When Your Secrets Aren’t so Secret

Recent work on a trade mark registration application has prompted us to warn businesses that their business secrets, when submitted to government bodies, are at risk of being revealed to competitors.

A legally enforceable right of any person to obtain access to documents of a government agency or department under the Freedom of Information Act 1982 (Cth) (“the Act”) and the relevant state or territory acts is an ongoing concern for many businesses who wish to keep their commercial or business information submitted to those agencies or departments confidential.

Unless your documents is an ‘exempt’ document for the purpose of the Act and a decision-maker (an agency or department to which a request for access is made) has assessed it to be such, access to your document will be given to a party seeking such access under the Act.

A person or an organisation whose documents are sought might be given an opportunity to make submissions and provide supporting material as to why access to its documents should be denied.  The mere assertion that release of a document would be an unreasonable disclosure, or would have an adverse effect on your business would be insufficient to sustain exemption of the document. The assertion needs to be supported by sufficient facts and reasoning, and if possible, relevant documentation.

In many cases, it is not easy to satisfy strict criteria set by the Act for information to be “exempt” from disclosure.  With careful consideration and certain measures taken before the information is submitted to government, businesses may be able to protect their sensitive business information from disclosure to third parties.