Section 34(4)(A)(II) – Business, commercial or financial information of an agency

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, 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(4)(a)(ii) if three conditions are satisfied:

1. the agency is engaged in trade or commerce; and
2. the document contains information of a business, commercial or financial nature; and
3. disclosure of the information would be likely to expose the agency unreasonably to disadvantage.

APPLYING THE EXEMPTION – A SUMMARY

When determining whether a document or information is exempt under section 34(4)(a)(ii), an agency should follow the below steps:

1. Specifically identify the information considered to be business, commercial or financial information.
2. Establish that the agency is engaged in trade or commerce in relation to the information. Note that ‘governmental’ activities (delivering statutory services or functions) are often not trade or commence.
3. Determine whether the information relates to matters of a business, commercial, or financial nature.
4. Critically and objectively consider whether disclosure would be likely to expose the agency unreasonably to disadvantage by identifying and establishing three elements:
   1. what the disadvantage is;
   2. that the disadvantage is likely to occur; and
   3. that the disadvantage is unreasonable.
5. If the exemption is made out, consider whether to exercise the discretion in section 16(2) to provide access to the information or document despite the exemption applying.

AN AGENCY ENGAGED IN ‘TRADE OR COMMERCE’

Whether an agency is engaged in trade or commerce always depends on the specific facts and circumstances, but requires clear evidence that the agency is doing more than delivering government services or functions. Trade or commerce activities must ‘of their nature, bear a trading or commercial character’.¹

Just because an agency is engaging in commercial or financial transactions, does not necessarily mean it is engaging in trade or commerce. An agency that enters into contracts to deliver statutory services or functions, is not doing so for the purposes of trade or commerce, they are doing so to fulfil their statutory functions and deliver governmental services.

For example, the Victorian Civil and Administrative Tribunal (VCAT)² has found that building public roads, including appointing contractors in competitive tenders, is not engaging in ‘trade or commerce’.³

As such, tendering out projects, entering commercial contracts, managing budgets, or buying goods and services does not necessarily constitute engaging in trade or commerce for this exemption.

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.⁴ Examples include:

• business plans and strategies;
• background planning and commercial information; or
• financial reports and records.

LIKELY TO EXPOSE THE AGENCY UNREASONABLY TO DISADVANTAGE

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

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

Unreasonable Disadvantage

An agency must be able to articulate or describe how disclosure of the information would unreasonably expose the agency to disadvantage.

Most tribunal and court commentary describe ‘disadvantage’ in terms of the financial implications of disclosure. In particular, whether disclosure is likely to:

• reduce an agency’s capacity to compete in a competitive market for buying and selling goods or services;⁵
• reduce an agency’s capacity to negotiate future commercial contracts;
• strengthen the bargaining position of entities the agency negotiates with, at the expense of the agency competing for marketplace share;⁶ or
• expose the rates that an agency is prepared to accept for various services – and if so, the likely impact on the agency’s operations.

The meaning of ‘likely’

Disclosure of the information must be likely to cause unreasonable disadvantage to the agency. ‘Likely’ should be given its plain English meaning – seeming like truth, fact, or certainty, or reasonably to be believed or expected.⁷ Case commentary suggests that the threshold is:

• probable, such as well might happen or be true;⁸ or
• more likely than not.⁹

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.

Whether disadvantage would be unreasonable for the purposes of section 34(4)(a)(ii) takes into account factors both in favour of disclosure and against disclosure¹⁰ including:¹¹

• the nature of the information;
• whether there is any public interest in disclosure or nondisclosure;
• the circumstances in which the information was obtained or created;
• whether the information has any current relevance; and
• the identity of the applicant and the likely motives of the applicant.

DISCRETION TO DISCLOSE EXEMPT DOCUMENTS

Nothing in the Act prevents an agency from providing access to information where an exemption applies. Section 16(2) acknowledges that decision makers can release exempt information as long as they are not legally prevented from doing so. Nevertheless, while section 20(2) notes that an agency is not required to provide access to an exempt document, the High Court of Australia¹² has interpreted this as not preventing an agency from providing access to an exempt document.

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

Version: June 2020 – D20/503

1. Gibson v Latrobe City Council [2008] VCAT 1340; Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, 604.
2. Pallas v Road Corporation [2013] VCAT 1967.
3. This approach has not been universally adopted by VCAT, other decisions consider that when carrying out governmental functions for which the agency in question was created for, the agency can still be engaging in trade or commerce. See: Noonan v Ambulance Victoria [2014] VCAT 534.
4. Gibson v Latrobe CC (General) [2008] VCAT 1340 at [25].
5. Binnie v Department of Industry, Technology & Resources (1986) 1 VAR 345 at [348].
6. Save Albert Park Inc v Australian Grand Prix Corporation [2008] VCAT 168.
7. See Macquarie Dictionary.
8. Asher v Department of innovation, Industry and Regional Development [2005] VCAT 2702 at [38].
9. RJE v Secretary to the Department of Justice [2008] VSCA 265 at [53].
10. Asher v Department of Innovation, Industry & Regional Development [2005] VCAT 2702 at [42].
11. Fitzherbert v Department of Health and Human Services [2019] VCAT 201 at [61].
12. Victorian Public Service Board v Wright (1986) 160 CLR 145 at [3].