Exemption Practice Note 11: Section 34(1)(a) – Trade secrets of a business undertaking
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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.
A document or information is exempt under section 34(1)(a) if two conditions are satisfied:
- the document or information was acquired from a business, commercial, or financial undertaking; and
- the document or information contains trade secrets of the undertaking.
Applying the exemption – a summary
- Specifically identify the information considered to be a trade secret.
- Determine whether the information was acquired from a business, commercial, or financial undertaking, identifying when it was received and from what undertaking.
- Consult with the undertaking to seek its views on whether the information constitutes a trade secret, and whether it consents to disclosure. If not, obtain reasons and supporting documentation about why the information constitutes a trade secret.
- Consider whether an extension of time under section 21(2) is permitted due to the need for consultation under section 34.
- Determine if the information constitutes a trade secret of the undertaking, and should be exempt.
- If a decision is made to release the information, notify affected undertakings 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 by the agency from a business, commercial or financial undertaking.
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.
Consultation with the undertaking
There is no express requirement to consult under section 34(1)(a). However, this is likely a drafting oversight in section 34(3) which mandates consultation when considering the application of section 34(1)(b), but not 34(1)(a).
Consequently, given specialist knowledge is generally required to decide if information constitutes a trade secret, an agency should always consult with the undertaking in order to properly discharge their decision-making duty, rather than speculating about whether or not certain information is a trade secret.
In consulting, an agency should, if practicable:
- notify the undertaking of the request;
- ask the undertaking whether the information is a trade secret and if so, why;
- ask whether the undertaking consents to the 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 consulting, the 30-day timeframe to decide a request may be extended by up to 15 days under section 21(2)(a). See Procedural 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.
The information acquired must constitute a trade secret of the undertaking. A ‘trade secret’ is not defined, however it is generally proprietary knowledge of the undertaking. Examples might include secret formulas, processes, or methods used in production of goods or provision of services.
There are a number of indicators to information constituting a trade secret.2 These include:
- whether the information is of a technical character;
- the extent to which the information is known outside of the undertaking’s business;
- measures taken by the undertaking to guard the secrecy of the information;
- the value of the information to the undertaking and competitors;
- the effort and money spent by the undertaking in developing the information; and
- the ease or difficulty with which others might acquire or duplicate the secret.
Information is generally not considered to be a trade secret where the processes, procedures, or methods are well known or widespread (including in that industry), could be assumed, or are publicly available.
Notifying an undertaking of a decision to disclose trade secrets
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 – D20/343