DEFENCE FOI 375/21/22 STATEMENT OF REASONS UNDER THE FREEDOM OF
INFORMATION ACT
1. I refer to the application by Bick Rurr under the
Freedom of Information Act 1982
(FOI Act) for access to:
“
I would like to request a menu list for each type of current in service CR1M (combat
ration one man). Types include menu A, B, C... etc. Menu list means each item/flavour
of item contained within a specific menu type. For example...
Menu A
Satay Chicken
Vegetable curry
Cream crackers
Vegemite tube
Muesli bar x 2
Menu B
Chicken Korma
Tuna Mornay
Jam biscuits
Jam tube
Jerky bar”
FOI decision maker
2. I am the authorised officer pursuant to section 23 of the FOI Act to make a decision on
this FOI request.
Documents identified
3. I identified one document as matching the description of the request.
Decision
4.
I have decided to deny access in full under section 47 [commercially valuable
information] and 47G [public interest conditional exemptions – business] of the FOI Act.
Material taken into account
5. In making my decision, I had regard to:
a.
The terms of the request;
b. The content of the identified documents in issue;
Defending Australia and its National Interests
2
c.
Relevant provisions in the FOI Act;
d. The Guidelines published by the Office of the Australian Information Commissioner
under section 93A of the FOI Act (the Guidelines);
e.
Consultation undertaken by a third party; and
f.
Information provided by subject matter experts within the Department of Defence
(Defence), Capability Acquisition and Sustainment Group (CASG), regarding
commercial sensitivities.
Reasons for decision
Third party consultation
6.
I decided to consult with a third party regarding their business information which was
contained in the documents. In response to this consultation, the third party had objections to
the release of their business information and I agreed with their contentions.
Section 22 7. Subsection 22(1) of the FOI Act requires that, where a decision maker denies access to
a document they must consider releasing the document with exempt matter deleted, where
possible. I have considered disclosing the documents to you with deletions, but have decided
against this course of action, as the document would be meaningless and of little or no value
once the exempt material is removed.
Section 47 – Documents disclosing trade secrets or commercially valuable information
8. Section 47 of the FOI Act states:
1) “A document is an exempt document if its disclosure under this Act would disclose:
a) trade secrets; or
b) any other information having a commercial value that would be, or could
reasonably be expected to be, destroyed or diminished if the information were
disclosed.”
9. I identified information in the document of commercial value to the company supplying
the menu list. For this exemption to apply, paragraph 5.204 of the Guidelines states that, to be
exempt under section 47(1)(b) a document must satisfy two criteria: it must contain
information that has commercial value either to the 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.
10. A contract managed by Defence deems this material as commercially sensitive and as
such, this document must be managed on that basis.
11. Accordingly, I consider the release of the information would, or could reasonably be
expected to, diminish commercial value, and is exempt under section 47(1)(b) of the FOI Act.
Section 47G – Public interest conditional exemptions - Business affairs
12. Where access has been denied under section 47G of the FOI Act relevantly states:
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:
3
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.
13. I note the use of the word ‘could’ in this provision requires no more than a degree of
reasonableness being applied in deciding whether disclosure would cause the consequences
specified.
14. In accordance with the section 27(3) of the FOI Act, in determining whether the
disclosure of this information would involve the unreasonable disclosure of business
information, I had regard to:
a.
The extent to which the information is well known;
b. Whether the person to whom the information relates is known to be (or to have been)
associated with the matters dealt with in the information;
c.
The availability of the information from publicly available sources; and
d. Any other matters that the agency considers relevant.
15. Against those criteria, I found:
a.
The information is not well known to the broader community;
b. The information is not readily available from publicly accessible sources; and
c.
The third party objects to the release.
16. In making my decision I had regard to the Guidelines, specifically 6.184 which notes,
‘The operation of the business information exemption depends on the effect of disclosure
rather than the precise nature of the information itself’. It adds at 6.185,
‘…it is intended to
protect the interest of third parties dealing with the government.’ 17. I also considered paragraph 6.197 of Guidelines where it notes
‘A document that
discloses the kind of information … will be conditionally exempt if the disclosure could
reasonably be expected to prejudice future supply of information to the Commonwealth…’ 18. The document relates to business and commercial affairs of an organisation. Should this
information be disclosed, the information could unreasonably affect the company in respect of
their lawful commercial affairs by giving an unfair advantage to its competitors and impacting
their financial affairs.
19. Accordingly, I consider the document is exempt under section 47G of the FOI Act.
Public interest considerations – section 47G
20. I have found the identified document is conditionally exempt under section 47G of the
FOI Act. Section 11A (5) provides that, if a document is conditionally exempt, it must be
disclosed ‘unless (in the circumstances) access to the document at that time would, on
balance, be contrary to the public interest’.
21. I considered the factors favouring disclosure set out in section 11B(3) of the FOI Act.
The relevant factors being that disclosure may promote some of the objectives of the FOI Act,
as information held by the government is a national resource.
22. Whilst I note that the release of the information being withheld may be of interest to the
applicant, it would not inform public debate on any matter of public importance in any
meaningful way.
4
23. Paragraph 6.22 of the Guidelines specifies a non-exhaustive list of public interest factors
against disclosure. The factors I find particularly relevant to this request are that release of
this information could reasonably be expected to prejudice:
a.
An agency’s ability to obtain similar information in the future;
b. Could reasonably be expected to prejudice the competitive commercial activities of an
agency; and
c.
The management function of an agency.
24. It is for those reasons I find the public interest factors against disclosure outweigh the
factors for disclosure and I deem the document exempt under section 47G of the FOI Act.
25. None of the factors listed in section 11B(4) [Irrelevant Factors] were taken into account
when making my decision.
megan.barron Digitally signed by
megan.barron1
1
Date: 2022.04.08 12:48:17
+10'00'
Megan Barron
Accredited Decision Maker
Capability Acquisition & Sustainment Group
Document Outline