FOI Guide No. 5 Issued: October 2001
Commercial information
This is a plain English guide to the application of the exemption in clause 4(2) of the
FOI Act. An agency can refuse access to exempt matter or an exempt document. The
word “matter” refers to a piece of information. It can be a whole page or part of a page,
or a single word or figure on a page. Parts of a page can be exempt when other parts
are not. Exemptions are not mandatory; agencies have discretion to disclose
documents that may be technically exempt where that may properly be done.
Purpose
“person”
A NOTE
OF
CAUTION
Criteria
Clause 4(2) forms one part of the three-part exemption in
clause 4. The purpose of the exemption in clause 4 is to
prevent unwarranted commercial disadvantage to a
business or a person from whom the government obtains
information.
The business or the person concerned is called a third
party.
The person can be a single person, such as a sole
operator of a business, or it can be a public body, a
company, an incorporated or an unincorporated business
or association.
The definition of “person” in the Interpretation Act 1984
applies.
Clause 4 describes 3 distinct categories of
information and there is no over-lap between them.
This means that the same matter cannot be exempt
under more than one of the subclauses in clause 4.
Clause 4 applies to information supplied by third
parties. If an agency wishes to claim exemption for
its own commercial information, then it must use
clause 10.
The exemption in clause 4(2) applies to commercially
valuable information. It does not apply to information of
the kind described in subclauses 4(1) and 4(3).
Two criteria must be satisfied:
!the information must have a commercial value to a
person
AND
!some loss or diminution of that commercial value could
reasonably be expected to follow from its disclosure.
Issued by the Office of the Information Commissioner (WA) Tel: 9220 7888 Fax: 9325 2152 Email: info@foi.wa.gov.au 1
