Ref: IR-31964
Glenn Hamiltonshire
Via email
: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Glenn Hamiltonshire
Decision on your Freedom of Information request
I refer to your request received by the Department of Agriculture, Fisheries and Forestry
(
department) on 9 January 2025 for internal review of the department’s decision under the
Freedom of Information Act 1982 (
FOI Act) dated 2 January 2025 (
primary decision).
My decision
I have decided to affirm the primary decision.
The reasons for my decision are set out in
Attachment A.
You can ask for a review of my decision
You may apply directly to the Office of the Australian Information Commissioner (
OAIC) to
review my decision. An application for review by the Information Commissioner must be made
in writing within
60 days after the day you are notified of this decision. You may apply for an
OAIC review through the following
link. You can also mak
e a complaint to the Information
Commissioner if you have concerns about how the department handled your request.
You can find information about requesting a review, making a complaint, and other information
about FOI on the OAIC website
www.oaic.gov.au or phone the OAIC on 1300 363 992.
Further assistance
If you have any questions, please emai
l xxx@xxx.xxx.xx.
Yours sincerely
Kathleen Quan
A/g Assistant Secretary
Enterprise Strategy and Governance Division
05 February 2025
T +61 2 6272 3933
Agriculture House
GPO Box 858
agriculture.gov.au
F +61 2 6272 5161
70 Northbourne Avenue
Canberra ACT 2601
ABN 34 190 894 983
Canberra ACT 2601
Attachment A
LIST OF DOCUMENTS FOR RELEASE
IR-31964
Doc Pages
Date
Description
Decision
Exemption
Comments
No.
1. 1–5 7
5 June 2024
Brand standards manual
Exempt in full
s 47(1)(b)
Pages 1–57: commercially valuable
information exempt under s 47(1)(b).
2. 58– 127
January 2024 Style guide
Release in part
s 47E(d)
Pages 63, 66 and 81: certain operations of
agencies exempt under s 47E(d).
3. 12
8–149
January 2024 References guide
Release in part
s 47E(d)
Page 132: certain operations of agencies
exempt under s 47E(d).
4. 15
0–158
25 June 2024 Writing print and web content guide
Release in part
s 47E(d)
Pages 151 and 155: certain operations of
agencies exempt under s 47E(d).
5. 15
9–161
25 June 2024 Writing import industry advice notices
Release in part
s 47E(d)
Page 159 and 161: certain operations of
agencies exempt under s 47E(d).
T +61 2 6272 3933
Agriculture House, 70 Northbourne Avenue
GPO Box 858
agriculture.gov.au
F +61 2 6272 5161
Canberra ACT 2601
Canberra ACT 2601
ABN 34 190 894 983
REASONS FOR DECISION
What you requested
‘I request access to the Style Guides/Brand Guides/Writing Guides currently used for the
Department of Agriculture Fisheries & Forestry’
Primary decision
On 2 January 2025, the primary decision maker determined that there were 5 documents
(totalling 161 pages) that related to your request.
The primary decision maker decided to grant you part access to 4 documents (documents 2–5)
and refuse access to 1 document (document 1) on the basis that:
• certain parts of documents 2 – 5 that you requested included information which would,
or could reasonably be expected to have a substantial adverse effect on the proper and
efficient conduct of the operations of an agency and be contrary to the public interest if
released (section 47E(d)); and
• document 1 included information that is commercially valuable, the disclosure of which
would, or could reasonably be expected to be destroyed or diminished if the information
was disclosed (section 47(1)(b)).
Request for internal review
On 9 January 2025, you applied for internal review of the primary decision and requested
review of the primary decision. In your request for internal review, you provided the following:
‘I am contacting indicating that I am requesting a internal review into the decisions
reached. To be speci�ic, I am seeking to challenge and overturn the decisions regarding
Document 1 and the s 47(1)(b) exemptions. For the avoidance of doubt, I do not
challenge the exemptions under 47E(d).
In raising my objections, I make note of the option provided by the OAIC in McKinnon
and Department of Immigration and Citizenship [2012] AICmr 34 (‘McKinnon’). In
McKinnon, where a government department had sought to cite the commercially
valuable information exemption as a way to omit documents relating to the commercial
values of facilities maintained by Serco, arguing that such documents were considered
commercially valuable for the third party. This claim was rejected by the AIC, who stated
that even documents covering the internal business affair from Serco, "This by itself is
not enough to establish that the information has commercial value for the purposes of s
47’"
If such documents were not considered exempt in this case, a decision later upheld by
the OAIC at a later date (see Maritime Union of Australia and Department of
Infrastructure and Regional Development), I do not believe such exemptions would
continue to apply.
I further note that, while not applicable for the purposes of this process, this decision to
rely on exemptions and redactions based on the use of First Nations artwork and artists
is uncommon, given the use of First Nations art has been publicly revealed in full in other
similar FOI processes, such as the Department of Climate Change, Energy, the
Environment and Water's style guide
(https://aus01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.righttokn
ow.org.au%2Frequest%2Fdcceew_stylebrandwriting_guides&data=05%7C02%7Cfoi%4
0aff.gov.au%7C2da25bfc042048202�b408dd2fe5dea6%7C2be67eb7400c4b3fa5a11258
c0da0696%7C0%7C0%7C638719386535628815%7CUnknown%7CTWFpbGZsb3d8eyJ
FbXB0eU1hcGkiOnRydWUsIlYiOiIwLjAuMDAwMCIsIlAiOiJXaW4zMiIsIkFOIjoiTWFpbCIsI
ldUIjoyfQ%3D%3D%7C0%7C%7C%7C&sdata=DkOVZFKQWtyzjPPzzs8E7Hc%2FoaR0Sf
PS4H%2B0tkC5%2BWg%3D&reserved=0).
I believe that it is not in the interests of the Department to maintain this blanked
exemption, and the entire Style Guide should be released without redactions (besides
those for purposes like 47E(d)).’
What I took into account
In reaching my decision, I took into account:
• your original request dated 18 July 2024;
• the primary decision dated 2 January 2025;
• your request for internal review dated 9 January 2025;
• the documents that fall within the scope of your request;
• information about:
o the nature of the documents; and
o the department’s operating environment and functions;
• guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (
Guidelines); and
• the FOI Act.
Reasons for my decision
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided that certain documents and parts of documents are exempt under the FOI Act. My
findings of fact and reasons for deciding that an exemption applies to those documents are
discussed below.
Section 47(1)(b) of the FOI Act - documents disclosing commercially valuable information
I have decided to affirm the primary decision as I am also satisfied that document 1 is exempt
under section 47(1)(b).
Section 47 of the FOI Act provides:
‘(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.’
Paragraph 5.234 of the Guidelines provides that, in order for a document to be exempt under
section 47(1)(b) of the FOI Act, it must satisfy two criteria:
• The document must contain information that has a commercial value either to an 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.
Furthermore, paragraph 5.235 of the Guidelines relevantly provides that in deciding whether
information has commercial value, a decision maker may consider whether the information is
known only to the agency or person for whom it has value or, if it is known to others, to what
extent that detracts from its intrinsic commercial value.
As explained in the primary decision, the document is a brand standards manual produced for
internal department use. The document contains graphic designs and includes First Nations
artwork procured by the department and was created specifically for the department. This
content is not publicly available and is only known by the department, the agency who
developed the manual and the First Nations artist to whom it has value. I also consider that a
genuine ‘arms-length’ buyer would be prepared to pay to obtain the information, on the basis
that it contains a detailed information about the development of the department’s brand. I am
satisfied that the information has commercial value.
I agree with the primary decision maker that if this information were disclosed, it could provide
any graphic design company a competitive advantage when pitching for work with the
department. On this basis, I am also satisfied that the commercial value of the information would
be, or could reasonably be expected to be, destroyed or diminished if it were disclosed.
In your request for internal review, you referred to the Australian Information Commissioner’s
(
AIC) decision in
McKinnon and Department of Immigration and Citizenship [2012] AICmr 34
(
McKinnon). In
McKinnon, the AIC found that letters from Serco to the department which
contained information relating to the ‘internal business affairs’ of Serco was not sufficient to
establish commercial value ([43]). The AIC was also not satisfied that the information continued
to have commercial value that could be diminished ([44]). The AIC further reasoned:
‘I am not satisfied that merely because the disclosure of some information may adversely
affect a person or a business, that this fact alone establishes that the information has
commercial value or that the commercial value of the information will be diminished by
public disclosure. It is still necessary to point to some intrinsic commercial value that
information holds, independently of the impact that disclosure of the information will
have on a person or business…’
For the following reasons, I consider this matter can be distinguished from
McKinnon. It is a
question of fact whether information has commercial value. As explained above, I consider the
information in the document to have commercial value because it was procured by, and created
specifically for, the department. I consider this commercial value is intrinsic and independent of
the impact that any disclosure could have on the department or the artists. Secondly, I consider
that commercial value could be diminished if the information was disclosed. In particular, I
consider that its disclosure could provide a competitive advantage to other graphic design
companies or artists that seek to obtain work with the department.
In your request for internal review, you note that another agency’s style guide has been released
in full in other similar FOI processes. You submit that relying on exemptions and redactions
based on the use of First Nations artists is “uncommon”. However, I have not applied the
exemption in section 47(1)(b)
solely on the basis that the document contains First Nations
artworks. Rather, I have applied the exemption because the information in the document is
commercially valuable to the department and the artists; and that value could be diminished if it
were released.
For the reasons set out above, I agree with the primary decision maker that document 1 is
exempt under section 47(1)(b) of the FOI Act.
Section 47E(d) of the FOI Act – certain operations of agencies
Based on your request for internal review, I understand that you do not contest the application
of the conditional exemption in section 47E(d) to parts of documents 2 –5 as identified in the
Schedule.
For completeness, I confirm that I affirm the primary decision maker’s decision and agree with
the reasoning provided in the original decision in respect of this exemption.
Summary of my decision
In conclusion, I have decided to affirm the primary decision that:
• document 1 is exempt, in full, under section 47(1)(b) of the FOI Act; and
• documents 2 – 5 are exempt, in part, under section 47E(d) of the FOI Act, and disclosure
would be contrary to the public interest for the purposes of section 11A(5).
