Opinion on Ministerial Notification


Key findings

The decision by the Minister to redact all of the proposal in the FAA was not reasonable and therefore not appropriate. Most of the redacted information was publicly available when the Minister declined to provide it and those sections could have been provided to Parliament with the commercially sensitive content redacted.

The Minister properly sought advice from the Department of Primary Industries and Regional Development (Department) before responding to the request. Before advising the Minister, the Department documented an assessment against the commercial-in-confidence criteria set out in our Audit Practice Statement.

The Department’s assessment found that the proposal included both commercially sensitive and publicly available information. The Department recommended the Minister provide the FAA with all of the proposal redacted, as this was commercially sensitive. The Minister followed the Department’s advice.

After reviewing our draft opinion, the Minister advised us that the Department has been asked to undertake a detailed review of the proposal and identify which sections can be provided to Parliament while protecting commercially sensitive information. The Minister also raised a concern at the additional workload the s82 process places on resources.

We assessed the redacted proposal using our criteria for information that is confidential to a third party. Specifically:

Criterion 1 – the information should be sufficiently secret

This criterion was not met. We found about 70% of the information in the proposal was generally known or ascertainable using publicly available sources at the time the Minister declined to provide it. This included project information used in media releases, and business information freely available on Carnegie’s website and in their annual reports. However, we did not find a copy of the entire proposal in publicly available sources.

The remainder of the proposal included commercially sensitive information about Carnegie’s technical and scientific processes, as well as operational and financial details.

Criterion 2 – the confidential information must be specially identified

This criterion was met. Unlike the rest of the FAA, every page of the proposal had been marked as confidential.

Criterion 3 – disclosure would cause unreasonable detriment to the owner of the information or another party. Disclosure would not be in the public interest

This criterion was partly met. In assessing this, we weighed the public interest in releasing the information against the possible harm to the interests of government and to Carnegie.

We found that Carnegie’s commercial interests and the interests of government could be adversely affected if the commercially sensitive information in the proposal were released. Suppliers may be reluctant to tender for government business if their commercially confidential information is released without consultation.

The Department could have protected these commercial interests by working with Carnegie to identify, and redact, only the commercially sensitive parts of the proposal. We found no detriment to government or Carnegie in providing the already publicly available information.

Criterion 4 – the information was provided on the understanding that it would remain confidential

This criterion was met. Carnegie submitted the proposal as part of a tender for the Albany Wave Energy Technology Development Project. The tender guide sets an expectation that the proposal would be kept confidential, although it noted some information, such as the name of the successful tender and the contract amount, may be released.

The Department advised us that on multiple occasions Carnegie was provided assurance the proposal would be kept confidential. However, the Department could not provide records of these communications, or verify when they took place.

Page last updated: January 23, 2019

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