In this world of transparent government and regulated access to documents, the potential for information provided by a company to government to be released to a third party as a result of a Freedom of Information (FOI) application is sometimes overlooked.

The Freedom of Information Act 1992 applies to all government records, unless those records are declared by that Act to be exempt. Once a company supplies information to government, it becomes a government record and the document will be released if an FOI application is made for its release, unless exempt.

Once an application for the release of documentation is made, the Government Agency to whom the application is made will assess the information and decide whether to release it or whether the document, or some parts of it, are exempt. A document may be released with some sections of the document blacked out if those sections are considered to be exempt.

The document exemptions are broadly those relating to:

  • Cabinet and Executive Council
  • Inter-governmental relations
  • Personal information
  • Commercial or business information
  • Law enforcement, public safety and property security
  • Deliberative processes
  • Legal professional privilege
  • Confidential communications
  • The State's economy
  • The State's financial or property affairs
  • Effective operation of agencies
  • Contempt of Parliament or court
  • Information as to adoption or artificial conception
  • Information protected by certain statutory provisions
  • Information as to precious metal transactions

If the government agency assessing the application forms the view that the document contains commercial or business information of a certain kind, the agency must take reasonable steps to seek the views of those to whom that information relates before releasing the document. This does not apply where the document is released with the information about which there is a query removed.

This information includes documents containing trade secrets or information with a commercial value.

The recent case of Apache Northwest Pty and the Department of Mines and Petroleum [2011] WASC 283 discussed the issue of whether information which had been provided by Apache to the Department was exempt from being released under an FOI application under the 'commercial or business information' exemptions. The case can be found in the judgments section of the Supreme Court website at www.supremecourt.wa.gov.au.

Remember, information your company provides to a government agency could be released under a Freedom of Information Act 1992 application unless it falls within one of the exemptions described above.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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