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Tribunal: Senior Member Theodore Tavoularis

The applicant, Ms Butler, was concerned about the safety of ionisation smoke alarms. The Commonwealth Scientific and Industrial Research Organisation (CSIRO) tests these smoke alarms to the Australian standards and produces reports that include a range of information. Ms Butler submitted a Freedom of Information (FOI) request to the CSIRO for the release of certain documents related to their testing of ionisation smoke alarms. The CSIRO refused this request.

Ms Butler requested a review of this decision by the Office of the Australian Information Commissioner (OIAC) who also refused the request. Their reason for refusal was that the CSIRO were exempt from providing the documents by section 7 of the FOI Act.

Ms Butler applied to the AAT for a review of this decision. She produced a large amount of evidence explaining why she wanted the information released and claimed it would be in the public interest. The AAT explained that it was bound to make its decision in accordance with the FOI Act.

The AAT agreed with the OIAC’s decision to refuse the release of the documents.

Section 7 of the FOI Act exempts the CSIRO from releasing documents related to its commercial activities.[1] The AAT had to determine if the testing of the ionisation smoke alarms at issue was a commercial activity according to the FOI Act.

The evidence was that a customer requested the CSIRO to test the smoke alarms to the Australian standard,[2] and produce a report on its results for a fee. The AAT stated that it was abundantly clear that the CSIRO was undertaking a commercial transaction.

For this commercial transaction to be considered a commercial activity under the FOI Act, CSIRO must have been doing the testing either in competition with other organisations,[3] or if  it could be reasonably expected that in the future the CSIRO would engage in this specific testing in competition with others.[4]

The AAT found that even though other firms testing smoke alarms were not doing the specific testing at issue in this review, it was reasonable to expect that the firms would try to prevent this competitive advantage by starting to do the testing themselves in the foreseeable future.

The AAT affirmed the decision that the documents Ms Butler requested were exempt by the Act because they were related to a commercial activity undertaken by CSIRO.

Read the full written decision on AustLII.   

[1] See an explanation of section 7 at paragraph 14 of the written reasons for the decision.

[2] The testing at issue was to the Australian Standard AS2362-17.

[3] Section 7(3)(a) of the Freedom of Information Act 1982 (Cth).

[4] Section 7(3)(b) of the Freedom of Information Act 1982 (Cth).