Legislation: Freedom of Information Act 1989, ss37, 40, 43 and 71

Human Rights Act 2004, s17

Road Transport (Third Party Insurance) Act 2008, s46

Authorities: Cannon and Australian Quality Egg Farms Ltd

Lange v ABC [1997] HCA 25

Re Hopper and Australian Meat and Livestock Research and Development Corp. (1989) 16 ALD 658

Re Lawrence William Maher and Attorney General's Department; CRA Limited and Mary Kathleen Uranium Limited [1986] ALD 98

Re Searle Australia v Public Interest Advocacy Centre

[1992] FCA 241; (1992) 108 ALR 163

WA Newspapers Ltd CSA of WA Inc. and Salaries and Allowances Tribunal and Mercer (Australia) Pty Ltd

[2007] WAICmr 20

[1985] AATA 226; (1985) 8 ALD 219

1. the decisions under review with respect to Documents 1, 2, 3, 9 and 10 are confirmed;

2. the decisions under review with respect to Documents 4, 5, 6 and 7 are set aside and in substitute, decisions are made to release the documents subject to meeting the requirements of section 27 of the Freedom of Information Act 1989, and

3. the decision under review with respect to Document 8 is varied so that the document is to be released except for that part of the document that contains the details, including footnote 2, of the " Claim Payments".

1. By application dated 12 May 2011, The Law Society of the ACT ("the Society") sought review by the ACT Civil and Administrative Tribunal ("the Tribunal") of a decision made on 10 May 2011 by the Treasury Directorate, formerly the Department of the Treasury ("the Treasury"), not to disclose certain documents under the Freedom of Information Act 1989 ("the FOI Act"). That decision, made following internal review, arose from an initial FOI application by the Society on 30 November 2010 for information requested in a letter to the Treasurer dated 19 November 2010. The letter asked for information in relation to proposed amendments to Road Transport (Third Party Insurance) Act 2008 ("the RT Act").

2. The Treasury identified 15 documents comprised of a total of 348 folios as relevant to the FOI request. Copies of five of these documents were fully released. Copies of two were partially released to the Society between 30 November 2010 and the hearing of this matter by the Tribunal on 2 December 2011. Thus there remained ten documents that the Treasury claimed were exempt in whole or in part under section 43 of the FOI Act. They are identified in the Schedule to the Treasury's Facts and Contentions dated 17 September 2011. In deciding that those documents were exempt, the Treasury was guided by the views of NRMA Insurance ("NRMA"). It is the sole provider of compulsory third party ("CTP") insurance in the ACT and had provided the documents to the Treasury. NRMA was joined as a party to the matter before the Tribunal.

3. The matter was heard on 2 December 2011. Mr C Erskine SC appeared for the Society, Ms K Eastman appeared for the Treasury, and Mr L Holcombe appeared for NRMA.

4. The object of the FOI Act is to extend as far as possible the right to access information in the possession of Territory agencies (section 3). The FOI Act allows documents to be exempt if they fall within the categories of exempt documents defined in Part 4 of the FOI Act. The Treasury claims exemptions under section 43. The FOI Act imposes an onus of proof on an agency and the Tribunal in relation to claims of exemption (section 71).

(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; or

(c) information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, being information -

(i) the disclosure of which 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; or

(ii) the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Territory or an agency for the purpose of the administration of a law or the administration of matters administered by an agency.

(2) Subsection (1) does not apply to a request by a person for access to a document -

(a) only because of the inclusion in the document of information concerning that person in respect of his or her business or professional affairs; or

(b) only because of the inclusion in the document of information concerning the business, commercial or financial affairs of an undertaking where the person making the request is the proprietor of the undertaking or a person acting on behalf of the proprietor; or

(c) only because of the inclusion in the document of information concerning the business, commercial or financial affairs of an organisation where the person making the request is the organisation or a person acting on behalf of the organisation.

(3) A reference in this section to an undertaking includes a reference to an undertaking that is carried on by, or by an authority of, the Territory, the Commonwealth, a State or by a local government authority.

1. In its written contentions the Society asserted that the government's proposals to introduce significant changes to TPI laws were a major political issue in the ACT. Relying on Lange v ABC (Lange) [1997] HCA 25, it contended that section 43 of the FOI Act cannot be interpreted so as to preclude release of information contrary to the implied constitutional guarantee of freedom of political expression. Thus the documents did not fall into the category of documents exempt under section 43. At the hearing before the Tribunal, the Society did not persist with the constitutional issue.

2. However the Society did argue that the amendments to the law relating to third party insurance which removed certain common law rights were of such public importance that this should be taken into account when considering the release of the contested information. It pointed to s17 of the Human Rights Act 2004 which grants to every citizen the right to take part in the conduct of public affairs directly or through freely chosen representatives. This provision is similar to the constitutional guarantee set out in Lange.

3. Mr. Erskine for the Society also said that Treasury and NRMA must positively satisfy the Tribunal that the contested information had been received in confidence which was required to be maintained.

4. Additionally, the Society drew attention to section 46 of the RT Act which requires a licensed insurer (such as NRMA) to "tell the CTP regulator the profit margin on which each CTP premium was charged by the licensed insurer is based and the actuarial basis for working out that profit margin". The CTP regulator must assess this information and report to the Legislative Assembly on its assessment. Information required to be disclosed under the RT Act cannot be exempt under the FOI Act (section 13). It said that this material was similar to the contested information and would thus be in the public domain. It followed that release of the information by Treasury would not diminish its commercial value because it had already been diminished by its release under section 46.

1. NRMA contended that the information in the documents has a commercial value and that it is exempt under section 43(1)(b) because release could diminish or destroy that value. It said the information was much more extensive than that required to be released under section 46 and extended back many years prior to 1 October 2008 when the obligation in section 46 commenced.

2. NRMA argued that some of the documents contained its business and professional information and that of the law firms it deals with and that disclosure would have an unreasonable adverse affect on its business affairs and thus the documents are exempt from disclosure under section 43(1)(c)(i).

3. It contended further, that release of the documents could reasonably be expected to prejudice the future supply of information to the territory or an agency, consistent with section 43(1)(c)(ii). NRMA relied on the reasoning process used in Re Lawrence William Maher and Attorney General's Department; CRA Limited and Mary Kathleen Uranium Limited [1986] ALD 98. NRMA said that the three questions posed by section 43(1)(c)(ii) should be answered in the affirmative.

4. In terms of the public interest test, NRMA set out the factors for and against disclosure and discussed how these should be balanced. Its final contention was that for the purposes of section 43(1)(c)(ii), the factors against disclosure were the more convincing and the exemption should be upheld.

1. The Treasury contended that the section 43 exemption properly applied to the documents. It drew upon the interpretation of the term "commercial value" in a number of authorities: WA Newspapers Ltd CSA of WA Inc. and Salaries and Allowances Tribunal and Mercer (Australia) Pty Ltd [2007] WAICmr 20; Cannon and Australian Quality Egg Farms Ltd [1994] QICmer 9; Re Hopper and Australian Meat and Livestock Research and Development Corp. (1989) 16 ALD 658. The Treasury noted that the expression "business, commercial or financial affairs" referred to business carried on for the purpose of generating income or profits: Williams and Registrar of the Federal Court [1985] AATA 226; (1985) 8 ALD 219.

2. The term "could reasonably be expected to" requires an objective test. The expectation must not be unreasonable or speculative. The grounds the expectation is based on must be real and of substance.

3. Treasury submitted that when considering what amounted to "an unreasonably adverse effect," the decision maker should consider the effect of the disclosure of the information to a competitor. Any judgment about disclosure requires the balancing of all legitimate interests and relevant circumstances.

4. Ms Eastman for the Treasury said that the Human Rights Act 2004 did not apply to the Society and section 17 applied to citizens only. She also argued that section 45 and section 37(1)(b) of the FOI Act dealt principally with confidentiality which was not mentioned in section 43.

Section 43(1)(b) requires the decision maker to determine that the information in respect of which exemption is claimed has a "commercial" value. If that determination is yes then the question to be answered is whether that information, if disclosed "would be or could reasonably be expected to be, destroyed or diminished". Thus at its lowest the question is whether the value of the commercial information could reasonably be expected to be diminished by disclosure. It should be noted that information either has a commercial value or it has not. Section 43 does not deal in questions of quantifying the value.

Queensland has a Freedom of Information Act which has similar provisions to section 43 of the FOI Act. In Cannon and Australian Quality Egg Farms Ltd (1994) 1QAR 491 the Queensland Information Commissioner considered a number of authorities and set out the relevant matters to be considered in deciding whether information had a commercial value. These include that resources were expended to produce the information and that the information was essential or important to the profitability or viability of a continuing business operation.

Where the information is out of date or common knowledge in the industry it is unlikely to have commercial value.

The Commissioner said the expectation that the value could be diminished by release must be reasonable and not merely speculative. The expectation must be based on real reasons why the diminution in value could occur if the information was disclosed.

Section 43(1)(c) requires that the information in respect of which exemption is claimed must concern the business, commercial or financial affairs of the organisation. In addition one of two other requirements must be met.

Firstly, in section 43(1)(c)(i) the disclosure of the information would, or could reasonably be expected to, unreasonably adversely affect that organisation in respect of its lawful business, commercial or financial affairs. This adverse effect will usually be financial and be either direct or indirect. The clearest test of an adverse effect is whether disclosure to a competitor could reasonably be expected to harm the organisation's business. It may be more difficult to show an adverse effect where an organisation enjoys a monopoly position. The adverse effect does not have to be substantial as is required in

section 40(1)(c),(d) and (e). The public interest issue that is contained in the words of section 43(1)(c)(i) will not arise in this matter for the reasons set out later.

1. In Re Searle Australia v Public Interest Advocacy Centre [1992] FCA 241; (1992) 108 ALR 163, the Full Federal Court indicated that, in considering whether a person could be unreasonably adversely affected by the disclosure of business information, there could be compelling public interest reasons for permitting disclosure of that information. The Court used the example of a product that posed a threat to public safety. In that case, it would not be unreasonable to disclose the information, even though the disclosure would adversely affect the person's business.

2. Secondly in section 43(1)(c)(ii) the disclosure could reasonably be expected to prejudice the future supply of information to the Territory or an agency for the purposes of the administration of a law or matters administered by an agency.

3. The Tribunal accepts the argument presented by Treasury that section 17 of the Human Rights Act 2004 does not apply to an artificial entity like the Society. It also agrees that confidentiality is not a requirement of section 43 of the FOI Act.

The ten documents in contention were provided to the Tribunal along with a sworn statement by Mr Nathan Rivett dated 7 September 2011. Mr Rivett's statement was admitted as evidence (Exhibit 1) with the consent of the parties and he was not required to give oral evidence. Mr Rivett is the Manager CTP Technical Pricing, Direct Insurance, at Insurance Australia Group, a holding company of Insurance Australia Limited that trades as NRMA Insurance. He is a Fellow of the Institute and Faculties of Actuaries and a Fellow of the Institute of Actuaries of Australia. Mr Rivett's statement addressed each of the documents in contention by reference to the folio numbers. The gaps in folio numbers is the result of some folios being released in full by the Treasury. His evidence was as follows.

Folios 2-69 (Document 1). It is not marked "confidential". This is a report by Taylor Fry Consulting Actuaries. It directly concerns the business affairs of NRMA Insurance, being detailed analysis used for pricing and market information. Its disclosure would allow a competitor "to price a competitive insurance product with significant accuracy whereas, in contrast, without this information little more than a speculative guess would be possible".

Folios 47-62 (Document 2). This is a report by Cumpston Sarjeant entitled ACT CTP Scheme - Impact of proposed legislative changes with respect to Whole Person Impairment (WPI). It is marked "Cabinet-in-Confidence". Cumpston Sarjeant Consulting Actuaries were engaged by the ACT Government and the information was provided to them on a confidential basis to "assist the determination of scheme costs by the government". It "directly concerns the business affairs of NRMA Insurance being detailed claims payment and market information". It includes redacted data which "could be used to set a price with significantly reduced estimation error and the associated reduction in risk and, for this reason, it would be very valuable to a competitor ..."

Folios 94-97 (Document 3). This lists Heads of Damage (HOD) Graphs ACT (data as at September 2010). The document is not marked "confidential". The data provides details of costs and risks that a competitor would find valuable. Competitors participating in CTP in other states could draw inferences of commercial value by combining the data in this document with data relating to other CTP schemes.

Folios 98-110 (Document 4). This lists "legal claimant costs ... for firms in the ACT by legal firm and year". The document is "the business information of NRMA Insurance and.... law firms in the ACT". It is marked "private and confidential".

Folios 111-123 (Document 5). This is a version of folios 98-110 and is the business information of NRMA Insurance and ACT law firms. It is marked "private and confidential".

Folios 124-129 (Document 6). This lists the number of legally represented claimants in the ACT and "the business information of NRMA Insurance and.... law firms in the ACT". It is marked "private and confidential'.

Folios 130-137 (Document 7). This is a version of folios 98-110 and "is the business information of NRMA Insurance.... and law firms in the ACT". It is marked "private and confidential".

Folios 138-139 (Document 8). This is a copy of an e-mail from Mr Rivett to an officer of the Treasury. It shows the numbers of claimants and the amounts of claim payments, which data "are valuable to a competitor with an understanding of CTP .... An estimate of average claim size can be readily calculated using the data". It has a standard provision that the e-mail is not to be disseminated.

Folios 140-143 (Document9). This contains Heads of Damage (HOD) Graphs (new scheme [October 2008 onward] data at September 2010- all claims). It is not marked confidential. It contains "a breakdown of costs and risks that a competitor would find valuable". It includes data in relation to other states which "will prejudice NRMA in relation to its CTP business in those states" and provide "competitors with an advantage over NRMA Insurance".

Folios 144-147 (Document 10). "This contains "Heads of Damage (HOD) Graphs (new scheme [October 2008 onward] data at September 2010- finalised claims)." It is not marked confidential. It contains "a breakdown of costs and risks that a competitor would find valuable". It includes data in relation to other states which "will prejudice NRMA in relation to its CTP business in those states" and provide "competitors with an advantage over NRMA Insurance".

The Tribunal has examined the documents and has considered the evidence of Mr Rivett in relation to them. It has had regard to the submissions of the parties and the legal authorities as to the correct interpretation of section 43.

Folios 2-69 (Document 1). On the basis of Mr Rivett's evidence the Tribunal is satisfied that the information has a commercial value. It is important to the profitability of NRMA. It accepts that the information is more extensive than that which NRMA is obliged to provide under section 46 of the RT Act and much of it predates that obligation. The Tribunal considers that the commercial value of the information, in Mr Rivett's words, "would be very valuable to a competitor" and disclosure would diminish its value. Even though NRMA is the sole supplier of CTP insurance in the ACT there are no barriers to entry for its competitors. The Tribunal finds the exemption for Document 1 is made out.

Folio 47-62 (Document 2). The Tribunal accepts Mr Rivett's evidence that the information in this document has a commercial value that is important to the profitability of NRMA's insurance business. The evidence was that this information would be valuable to a competitor and its commercial value would be diminished by disclosure. It finds the exemption is made out.

Folios 94-97 (Document 3). For the reasons set out for document 2 above the Tribunal finds the exemption for this document is made out.

Folios 98-110 (Document 4). The Tribunal accepts that the evidence of

Mr Rivett establishes that is the business information of NRMA and of the law firms named in it. Mr Rivett, however, does not say that disclosure of the information could reasonably be expected to unreasonably adversely affect NRMA's lawful business as required by section 43(1)(i) of the FOI Act. Mr Holcombe argued that this would be the case and it may well be so, but to satisfy the onus in s71 more than an argument is required. Mr. Rivett did not say that disclosure could reasonably be expected to prejudice the future supply of this information.

It should be observed that some of the information dates back to the 1999-2000 financial year and related to law firms who received one or two payments some ten years ago. The bulk of this information seems substantially out of date and is only in the broadest form. It is not clear how the quantum of annual payments to specific ACT law firms or the number of clients they represented could be used for the purposes of the administration of a law or matter of the Territory or an agency. It is difficult to conclude that this information would satisfy

section 43(1)(c)(i) or (ii). The Tribunal finds that, subject to compliance with section 27, this document should be released.

Folios 111-123 (Document 5). Mr Rivett's evidence is that this is a version of Document 4. The comments, views and conclusions of the Tribunal in respect of Document 4 apply also to this document.

Folios 124-129 (Document 6). The Tribunal accepts that the evidence of Mr Rivett establishes that this is business information of NRMA and of the law firms named in it. It simply shows the number of legally represented clients for each law firm by year from 2000 to 2011. The comments, views and conclusions with respect to Document 4 apply to this document.

Folios 130-137 (Document 7). Mr Rivett's evidence is that this is a version of Document 4. The comments, views and conclusions of the Tribunal in respect of Document 4 apply also to this document.

Folio 138-139 (Document 8). In his evidence about this document Mr Rivett was concerned only that the average claim size would be revealed if the number of claimants and the amounts of the claim payments for each for the financial years 2008/2009 and 2009/2010 were released. The number of claimants in each of those years has now been released by the Treasury. Mr Rivett made no objection to the disclosure of the details of "Net Earned Premium", nor to the disclosure of the business telephone number/s of the NRMA personnel involved.

The Tribunal proposes to release the document except for the details, including footnote 2, of the "Claim Payments". This would protect the commercial value to NRMA of the average claim size, information which could if disclosed could reasonably be expected to diminish its commercial value. The exemption under section 43(1)(b) is made out for this part of the information.

Folio 140-143 (Document 9). Mr Rivett's evidence is that this information would be of substantial value to a competitor and would provide it with an advantage if disclosed. The information thus has a commercial value to NRMA which could reasonably be expected to be diminished by disclosure. The Tribunal finds that the exemption under section 43(1)(b) is made out.

Folio 144-147 (Document 10). Mr Rivett's evidence in relation to this document is similar to that relating to Document 9. The Tribunal adopts the reasoning and conclusion set out in respect of Document 9.

RESPONDENT: Mr Kettle, ACT Government Solicitor

DATE/S OF HEARING: 2 December 2012 PLACE: CANBERRA

DATE/S OF DECISION: ** March 2012 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )