• The 2021 report was obtained by Clayton Utz for the purpose of providing legal advice and is marked as 'privileged and confidential'.

1. Mr Moreland's statement confirms that Documents 2, 3 and 5-13 are exempt on the basis that the release of the document would disclose information acquired by the respondent from the applicant, where the information relates to matters of a commercial and financial data and the disclosure of that information would expose the applicant unreasonably to disadvantage. Mr Moreland also generally describes Documents 2 and 5-13. It is not necessary to set out his descriptions of those documents in these reasons as the disputed documents are generally described above.
2. Mr Moreland sets out his belief as to the consequences of the release of the disputed documents as follows:

1. In my experience as COO, I believe that the disclosure of the Relevant Documents will:

(a) result in adverse effects to the Airport, including impairment to the progress of PFAS environmental remediations and other environmental operations; and > > (b) result in the Airport being in breach of its confidentiality obligations, as the redactions to the Relevant Documents contain confidential personal information as well as privileged information,

and would unreasonably disadvantage the Airport in future business, commercial and financial undertakings in relation to the ongoing PFAS environmental remediations. I consider that Avalon Airport can be expected to be unreasonably disadvantaged by the release of the information in respect of:

(a) other commercial landlords benefitting from the information, to the detriment of Avalon Airport in relation to future potential leasing negotiations; and

(b) customers, tenants and neighbours of Avalon Airport, who can reasonably be expected to draw adverse conclusions adverse to Avalon Airport's interests, in circumstances where the release of the information would result in an incomplete set of information about Avalon Airport's management of PFAS being publicly available.

1. The applicant submitted that the 2021 Report is outside the scope of the FOI request because on its face it predates the date range specified in the FOI request. The applicant submitted, the FOI request, reasonably interpreted, sought 'any relevant documents' 'from October 20, 2022 to today' (being 20 October 2023) and as the 2021 Report is a document from 2021 it is outside the scope of the request.
2. The applicant also says that there is no need for a reader of the covering emails between the applicant and the respondent to read the 2021 Report to understand those emails.

1. The respondent submitted that read as a whole, the FOI request does not seek only documents that came into existence in the period October 2022 to October 2023. The reference to 'any relevant documents' in the FOI request is informed by reading the whole of the request and if this is done then what is being sought is 'correspondence between the Environment Protection Authority and Avalon Airport' within the period 20 October 2022 to 20 October 2023.

1. The applicant submitted that Documents 1, 4 and 5 are all exempt documents under s 32 of the FOI Act because they are all documents of such a nature that they would be privileged from production in legal proceedings on the ground of legal professional privilege.
2. The part of s 32 relied on is as follows:

(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege or client privilege.

1. In respect to Document 1, the applicant submitted the following is relevant to the claimed exemption:
   • The marking on the covering letter of 'Urgent and Strictly Confidential';
   • The notation on the covering letter that the correspondence amounts to a 'courtesy notice' to the respondent;
   • The statement in the covering letter that the report attached to the letter was provided 'on a strictly confidential basis and not for distribution';
   • The notation on the report attached to the covering letter stating 'Privileged and confidential - prepared for the purposes of providing legal advice'; and
   • The paragraph in the report attached to the covering letter stating that the report is protected by legal professional privilege'.
2. In respect to Document 4, the applicant submitted this document is clearly subject to legal professional privilege because:
   • the covering email states so and also states that the attached report (being the 2021 Report) contains highly sensitive information. The covering email also states that the disclosure of the 2021 Report was provided to the respondent for a specific purpose and its provision does not constitute a waiver of privilege in the document or in any material referred to in the documents; and
   • the 2021 Report is addressed to 'Clayton Utz' and marked with the notation 'Privileged and Confidential - Prepared for the Purposes of Providing Legal Advice'.
3. The applicant's claim that Document 5 is subject to legal professional privilege was made belatedly at the commencement of the hearing.
4. The applicant submitted that Document 5 is an email that contains a 'scope of works' taken from a document that it submits is, on its face also subject to legal professional privilege. Further, the applicant submitted that there is nothing to indicate that once that privileged attached to the extract contained in Document 5, it was waived.
5. In response to the oral submission in response to the amended claim of legal professional privilege extending to Document 5, the applicant stated that it was content to rely on the face of the document.

1. In respect to Document 1, the respondent distinguishes the covering letter from the attached consultant report.
2. In respect to the covering letter, the respondent submitted that the letter:
   1. does not disclose the content of the attached consultant report;
   2. the common law test for legal professional privilege is not met because it does not disclose any confidential communication between the applicant and its legal advisers for the dominant purpose of the provision of legal advice or referable to contemplated legal proceedings; and
   3. any legal professional privilege that may attach to the consultant report does not of itself give rise to legal professional privilege over information contained in the covering letter.
3. The respondent submitted that it is more probable than not that legal professional privilege applies to the draft consultant report, but ultimately whether privilege attaches to that document was a matter for the Tribunal.
4. In respect to Document 4, the respondent submitted that legal professional privilege does not attach to:
   • the emails dated 4 to 10 November 2022 which comprise the first three pages of Document 4; and
   • the whole of the covering letter dated 10 November 2022 from the applicant to the respondent.
5. The respondent submitted that these documents do not satisfy the common law test of legal professional privilege because:
   • they are not communications made between the applicant and its legal advisors for the dominant purpose of the provision of legal advice;
   • they do not disclose any confidential communication between a lawyer or client; the covering emails do not disclose any of the content of the attached draft report; and
   • disclosure of the fact of the existence of the consultant report does not of itself give rise to legal professional privilege attaching to the communication that discloses this fact.
6. In respect to Document 5, the respondent orally submitted (in response to the applicant's belated claim):
   • it did not have the opportunity to check whether the extract regarding the scope of works came from the 2021 Report forming part of Document 4; and
   • accepting that Document 5 was an extract of part of Document 4, Document 5 was not subject to legal professional privilege for the same reasons that Document 4 was not privileged.

Documents containing information of a commercial nature

1. The applicant relied on Mr Moreland's statement that all correspondence from the applicant was obtained by the EPA in confidence and the disclosure of any document would unreasonably disadvantage the applicant by:[11]

(a) other commercial landlords benefitting from the information, to the detriment of Avalon Airport in relation to the future potential leasing negotiations; and

(b) customers, tenants and neighbours of Avalon Airport, who can reasonably be expected to draw adverse conclusions adverse to Avalon Airports interests, in circumstances where the release of the information would result in an incomplete set of information about Avalon Airport's management of PFAS being publicly available.

1. The applicant relied on the following part of s 34 in support of its claim for exemption of all of the disputed documents:

(1) A document is an exempt document if its disclosure under this Act would disclose information acquired by an agency or a Minister from a business, commercial or financial undertaking and the information relates to -

...

(b) other matters of a business, commercial or financial nature and the disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage.

1. The applicant submitted that 'multiple competing landlords surrounding Avalon Airport' as well as the applicant's customers and tenants would gain commercial knowledge from disclosure of the disputed documents resulting in a reduction of the applicant's ability to enter into commercial dealings with such parties.
2. In support of this submission, the applicant relied on the following paragraph of the Tribunal's decision in Save Albert Park Inc v Australian Grand Prix Corporation (General) [2008] VCAT 168 ('Save Albert Park'):
   1. In my view the Applicant failed to come to grips with the issues of competition raised in the Respondent's witness statements. If, as I accept, this information is valuable intellectual property, then its release into the public domain deprives the Respondent of a valuable asset. It allows all of the entities with which the Respondent must deal - sponsors, competitors, corporate customers - access to data from which they can strengthen their bargaining position at the expense of the Respondent. This disadvantage cannot be counted by advertising or public relations.
3. The respondent accepts that the applicant's operation of Avalon Airport amounts to a business, commercial or financial undertaking and that the disputed documents:
   • would reveal information acquired by an agency;
   • relates to matters of a business or commercial nature because the documents contain information that has at least an indirect connection with the business being conducted by the applicant at Avalon Airport.
4. The respondent submitted that:
   • disclosure of the disputed documents would not be likely to expose the applicant to any disadvantage; and
   • if it did, such exposure would not be unreasonable in all the circumstances.
5. The respondent submitted that there is only tenuous evidence which does not extend beyond mere conjecture or speculation about any disadvantage which the applicant would be likely to be exposed to if the disputed documents were disclosed. Further, the respondent relied on the amount of information publicly available, including the applicant's own material, about the presence of PFAS at Avalon Airport, in support of a submission that it is difficult to see any disadvantage arising from disclosure.
6. Even if it is accepted or found that a disadvantage is likely to arise from exposure of the disputed documents, the respondent submitted that the applicant would not be exposed unreasonably to disadvantage.
7. In determining the question as to whether the applicant would be exposed unreasonably to disadvantage as a result of the disclosure, the respondent stressed that it is the level of exposure that must be found to be unreasonable and not the level of disadvantage.
8. In addition, the respondent submitted that the Tribunal may take into account any of the considerations set out in s 34(2) of the FOI Act when determining whether a business, commercial or financial undertaking would be exposed unreasonably to disadvantage.
9. Section 34(2) of the FOI Act provides as follows:

(2) In deciding whether disclosure of information would expose an undertaking unreasonably to disadvantage, for the purposes of paragraph (b) of subsection (1), an agency or Minister may take account of any of the following considerations -

(a) whether the information is generally available to competitors of the undertaking;

(b) whether the information would be exempt matter if it were generator by an agency or a Minister;

(c) whether the information could be disclosed without causing substantial harm to the competitive position of the undertaking; and

(d) whether there are any considerations in the public interest in favour of disclosure which outweigh considerations of competitive disadvantage to the undertaking, for instance, the public interest in evaluating aspects of government regulation of corporate practices or environmental controls -

and of any other consideration or considerations which in the opinion of the agency or Minister is or are relevant.

1. When assessing the above considerations (noting that s 34(2) of the FOI Act enable considerations of any matter considered by the decision maker to be relevant on the particular facts and circumstances), the respondent was critical of the non-specific nature of the impairment claimed by Mr Moreland that would arise as a result of disclosure of the disputed documents as well as levelling criticism as to how exposure would be unreasonable.

Documents containing material obtained in confidence

1. Relying on s 35 (1)(b) of the FOI Act, the applicant generally submitted that the disputed documents were provided to the respondent:
   • 'in strict confidence the communication of the Relevant Documents was made in confidence, remains confidential and no waiver of any kind was made'; and
   • was made voluntarily and in good faith, for the strict purposes of assisting the respondent in its role as a regulator in the absence of any legal obligation on the part of the applicant to do so.
2. The applicant relies on Mr Moreland's statement in support of its submission that the release of the disputed documents can be reasonably expected to prejudice the respondent's ability to obtain relevant information in the future. Specifically Mr Moreland states that the applicant would be extremely reluctant to:

(i) provide any information to the EPA other than where we were strictly required to do so by law (including in relation to the current remediation activities);

(ii) be as open with the EPA as we were when the PFAS contamination was first identified; and

(iii) engage and work with the EPA in the same transparent manner as we did when the relevant contamination was first identified.

1. Section 35(1)(b) of the FOI Act provides as follows:

(1) A document is an exempt document if its disclosure under this Act would divulge any information or mater communicated in confidence by or on behalf of a person or a government to any agency or a Minister and -

(a) ...

(b) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

1. The respondent does not share the applicant's concern regarding its ability to obtain similar information as that contained in the disputed documents in the future execution of its regulatory role should the disputed documents be disclosed.
2. The respondent submitted that even if it were accepted that all of the disputed documents were provided in confidence (and this was not conceded by the respondent to be so) then the relevant parts of Mr Moreland's statement go no further than suggesting that people may be somewhat less than candid than they otherwise might be if the documents were disclosed and this was insufficient to establish that the disputed documents are exempt under s 35(1)(b) of the FOI Act.

Is the 2021 Report outside the scope of the FOI request?

1. I find that a proper construction of the FOI request leads to the conclusion that the 2021 Report is not outside the scope of the request.
2. It is clear to me that what the joined party sought under the FOI request was copies of documents that fell within the description 'correspondence between the Environment Protection Authority and Avalon Airport' dated between 20 October 2022 and 20 October 2023 (being the date of the original request) and a copy of 'the remedial notice issued by the EPA to Avalon Airport in March this year' (being March 2023).
3. I find that there is no proper basis to conclude that the 2021 Report does not properly form part of the correspondence dated 25 October 2022 between the applicant and the respondent. It is stated to be a specific enclosure to the covering letter and therefore forms part of the information specifically intended to be conveyed from the applicant to the respondent. Accordingly, it forms part of the correspondence that falls within the range identified in the FOI request.

Section 32 - Documents affecting legal proceedings

1. In this proceeding, the question before the Tribunal is whether legal professional privilege applies is not related to whether evidence can be adduced or admitted into evidence in a proceeding. Therefore, the provisions of Part 3.10 of the Evidence Act 2008 (Vic) do not apply in this proceeding.
2. At common law, legal professional privilege (or client privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceeding in a court.[12]

1. Despite the respondent's passive acceptance that the consultant reports in Document 1 and Document 4 are 'probably' subject to legal professional privilege, I am not satisfied that would be the correct conclusion on the material before the Tribunal for the reasons that follow.
2. First, I place no weight on Mr Moreland's statement that the applicant considers these documents to be fully exempt under s 32 of the FOI Act. His statement in this regard contained conclusionary statements made by him on the behalf of the applicant and do not assist me in my task.
3. I note that no part of Document 1 or Document 4 contains information that plainly in form and content presents as legal advice to the applicant.
4. Secondly, I do not accept that the bare statement in the consultant reports that the reports are subject to legal professional privilege, or the use of like verbal formulae are sufficient to satisfy the test for such privilege to apply.
5. Thirdly, the statement of Mr Moreland does not deal with what was the dominant purpose of the consultant reports.
6. There is no evidence on behalf of the applicant that establishes that the dominant purpose of either report was for the purpose of providing legal advice to the applicant. At its highest, the engagement of the consultants by the applicant's legal representatives alone can be said to demonstrate that one of the purposes of the communications may be to assist in the provision of legal advice for some possible future proceeding arising from the presence of PFAS at Avalon Airport as initially reported by a third party to the applicant. However, an objective reading of the contents of the reports shows that a purpose could also equally have been to investigate the claim by the third party of the presence, location, and levels of PFAS at the airport and to provide a basis for management or remediation of any PFAS found. This purpose is a separate and distinct purpose from the provision of legal advice.
7. Where the applicant has not established that the dominant purpose of the information contained in the consultant reports was for the provision of legal advice, privilege cannot be established.
8. I agree with the respondent that there is nothing in the covering letter forming part of Document 1 that is subject to legal professional privilege. It is not a communication prepared for the purpose of providing legal advice, nor a communication between the applicant and its legal advisors.
9. The conclusion that there were multiple purposes for obtaining the information contained in the consultant's report forwarded under cover of the letter dated 10 November 2022 forming part of Document 4 is confirmed from the contents of the covering letter.
10. The identification of the contents of Document 1 and Document 4 as respectively 'Urgent and Strictly Confidential' and 'Strictly Confidential' does not make information that does not satisfy the dominant purpose test nevertheless privileged. The purpose of each communication was not privileged.
11. Accordingly, I am not satisfied that the exemption under s 32 of the FOI Act should be applied to the consultant reports that respectively form part of Documents 1 and 4.

1. I find that Document 5 is not exempt under s 32 of the FOI Act for the following reasons.
2. First, despite the applicant's submission that the extract regarding the scope of works contained in Document 5 was derived from a document that was clearly on its face subject to legal professional privilege, the applicant did not specifically identify which document the extract was taken from and where in the document the extract can be found.
3. Both Document 1 and Document 4 are described as containing a 'consultant report'.
4. Document 1 contains a 'draft consultant report' and I have reviewed all of its contents and I cannot find any part of that draft consultant report from which the extract set out in Document 5 could have been taken.
5. Document 4 contains the 2021 Report and again I have reviewed all of the 2021 Report and cannot locate any part of that report that contain the extract contained in Document 5. Further, given the date of the 2021 Report and the dates of material set out in the extract of the scope of works in Document 5, it is improbable that the extract came from any part of the 2021 Report.
6. For completeness, I have reviewed the other 13 disputed documents and none of those documents contain the relevant extract said to be derived from a disputed document that is on its face, or otherwise, subject to legal professional privilege.
7. In short, the factual basis for asserting that Document 5 contains an extract from a disputed document that is subject to legal professional privilege does not exist. Accordingly, Document 5 is not exempt under s 32 of the FOI Act.

1. I have found that Documents 1, 4 and 5 are not exempt under s 32 of the FOI Act, however the submissions of both the applicant and the respondent addressed whether legal professional privileged was lost by reason of waiver by the applicant.
2. In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 ('Mann v Carnell'), waiver of privilege at common law was described by the plurality as follows (footnotes omitted):
   1. At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between the lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects the waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received.
   2. Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is give to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
   3. In Goldberg v NG this Court considered a case in which there was disclosure of a privileged communication to a third party, for a limited and specific purpose, and upon terms that the third party would treat the information disclosed as confidential. The Court was divided upon whether, in the circumstances of the case, privilege was waived. However, the reasoning of all members of the Court was inconsistent with the proposition that any voluntary disclosure to a third party necessarily waives privilege. No application was made in the present appeal to re-open Goldberg of any of the earlier authorities in the subject. In Goldberg, reference was made to the statement of Jordan CJ in Thomason v Campbelltown Municipal Council:

"The mere fact that a person on some one occasion chooses to impart to another or others advice which he has received from his solicitor indicates no intention on his part to waive his right to refuse on other occasions to disclose in evidence what that advice was, and supplies no sufficient reason for depriving him of a form of protection which the law has deemed it specially necessary to through around communications between solicitor and client".

1. In this proceeding, the applicant submitted that by giving the respondent Documents 1, 4 and 5 there was no implied waiver of any privileged communication contained therein because:
   • the provision of the documents to the respondent was not inconsistent with the confidentiality which the privilege serves to protect, because the applicant understood at all times that the documents would be treated as confidential by the respondent and would not be further disclosed; and
   • as a matter of fairness, the Tribunal ought not find that privilege in the documents has been waived in circumstance where they were provided to the respondent for the public purpose of assisting the respondent.
2. In its reply submissions, the applicant submitted that in circumstances where disclosure is to a limited number of persons, on terms expressly confidentiality, disclosure of the privileged material for a limited and specific purpose does not amount to a waiver of privilege.
3. One of the authorities relied upon for that proposition is the High Court decision of Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 ('Goldberg v Ng') referred to in Mann V Carnell. Specifically, the applicant's reply submissions directed the Tribunal to the dissenting judgment of Toohey J at pp.106-109.
4. In Goldberg v Ng, the plurality found that the provision of statements prepared by Mr Goldberg to the Law Society that was investigating a claim against his conduct by his former client amounted to an imputed waiver of the legal professional privilege in circumstances where the disclosure was expressed to be for the limited purpose of dealing with inquiries made by the Law Society in relation to the complaint made. The statements were also provided on the express basis that they would not be shown to anyone else. The findings of the High Court in Goldberg v Ng do not support the proposition put forward by the applicant in this proceeding.
5. In reaching the determination that there had been an imputed waiver of privilege in the statements given by Mr Goldberg to the Law Society, the majority of the High Court considered the circumstances of the disclosure and considered whether it was fair for Mr Goldberg in the circumstances to maintain privilege over the statements.
6. In this matter, the only available information regarding the circumstances of disclosure of Documents 1, 4 and 5 is that which can be gleaned from the documents themselves and from Mr Moreland's statement.
7. Referring generally to all the documents in dispute, Mr Moreland makes the following statement:[13]

...all correspondence from Avalon Airport to the EPA within the scope of the request for disclosure was provided to the EPA in good faith and in strict confidence and where I understand that we were not otherwise obliged to provide that information or correspondence to the EPA. The intent in providing the documents, correspondence and information to the EPA was to try and work with the EPA in good faith to resolve the environmental remediation issues at Avalon Airport.

1. A review of the contents of the covering communications in Documents 1, 4, and 5 confirm provided by the applicant to the respondent on a voluntary basis and were not produced in response to a statutory requirement or requisition. Review of the documents also reveals that they were provided for the deliberate and calculated purpose of assisting the applicant in its dealings with the respondent over what it describes as 'the environmental remediation issues at Avalon Airport'.
2. Clearly, the disclosure of the documents to the respondent was not restricted to perusal of any particular officer or employee of the respondent and those documents and the information contained within them were disclosed to the respondent so that it could make whatever internal use of them it considered appropriate, including forming the basis of any future regulatory action that it may consider appropriate. Presumably, the voluntary disclosure of the documents was to positively influence the outcome of the dealings between the applicant and the respondent.
3. If as the applicant submitted these documents were protected by legal professional privilege from disclosure in proceedings or in regulatory investigations, then the act of providing those documents to the same regulatory authority that could commence proceedings or issue statutory notices against the applicant is entirely inconsistent with maintenance of the confidentiality for which the privilege is intended to protect. It is not the subjective intention of the applicant at the time of disclosure that guides this consideration but rather whether objectively considered the act of disclosure is inconsistent with the maintenance of privilege.
4. In those circumstances it would be unfair to permit reliance by the applicant upon legal professional privilege (if it was found to apply) to prevent disclosure of the documents beyond the respondent. This is particularly so, where the provision of the documents was designed to influence, in good faith, the actions of the respondent in discharging its public purpose as the regulatory authority entrusted with the protection of the environment.
5. Accordingly, if legal professional privilege applied to the information contained in Documents 1, 4 or 5, the provision of those documents to the respondent resulted in an implied waiver of the applicant's privilege in respect of those documents.

Section 34(1)(b) - Documents relating to trade secrets etc.

1. There is no dispute between the applicant and the respondent that all the disputed documents satisfy the criteria in the chapeau in s 34(1).
2. I agree that all the disputed documents contain information that indirectly relates to matters of a business or commercial nature that has been provided to an agency. I have concluded that the information indirectly relates to matters of a business or commercial nature because the information, while not directly relevant to the operation of Avalon Airport as an airport, it is relevant to the premises on which the airport and related operations (such as commercial tenancies) are conducted.
3. I have already referred to the paucity of factual evidence contained in Mr Moreland's statement that underpin the applicant' submissions regarding whether legal professional privilege attaches to certain dispute documents. I make similar observations regarding Mr Moreland's statement regarding his opinion as to the likely unreasonable disadvantage that the applicant would be exposed to if the disputed documents were disclosed.
4. Even accepting that the release of the information contained in the disputed documents would result in disadvantage to the applicant, manifesting in an unfavourable position in relation to management of the commercial tenancies within Avalon Airport, Mr Moreland's statement does not set out any basis for his conclusion that exposure to such disadvantage would, in all the circumstances, be unreasonable.
5. The paucity of the evidence before the Tribunal does not satisfy me that the exposure to any disadvantage claimed by the applicant would be unreasonable.

Section 35(1)b) - would disclosure of information provided in confidence be reasonably likely to impair the respondent's ability to obtain similar information in the future?

1. The foundation for the applicant's claim that all the disputed documents were provided to the respondent in confidence is Mr Moreland's statement that all correspondence from the applicant to the respondent was provided in confidence.
2. The global claim is not supported by a review of the terms of each of the disputed documents. Save for Document 1 and Document 4, there is nothing on the face of the remaining disputed documents to support Mr Moreland's statement that all correspondence from the applicant to the respondent was provided in confidence.
3. There is also nothing in the material before the Tribunal that supports a finding that there was any agreement between the applicant and the respondent that all communications between them were confidential.
4. A review of the material satisfies me that the respondent accepted the applicant's voluntary offer to engage with the respondent on an unqualified open and transparent manner. In all instances (save in respect to Document 1 and 4), the applicant responded to the respondent's request for information without qualification or reservation.
5. Further, I agree with the respondent that Mr Moreland's statement that the applicant would be extremely reluctant to be as open or transparent with the respondent is insufficient to conclude that disclosure of any of the disputed documents (including Document 1 or 4) would be reasonably likely to impair the ability of the respondent to obtain similar information in the future.
6. In order for the exemption in s 35(1)(b) to be attracted it must be shown that the relevant information will not be forthcoming at all, not merely that it would be forthcoming in a more circumspect, less forthright manner.
7. Mr Moreland's statement does not satisfy me that the respondent's ability as a regulatory authority to obtain similar information from persons in a similar position to the applicant would be impaired in the relevant sense.
8. I am therefore not satisfied that the applicant has established that any of the disputed documents are exempt under s 35(1)(b) of the FOI Act.

1. In conclusion, I am satisfied that all of the disputed documents should be disclosed (with the redactions as proposed by the respondent) to the joined party. Accordingly, the respondent's decision under review is affirmed.

[1] The background contained in this part of the reasons is taken from the s 49 statement from the respondent ('s 49 statement') to which the applicant submitted it had no further matters to add.

[2] See Tab 1 of the s 49 statement for a copy of the original FOI request.

[7] See Tabs 6 and 7 of the s 49 statement.

[9] The further information obtained from the applicant's oral submission is underlined.

[10] At the commencement of the hearing, the applicant extended the claim of legal professional privilege to Document 5.

[11] At paragraph 31of statement of Dave Moreland. The applicant's submissions refer to paragraphs 20-35 of this statement; however the statement consists of only 33 paragraphs.

[12] Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [35].