Legal Briefing No. 64

Number 64

4 July 2002

Identifying and Protecting Confidential
Information

This Briefing is directed at assisting Commonwealth agencies
to identify whether information they deal with should be
protected as confidential information, whether in a contractual
context or otherwise.

The expression 'confidential information' is used in this
Briefing to describe information which is 'inherently confidential',
or secret, and which is the subject of an obligation
of confidence.

The guidance provided does not only relate to 'commercial'
information. There are a number of categories of information
that the courts have protected as confidential information.
These are discussed below.

This Briefing is not directed to giving guidance on disclosing information
that may be confidential; 1 does not deal with
the provision of information (submissions, evidence) to
Parliamentary Committees or with claims for Public Interest
Immunity; 2 and does not deal with a breach of
an obligation of confidence.

WHY IS IT IMPORTANT TO IDENTIFY CONFIDENTIAL INFORMATION?

Commonwealth agencies operate within a governance and
accountability framework established under both legislation
and policy. However, agency accountability depends on the
availability of information about how the activities of
the agency have been conducted.

For many years there has been disquiet amongst parliamentarians,
auditors-general, ombudsmen, academics and public commentators
about the growing use of confidentiality clauses in government
contracts which have had the effect of limiting access
to such information.

In response to these concerns, commencing in October 2000,
the Australian National Audit Office (ANAO) conducted a
performance audit on the use by agencies of confidentiality
provisions in Commonwealth contracts. The ANAO concluded
in its report 3 that there were weaknesses in
how agencies dealt with the issue of confidential information,
in particular that there was uncertainty over what information
was confidential information, and where there were confidentiality
provisions in contracts, there was usually no indication
of what specific information was confidential. 4

There is now mounting pressure to change past practices
in relation to use of confidentiality clauses, not only
to accommodate accountability requirements, but also for
practical and legal reasons: if the information the confider
wishes to protect is not specifically identified, the recipient
will not be clear about precisely what information is to
be kept confidential, and courts will not issue injunctions
to prevent disclosure or use of the information if they
consider that the recipient would be unable to decide which
information to avoid using or disclosing to keep clear
of contempt of court.

In its report, the ANAO suggested a specific change in
approach, namely:

'…agencies should include provisions in tender
documentation that alert prospective tenderers or contractors
to the implications of the public accountability responsibilities
of agencies.' 5

and also:

'…that agencies consider the issue of what information
should be kept confidential before they agree:

  • to accept information on the basis that it is to
    be kept confidential;
  • to insert a clause into a contract which obliges
    the parties to keep this information confidential;
    or
  • to take any other measures which result in the information
    inadvertently being regarded as confidential. 6

…

agencies' approach should also provide for contractors
to indicate what information they consider should be
classified as confidential.' 7

The process of identifying information that is confidential
information is not always easy nor scientifically precise.
Such identification will depend on making an assessment
about both:

  • the nature of the information; and
  • the circumstances surrounding the communication and
    receipt of the information.

It is always important to bear in mind that a recipient
of information does not become subject to an obligation
of confidence in relation to the information merely because
the information is of an 'inherently confidential' nature
(for example, a trade secret). The recipient would only
become subject to an obligation of confidence in relation
to particular information if at the time the recipient
received the information, an equitable or contractual obligation
of confidence was created in respect of that information.

TYPES OF INFORMATION HELD BY GOVERNMENT

Any information that is developed, received or collected
by or on behalf of the Commonwealth Government, through
its agencies and contractors, is referred to in the Commonwealth
environment as 'official information'. 8

To enable an appropriate decision to be made by an agency
about what it may agree to protect as confidential information,
it is helpful to divide official information into different
categories.

Finn 9 identifies four types of information
in the public sector, which is a useful categorisation
for these purposes. These are:

  • Public Information - the stock of knowledge publicly
    available in the community;
  • Third Party Information - information supplied to government
    by third parties about their private, personal or business
    affairs;
  • Government Information - information about government
    which has been generated by government; and
  • Government Proprietary Information - information about
    government acting in a non-governmental capacity. This
    category includes, for example, information produced
    by government in scientific research or business activities,
    which is not significantly different from that produced
    in the private sector, and which government holds in
    the same way as a private sector enterprise does.

Public Information does not raise issues of confidentiality.
The other three types of information described by Finn
potentially do.

The protection available from the courts in relation to
a particular item of information varies depending on the
type of information being considered. For example, courts
treat Third Party Information quite differently from information
about the operations of government. This difference in
treatment turns on notions of the 'public interest'. Agencies
should take this into consideration when making a decision
about what information is appropriate to protect as confidential
information. 10

IDENTIFYING CONFIDENTIAL INFORMATION

Subject to the qualifications described below, information
will be treated by the courts as confidential information
if:

  • an obligation under the law of Equity to protect information
    as confidential information has arisen in all the circumstances
    (ie because of the nature of the information, and the
    circumstances in which it was provided); or
  • the information is specifically protected as confidential
    information under a contract.

When consideration is being given to whether certain information
should be treated as confidential information, an agency
should also consider:

  • 'public interest' issues;
  • relevant statutory provisions prohibiting disclosure
    of certain information; and
  • relevant provisions of the Freedom of Information
    Act 1982 and the Privacy Act 1988.

There are limits on the kind of information which can
be protected as confidential under a contract. For example,
if an attempt is made to protect from disclosure certain
Government Information as confidential information when
an analysis of public interest issues leads to a conclusion
that the information is not confidential in nature ('inherently
confidential'), a court may refuse to enforce a contractual
obligation not to disclose that information.

In analysing what information to identify as confidential
information, the most useful place to start is to examine
the circumstances in which an equitable obligation to protect
information arises in the absence of a contract.

In the absence of a contract, a confidence is formed whenever
one party (the confider) communicates to another (the recipient)
private or secret matters on the express or implied understanding
that the communication is for a restricted purpose. 11

The equitable obligation of confidence is based on the
principles of good faith and fair dealing with the work
of another, such that a person who has received information
in confidence should not be allowed to take unfair advantage
of it, or fraudulently abuse the trust reposed in him or
her.

Tests for Existence of Equitable Obligation

In order to establish that an equitable obligation of
confidence has arisen, all the following elements must
be present:

  • the information must be specific and not merely global;
  • the information must be 'inherently confidential';
    and
  • the information must have been communicated and received
    in circumstances which imposed an obligation of confidentiality
    on the recipient.

The elements are not satisfied by simply marking documents
as confidential or COMMERCIAL-IN-CONFIDENCE.

Although all elements of the test must be satisfied, these
elements are not in all cases completely independent of
one another. The circumstances in which information is
communicated may themselves dictate the confidentiality
of the information in question. 12

Detriment to the provider of the information is not required
to establish an obligation of confidence. 13

Specific Information

It is implicit in the notion of confidentiality that a
secret must be distinguishable from the range of information
which is generally available. 14 Also, information
must be 'something that can be traced to a particular source
and not something which…it is impossible to say from
what precise quarter' it was derived; 15 identified
'with specificity, and not merely in global terms'; 16 particularised,
and not be described in terms of broad, sweeping categories;
and sufficiently developed (that is, have sufficient particularity).

The most compelling reason why it is necessary to be specific
about the information that is to be protected as confidential
information is that otherwise the recipient of the information
will not be clear about the information they are obliged
to keep confidential.

In one case 17 the confider provided several
documents to the recipients, and the recipients were using
information in the documents in their business. The confider
applied to the court for an order to restrain the recipients
from using the information, but did not specify which particular
information was not to be used. The court refused to make
an order in the terms sought saying that the recipients
'would be placed in a most embarrassing situation [because
they would not be able to] decide what business methods,
literature and paperwork to avoid using in order to keep
clear of contempt of court…'.18

Inherently Confidential

There are two elements which go to establishing that information
is 'inherently confidential'. These are that the information:

  • is 'sufficiently secret'; and
  • is significant.
Sufficiently Secret

For information to be 'sufficiently secret', it must not
be 'public property or public knowledge' or to put it another
way, 'it must be private information and not in the public
domain'. 19 Accordingly, except by improper
means, another party who would wish to have it would have
difficulty obtaining it. 20

The test which is most often used by the courts to decide
whether information is inaccessible involves an assessment
of whether any special labours would be necessary for a
member of the public to reproduce it. If the information
can only be reproduced at the cost of time, labour and
effort, this is a good indication that the information
is 'inherently confidential'.
Information can be characterised as public knowledge even though it is well
known only in a particular industry or profession. 21 However, publication
in one place but not in the 'local' jurisdiction, may not destroy the confidentiality
of the information. 22 Neither will confidentiality be destroyed
where the information appears only briefly in transient form (eg for a few
seconds on television) to a small segment of the community. 23

If part of the information has been published, the remainder
may still be inherently confidential. 24 For
example, if a part of a report has been published, this
does not, of itself, destroy the confidentiality of undisclosed
parts of the report. 25 Similarly, the information
may in some circumstances be shared with others without
destroying its confidentiality. 26 Information
will not remain confidential forever. It will generally
lose its inherently confidential character over time.

Significant

The information in question must be significant in that
the preservation of its confidentiality or secrecy is of
substantial concern or interest to the confider. 27 The
information will not be confidential merely because the
confider wishes it to be confidential.

The information must not be trivial in nature, and not
so innocuous, or of so little consequence, as to qualify
as 'trivial tittle tattle'. 28

The requirement of significance appears to be satisfied
if the information has commercial value. 29 If
a confider can show that members of the public are prepared
to pay money to obtain the information, this will be persuasive
evidence that the information is significant.

The investment of time and money is not a decisive indicator
in itself of the fact that information has a commercial
value. Information can be costly to produce without necessarily
being worth anything. 30

Communicated and Received in Confidence

The basis of the obligation to respect confidences 'lies
in the notion of an obligation of conscience arising from
the circumstances in or through which the information was
communicated or obtained'. 31

Generally, for information to be treated as confidential
information by the courts, it must at the time have been
communicated by the confider and received by the recipient
on the basis of a mutual understanding that the information
was not to be disclosed except where authorised.

Where there is no express statement of confidentiality,
one test for deciding whether an obligation of confidence
exists is whether information has been supplied by the
confider for a limited purpose and in circumstances where
there is a reasonable expectation that confidentiality
will be preserved. However, it has been held that the 'test
of confider's purpose will not ordinarily be appropriate
where each party's interest in quite different, and known
to be so'. 32 In that case the court held that
the use by the department of information which had been
supplied for one purpose, for another purpose, was not
a breach of the confidence.

'Communicated' in the context of confidential information
is used widely to include all situations in which a recipient
is given access to information with the knowledge and consent
of the confider.

This issue must be judged according to the understanding
of the parties at the time of the communication
of the information.

Where information is required to be produced by statutory
demand, and is not given voluntarily, the recipient of
the information may not be under an obligation of confidence
in respect of that information. 33 Whether or
not the recipient will be under an obligation of confidence
will depend on the wording of the statute, which may in
some cases state that the information is to be kept confidential. 34

Types of Information that may be 'Inherently Confidential'

There are four broad categories of information that the
courts have been prepared to protect as confidential information
so long as the additional element, communication of the
information to the recipient in the appropriate circumstances,
is also present. These are:

  • business or commercial information
  • personal information
  • government secrets
  • artistic or literary information.

The first three of these are the most relevant for agencies.

Business and Commercial Information

Some, but certainly not all, of the information that an
agency will be provided with in the course of their activities
will be business or commercial information.

There appears to be a widely held belief in agencies that
all business or commercial information is confidential
information. This is not correct. For business or commercial
information to be confidential information, it must meet
the criteria for the existence of confidential information
discussed above. Such information, of itself, is not regarded
by the courts as 'inherently confidential' information. 35 However,
one category of business or commercial information that
is consistently treated by the courts as 'inherently confidential'
is 'trade secrets'.

The Federal Court has held that a trade secret has three
characteristics:

  • it must be information used in, or useable in, a trade;
  • 'the owner must limit the dissemination of it or at
    least not encourage or permit widespread publication';
    and
  • it is 'information which if disclosed to a competitor,
    would be liable to cause real (or significant) harm to
    the owner of the secret'. 36

Trade secrets cover a range of information, some of which
relates to the production of goods and services and includes,
for example, inventions (eg a tool), manufacturing processes,
chemical formulae, engineering and design drawings, craft
secrets and recipes (eg Worcestershire sauce, Coca-Cola).

Another important class of 'inherently confidential' business
or commercial information is information which a business
entity generates about its own activities. This kind of
information can include profit margins, costs of production
and pricing data; sales statistics; customer and supplier
lists; sources of supply; market projections; details of
promotional strategies and expansion plans; information
about customer requirements; details of a business entity's
current negotiations; and negotiated prices paid by customers.

In relation to pricing information in the Commonwealth
environment, whilst the total price paid under a government
contract is not 'inherently confidential' (because of gazettal
requirements), 37 the details of the rates or
pricing structures might be 'inherently confidential'.

There may be legitimate grounds for an agency to accept
an obligation of confidentiality in relation to the rates
being charged by the supplier. It will be a question of
the facts and circumstances in each case whether the particular
information is 'inherently confidential'.

Personal Confidences

Personal information can come within the ambit of confidential
information if it meets the requirements listed above.
Types of personal information which could be regarded as
'inherently confidential' are information relating to sexual
conduct, personal finances, religion, political beliefs,
and tax affairs.

As in the case of business or commercial information,
the confidentiality that may be attached to personal information
ceases when that information enters the public domain. 38

Government Information

The tests described above are also applicable to ascertaining
whether any information about government which has been
generated by government (ie Government Information) is
inherently confidential, and whether an obligation of confidence
has arisen where that information is held by a third party.

However, whether it will be possible for the government
to show that a third party is under an obligation of confidence
in respect of particular Government Information depends
on different considerations to those which apply to the
case of an individual or business. For an obligation to
exist, it must be shown not only that the information is
'inherently confidential', but also that it is in the public
interest that such information remain 'inaccessible' or
'secret'. 39

Therefore it is important for an agency to give consideration
to public interest issues when they are considering whether
to seek to impose an obligation to protect Government Information
under a contractual provision, or otherwise. 40

Duration of Obligation

Obligations of confidence may come to an end in a number
of ways, including:

  • the parties could pre-agree a defined period during
    which the obligation of confidence is to be in operation,
    and this period expires;
  • the information comes into the public domain;
  • the information provided in confidence loses its 'inherently
    confidential' nature over time.

The confider of the 'inherently confidential' information
is usually in the best position to propose a period during
which the obligation of confidence is to be in force. This
should be a realistic period taking all the relevant circumstances
into account. Even if a long period is agreed, the obligation
will not subsist if, say, the information comes into the
public domain, or the information loses its 'inherently
confidential' character over time.

Detriment

Detriment to the confider of information or other persons
is not required to create an obligation of confidence in
relation to particular information. Detriment is only relevant,
if at all, when there is a breach of an obligation of confidence.

However, in considering whether the Commonwealth should
agree that information should be treated as confidential
information, for example, under a contract, it would be
relevant to consider whether disclosure of the information
would in fact cause detriment of some kind to the confider
or another party. Where no detriment has been, or will
be, suffered, equity may refuse to enforce the obligation.

But in considering possible detriment, it is important
for an agency to keep in mind where the Commonwealth is
wishing to impose an obligation of confidence in respect
of Government Information, that publication of confidential
Government Information will be restrained only if it will
injure the 'public interest' if the information is disclosed.

Public Interest Issues

As discussed above, 'public interest' issues should be
considered by officers in advance of making any decision
on what information to protect, or agree to protect, as
confidential information. The analysis is different depending
on whether the agency is dealing with Third Party Information 41 or
Government Information.

Third Party Information

Some cases indicate that in certain circumstances there
may be 'public interest' grounds for denying protection
to Third Party Information that might otherwise be confidential
information.

On the basis of these cases, some commentators have argued
that there is a 'defence of public interest' to an action
for breach of confidence. 42 Whilst such a 'defence'
is not widely accepted in Australian courts, what is widely
accepted is the 'iniquity' or 'clean hands' exception applied
by the courts of equity, that is, the courts of equity
will not protect information about illegal activity, breach
of the law (including fraud) or serious misbehaviour. 43 This
defence is only likely to be successful in a narrow range
of circumstances. In Commonwealth of Australia v John
Fairfax & Sons Ltd 44 Mason J stated:

'the defence [of public interest] applies to disclosures
of things done in breach of national security, in breach
of the law (including fraud) and to disclosure of matters
which involve danger to the public.' 45

The disclosure must actually be in the 'public interest',
that is, the information must have been disclosed because
some serious harm to the public may occur if the confidentiality
is maintained, rather than simply being of interest to
the public.

The law in this area is not settled. However, an agency
should not agree to a request from a person to protect
as confidential information Third Party Information that
reveals illegal activity, a breach of the law (including
fraud), serious misbehaviour or matters which involve danger
to the public.

Government Information

In respect of Government Information, the law aims to
balance the requirements for official secrecy with the
public's right to know. What this means in practice is
that the courts will not grant protection for Government
Information unless the disclosure of that information will
injure the public interest.

According to Mason J in the Fairfax case:

'The equitable principle [of confidentiality] has been
fashioned to protect the personal, private and proprietary
interests of the citizen, not to protect the very different
interests of the executive government. [Government] acts,
or is supposed to act, not according to standards of
private interest, but in the public interest. This is
not to say that equity will not protect information in
the hands of the government, but it is to say that when
equity protects government information it will look at
the matter through different spectacles.

. . .

It is unacceptable, in our democratic society, that
there should be a restraint on the publication of information
relating to government when the only vice of that information
is that it enables the public to discuss, review and
criticize government action.

Accordingly, the court will determine the government's
claim to confidentiality by reference to the public interest.
Unless disclosure is likely to injure the public interest,
it will not be protected.

The court will not prevent the publication of information
which merely throws light on the past workings of government,
even if it be not public property, so long as it does
not prejudice the community in other respects. Then disclosure
will itself serve the public interest in keeping the
community informed and in promoting discussion of public
affairs. If, however, it appears that disclosure will
be inimical to the public interest because national security,
relations with foreign countries or the ordinary business
of government will be prejudiced, disclosure will be
restrained.' 46

The courts have not been specific about the extent of
the expression 'the ordinary business of government will
be prejudiced…'. The expression is likely to include
at least some cabinet material, high level policy proposals
not already in the public domain the disclosure of which
could prejudice Commonwealth/State relationships, 47 and
material the disclosure of which would prejudice law enforcement.

Another possible ground of prejudice to the ordinary business
of government could be that disclosure of the terms of
a contract especially unfavourable to the government (particularly,
say, indemnity provision or limitation of liability provisions)
could prejudice the Commonwealth in relation to its ability
to negotiate satisfactory contracts in future. By analogy,
see paragraph 4.5, Note 2 of the Legal Services Directions relating
to the Commonwealth entering into settlements of claims
on a confidential basis. Note 2 provides as follows:

'Examples of when it could be in the Commonwealth's
interests to agree to a confidential settlement include:

(a) a person against whom the Commonwealth has made
a claim makes an attractive offer of settlement, but
only on condition that the terms not be disclosed,
and

(b) the Commonwealth seeks to settle a claim against
it on condition that the terms of settlement not be
disclosed, with a view to avoiding prejudice in responding
to other similar claims against it.' 48

It is not possible to identify precisely and exhaustively
all the kinds of information which might come within this
category.

IMPACT OF VARIOUS COMMONWEALTH LEGISLATIVE PROVISIONS

When making an assessment in the Commonwealth environment
about what information to protect as confidential information,
it is essential that an agency also takes into account
the legislative regime under which they operate. This will
include legislation that applies generally to Commonwealth
agencies, as well as legislation that applies to only specific
agencies. It may be that a specific legislative provision
provides sufficient protection for certain information
without the need to enter into a confidentiality obligation.

Statutory Secrecy Provisions

Broad protection against disclosure of official information
is provided for in the Crimes Act 1914, the Privacy
Act 1988, the Archives Act 1983 and the Public
Service Act 1999. In addition, there are about 150
pieces of Commonwealth legislation (and growing) containing
provisions affecting the use of particular categories of
information. 49

Generally, these Acts are limited to creating offences
for disclosures that have already occurred. The reason
why it has been thought relevant to mention these statutory
secrecy provisions in this Briefing is that an agency should
be aware, when they are considering either whether to agree
with a third party that certain Third Party Information
should be protected as confidential information, or whether
to impose an obligation of confidence on the third party
in respect of Government Information, what if any statutory
secrecy provisions apply to the agency and/or its officers,
in relation to the information that they are considering.

However, it should be noted that a contract confidentiality
clause cannot avoid or reduce the obligations imposed under
statutory secrecy provisions. Nor will compliance with
a confidential information clause necessarily ensure compliance
with a statutory secrecy provision.

Freedom of Information Act 1982

The general principle underlying the Freedom of Information
Act 1982 (FOI Act) is that official information should
be made available to the general public except where
the disclosure would be detrimental to the protection
of essential public interests or the private and business
affairs of persons and organisations about whom the information
was collected.

Where the FOI Act applies, it confers on 'every person'
a legally enforceable right to obtain access to a document
of an agency or of a minister. 50 This right
is, however, subject to various exemptions. As a general
principle, it would not seem to be appropriate to protect
as confidential information, information for which an exemption
under the FOI Act could be not claimed.

Without being exhaustive, exemptions under the FOI Act
include:

  • information disclosing trade secrets or other sensitive
    business, commercial or financial information (s.43); 51
  • information the subject of an obligation of confidence
    in favour of a person other than the Commonwealth (s.45); 52 and
  • unreasonable disclosures of personal information (s.41).

However, section 14 of the FOI Act expressly permits disclosure
of exempt information. Thus, the fact that the information
could be exempt from disclosure under the FOI Act does
not necessarily justify protecting it as confidential information
under a contract or otherwise.

Having regard to the above, it would be prudent for an
agency to familiarise themselves with the grounds for exemption
under the FOI Act, or seek advice on these issues as necessary,
when they are making a decision about what information
to protect as confidential information.

Privacy Act 1988

As discussed above, personal information as defined in
the Privacy Act 1988 is capable of protection as
confidential information if it meets the requirements for
the existence of confidential information under the equitable
principles.

Whether an agency wishes to, or agrees to, protect personal
information as confidential information will depend on
the circumstances. If this is considered appropriate, an
agency will need to go through the analysis described above.

EXCEPTIONS TO CONFIDENTIALITY

As well as considering what information should be identified,
including under a contract, as confidential information,
it is important for an agency to consider what qualifications
should apply to the obligation to maintain the confidentiality
of information (that is, to not use or disclose the information
unless authorised by the confider). In particular the agency
should ensure that it is able to operate efficiently and
to discharge its accountability obligations.

These exceptions can be tailored to suit the particular
circumstances of the agency, but exceptions that should
generally be insisted on by an agency are the ability to
disclose the confidential information to the responsible
minister, or to the Parliament (or a committee of the Parliament).
It is also useful to include 'standard' exceptions, for
example, that the information is required by law to be
disclosed (eg under a subpoena).

PROTECTING CONFIDENTIAL INFORMATION

The Commonwealth Protective Security Manual (PSM)
is guidance that is resorted to most frequently when agencies
are making assessments and decisions about how to treat
information in their possession. However, the guidance
provided in the PSM is not directed to assisting an agency
to make a decision about whether information is legally
confidential information. It is directed at protecting
the resources in the agency, including the information
held by an agency. Making a decision pursuant to the PSM
decides what procedural and physical security is to be
given to information.

If an obligation of confidence is owed by the agency in
respect of certain information, the agency would then be
obliged to follow the guidance in the PSM to decide, how,
physically, to secure that information. The PSM assumes
that a decision on whether information is confidential
information has been made before the information
is classified under the PSM. Paragraph 6.39, for example,
provides that information might be classified as X-IN-CONFIDENCE
if its compromise could 'breach … undertakings to
maintain the confidentiality of information provided by
third parties'. However, that information might also be
classified as PROTECTED or HIGHLY PROTECTED, depending
on the level of damage that may result if the information
is compromised.

There is potential for confusion arising out of some of
the terminology that is used in the PSM. For example the
use of the term 'CONFIDENTIAL' as a National Security protective
marking may cause confusion with the use of the term 'confidential'
in a legal sense in those agencies which deal with National
Security Information.

In relation to Non-National Security Information, there
is often confusion surrounding the use of the protective
marking COMMERCIAL-IN-CONFIDENCE. The term is often used
interchangeably with the term 'confidential information'.

Neither the protective marking 'CONFIDENTIAL' or the protective
marking 'COMMERCIAL-IN-CONFIDENCE' have the same meaning
as the legal concept of confidential information. The PSM
reminds readers that the security classification system
and the protective markings set out in Part C 'carry no
direct implications in law'.

NOTES

1 Disclosure of information by an agency, whether it is
confidential information or otherwise, raises complex legal
issues and this needs to be examined on a case by case
basis.

2 For information about this see: Government Guidelines
for Official Witnesses before Parliamentary Committees
and Related Matters - November 1989, available through http://www.pmc.gov.au/publications.cfm.

3 ANAO The Use of Confidentiality Provisions in Commonwealth
Contracts (Audit Report No 38, 2000-01), 24 May 2001

4 Ibid at 15

5 Ibid at 67

6 Ibid at 54

7 Ibid at 73

8 Commonwealth Protective Security Manual (Attorney-General's
Department, 2000), Part C: Paragraph 1.3

9 Finn, P (1991) Official Information, Integrity
in Government Project: Report No. 1, ANU at 19.

10 See discussion at pp 6-8 of this Briefing.

11 Gurry, F 'Breach of Confidence', in P D Finn, Essays
in Equity (Law Book Company, 1985) p 111.

12 Titan Group Pty Ltd v Steriline Manufacturing Pty
Ltd (1990) 19 IPR 353, at 379 per O'Loughlin J.

13 See p 7 of this Briefing for a discussion on detriment.
Detriment may be required to establish an actionable breach
of confidence.

14 Gurry, F Breach of Confidence (Oxford: OUP,
1984), p 83

15 Terrapin Ltd v Builders Supply Co (Hayes) Ltd [1967]
RPC 375

16 Corrs Pavey Whiting & Byrne v Collector of Customs
(Vic) (1987) 14 FCR 434 per Gummow J at 443

17 Amway Corporation v Eurway International Ltd [1974]
RPC 82 (Ch)

18 Ibid, pp 86-87

19 Saltman Engineering Co Ltd v Campbell Engineering
Co Ltd (1948) 65 RPC 203 per Lord Greene MR at 215

20 Ibid at 415

21 O'Brien v Komesaroff (1982) 150 CLR 310 at 326

22 Wiggington v Brisbane TV Ltd (1992) 25 IPR 58

23 G v Day (1982) 1 NSWLR 24

24 Seager v Copydex Ltd [No 1] [1967] 1 WLR 923

25 Castrol Australia Pty Ltd v EmTech Associates Pty
Ltd (1981) 33 ALR 31

26 DPP v Kane (Supreme Court of NSW, 29 May 1997,
unreported)

27 Moorgate Tobacco Co Ltd v Philip Morris Ltd (No
2) (1984) 156 CLR 414

28 Coco v A N Clark (Engineers) Ltd (1969) RPC
41 at 48

29 Gurry, op. cit. p 83

30 Re Hassell and Department of Health of Western Australia (WA
Information Commissioner, decision number DO2594, 13 December
1994)

31 Moorgate Tobacco Co Ltd v Philip Morris Ltd (No
2) (1984) 156 CLR 414 at 438 per Deane J

32 Smith Kline and French Laboratories (Australia)
Ltd v Secretary, Department of Community Services and
Health (1991) 99 ALR 679 at 691

33 Corrs Pavey Whiting & Byrne v Collector of Customs
(Vic) (1987) 14 FCR 434; 74 ALR 428, Gummow J; Searle
Australia Pty Ltd v Public Interest Advocacy Centre and
Department of Community Services and Health (1992)
108 ALR 163; Re Drabsch and the Collector of Customs (unreported
AAT decision, 5 November 1990)

34 John v Australian Securities Commission (1993)
116 ALR 567

35 O'Brien v Komesaroff (1982) 150 CLR 310 at 327-328

36 Searle Australia Pty Ltd v Public Interest Advocacy
Centre and Department of Community Health and Services (1992)
36 FCR 111 at 120; 108 ALR 163 at 173

37 Commonwealth Procurement Guidelines, February
2002, section 1.2

38 Duchess of Argyll v Duke of Argyll [1967] I
Ch 302

39 Commonwealth of Australia v John Fairfax & Sons
Ltd (1980) 147 CLR 39 per Mason J

40 See below for a discussion on 'public interest' issues.

41 The analysis is similar for Government Proprietary
Information.

42 Gartside v Outram (1856) 26 LJ Ch (NS) 113

43 Corrs Pavey Whiting & Byrne v Collector of Customs
(Vic) (1987) 14 FCR 434; 74 ALR 428 Gummow J; Smith
Kline and French v Department of Community Services and
Health (1990) 17 IPR 545 at 583

44 (1980) 147 CLR 39

45 Ibid at 57

46 Ibid at pp 51-52

47 Corr & Department of Prime Minister and Cabinet (1994)
35 ALD 141 at 148

48 Legal Services Directions issued by the Attorney-General
pursuant to section 55ZF of the Judiciary Act 1903, with
effect from 1 September 1999 (http://law.gov.au/aghome/legalpol/olsc/policies.html#Legal).

49 'In Confidence', A report of the inquiry into the protection
of confidential personal and commercial information held
by the Commonwealth, House of Representatives Standing
Committee on Legal and Constitutional Affairs, June 1995.

50 Freedom of Information Act 1982 (Cth), s 11(1)

51 A decision on whether an exemption could be claimed
under section 43 is based on an analysis of the wording
of section 43, rather than on the confidential information
criteria that are spelt out in this Briefing.

52 The information in this Briefing dealing with whether
Third Party Information is confidential information would
assist in such an analysis.

For general information please contact Anne Caine of our
Canberra office
on telephone (02) 6253 7145, e-mail anne.caine@ags.gov.au or
any of the following lawyers:

Canberra

Anne Caine

(02) 6253 7145

Madeline
Campbell

(02) 6253 7408

Sydney

Jim Heard

(02) 9581 7477

Melbourne

Libby Haigh

(03) 9242 1499

Brisbane

Maurice
Swan

(07) 3360 5702

Perth

Peter
Macliver

(08) 9268 1100

Adelaide

Sarah Court

(08) 8205 4231

Darwin

Jude Lee

(08) 8943 1405

Hobart

Peter Bowen

(03) 6220 5474

ISSN 1448-4803 (Print)
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For enquiries regarding supply of issues of the Briefing,
change of address details etc, tel: (02) 6253 7052 or fax:
(02) 6253 7313 or e-mail: ags@ags.gov.au.

The material in this briefing is provided
for general information only and should not be relied
upon for the purpose of a particular matter. Please contact
AGS before any action or decision is taken on the basis
of any of the material in this briefing.

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