Express law No. 304

Background

Senator Rex Patrick requested access under the Freedom of Information Act 1982 (FOI Act) to pricing information from Naval Group arising from the competitive evaluation process to choose an international partner for the acquisition of submarines.

The pricing information was provided under a contract that contained a confidentiality clause protecting the information. The clause contained an exception to the obligation of confidence where disclosure was ‘required by law’.  

Reasoning

Before the Administrative Appeals Tribunal (the Tribunal), the Department of Defence (Defence) claimed exemption under s 45 of the FOI Act. Section 45 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 or the Commonwealth), for breach of confidence.’ Senator Patrick contended, in effect, that disclosure would not found such an action because the ‘required by law’ exception was triggered by the FOI request, meaning Defence would not be in breach of the contractual duty of confidence.

The Tribunal rejected Senator Patrick’s argument, holding that if a document was otherwise properly subject to exemption under the FOI Act, then it was not ‘required by law’ to be disclosed and the exception was not engaged.

In considering whether s 45 applied in this case, the Tribunal considered whether the reference to ‘found[ing] an action’ includes an action for breach of contractual duties of confidence, or is restricted to equitable obligations. This issue has received commentary in previous cases but has not been definitively resolved. The Tribunal found that as a matter of principle, a contractual obligation of confidence could trigger s 45, so long as the material was genuinely confidential. The Tribunal suggested that in practice (and at least in this case), it will be necessary in any event to affirmatively answer the elements of an equitable action, though the fact of a contractual obligation of confidence will go some way to satisfying some of those elements.

Implications

The decision clarifies the operation of ‘as required by law’ clauses, and resolves any tension between these and disclosure obligations under the FOI Act in favour of giving the FOI Act its fullest operation.

The decision also lends support to reliance on contractual obligations of confidence to underpin s 45 exemption claims, while confirming that a contractual obligation alone will not be enough (especially if the information in question is not actually confidential in nature).

Read the Tribunal’s decision for Patrick; Secretary, Department of Defence and [2021] AATA 4627 (14 December 2021).