1. There are two documents in issue, referred to as Document 4 and Document 5, which represent a subset of the documents of the Other Party's original FOI request.[3] Each document relates to Aspen Medical's contract with the Respondent awarded in late 2014 to deliver medical services in response to the Ebola outbreak in Sierra Leone on behalf of the Australia Government.[4]

(a) Document 4 is the Applicant's report to the Respondent at the conclusion of the Ebola project. > > (b) Document 5 is comprised of two separate but related contracts that were executed between the Applicant and the Respondent for the delivery of the Ebola project.

2. In their decision the Information Commissioner found that:

(a) none of the information in the documents in issue was exempt from disclosure under s 47(1)(a) > > (b) some of the information in Document 4 was exempt from disclosure under s 47(1)(b), > > (c) the information in Document 5 was not exempt from disclosure under s 47(1)(b).[5]

3. The Other Party has not applied for review of the Commissioner's decision that parts of Document 4 are exempt under s 47(1)(b).[6]
4. The issues for the Tribunal to determine are therefore:

(a) whether Document 4 and Document 5 are exempt under s 47(1)(a) of the FOI Act, or > > (b) whether the documents are exempt under s 47(1)(b) of the FOI Act (other than the parts of Document 4 already held to be exempt).

5. The Respondent notes that while s 47G of the FOI Act was also addressed in the Reviewable Decision, the Applicant has not made submissions as to the potential application of that section before the Tribunal.[7]
6. The Respondent advises that as the Other Party has not also sought review of the Reviewable Decision, the Tribunal is not required to consider the other documents dealt within the Reviewable Decision.[8] The Respondent also advises that it takes a neutral position on the application.[9]

1. The key procedural events in relation to this matter are summarised below.
2. On 24 February 2017, the Other Party applied to the Respondent for access to documents about funding for the response to the Ebola outbreak in West Africa.[10]
3. On 19 June 2017, the Respondent made its internal review decision and advised the Other Party that it had decided to refuse the request on the basis that processing the request required to substantially and unreasonably divert the resources of the Department from its operations.[11]
4. On 27 February 2018, the Respondent and the Other Party entered into an agreement under s 55F of the FOI Act to a revised scope request which included within its scope the documents in issue for consideration.[12]
5. On 6 June 2019, the Respondent undertook third-party consultations with the Applicant on the request.[13]
6. On 24 June 2019, the Respondent was deemed to have refused access to the documents requested on the basis that a decision had not been made on the request.[14]
7. On 3 July 2019, the Other Party sought Information Commissioner review under s 54L of the FOI Act.[15]
8. On 15 October 2019, the Respondent made a decision on a revised FOI request. In that decision the Respondent found that Document 4 was exempt in part under s 47(1)(a) and 47G of the FOI Act and that Document 5 was not exempt.[16]
9. Between 13 July 2020 and 21 July 2020, the Respondent consulted with the Applicant.[17]
10. On 6 August 2020, the Respondent made a revised decision under s 55G of the FOI Act that parts of both Documents 4 and 5 were found to be exempt in part under s 47 and 47G of the FOI Act.

1. Section 11(1)(a) of the FOI Act provides that 'subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to: ... a document of an agency, other than an exempt document'.
2. Under the FOI Act, a document may be either an "exempt document" or be "conditionally exempt".

47 Documents disclosing trade secrets or commercially valuable information > > (1) A document is an exempt document if its disclosure under this Act would disclose: > > (a) trade secrets...

2. The term 'trade secret' is not defined in the FOI Act. The FOI Guidelines state that the Federal Court has interpreted a trade secret as 'information possessed by one trader which gives that trader an advantage over its competitors while the information remains generally unknown'.[18]
3. The FOI Guidelines also state that the Federal Court has referred to the following test when considering whether information will amount to a trade secret:

(a) it is information used in a trade or business > > (b) the owner limits the dissemination of it or at least does not encourage or permit widespread dissemination, and > > (c) its disclosure to a competitor would be liable to cause real (or significant) harm to the owner of the information.[19]

4. Further, the FOI Guidelines contain the following non-exhaustive list of factors that can be used to guide decision making as to whether information constitutes a trade secret:

(a) the extent to which the information is known outside the business of the owner of that information > > (b) the extent to which the information is known by persons engaged in the owner's business > > (c) measures taken by the owner to guard the secrecy of the information > > (d) the value of the information to the owner and to their competitors > > (e) the effort and money spent by the owner in developing the information, and > > (f) the ease or difficulty with which others might acquire or duplicate the secret.[20]

47 Documents disclosing trade secrets or commercially valuable information > > (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.

2. The FOI Guidelines state that for information to be exempt under s 47(1)(b) of the FOI Act a document must satisfy two criteria:

(a) the document must contain information that has a commercial value either to an agency or to another person or body, and > > (b) the commercial value of the information would be, or could reasonably be expected to be, destroyed or diminished if it were disclosed.[21]

3. The FOI Guidelines state it is a question of fact whether information has commercial value, and whether disclosure would destroy or diminish that value.[22]
4. On the first criteria, the FOI Guidelines also state the information need not necessarily have 'exchange value', in the sense that it could be sold as a trade secret or intellectual property.[23] Further, the FOI Guidelines contain a list of factors that can be used to guide decision making as to whether information has a commercial value which provide relevantly for this matter:[24]

(a) whether the information is known only to the agency or person to whom it has value or, if it is known to others, to what extent that detracts from its intrinsic commercial value > > (b) whether the information confers a competitive advantage on the agency or person to whom it relates - for example, if it lowers the cost of production or allows access to markets not available to competitors > > (c) whether a genuine 'arm's-length' buyer would be prepared to pay to obtain that information > > (d) whether the information is still current or out of date (out of date information may no longer have any value), and > > (e) whether disclosing the information would reduce the value of a business operation or commercial activity - reflected, perhaps, in a lower share price.

5. On the second criteria, the FOI Guidelines also state that it must be established separately by satisfactory evidence that it could reasonably be expected that disclosure of the information would destroy or diminish its value.[25] The FOI Guidelines also state it should not be assumed that confidential commercial information will necessarily lose some of its value if it becomes more widely known.[26]

1. On the three-part Federal Court test referred to at [25] the Applicant submits that:

(a) the information in both documents is related to the delivery under contract for payment of specific projects > > (b) deliberate and careful measures have been taken to safeguard the information relating to its workforce model, operational practice, strategic partnerships, risk management and governance methodologies as they related to the Ebola project. In this regard, the information is stored securely on the Applicant's system with strict access controls and robust cyber security protection.[27] > > (c) the Information Commissioner was wrong to conclude that this matter is analogous to the decision in Rex Patrick and Department of Defence (No. 2) (Freedom of Information) [2020] AICmr 40 (Patrick No. 2) as Patrick No. 2 was concerned with a complex technology-based project centred upon an industry that was characterised by rapid technological change and accompanying variations in the price level.[28] The Applicant further submits as a consequence the older information at issue in Patrick No. 2 was much less likely to be capable of causing 'real or significant' harm if released. In contrast, the Applicant submits that the Ebola project was less reliant upon technology and the information retained its commercial value despite the passage of time.

The Applicant also submits that the combination of the information relating to the Applicant's infectious disease workforce framework model contained in the documents could be used to gain a detailed understanding of the Applicant's current commercial model and further could be easily converted into a contemporary model by one of its competitors.[29] This would cause harm to the Applicant by eroding its competitive advantage.[30]

1. The Applicant submits that the Information Commissioner also fell into error in their evaluation of both the nature of the redacted information in the documents and the likely effects of releasing the information.
2. On the question of whether information has commercial value, the Applicant submits that its competitive advantage in the marketplace substantially derives from the application of its unique commercial model for its infectious disease workforce framework.[31] The Applicant claims that its model is 'a highly sophisticated and adaptable system for mobilising personnel across the service lifecycle' and further it is a model that has been developed and refined over many years.[32]
3. On the issue of whether disclosure of the information would destroy or diminish that value, the Applicant submits that because the information confers a competitive advantage upon the Applicant (by containing insight into how the Applicant internally manages, implements and prices large scale projects[33]) its disclosure would reduce the value of its commercial operations.[34]
4. Further the Applicant submits that because each case turns upon its own facts, there can never be any definitive rule that 'stipulates a specific period beyond which it can be said that information will in all circumstances have lost its commercial value'.[35] The Applicant provides the response to the COVID-19 pandemic as an example of when insights gained from the Ebola project were used.[36] The Applicant further notes that Ebola remains an ongoing treat to communities around the world.[37]

1. The Respondent advises that it accepts the findings of the Reviewable Decision and does not contest the findings that the documents in issue are not exempt under s 47(1)(a) or s 47(1)(b) of the FOI Act save as specified in Annexure A of the Reviewable Decision.
2. The Respondent's Statement of Facts, Issues and Contentions therefore sought to identify the legal principles relevant to this case to assist the Tribunal to make its decision consistent with the Respondent's obligation under s 56(1) of the Administrative Review Tribunal Act 2024 (Cth).
3. In this regard, the Respondent notes:

(a) that the Applicant has not submitted any evidence going to the existence of relevant factors as to whether information constitutes a trade secret > > (b) that the Applicant has not submitted any evidence going to either the commercial value of the information or if disclosure would destroy or diminish that value, and > > (c) during the course of the Information Commissioner Review, the Respondent identified that certain information in Document 4 was publicly available.[38]

1. The Other Party adopts the contentions of the Respondent as to the applicable legal principles but notes for emphasis that:

(a) it is for the Applicant to establish, by evidence and submissions, that the exemptions in s 47(1)(a) or (1)(b) applies. > > (b) the Tribunal must have regard to the FOI guidelines when determining whether or not Documents 4 and 5 are exempt from disclosure, and > > (c) the mere fact that information is kept confidential and has or may have some commercial value does not show it to be a "trade secret". A trade secret is a secret - "an asset of the trade" which, if disclosed to a competitor, would cause "real" (in the sense of "significant") harm to the owner of the secret. > > (d) it is not enough for the information to have 'a commercial value'. It must also 'be established separately by satisfactory evidence' that disclosure of the information could reasonably be expected to destroy or diminish its commercial value. There is no presumption that disclosing information would cause it to lose its commercial value.

2. The Other Party further submits that the Applicant's contentions regarding commercial value are not plausible because:

(a) the connection between the Applicant's 'unique workforce model' and its commercial value is not apparent and has never been justified or explained[39] > > (b) the age of the documents makes it inherently unlikely disclosure would cause significant commercial harm[40] > > (c) it does not seem likely that applying wage information and the consumer price index to the financial information in Documents 4 and 5 would be sufficient to permit a competitor to replicate Aspen Medical's contemporary pricing model for international disaster response services, and[41] > > (d) is not clear that Aspen Medical has any commercial competitors in the area to which the information in Documents 4 and 5 relates, namely, international infectious disease response; and if identifying a profitable 'workforce model' was the principal barrier to entry for a potential competitor, it is likely that commercial competitors would already have entered the market to compete with Aspen Medical.[42]

1. I have examined unredacted copies of the documents in issue.

1. I have considered whether the three-part Federal Court test referred to at [25] has been met. My conclusions are:

(a) I am satisfied that the documents contain information used in a trade or business > > (b) I am satisfied that the Applicant has limited its dissemination or at least not encouraged its widespread publication, and > > (c) I am not satisfied that it has been shown that disclosure of the information to a competitor would be liable to cause real (or significant) harm. The Applicant's further submissions refer to 'large and sophisticated competitors both domestically and internationally'[43] that 'seek to differentiate themselves based upon quality and value for money'[44] but no evidence of this is provided.

In addition, while I do think it is possible to distinguish the Applicant's situation from that of Naval Group in Patrick No. 2 due to the granularity of the pricing details contained in Document 5 combined with details on project specification in Document 4 and the Ebola project not being so specialised, complex or large,[45] the fact remains that the documents are over 10 years old making it unlikely that their disclosure to a competitor would cause real (or significant) harm to the Applicant if disclosed. Further any information contained in Document 4 that could hold some current commercial value regarding project management methodology has been held by the Information Commissioner to be exempt.

1. I also consider that I do not have before me evidence which addresses the factors referred to at [26] above. Aside from some information provided regarding securely storing the information, the general nature of the contentions made by the Applicant mean I am unable to be determine:

(a) the extent to which the information is known outside the business of the owner of that information. The Respondent has conceded that some of the information in Document 4 is in the public domain.[46] > > (b) the extent to which the information is known by persons engaged in the owner's business. Although the Applicant has advised it has 'strict access controls'[47] it is not clear what those controls entail. > > (c) the value of the information to the owner and to their competitors. As stated above specific details or evidence has not been provided regarding its value to competitors. > > (d) the effort and money spent by the owner in developing the information, and > > (e) the ease or difficulty with which others might acquire or duplicate the secret.

2. Under s 61 (2) of the FOI Act the Applicant bears the burden of showing that the documents are exempt. I do not consider that the Applicant has discharged that burden.
3. Therefore, I am unable to be satisfied that the information in the documents in issue are trade secrets.

1. In relation to whether the documents in issue have commercial value, I am not satisfied that the documents contain information that has a commercial value. The Applicant asserts that their competitive advantage in the marketplace substantially derives from the application of its unique commercial model for its infectious disease workforce framework. I consider that the information in Document 4 that could hold some current commercial value regarding project management methodology has been held by the Information Commissioner to be exempt.
2. I have considered the list of factors referred to at [30] that can assist in determining whether information has commercial value:

(a) I am not satisfied that the information is known only to the Applicant as the Responded has conceded that some of the information is in the public domain > > (b) in the absence of evidence, it is difficult to see how the information confers a competitive advantage on Aspen Medical in that it allows it to lower the cost of production or to access to markets not available to competitors > > (c) in the absence of evidence, it is difficult to gauge whether a genuine 'arm's-length' buyer would be prepared to pay to obtain that information > > (d) as stated above the passage of time means the information is not current and as a result may no longer have any value > > (e) in the absence of evidence, it is difficult to see how disclosing the information would reduce the value of Aspen Medical's business operation or its commercial activity. On its face, there is nothing particularly unique or unusual about the 'workforce model' or project methodology described in the two documents aside from the material already exempt.

3. On the second requirement of s 47(1)(b), the Applicant has not provided any evidence to support their assertion that the disclosure of the information would destroy or diminish its value. I accept the Other Party's submission that in the absence of evidence, what the Respondent submits about the commercial value of the information in the documents and how that value would be destroyed or diminished by disclosure, is 'opaque corporate jargon'.[48]

That being the case, I do not consider that the Applicant has discharged their burden of showing that the documents in issue are exempt.

[1] Applicant's Statement of Facts, Issues and Contentions (ASFIC) at [23].

[2] Respondent's statement of Facts, Issues, and Contentions (RSIFC) at [2].

[4] Other Party's Statement of Issues, Facts and Contentions (OPSIFC) at [3].

[11] Annexure B of 'AGZ' and Department of Foreign Affairs and Trade (Freedom of information) [2024] AICmr 18 (Information Commissioner decision).

[13] Annexure B of the Information Commissioner decision.

[27] Applicant Further Written Submissions at [19].

[30] Applicant Further Written Submissions at [21].

[32] Applicant Further Written Submissions at [3].

[47] Applicant Further Written Submissions at [19].