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
Commercial or business information
Law enforcement, public safety and property security
Legal professional privilege
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
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  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
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
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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