DEFENCE FOI 223/24/25
STATEMENT OF REASONS UNDER THE FREEDOM OF INFORMATION ACT 1982
1.
I refer to the request by James Smith (the applicant), dated and received on
20 September 2024 by the Department of Defence (Defence), for access to the
following documents under the
Freedom of Information Act 1982 (Cth) (FOI Act):
Please provide the following extracts from Adecco Contract ID CN3923195:
Clauses: 1.1, 1.3, 4.1, 4.2, 4.3, 7.1, 7.2, 7.3, 7.4, 7.5, 8.1, 8.5, 10.1 and 10.2
Attachments: A, B, C and P
Background
2.
On 15 October 2024, the period for dealing with the request was extended from 20
October 2024 until 19 November 2024 under section 15(6) [extension of processing
period to comply with requirements of section 26A, 27 or 27A] of the FOI Act to
enable consultation with a business in accordance with section 27 of the FOI Act.
FOI decision maker
3.
I am the authorised officer pursuant to section 23 of the FOI Act to make a decision on
this FOI request.
Documents identified
4.
I have identified six documents as falling within the scope of the request.
5.
The decision in relation to each document is detailed in the schedule of documents.
Exclusions
6.
Clauses in the Condition of Contract outside of those specifically requested are
excluded from this request. Defence has only considered final versions of documents.
Decision
7.
I have decided to:
a. partially release four documents in accordance with section 22 [access to
edited copies with exempt or irrelevant matter deleted] of the FOI Act on the
grounds that the deleted material is considered exempt under sections 47
[Documents disclosing trade secrets or commercially valuable information],
47D [Public interest conditional exemptions – financial or property interests of
the Commonwealth], 47E [Public interest conditional exemptions – certain
operations of agencies] and 47G [Public interest conditional exemptions –
business] of the FOI Act;
b. refuse access to two documents on the grounds that the documents are
considered exempt in full under sections 47 [Documents disclosing trade
secrets or commercially valuable information], 47D [Public interest
conditional exemptions – financial or property interests of the Commonwealth]
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and 47E [Public interest conditional exemptions – certain operations of
agencies]; and
c. remove irrelevant material in accordance with section 22 of the FOI Act.
Material taken into account
8.
In making my decision, I have had regard to:
a. the terms of the request;
b. the content of the identified documents in issue;
c. relevant provisions of the FOI Act;
d. the Guidelines published by the Office of the Australian Information
Commissioner under section 93A of the FOI Act (the Guidelines);
e. advice provided by Defence People Group (DPG); and
f. consultation with third parties.
REASONS FOR DECISION
Section 22 – Access to edited copies with exempt or irrelevant matter deleted
9.
Section 22 of the FOI Act permits an agency to prepare and provide an edited copy of
a document where the agency has decided to refuse access to an exempt document or
that to give access to a document would disclose information that would reasonably be
regarded as irrelevant to the request for access.
10.
The documents identified in the schedule of documents as being released in part
contain exempt and irrelevant material such as contract clauses that do not relate to the
request.
11.
Where whole pages are considered to be exempt in full, these pages have been
removed from the released document pack.
12.
I am satisfied that it is reasonably practicable to remove the exempt and irrelevant
material and release the documents to you in an edited form.
13.
Paragraph 3.98 of the Guidelines provides that:
…an agency or minister should take a common sense approach in considering
whether the number of deletions would be so many that the remaining document
would be of little or no value to the applicant.
14.
In the case of documents identified in the schedule of documents as being refused in
full, I have decided to refuse access to the documents as they would be meaningless
and of little or no value once the exempt material is removed.
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Section 47 – Documents disclosing trade secrets or commercially valuable information
15.
Section 47 of the FOI Act states:
(1)
A document is an exempt document if its disclosure under this Act would
disclose:
…
(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.
16.
The Guidelines state that:
Information having a commercial value
5.234 To be exempt under s 47(1)(b) a document must satisfy 2 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.
5.235 It is a question of fact whether information has commercial value, and
whether disclosure would destroy or diminish that value. … The following factors
may assist in deciding in a particular case whether information has commercial
value:
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
whether the information confers a competitive advantage on the agency or
person to whom it relates …
whether a genuine ‘arm’s-length’ buyer would be prepared to pay to
obtain that information
whether the information is still current …
whether disclosing the information would reduce the value of a business
operation or commercial activity …
…
5.237 The second requirement of s47(1)(b) must be established separately by
satisfactory evidence. … It must be established that the disclosure would destroy
or diminish the commercial value of the information.
17.
Upon examination of the documents, I identified information that has a commercial
value which would be, or could reasonably be expected to be, diminished if it were
disclosed. I identified the study to contain valuable commercial information of the
Commonwealth and third parties. This information, being the fees charged by the third
party in providing services to the Commonwealth under the contract, is not in the
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public domain and could impact the Commonwealth’s ability to effectively manage
existing contracts and engage in future contract negotiations. Release of this
information could also reasonably be expected to provide competitors of third parties
with sensitive information that would otherwise only be known to limited parties, thus
conferring an unfair competitive advantage.
18.
Accordingly, I consider that the release of the information would, or could reasonably
be expected to, diminish commercial value, and is exempt in full under section
47(1)(b) of the FOI Act.
Section 47E - Public interest conditional exemptions - certain operations of agencies
19.
Section 47E(d) of the FOI Act states:
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:
(d) have a substantial adverse effect on the proper and efficient conduct of
the operations of the agency.
20.
The Guidelines, at paragraph 6.115, provide that:
The predicted effect must bear on the agency’s ‘proper and efficient’
operations, that is, the agency is undertaking its operations in an expected
manner.
21.
The documents contain information regarding commercial and contractual matters
between Defence and a service provider. Disclosure of this information would, or
could, substantially adversely affect the conduct of operations of Defence by
providing insight into the details and structure of the contract, and give commercial
advantage to potential market competitors.
22.
I have also considered that disclosure could reasonably be expected to adversely
impact the Defence’s ability to negotiate effectively to obtain value-for-money
outcomes on behalf of the Commonwealth. The need for contracted recruitment
services will remain in place for the foreseeable future and the Commonwealth must
be able to achieve value for money during future negotiations with potential providers.
I consider that disclosure of this information could reasonably be expected to
adversely affect any such negotiations, unduly weaken the Commonwealth’s position,
and prejudice the frank and open supply of information to the Commonwealth.
23.
The Guidelines provide, at paragraph 6.115, that I should consider whether disclosure
of the documents ‘
would, or could reasonably be expected to effect the agency’s
‘proper and efficient’ operations, that is, the agency is undertaking its operations in
an expected manner.’ Given the aggregate of information contained in the documents
identified in the schedule of documents could provide sufficient information to
circumvent recruitment processes, or undermine future procurement processes for
these services, I am satisfied that release of the documents could reasonably effect the
agency’s ‘proper and efficient’ operations.
24.
After weighing all of the above I consider that, on balance the public interest factors
against disclosure outweigh the factors for disclosure. Accordingly, I am satisfied that
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the documents are, in full or in part, conditionally exempt under section 47E(d) of the
FOI Act.
Section 47D – Public interest conditional exemptions – financial or property interests of
the Commonwealth
25.
Section 47D of the FOI Act states:
A document is conditionally exempt if its disclosure under this Act would
have a substantial adverse effect on the financial or property interests of
the Commonwealth or of an agency.
26.
Paragraph 6.90 of the Guidelines indicate that:
The financial or property interests of the Commonwealth or an agency
may relate to assets, expenditure or revenue-generating activities. An
agency’s property interests may be broader than merely buildings and
land, and include intellectual property or the Crown’s interest in natural
resources.
27.
In regards to the term ‘substantial adverse effect,’ the Guidelines state:
The term ‘substantial adverse effect’ broadly means ‘an adverse effect
which is sufficiently serious or significant to cause concern to a properly
concerned reasonable person’. The word ‘substantial’, taken in the
context of substantial loss or damage, has been interpreted as ‘loss or
damage that is, in the circumstances, real or of substance and not
insubstantial or nominal’.
28.
Upon examination of the document, I identified conditionally exempt, commercially
sensitive information, the disclosure of which would place the Commonwealth at a
considerable commercial disadvantage. The publication of this material could
jeopardise or significantly undermine negotiations on future contracts for recruitment
services to the Australian Defence Force.
29.
The need for contracted recruitment services will remain in place for the foreseeable
future and the Commonwealth must be able to achieve value for money for the
taxpayer during future negotiations with potential providers. I consider that disclosure
of this information could reasonably be expected to adversely affect any such
negotiations, unduly weaken the Commonwealth’s position, and prejudice the frank
and open supply of information to the Commonwealth.
30.
Taking the above into consideration, I am satisfied that the relevant information is
conditionally exempt under section 47D of the FOI Act.
Section 47G – Public interest conditional exemptions – business
31.
Section 47G(1)(a) of the FOI Act states:
(1) A document is conditionally exempt if its disclosure under this Act
would disclose information concerning a person in respect of his or her
business or professional affairs or concerning the business, commercial or
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financial affairs of an organisation or undertaking, in a case in which the
disclosure of the information:
(a) would, or could reasonably be expected to, unreasonably affect that
person adversely in respect of his or her lawful business or professional
affairs or that organisation or undertaking in respect of its lawful
business, commercial or financial affairs.
32.
I note that the use of the word ‘could’ in this provision requires only reasonable
consideration of the possibility that disclosure may cause the consequences specified.
33.
The Guidelines state, at paragraph 6.181:
The operation of the business information exemption depends on the effect
of disclosure rather than the precise nature of the information itself.
Nevertheless, the information in question must have some relevance to a
person in respect of his or her business or professional affairs or to the
business, commercial or financial affairs of an organisation or
undertaking (s 47G(1)(a)).
34.
The Guidelines also explain, at paragraph 6.185:
The test of reasonableness applies not to the claim of harm but to the
objective assessment of the expected adverse effect….These considerations
require a weighing of a public interest against a private interest -
preserving the profitability of a business. However, at this stage it bears
only on the threshold question of whether the disclosure would be
unreasonable.
35.
The Guidelines go on to provide, at paragraph 6.191, ‘[t]he term ‘business affairs’ has
been interpreted to mean ‘the totality of the money-making affairs of an organisation
or undertaking as distinct from its private or internal affairs’.
If a document is released it is reasonable to expect that the release of that
information would unreasonably affect their business affairs in the
following adverse ways:
a. Provide a competitive advantage to competitors who would use the
information to capture the market which would impact the
organisations ‘money making affairs.’
36.
Upon examination of the documents, I identified business information belonging to a
service provider to Defence.
37.
Where access has been denied under section 47G(1)(a) of the FOI Act, I consider that
the disclosure of the specified material contained in the document would have an
unreasonable adverse effect on the lawful business affairs of a third party organisation.
The documents provide details of a business contract which are unique to the
negotiating position of both parties. The disclosure of this material would result in the
release of information that is not in the public domain and have the effect of exposing
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commercial sensitivities of that third party organisation to their competitors, which
would harm their business.
38.
Further, in considering advice provided through third party consultation, and
information already in the public domain, I am of the view that full release of
documents identified would prejudice future tendering by the organisation as this
information is considered to have high commercial value.
39.
Accordingly, I am satisfied that the specified information contained in the documents
is conditionally exempt under section 47G of the FOI Act. My public interest
considerations are detailed below.
Public interest considerations - sections 47E, 47D and 47G
40.
Section 11A(5) of the FOI Act states:
The agency or Minister must give the person access to the document if it is
conditionally exempt at a particular time unless (in the circumstances)
access to the document at that time would, on balance, be contrary to the
public interest.
41.
In determining whether to release the document, I considered the Guidelines, together
with a range of factors that favour access to a document set out in section 11B(3)
(public interest exemptions-factors favouring access) of the FOI Act. I had regard to
whether giving access to the applicant at this time would, on balance, be contrary to
public interest. Specifically, I considered if disclosure of the documents would:
(a)
promote the objects of the FOI Act;
(b)
inform debate on a matter of public importance;
(c)
promote effective oversight of public expenditure.
42.
In my view, disclosure of this information would not increase public participation in
the Defence process (section 3(2)(a) of the FOI Act), nor would it increase scrutiny or
discussion of Defence activities (section 3(2)(b) of the FOI Act).
43.
Paragraph 6.233 of the Guidelines specifies a non-exhaustive list of public interest
factors against disclosure. The factors I find particularly relevant to this request is that
the release of this information could reasonably be expected to prejudice:
prejudice the competitive commercial activities of an agency;
an agency’s ability to obtain similar information in the future;
the competitive commercial activities of an agency; and
the management function of an agency.
44.
While I accept there is a public interest in ensuring that Defence undertakes its
functions in a transparent and proper manner, there is also a strong public interest in
maintaining the confidentiality of material contained in the documents.
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45.
I find that the release of the information identified would inhibit the proper
administration of public monies by jeopardising future Commonwealth negotiations
and making commercially sensitive information available to Adecco’s competitor
organisations.
46.
The need for contracted recruitment services will remain in place for the foreseeable
future and the Commonwealth must be able to achieve value for money for the
taxpayer during future negotiations with potential providers. I consider that disclosure
of this information could reasonably be expected to adversely affect any such
negotiations, unduly weaken the Commonwealth’s position, and prejudice the frank
and open supply of information to the Commonwealth.
47.
On balance, I consider the benefit to the public from disclosure is outweighed by the
benefit to the public from withholding the information. I have found that at this time,
release of the information identified would inhibit the proper administration of public
monies by impeding the proper completion of ongoing negotiations.
48.
While I consider that release of the material removed under sections 47E, 47D and
47G of the FOI Act may be of some interest to the applicant, its disclosure would not
inform public debate on any matter of public importance in any meaningful way.
49.
I have not taken any of the factors listed in section 11B(4) [irrelevant factors] of the
FOI Act into account when making this decision.
50.
I am satisfied, based on the above particulars, the public interest factors against
disclosure outweigh the factors for disclosure, and that, on balance, it is against the
public interest to release the information to you. Accordingly, I find that the
information is exempt under sections 47E, 47D and 47G of the FOI Act.
fiona.pete Digitally signed by
fiona.peterson
rson
Date: 2024.12.06
11:28:20 +11'00'
Fiona Peterson
Accredited Decision Maker
Defence People Group
Department of Defence
