that would reasonably
be regarded as irrelevant to the request; and
(c) it is reasonably practicable for the agency or Minister to prepare the edited copy,
having regard to:
(i)
the nature and extent of the modification; and
(ii)
the resources available to modify the document; and
(d) it is not apparent (from the request or from consultation with the applicant) that
the applicant would decline access to the edited copy.
Access to edited copy
(2) The agency or Minister must:
(a) prepare the edited copy as mentioned in paragraph (1)(b); and
(b) give the applicant access to the edited copy.
Notice to applicant
(3) The agency or Minister must give the applicant notice in writing:
(a) that the edited copy has been prepared; and
(b) of the grounds for the deletions; and
(c) if any matter deleted is exempt matter—that the matter deleted is exempt matter
because of a specified provision of this Act.
(4) Section 26 (reasons for decision) does not apply to the decision to refuse access to the
whole document unless the applicant requests the agency or Minister to give the
applicant a notice in writing in accordance with that section.
S 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.
(2) Subsection (1) does not apply to trade secrets or other information to which section 47
applies.
(3) 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 o 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.
(4) A reference in this section to an undertaking includes a reference to an undertaking that is
carried on by, or by an authority of, the Commonwealth, Norfolk Island or a State or by a
local government authority.
(5) 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.
