1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I affirm the decision of the Northern Australia Infrastructure Facility (the respondent) of 22 March 2021, as varied on 3 March 2025.

1. This decision discusses the application of the exemption in s 45 of the FOI Act to documents received by the respondent from a project proponent in relation to the Onslow Marine Support Base project (the Onslow project), and the Sheffield Resources Limited Thunderbird Minerals Sand project (the Sheffield Resources project). It is primarily of interest to the parties in relation to the specific documents sought.

1. The applicant applied to the respondent for access to documents relating to the Onslow project, and the Sheffield Resources project.
2. On 17 February 2021, the applicant revised the scope of their request to the following documents in relation to the Onslow project and the Sheffield Resources project:
   • The short public version of the Indigenous Engagement Strategy (IES)
   • The final IES document provided to the respondent by the project proponents and any advice that the respondent provided to the project proponents during the iterative development process for the IES
   • Documents relating to the assessment of the final IES by the respondent for both projects
   • Any IES performance reports submitted to the respondent by the project proponents in accordance with Part 4 of the respondent's IES Guideline.
3. On 22 March 2021, the respondent advised the applicant that it had identified 10 documents relevant to the request, and decided to release two documents in full and one document in part. The respondent refused access to the remaining seven documents in full. In making its decision, the respondent relied on the material obtained in confidence exemption (s 45) of the FOI Act and the commercially valuable information exemption (s 47(1)(b)) of the FOI Act.
4. On 8 April 2021, the applicant sought Information Commissioner review (IC review) of the respondent's decision.
5. On 3 March 2025, the respondent made a revised decision under s 55G of the FOI Act. The respondent decided to provide the applicant with partial access to seven documents and refused access to one document in full. In making its decision, the respondent again relied on the exemptions in ss 45 and 47(1)(b) of the FOI Act.
6. The applicant confirmed that they wished to continue with the IC review and advised that they were seeking access to the information that was withheld by the respondent.
7. The issue to be decided in this IC review is whether the material that the respondent found to be exempt under ss 45 and 47(1)(b) of the FOI Act is exempt under either of these exemptions.
8. In an IC review of an access refusal decision, the agency bears the onus of establishing that its decision is justified, or that I should give a decision adverse to the applicant.[1]
9. In making my decision, I have had regard to the following:
   • the respondent's decision and reasons for decision of 22 March 2021 and its revised decision and reasons for decision of 3 March 2025
   • the documents at issue
   • the FOI Act[2]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[3] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[4] and
   • the parties' submissions.

Material obtained in confidence exemption (s 45)

1. Section 45 of the FOI Act provides that a document is an exempt document 'if its disclosure under this Act would found an action, by a person (other than an agency of the Commonwealth), for breach of confidence'.
2. The exemption in s 45 does not apply to information merely because it is confidential in nature. Rather, for the exemption in s 45 to apply, it must be shown that disclosure of the documents would found an action by a person, other than an agency of the Commonwealth, for breach of confidence.[5]
3. A breach of confidence is the failure of a recipient to protect information which has been communicated in circumstances giving rise to an obligation of confidence from unauthorised disclosure.[6] The FOI Act expressly preserves confidentiality where that confidentiality would be actionable at common law or in equity.[7]
4. The FOI Guidelines relevantly explain that for s 45 to apply, the following five criteria must be established in relation to the information:
   • it must be specifically identified
   • it must have the necessary quality of confidentiality
   • it must have been communicated and received on the basis of a mutual understanding of confidence
   • it must have been disclosed, or threatened to be disclosed, without authority, and
   • unauthorised disclosure of the information has or will cause detriment.[8]

Whether the information is specifically identified

1. The documents at issue were provided to the respondent by Onslow Marine Support Base Pty Ltd (the project proponent) for the Onslow Marine Supply Base Project, as well as for the purpose of outlining the IES and to report on IES obligations.
2. Based on my consideration of the relevant material, it is apparent that it comprises information received in documents between the respondent and the project proponent in accordance with the requirement to provide the respondent with an IES and to report on its IES obligations throughout the operational phase of the project.
3. I consider that the information in issue is specifically identified, and that this criterion is satisfied.

Whether the information possesses the necessary quality of confidentiality

1. The FOI Guidelines explain that for information to have the necessary quality of confidence, it must be secret or only known to a limited group. Further, information which is common knowledge or in the public domain will not have the necessary quality of confidentiality.[9] In Coco v A N Clark (Engineers) Ltd [1969] RPC 41, Megarry J found that no matter how secret the information is, there can be no binding obligation of confidence if the information is disclosed in public or communicated in other circumstances which negate any duty to keep the information confidential.[10]
2. The respondent had undertaken consultations under s 27 of the FOI Act with the project proponent, who confirmed that the information is confidential and commercially sensitive information. The respondent further submits that the relevant information is not publicly available, nor has it entered the public domain or been distributed more widely. With respect to material that has been publicly disclosed, the respondent submits that this information has already been provided to the applicant.
3. The applicant submits that the respondent has failed to demonstrate that the information in the documents possesses the necessary quality of confidentiality, and that the respondent merely relied on the project proponent's confirmation that the information contained in the documents is confidential and commercially sensitive.
4. I have considered the parties' submissions together with the documents. Although the applicant contends that the respondent had merely relied on the project proponent's confirmation as to the confidentiality and commercial sensitivity of the relevant information, the question of whether information possesses the requisite quality of confidentiality is not dependent on whether the information is commercially sensitive. Rather, the phrase 'quality of confidentiality' refers to information being secret or known only to a limited group and is not common or public knowledge. So long as the information in question meets this characteristic, it will be taken to possess a quality of confidentiality.
5. Based on my consideration of the evidence before me and having regard to the content of the relevant material that the respondent withheld under s 45, there is no indication that the relevant material has entered the public domain or is known more broadly.
6. Accordingly, I accept that the relevant material possesses the requisite quality of confidentiality.

Whether the information was communicated and received on a mutual understanding of confidentiality

1. For the exemption in s 45 to apply to a document, the information in it must have been communicated and received on the basis of a mutual understanding of confidence at the time the information was communicated. Such a mutual understanding of confidence can exist even if a person is legally obliged to provide the information to the agency.[11]
2. The respondent submits that it has always operated on the basis that business information it received from project proponents at each stage of its assessment and approval process would be kept confidential. The respondent further explained that this business information is used and disclosed only as needed to progress a proponent's application and for related purposes.
3. In support of its claim, the respondent referred to its Confidentiality Policy, which expressly states 'NAIF treats business information regarding a Project Proponent during all stages of the transaction process as confidential'. Further, the respondent explained that it had entered into a Confidentiality Agreement with the project proponent in this case, which provides that 'confidential information' can only be disclosed in certain limited circumstances as set out in the Agreement. The respondent submits that the relevant material meets the description of 'confidential information' in the Confidentiality Agreement.
4. The applicant did not provide any submissions which specifically addressed this criterion.
5. The documents themselves are marked 'confidential' and having regard to the content of the information that the respondent withheld under s 45, it is apparent that the information is sensitive in nature and relates to the project proponent's commitments and undertakings within the IES, as well as the timeframes and progress for delivery of those commitments and undertakings. Having regard to the nature of this material together with the respondent's confidentiality policy and the respondent's contention that the project proponent had entered into a Confidentiality Agreement with the respondent, I accept that the project proponent would likely have expected that any information that they provide with respect to the project would be treated confidentially.
6. Accordingly, I find that the relevant material was communicated and received on the basis of a mutual understanding of confidence.

Whether disclosure of the information would be unauthorised

1. The respondent submits that the project proponent has not authorised the disclosure of the relevant material. I have considered the consultation responses provided by the project proponent to the respondent where they strongly objected to disclosure of the relevant material.
2. Accordingly, I accept that the project proponent has not consented to the release of the relevant material that its disclosure would be unauthorised.

Whether disclosure of the information would cause detriment to the person who provided the information

1. In support of its contention that disclosure of the relevant material would cause detriment to the project proponent, the respondent referred to the project proponent's consultation responses which were provided to the OAIC in confidence during the course of this IC review. Without revealing the specific details of the consultation responses, the project proponent essentially contends that disclosure of the relevant material could reasonably be expected to damage its commercial relationships with various stakeholders.
2. The applicant submits that the respondent had failed to sufficiently demonstrate how disclosure would cause detriment.
3. Based on my consideration of the parties' submissions, the project proponent's confidential consultation responses, and the relevant material, I accept that disclosure of the relevant material could reasonably be expected to cause detriment to the project proponent's commercial interests, particularly with respect to their relationship with other stakeholders.

1. For the reasons set out above, I am satisfied that the relevant material is exempt under s 45 of the FOI Act.

Commercially valuable information exemption (s 47(1)(b))

1. The respondent also applied the exemption in s 47(1)(b) to the same material that it found to be exempt under s 45. As I have found that this material is exempt under s 45, it is therefore unnecessary for me to consider whether the exemption in s 47(1)(b) also applies to this material. Accordingly, I have not considered the respondent's application of s 47(1)(b) further.

Relevant provisions of the FOI Act, FOI Guidelines, and decisions

Section 11A(4) of the FOI Act states the agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.

Material obtained in confidence exemption (s 45)

Section 45(1) provides that a document is an exempt document if its disclosure would found an action by a person (other than an agency or the Commonwealth) for breach of confidence. In other words, the exemption is available where the person who provided the confidential information would be able to bring an action under the general law for breach of confidence to prevent disclosure, or to seek compensation for loss or damage arising from disclosure.

The exemption in s 45(1) does not apply to a document that is conditionally exempt under s 47C(1) (deliberative matter), or would be conditionally exempt but for s 47C(2) or 47C(3), and that is prepared by a minister, ministerial staff or agency officers unless the obligation of confidence is owed to persons other than the minister, ministerial staff or agency officers. For more information about the s 47C conditional exemption see Part 6 of these Guidelines.

The exemption operates as a separate and independent protection for confidential relationships which may, but need not necessarily, also fall within the scope of other specific exemptions, for example, ss 47F (personal privacy) and 47G (business documents).

A breach of confidence is the failure of a recipient to keep confidential, information which has been communicated in circumstances giving rise to an obligation of confidence. The FOI Act expressly preserves confidentiality where that confidentiality would be actionable at common law or in equity.

The exemption in s 45 is restricted in scope to the disclosure of information that would found an action for breach of confidence. It does not apply to confidential information per se, or to the disclosure of confidential information that would found another type of action such as an action based on the tort of negligence or a breach of statutory duty.

While the existence of either a statutory or contractual obligation of confidence may support the existence of an equitable obligation of confidence for the purpose of s 45, it is not of itself determinative. All 5 criteria (see [5.189] below) must also apply to the information. The existence of either a statutory or a contractual obligation of confidentiality should be considered in the context of those 5 criteria.

To found an action for breach of confidence (which means s 45 may be applied by an agency or minister), the following 5 criteria must be satisfied in relation to the information:

• it must be specifically identified
• it must have the necessary quality of confidentiality
• it must have been communicated and received on the basis of a mutual understanding of confidence
• it must have been disclosed, or threatened to be disclosed, without authority
• unauthorised disclosure of the information has or will cause detriment.

A breach of confidence will not arise, and the exemption will not apply, if the information to be disclosed is an 'iniquity' in the sense of a crime, civil wrong, or serious misdeed of public importance which ought to be disclosed to a third party with a real and direct interest in redressing such crime, wrong, or misdeed.

The alleged confidential information must be identified specifically. It is not sufficient for the information to be identified in global terms. For example, where a document contains information that is claimed to be confidential, that information must be specifically identified either in terms of the subject matter or the type of information, or the relevant sentences or paragraphs in which that information appears. Alternatively, if all of the document is claimed to be confidential, identification will be in terms of clearly identifying the relevant document.

For the information to have the quality of confidentiality it must be secret or only known to a limited group. Information that is common knowledge or in the public domain will not have the quality of confidentiality. For example, information that is provided to an agency and copied to other organisations on a non-confidential or open basis may not be considered confidential.

The quality of confidentiality may be lost over time if confidentiality is waived or the information enters the public domain. This can occur if the person whose confidential information it is discloses it. However, even if information has entered the public domain it may not have lost its confidential character unless it has become public knowledge such that, as a matter of common sense, the confidential character of the information has disappeared. The obligation of confidence may also only relate to a limited time period.

The information must have been communicated and received on the basis of a mutual understanding of confidence. In other words, the agency or minister needs to have understood and accepted an obligation of confidence. The mutual understanding must have existed at the time of the communication. For example, when a person gives information to an agency or a minister they may ask that it be kept confidential and if the agency or minister accepts the information on that basis the requirement for a mutual understanding of confidence will be met. However, if the agency or minister declines to accept the information on that basis (and communicates this to the person) the understanding of confidence will not be mutual.

A mutual understanding of confidence can exist even if a person is legally obliged to provide the information to the agency. On the other hand, if an agency or minister has a statutory obligation to publish or release specified information, that obligation will outweigh any undertaking by the agency or minister to treat the information confidentially, and therefore is inconsistent with any mutual understanding of confidence.

Whether the agency or minister accepted an obligation of confidence and is maintaining that obligation may be clear from an agency's or minister's actions. For example, an agency or minister may mark a document as confidential, keep it separate from documents that are not confidential and ensure that the material is not disclosed to third parties without consent.

An obligation of confidentiality may be express or implied. An express mutual understanding may occur where the person providing the information asks the agency or minister to keep the information confidential and the agency or minister assures them that they will. Agency practices may illustrate how an implied mutual understanding may arise. For example, if an agency has policies and procedures in place for dealing with commercial-in-confidence information and those policies and procedures are known by the business community, it may be implied that when a business provides such information to that agency it will be on the basis of confidentiality.

The information must have been disclosed or been threatened to be disclosed without authority. The scope of the confidential relationship will often need to be considered to ascertain whether disclosure is authorised.

For example, the agency or minister may have told the person providing the information about the people to whom the information will usually be disclosed. The law may require disclosure to third parties in the performance of an agency's functions, which will amount to an authorised use or disclosure. Similarly, a person providing confidential information to an agency or minister may specifically permit the agency or minister to divulge the information to a limited group of people.

Compliance with a statutory requirement for disclosure of confidential information will not amount to an unauthorised use and will not breach confidentiality.

The fifth element for a breach of confidence action is that unauthorised disclosure of the information has, or will, cause detriment to the person who provided the confidential information. Detriment takes many forms, such as threat to health or safety, financial loss, embarrassment, exposure to ridicule or public criticism. The element of detriment applies only to private persons and entities, not government.

The Administrative Appeals Tribunal applied this element in numerous cases, but whether it must be established is uncertain. The uncertainty arises because of an argument that an equitable breach of confidence operates upon the conscience (to respect the confidence) and not on the basis of damage caused. Despite the uncertainty, it would be prudent to assume that establishing detriment is necessary.[12]

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Review Tribunal (ART). The ART provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the ART must be made within 28 days of the day on which the applicant is given the IC review decision (see s 18(1) of the Administrative Review Tribunal Act 2024 and rule 5(3) of the Administrative Review Tribunal Rules 2024). An application fee may be payable when lodging an application for review to the ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.

Making a complaint to the Commonwealth Ombudsman

If you believe you have been treated unfairly by the OAIC, you can make a complaint to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The Ombudsman can investigate complaints about the administrative actions of Australian Government agencies to see if you have been treated unfairly.

If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC reconsider or change its action or decision or take any other action that the Ombudsman considers is appropriate. You can contact the Ombudsman's office for more information on 1300 362 072 or visit the Commonwealth Ombudsman's website at http://www.ombudsman.gov.au.

If you would like access to the information that we hold about you, please contact FOIDR@oaic.gov.au. More information is available on the Access our information page on our website.

[3] See, Office of the Australian Information Commissioner_, Guidelines issued by the Australian Information Commissioner under_ s 93A of the Freedom of Information Act 1982 (FOI Guidelines).

[5] See, FOI Guidelines at [5.183] - [5.202]; Ben Butler and the Australian Securities and Investments Commission (No. 2) (Freedom of information) [2023] AICmr 56; ACP and Department of Home Affairs (Freedom of information) [2022] AICmr 76; Paul Farrell and Department of Home Affairs (Freedom of information) (No. 4) [2019] AICmr 40; Paul Farrell and Department of Home Affairs (No 2) (Freedom of information) [2019] AICmr 37; Paul Farrell and Department of Home Affairs (No 4) (Freedom of information) [2018] AICmr 68; and Friends of the Earth Australia and Food Standards Australia New Zealand (Freedom of information) [2018] AICmr 44.

[6] Coco v AN Clark (Engineers) Ltd [1969] 86 RPC 41.

[9] Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434 at [12]. See also FOI Guidelines [5.162].

[11] FOI Guidelines, [5.194] - [5.197].

[12] FOI Guidelines at [5.183] to [5.202] [footnotes omitted].