The most significant change is to the guide on consulting third parties. The guide deals with disclosing requester identity when consulting with third parties before making a decision about the request. Third parties may be consulted when releasing the information would affect that party. Previously, the approach was to disclose the requester’s identity unless there was a good reason not to. The new guidance suggests that individual requesters acting in their personal capacity should not have their identity disclosed to third parties. The change came after consultation with the Privacy Commissioner. However, when the requester is a company or other group it is likely to be acceptable to disclose the requester’s name. The guide includes resources such as work sheets setting out the correct consultation process.
Three other guides have been updated.
One of the guides relates to the application of the commercial information withholding grounds. These grounds protect information that would disclose trade secrets, be likely to unreasonably prejudice the commercial position of a third party, or disadvantage or prejudice the carrying out of commercial activities. Public agencies can hold information about third party commercial entities due to their role in procurement, regulation, public private partnerships, and policy development. The guide provides examples of what might be prejudicial, including employee information, the entity’s financial position, pending contracts, new activities, or marketing plans. How that information could be used by competitors, currency of the information, and the commercial context are all also relevant. The guidance helps to reduce the chance that public agencies release information detrimental to the commercial position of third parties.
The second guide relates to withholding information that would impact negotiations. Often, information is withheld to enable agencies to negotiate effectively. Releasing information may give an unfair advantage to one of the parties. Questions that will be relevant to consider when determining whether to release information relating to negotiations include whether the negotiations are ongoing, the sensitivity of the issues, and how much information is already in the public domain. Considering that third parties may be involved in negotiations, the guidance is helpful in ensuring that their commercial interests both in the negotiations and more generally are protected.
The public tender process and how the Act applies to information generated in the context of that process is addressed in the third guide. The guide overlaps with the first two, because information about tenders may be withheld on those grounds. It outlines what kind of information is likely to be protected from release, but notes that there is no blanket prohibition on releasing information related to a public tender. The context, type of information, stage of tender and level of existing public knowledge are all relevant factors that should be considered. Some information about the process may be able to be released, but some information, for example information revealing a tenderer’s innovations, or commercially sensitive information can be withheld. The guidance makes it clear that agencies should consider partial release as a preferred option to simply refusing the whole request.
All of the guides are important because inappropriate disclosure of commercial information can potentially the commercial interests of a third party private business. If you would like to know more about disclosure requirements under the OIA and how requests can be effectively managed, please contact one of our experts.