The Freedom of Information Act 1982 (Cth) (FOI Act) allows individuals and companies to have a legally enforceable right to access documents held by a government department. An individual who requests documents does not require a reason to access these documents. Government agencies have a responsibility to disclose information upon an “FOI request”. As noted in our previous legal guide, the majority of requests concern individuals seeking access to their own public files. However, as noted, accessible information includes business information.
Can a government department disclose my business information?
There are various documents which are exempt from disclosure pursuant to the FOI Act. An exempt document is one that holds trade secrets or that would have a reasonable expectation to be destroyed if disclosed. For both of these documents, there is no public interest test for documents of this nature. Therefore, there are no conditions to its exemption.
A document is conditionally exempt if there is information which is commercially valuable to the affected business. However, these documents may be exposed if it is in the public interest to do so. Many legal commentators have different definitions of what the “public interest test” actually means. Generally speaking, it is an analysis of what is good for the community, as a whole, against what is good for the private person. In the case of McKinnon v Secretary, Department of Treasury [2005] FCA FC 142 the public interest test was referred to as the conclusion which best serves the advancement of the public, society or the nation. According to the Office of the Australian Information Commissioner (OAIC), the Minister must take into consideration the following when observing what is in the best interests of the public:
- The aims of the FOI Act (such as the scrutiny of government, inform debate, promote oversight of government spending); and
- Public participation in government decision-making.
Does the government have to contact me before releasing my information?
A government authority must give an affected organisation a reasonable opportunity to submit that a document is exempt from disclosure. Therefore, they should be consulting with you if a government department holds your business information. We recommend that you seek advice from a lawyer before proceeding with any consultation process.
Pursuant to the Department of Prime Minister and Cabinet (DPMC) guidelines, consultation is required only where it is practicable to do so. The DPMC notes that a government agency should consult with an affected business where:
- They can be identified;
- Their contact details can be located; and
- Whether there is an Australian representative who can be contacted if the business is not in Australia.
The FOI Act is worth getting your head around. You have a statutory right to prevent unnecessary disclosure of information and therefore, you should make sure that you do what is best for your business.
