What is commercially sensitive information?
2.1. The ACNC Act does not define ‘commercially sensitive information’.
2.2. The ACNC generally understands commercially sensitive information to be any information of a confidential nature which has commercial value that would be reduced if the information was disclosed. This definition largely reflects the exemption set out in section 47(1) of the Freedom of Information Act 1982 (Cth) and the current understanding as shown in the case law. The ACNC will continue to draw on existing and future decisions of courts and tribunals to assist in its interpretation.
2.3. Whilst the commercial sensitivity of a charity’s information will be assessed by the ACNC on a case-by-case basis, the following are examples of information that courts or tribunals have found to be commercially sensitive:
a) trade secrets:3
i. designs for machinery;4
ii. designs for clothing;5
iii. designs for tools;6
iv. the results of experiments;7
v. ideas for entertainment, such as TV shows or exhibitions, which have been developed to the stage that they could be realised;8
b) personal information under the Privacy Act 1988 (Cth) and related legislation;
c) documents regarding proposed projects;9
d) records of assets;10
e) information that may be used by competitors;11
f) conditionally exempt documents under the Freedom of Information Act 1982 (Cth), including where disclosure could reasonably be expected to:
i. prejudice the protection of an individual’s right to privacy;12
ii. unreasonably affect a person in respect of their lawful business or professional affairs;13 and
iii. unreasonably affect an organisation in respect of its lawful business, commercial or financial affairs.14
3 Robb v Green  2 QB 1.
4 Ansell Rubber Co v Allied Rubber Industries  VR 37.
5 Peter Pan Manufacturing Corp v Corsets Silhouette Ltd  3 All ER 402.
6 Seager v Copydex  2 All ER 415.
7 Smith Kline & French Laboratories v Secretary, Department of Community Services & Health  HCA 13
8 Fraser v Thames Television Ltd  QB 44; Darvall McCutcheon (a firm) v HK Frost Holdings P/L (in liq)  4 VR 570; Talbot v General Television Corp Pty Ltd  VR 224.
9 AGL Wholesale Gas Ltd and Anor v Origin Energy Ltd and Ors  QSC 201.
10 Robertson, in the matter of Miss Chu Pty Ltd (Administrators Appointed)  FCA 31.
11 Mobil Oil Australia Ltd v Guina Developments Pty Ltd  2 VR 34.
What factors does the ACNC consider when assessing whether information is commercially sensitive?
2.4. In determining whether information is commercially sensitive, the ACNC will give consideration to the particular circumstances of the information, and the charity to which the information relates.
2.5. In undertaking this assessment, the ACNC acknowledges that the operations of charities across the country are diverse, and that no firm rule should be applied to the determination of what may be commercially sensitive information in the context of a charity’s operations.
2.6. In assessing the commercial sensitivity of information, the ACNC will consider a number of factors, including:15
a) whether the information is used in the charity’s trade or business, i.e. in relation to the activities that the charity undertakes;
b) the extent to which the information is known outside the charity;
c) the extent to which the information is known by the charity’s employees, members, volunteers and/or contractors;
d) the measures taken by the charity to guard the secrecy of the information;
e) the value of the information to the charity and its competitors, including whether the value can be measured or quantified;16
f) the effort and money spent by the charity in developing the information;
g) whether the information remains current, or whether it is out of date;17 and
h) the ease or difficulty with which others might acquire or duplicate the information.18
12 Section 47F, FOI Act.
13 Section 47G(1)(a), FOI Act.
14 Section 47G(1)(a), FOI Act.
15 Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd  VR 37.
16 See also Cannon and Australian Quality Egg Farms (1994) 1QAR 491; Hassell and Department of Health of Western Australia  WAICmr 25.
17 See also Angel and the Department of the Arts, Heritage and the Environment  AATA 314.
18 See also Organon (Aust) Pty Ltd and Department of Community Services and Health  AATA 396.
Is information already in the public domain commercially sensitive?
2.7. Where the information, which is the subject of a charity’s application for withholding or removal from the Register, is already in the public domain, the ACNC will generally not hold that the information is commercially sensitive.
2.8. Federal and state regulators often require the lodgement of financial reports by charities, in addition to the charity’s reporting requirements to the ACNC. Such reports may be available to the public upon payment of a fee. Where a fee is payable to access the document, the ACNC still views this information as being in the public domain.
Examples of charities’ information that may be considered commercially sensitive
2.9. Information on the ACNC Register is generally unlikely to be commercially sensitive. However, there may be instances where certain information contained in a charity’s financial report, or detailed explanation of a charity’s activities in its Annual Information Statement, may be considered commercially sensitive.
2.10. Based on the above, the following are examples of charities’ information (if included in financial reports or Annual Information Statements) that may be commercially sensitive where provided in sufficient detail:
a) capital expenditures and operating expenditures;
b) contractor / supplier information;
c) donor information;
d) employee information;
e) financial arrangements;
f) going concern / solvency issues;
g) manufacturing processes;
h) operational information, including in relation to product pricing;
i) pending or settled litigation;
j) pending contracts;
k) pending mergers and acquisitions;
l) personal information regarding users of the charity’s services;
m) proposed new activities / business dealings;
n) sales and marketing plans; and
o) trade secrets / patents and other intellectual property.