14 July 2021
E) xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
To Whom It May Concern,
FOI REQUEST - REFERENCE NUMBER 202021-054
I refer to your request dated 13 June 2021 for access to documents under the Freedom
of Information Act 1982 (Cth) (‘FOI Act’) in your letter that we received on 14 June 2021.
Specifically, you have sought access to the following:
[Documents containing:]
The name, agreement, and price of the MetraWeather product and/or service
currently being used.
Authorisation
I am authorised by the Managing Director under section 23 of the FOI Act to make
decisions in respect of requests made under that Act.
Material taken into account
In making my decision, I have had regard to:
• the terms of your request;
• the content of the documents identified as relevant to your request;
• the FOI Act;
the guidelines issued by the Office of the Australian Information
Commissioner (‘OAIC’) under section 93A FOI Act (the Guidelines).
Locating and identifying documents
Reasonable steps were taken to identify and locate all relevant documents. The
search for documents included contacting the relevant team within the ABC Legal
department.
1
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Tel: +61 2 8333 5849
As a result of the searches, 2 documents were identified, an 2016 agreement between
ABC and MetraWeather (Australia) Pty dated ‘Metraweather’ and an extension to
that agreement (2020).
Decision
The ABC has refused access in full to the requested documents. My reasons for
refusal of access are provided below.
Reasons for decision
Section 47(1)(b) – Commercially valuable information
Section 47(1)(b) exempts the disclosure of a document where the following two
criteria are satisfied:
the document must contain information that has a commercial value either to
an agency or to another person or body, and
the commercial value of the information would be, or could reasonably be
expected to be, destroyed or diminished if it were disclosed.1
Whether information is commercially valuable, and whether disclosure would
destroy or diminish that value, is a question of fact.2 Commercially valuable
information can include information relating to the profitability or viability of a
continuing business operation or commercial activity of an agency.3 Information does
not necessarily need to have ‘exchange’ value in order for it to be commercially
valuable, however certain relevant factors as listed in the Guidelines, include,
whether the information is known only to the agency or person for whom it has value,
whether the information confers a competitive advantage on the agency or person to
whom it relates and whether disclosing the information would reduce the value of a
business operation or commercial activity.4
Details of the agreement between the ABC and MetraWeather is inherently
commercially valuable. Recognition of the commercial value of this information is
1 The Guidelines issued by the Australian Information Commissioner under section 93A of the Freedom Information Act 1982 (2020)
[5.204] (‘Guidelines’); McKinnon and Department of Immigration and Citizenship [2012] AICmr 34.
2 The Guidelines [5.205].
3 Ibid.
4 Ibid.
2
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Tel: +61 2 8333 5849
reflected in the fact that the agreement contains a confidentiality clause that
protects all information ‘exchanged for or in connection with the Contract, whether
during the Term or not, between the parties or among any of their representatives. ‘
If one party were to disclose this type of information without the consent of the other
party to the transaction, the commercial value of the information could reasonably
be expected to be diminished. Disclosing the terms is likely to impact on the ABC’s
bargaining position in the future, or permit a competitor a commercially valuable
insight into the ABC’s contractual arrangements. It could also impact on
Metraweather’s bargaining position with other parties.
The Australian Information Commissioner has previously found that price schedules
included in documents for the purposes of negotiating with external parties in the
course of the business and commercial activities of the ABC, were information which
was commercially valuable to the ABC: see AZ and Australian Broadcasting
Corporation.5 The Information Commissioner considered there was commercial value
in the ABC maintaining exclusive knowledge of the contents of the documents, as the
information within these documents influenced the ABC’s negotiating position in
commercial transactions. The Information Commissioner in that case was also
satisfied that the commercial value of that information could reasonably be
expected to be diminished if it were disclosed, as disclosure would cause the ABC to
“be at a disadvantage when negotiating”.6 This Information Commissioner decision
demonstrates that information contained in the agreement with MetraWeather can
be considered commercially valuable information, disclosure of which could destroy
or diminish the value of that information and thus exempt under s 47(1)(b).
Section 45(1) – material communicated in confidence
Access to the documents is refused on the basis that the material in the
arrangement is exempt under section 45 of the FOI Act – that is, because disclosure
under the FOI Act could found an action against the ABC for breach of confidence.
The Guidelines explain at [5.159] that to found an action for breach of confidence (and
therefore for section 45 to apply), the following five criteria must be satisfied in
relation to the information:
it must be specifically identified;
5 [2014] AICmr 8 [16].
6 Ibid [21].
3
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Tel: +61 2 8333 5849
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; and
unauthorised disclosure of the information has or will cause detriment.
I have considered each of these criteria and I am satisfied that they are met in
relation to the documents in question.
The agreement has been specifically identified as confidential. The information in the
agreement has the necessary quality of confidentiality. It is only known to a limited
group and is not common knowledge or in the public domain.7 The matters covered
by the agreement relate to core business dealings of the ABC and as such is
inherently confidential in nature and is treated by the ABC as confidential. The
information in the documents were communicated and received on the basis of a
mutual understanding that it would be treated by the ABC as confidential; this
agreement is expressly confirmed to the third party in the document.
Accordingly, disclosure of the information would be unauthorised and may result in
potential claims for damages for breach of the ABC’s obligation to maintain
confidentiality. Further, for the reasons set out under my reasons for exemption
under section 47(1)(b), unauthorised disclosure of the information will cause
detriment.
For the reasons set out above, I am satisfied that release of the information in the
relevant documents could found an action against the ABC for a breach of
confidence, and that the whole document is therefore exempt under section 45 of the
FOI Act.
Additional applicable exemptions
I also consider that the public interest conditional exemption available in section
47E(d) of the FOI Act (Operations of agencies) applies to these documents. I have not
elaborated given that I have already concluded that the documents are exempt
under section Section 47(1)(b) and 45(1) for the reasons outlined above.
7 The Guidelines [5.162]
4
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Tel: +61 2 8333 5849
Review rights
You have rights in relation to this decision. Those rights are set out at Annexure A .
Yours sincerely,
Pamela Longstaff
Company Secretary and Head of Corporate Governance
xxx.xxx@xxx.xxx.xx
5
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Tel: +61 2 8333 5849
Annexure A – Review rights
If you are dissatisfied with this decision you can apply for Internal or Information
Commissioner (IC) Review. You do not have to apply for Internal Review before
seeking IC Review.
APPLICATION FOR INTERNAL REVIEW
You have the right to apply for an internal review of the decision refusing to grant
access to documents in accordance with your request. If you make an application for
review, the Managing Director will appoint an officer of the Corporation (not the
person who made the initial decision) to conduct a review and make a completely
fresh decision on the merits of the case.
You must apply in writing for a review of the decision within 30 days of receipt of this
letter. No particular form is required to apply for review, although it would help if you
set out the reasons for review in your application.
Application for a review of the decision should be addressed to:
The FOI Coordinator
ABC
Level 13
700 Harris Street
ULTIMO NSW 2007
Or sent to: xxx.xxx@xxx.xxx.xx
APPLICATION FOR INFORMATION COMMISSIONER (IC) REVIEW
Alternatively, you have the right to apply for a review by the Information
Commissioner of the decision refusing to grant access to documents in accordance
with your request. Your application must:
be in writing
be made within 60 days of receipt of this letter
give details of how notices may be sent to you (for instance, by providing an email
address)
include a copy of the decision for which a review sought.
You should be aware that the Information Commissioner has a discretion not to
undertake a review (see Division 5, FOI Act).
Please refer to the OAIC website FOI review process page for further information
and/or to access the online form for applying for IC review:
https://www.oaic.gov.au/freedom-of-information/foi-review-process
Application for a review of the decision by the Information Commissioner should be
addressed to:
6
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Tel: +61 2 8333 5849
Director of FOI Dispute Resolution
GPO Box 5218
Sydney NSW 2001
Or sent to: xxxxxxxxx@xxxx.xxx.xx
COMPLAINTS TO THE INFORMATION COMMISSIONER
You may complain to the Information Commissioner about any action taken by the
ABC in the performance of functions, or exercise of powers, under the FOI Act. The
Information Commissioner may make inquiries for the purpose of determining
whether or not to investigate a complaint.
Complaints should be made in writing to the following address:
Office of the Australian Information Commissioner
GPO Box 5218
Sydney NSW 2001
7
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Tel: +61 2 8333 5849
