Section 34(1)(B) – Business, commercial, or financial information or a third party undertaking

Section 34 of the Freedom of Information Act 1982 (Vic) (the Act) contains four streams of exemptions that relate to commercial information of third parties or agencies. There are three other Exemption Practice Notes that discuss the other streams in section 34.

This Practice Note sets out the exemption, summarises the steps to take when applying it, and then discusses each element in detail. All legislative references are to the Act unless otherwise stated.

THE EXEMPTION

A document or information is exempt under section 34(1)(b) if three conditions are satisfied:

the document or information was acquired from a business, commercial, or financial undertaking; and
the information relates to matters of a business, commercial or financial nature; and
disclosure of the information is likely to expose the undertaking unreasonably to disadvantage (based on matters listed in section 34(2) and any other relevant considerations).

APPLYING THE EXEMPTION – A SUMMARY

Specifically identify the information considered to be business, commercial or financial information.
Determine whether the information was acquired from a business, commercial, or financial undertaking, identifying when it was received and from what undertaking.
Determine whether the information relates to matters of a business, commercial, or financial nature.
Consult with the undertaking to seek its views on disclosure of the information and how disclosure would expose it unreasonably to disadvantage.
1. Consider whether an extension of time under section 21(2) is permitted due to the need for consultation under section 34.
Critically and objectively consider whether disclosure would be likely to expose the undertaking unreasonably to disadvantage by identifying and establishing three elements:
1. what the disadvantage is;
2. whether the disadvantage is likely to occur; and
3. the disadvantage is unreasonable.
If a decision is made to release the information, notify any affected undertakings that did not consent to the disclosure of the decision and their right to appeal to Victorian Civil and Administrative Tribunal (VCAT) within 60 days.
Wait until the conclusion of any appeal or VCAT proceedings before providing the documents to the applicant.

INFORMATION ACQUIRED FROM A BUSINESS, COMMERCIAL OR FINANCIAL UNDERTAKING

The information or document under consideration must have been acquired from a business, commercial or financial undertaking.

Information acquired

The phrase ‘information acquired’ in section 34(1) involves some positive handing over of information to an agency in a precise form.

The actual document itself does not itself need to be acquired from an undertaking. It need only contain relevant information acquired from the undertaking. For example, a document may contain information extracted or paraphrased from information acquired from an undertaking.¹

However, information generated by an agency about the undertaking, or mutual information arising out of negotiations or collaboration between an agency and an undertaking, is generally not ‘acquired’ by the agency from the undertaking.

Business, commercial, or financial undertaking

The phrase ‘business, commercial or financial undertaking’ generally refers to an entity, such as a company or organisation, that is engaged in business, trade, or commerce for a financial profit or gain.

INFORMATION THAT RELATES TO MATTERS OF A BUSINESS, COMMERCIAL OR FINANCIAL NATURE

The acquired information must have a business, commercial, or financial nature. ‘Business’, ‘commercial’ and ‘financial’ should each be given its ordinary meaning.² Examples include:

business plans and strategies;
planning applications and background commercial information;
commercial information in tender documents; or
financial reports or records.

CONSULTATION WITH AN UNDERTAKING

Under section 34(3), when deciding whether disclosure would expose an undertaking unreasonably to disadvantage, an agency must, if practicable:

notify the undertaking of the request;
ask the undertaking how and why disclosure would expose it unreasonably to disadvantage, if at all;
ask whether the undertaking consents to its disclosure of the information, or disclosure subject to deletion; and
state that if the undertaking consents to disclosure, or disclosure subject to deletions, it cannot apply to VCAT for review of the decision.

When seeking the views of the business undertaking, it is important that an agency highlights that all of the elements of section 34(1)(b) must be made out before the document can be considered exempt. An agency should request and obtain detailed information from an undertaking about:

what the disadvantage is;
whether the disadvantage is likely to occur; and
why the disadvantage is unreasonable.

The opinion of the undertaking is not determinative and is only a factor to be weighed by an agency when deciding if disclosure of the information is likely to expose the undertaking unreasonably to disadvantage. An undertaking may strongly object to release, but that is not enough to satisfy the exemption. If an agency is not satisfied that all elements of the exemption are made out, an agency must release the document.

When consulting, the 30-day timeframe to decide a request may be extended by up to 15 days under section 21(2)(a). See Practice Note 8 – Timeframes and extensions of time for further guidance.

When consulting, Professional Standard 7.3 requires a record of the consultation to be kept. This includes who was consulted, whether they consented or objected, and any reasons provided.

LIKELY TO EXPOSE THE UNDERTAKING UNREASONABLY TO DISADVANTAGE

When determining if disclosure is likely to expose the undertaking unreasonably to disadvantage, three distinct elements must be identified and considered:

what the disadvantage is;
why and when disadvantage is likely to occur; and
the disadvantage is unreasonable.

Unreasonable disadvantage

In considering whether disclosure will expose an undertaking to unreasonable disadvantage, an agency should, along with any other relevant consideration, have regard to the factors set out in section 34(2):

whether the information is generally available to competitors of the undertaking;
whether the information would be exempt if it were generated by an agency or a Minister;
whether the information could be disclosed without causing substantial harm to the competitive position of the undertaking; and
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.

Other relevant considerations that have been highlighted³ include whether disclosure would:

give a competitor of the undertaking a competitive financial advantage;
enable that competitor to engage in destructive competition with the undertaking; or
lead to unwarranted conclusions about the undertaking’s financial affairs and position that result in commercial and market consequences.

Under section 34(2)(d), examples of public interest factors in favour of disclosure include:

transparency and accountability, particularly in the expenditure of public money;
scrutiny of government decisions, especially involving allegations of wrong-doing;
allowing public to be better informed about decisions like the privatisation of government services;
contributing to informed public

Government transparency and accountability requires private organisations contracting with government to expect more public scrutiny over their dealings including the possibility that their business, financial or commercial information may be disclosed to the public under the Act.⁴ The exemption in section 34(1)(b) balances government transparency and public accountability against protecting legitimate commercial interests.

The meaning of ‘likely’

Disclosure of the information must be likely to cause unreasonable disadvantage. ‘Likely’ is given its plain English meaning – seeming like truth, fact, or certainty, or reasonably to be believed or expected.⁵ Case commentary suggests that the threshold is:

probable, such as well might happen or be true;⁶ or
more likely than not.⁷

An agency should carefully consider if disclosure is ‘likely’ to cause unreasonable disadvantage, as opposed to it being to a mere possibility – then articulate that consideration in their written reasons.

Unreasonable

An agency must establish that disclosure would likely cause ‘unreasonable’ disadvantage – not just any level of disadvantage. Whether disclosure is likely to expose an undertaking unreasonably to disadvantage depends on the particular facts and circumstances of the matter, considering the consequences that likely to follow from disclosure of the information. An agency must be able to articulate in their reasons why the disadvantage is unreasonable, as opposed to mere disadvantage.

NOTIFYING AN UNDERTAKING OF A DECISION TO DISCLOSE INFORMATION

When a decision is made to release a document or information, section 34(3A) requires the agency to notify the undertaking of:

the decision to grant access to the document; and
the undertaking’s right to apply to VCAT for a review of the decision.

However, section 34(3B) states that where an undertaking has consented to disclosure of a document, or a document with deletions, the agency is not required to provide the above notification.

Where an undertaking objected, disclosure of the documents to the applicant must be delayed for 60 days to give effect to the undertaking’s right under section 50 to apply to VCAT for review of the decision. If an undertaking that objected to disclosure exercises its right to seek review by VCAT, an agency must not disclose the documents until the VCAT proceedings are finalised and directions made.

Disclaimer: The information on this page is general in nature and does not constitute legal advice.

Version: June 2020 – D20/344

Holbrook v Department of Natural Resources (1997) 13 VAR 1.
Gibson v Latrobe CC (General) [2008] VCAT 1340 at [25].
Dalla-Riva v Department of Treasury and Finance (2007) 27 VAR 115 at [33].
Re Thwaites and Metropolitan Ambulance Service (1996) 9 VAR 427 at [477].
See Macquarie Dictionary.
Asher v Department of innovation, Industry and Regional Development [2005] VCAT 2702 at [38].
RJE v Secretary to the Department of Justice [2008] VSCA 265 at [53].