Business on both sides of FOI battle

Although decided under the now repealed Freedom of Information Act a recent decision by Assistant Queensland Information Commissioner Henry may highlight a situation that will arise more frequently under access laws that place greater weight on disclosure: one business exercising its right of access, a clash between an agency's assessment that release of requested information relating to business affairs of a third party will have no unfair or unreasonable effect, and the business concerned seeking to resist disclosure because of claimed adverse effects.

In Ensham Resources Pty Ltd and Department of Natural Resources and Water (210706 19 October 2009) Assistant Commissioner Henry found that much of the information sought by AOAI Insurance that the Department decided to release despite the objections of Ensham Resources (about the Ensham Central Project, more particularly flood risk and/or flood protection levee banks in the Nogoa River floodplain), was already publicly available on Ensham's website, or in other reports and articles, and on the agency website. Ensham declined invitations to provide more detailed submissions to support its claim that notwithstanding, the documents were exempt, arguing unsuccessfully that it carried no onus. Ensham also failed to satisfy the Assistant Commissioner that other documents not publicly available should be exempt from disclosure: the information in dispute appeared to be aged or out of date, was likely to have been significantly revised or superseded and was likely to have lost any commercial sensitivity due to subsequent events and/or the passage of time. In addition the content consisted of commonly known information

Top end of town lawyers Mallesons Stephen Jaques (for AOIA) and Clayton Utz (for Ensham) were involved in this with a win all round for Mallesons (and of course for the Department and its FOI decision maker). But it took from July 2008 when the FOI application was made, and presumably involved a bit of pain for both companies (and the taxpayer) on the costs front.