Reasons for Decision

Reasons for Decision

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Decisions 2016 - 2018

Timothy Kirkwood and Tasmanian Planning Commission (February 2017) 

Mr Kirkwood (Manager of Southern Midlands Council) requested information provided by a third party to the Commission outside of its usual hearing/determination process. The Ombudsman was satisfied that any such information held in respect of the third party related to the Commission’s ‘official business’ and hence was subject to the Right to Information Act 2009. However, all such information was exempt under s36 and it was contrary to the public interest to disclose this.

The decision also explored the interplay between information  ‘otherwise available’ under s12(3)(c) of the Right to Information Act 2009 and information (written evidence and submission documents) subject to an obligation to be made public under s12 of the Tasmanian Planning Commission Act 1997.

Timothy Kirkwood and Tasmanian Planning Commission (PDF, 722.1 KB)

Patrick Billings and Department of Health and Human Services (December 2016) 

Mr Billings (a journalist on ‘The Mercury’ newspaper) requested CCTV footage of an event at Ashley Youth Detention Centre in July 2016.  The Ombudsman determined that the footage should not be released, as various exemption grounds under s30(1) of the Right to Information Act 2009 were satisfied.  Under the Act, s30 exemptions are not subject to the public interest test at s33.

Patrick Billings and Department of Health and Human Services (PDF, 448.4 KB)

Environment Tasmania and Environment Protection Agency (June 2017)

Environment Tasmania requested information about Huon Aquaculture’s Lonnavale Hatchery and its effect on the Russell River. Some information was released but the EPA considered that all other information was exempt under s39(1)  of the Right to Information Act 2009 (Information obtained in confidence) in the first instance because it had been voluntarily provided by Huon.  On review the Ombudsman determined that none of the remaining information was exempt under s39(1) as disclosure of the information would not be reasonably likely to impair the ability of a public authority or Minister to obtain similar information in the future: s39(1)(b). However,  much of the information was found to be exempt under s37(1) (Information relating to business affairs of third party) and, whilst it was contrary to the public interest to release raw monitoring data,  the Ombudsman determined that it was not contrary to release all other information.

Environment Tasmania and Environment Protection Agency (PDF, 1.6 MB)

Michael Atkin and Department of Primary Industries, Parks, Water, and the Environment (March 2017) 

Mr Atkin (a journalist with the ABC’s 7.30 Report) requested information concerning a third party’s mussel enterprise, including personal information. The Ombudsman determined that the remaining undisclosed information was exempt in accordance with s27, s35 and s36 of the Right to Information Act 2009.   On considering the public interest, the Ombudsman found that the s35 information should remain exempt, whist in the unusual circumstances of this case, it was not contrary to the public interest to disclose the personal information in question.

Michael Atkin and Department of Primary Industries, Parks, Water, and the Environment (PDF, 500.8 KB)

Richard Baines and Department of Health and Human Services (June 2017) 

The applicant sought information about a for-profit residential care provider, including payments made to it by the Department. On review the Ombudsman affirmed that much of the information was exempt under s27, s35, s36 and s39 of the Right to Information Act 2009 and that it was contrary to the public interest to disclose this information. Despite the claims of the Department, no information was found to be exempt under s37. However, some information was to be disclosed, including payments made by the Department to the provider, subject to redaction of identifying personal information, as well as factual information contained in information which might otherwise be exempt under s27(1) or s35(1) of the Act.  The Department submitted that certain information could not be disclosed by virtue of either s16, s103 or s111A of the Children, Young Persons and their Families Act 1997 Act but the Ombudsman was not generally satisfied of this, considering that the Department was taking too broad a view of the purpose of that Act, although some information was found to be subject to s111A and was not to be disclosed.

Richard Baines and Department of Health and Human Services (PDF, 1.8 MB)

Bryan Green and Department of Treasury and Finance (July 2017) 

The applicant sought information about briefings the Department had prepared in relation to GST distribution as a result of the Australian Government budget.   On review the Ombudsman affirmed that much of the information was exempt under s27, s35, and s36 of the Right to Information Act 2009 and that it was contrary to the public interest to disclose this information.  Despite the claims of the Department, names of staff who had prepared and cleared the briefings were not maintained as exempt.

Bryan Green and Department of Treasury and Finance (PDF, 700.3 KB)

Patrick Billings and Department of Health and Human Services (December 2016) 

Mr Billings (a journalist on ‘The Mercury’ newspaper) requested CCTV footage of an event at Ashley Youth Detention Centre in July 2016.  The Ombudsman determined that the footage should not be released, as various exemption grounds under s30(1) of the Right to Information Act 2009 were satisfied.  Under the Act, s30 exemptions are not subject to the public interest test at s33.

Patrick Billings and Department of Health and Human Services (PDF, 448.4 KB)

The Mercury and City of Hobart

The information at issue was whether information contained in a memorandum of Council constituted legal professional privilege under s31.  This was in response to Council seeking legal advice relating to the Facebook parody page, "Hobart City Council".

The Mercury and City of Hobart (PDF, 124.7 KB)

Patrick Billings and Department of Health and Human Services (January 2017) 

On review, Mr Billings (a journalist on ‘The Mercury’ newspaper) requested the full Operational Review in relation to Ambulance Tasmania’s State Communications Centre power failure and shutdown in July 2015.   The Ombudsman determined that parts of the Operational Review were subject to exemption under s35 of the Right to Information Act 2009 - internal deliberative document - and that it was contrary to the public interest to disclose this information.

Patrick Billings and Department of Health and Human Services (PDF, 425.1 KB)

Michael Atkin and Department of Primary Industries, Parks, Water, and the Environment (March 2017) 

Mr Atkin (a journalist with the ABC’s 7.30 Report) requested information concerning a third party’s mussel enterprise, including personal information. The Ombudsman determined that the remaining undisclosed information was exempt in accordance with s27, s35 and s36 of the Right to Information Act 2009.   On considering the public interest, the Ombudsman found that the s35 information should remain exempt, whist in the unusual circumstances of this case, it was not contrary to the public interest to disclose the personal information in question.

Michael Atkin and Department of Primary Industries, Parks, Water, and the Environment (PDF, 500.8 KB)

Richard Baines and Department of Health and Human Services (June 2017) 

The applicant sought information about a for-profit residential care provider, including payments made to it by the Department. On review the Ombudsman affirmed that much of the information was exempt under s27, s35, s36 and s39 of the Right to Information Act 2009 and that it was contrary to the public interest to disclose this information. Despite the claims of the Department, no information was found to be exempt under s37. However, some information was to be disclosed, including payments made by the Department to the provider, subject to redaction of identifying personal information, as well as factual information contained in information which might otherwise be exempt under s27(1) or s35(1) of the Act.  The Department submitted that certain information could not be disclosed by virtue of either s16, s103 or s111A of the Children, Young Persons and their Families Act 1997 Act but the Ombudsman was not generally satisfied of this, considering that the Department was taking too broad a view of the purpose of that Act, although some information was found to be subject to s111A and was not to be disclosed.

Richard Baines and Department of Health and Human Services (PDF, 1.8 MB)

Bryan Green and Department of Treasury and Finance (July 2017) 

The applicant sought information about briefings the Department had prepared in relation to GST distribution as a result of the Australian Government budget.   On review the Ombudsman affirmed that much of the information was exempt under s27, s35, and s36 of the Right to Information Act 2009 and that it was contrary to the public interest to disclose this information.  Despite the claims of the Department, names of staff who had prepared and cleared the briefings were not maintained as exempt.

Bryan Green and Department of Treasury and Finance (PDF, 700.3 KB)

Tim Baird and City of Launceston (November 2017)

Mr Baird requested information relating to the City of Launceston's plan to upgrade the Sea Port Boardwalk.  Specifically, Mr Baird sought information leading to the appointment of Darcon Pty Ltd as the successful tenderer.

This decision considered the points of 'competitive disadvantage' under s37 and the balance between public interest and deliberative information.

Tim Baird and City of Launceston (PDF, 689.3 KB)

Timothy Kirkwood and Tasmanian Planning Commission (February 2017) 

Mr Kirkwood (Manager of Southern Midlands Council) requested information provided by a third party to the Commission outside of its usual hearing/determination process. The Ombudsman was satisfied that any such information held in respect of the third party related to the Commission’s ‘official business’ and hence was subject to the Right to Information Act 2009. However, all such information was exempt under s36 and it was contrary to the public interest to disclose this.

The decision also explored the interplay between information  ‘otherwise available’ under s12(3)(c) of the Right to Information Act 2009 and information (written evidence and submission documents) subject to an obligation to be made public under s12 of the Tasmanian Planning Commission Act 1997.

Timothy Kirkwood and Tasmanian Planning Commission (PDF, 722.1 KB)

Michael Atkin and Department of Primary Industries, Parks, Water, and the Environment (March 2017) 

Mr Atkin (a journalist with the ABC’s 7.30 Report) requested information concerning a third party’s mussel enterprise, including personal information. The Ombudsman determined that the remaining undisclosed information was exempt in accordance with s27, s35 and s36 of the Right to Information Act 2009.   On considering the public interest, the Ombudsman found that the s35 information should remain exempt, whist in the unusual circumstances of this case, it was not contrary to the public interest to disclose the personal information in question.

Michael Atkin and Department of Primary Industries, Parks, Water, and the Environment (PDF, 500.8 KB)

A and Tasmania Police (March 2017) 

The information at issue was whether the will of the applicant’s late parent should be disclosed to them. This decision discusses the requirements of s36 (personal information of a person) of the Right to Information Act 2009 and the intersection it has with the Wills Act 2008. As these Acts appear at face value to contradict each other, the issue of implied repeal by later statute is also considered.

A and Tasmania Police (PDF, 97.5 KB)

Richard Baines and Department of Health and Human Services (June 2017) 

The applicant sought information about a for-profit residential care provider, including payments made to it by the Department. On review the Ombudsman affirmed that much of the information was exempt under s27, s35, s36 and s39 of the Right to Information Act 2009 and that it was contrary to the public interest to disclose this information. Despite the claims of the Department, no information was found to be exempt under s37. However, some information was to be disclosed, including payments made by the Department to the provider, subject to redaction of identifying personal information, as well as factual information contained in information which might otherwise be exempt under s27(1) or s35(1) of the Act.  The Department submitted that certain information could not be disclosed by virtue of either s16, s103 or s111A of the Children, Young Persons and their Families Act 1997 Act but the Ombudsman was not generally satisfied of this, considering that the Department was taking too broad a view of the purpose of that Act, although some information was found to be subject to s111A and was not to be disclosed.

Richard Baines and Department of Health and Human Services (PDF, 1.8 MB)

Bryan Green and Department of Treasury and Finance (July 2017) 

The applicant sought information about briefings the Department had prepared in relation to GST distribution as a result of the Australian Government budget.   On review the Ombudsman affirmed that much of the information was exempt under s27, s35, and s36 of the Right to Information Act 2009 and that it was contrary to the public interest to disclose this information.  Despite the claims of the Department, names of staff who had prepared and cleared the briefings were not maintained as exempt.

Bryan Green and Department of Treasury and Finance (PDF, 700.3 KB)

Michael Atkin and Department of Primary Industries, Parks, Water, and the Environment (April 2017) 

Mr Atkin (a journalist with the ABC) requested information in relation to a fish mortality event in Macquarie Harbour that occurred between 1 December 2014 and 28 February 2015.  Some laboratory report information as to the probable cause of the fish mortality event was released by the Department on internal review. The Ombudsman determined that information relating to the reporting of the fish mortality event by the relevant enterprise to the Department was exempt under s37 of the Right to Information Act 2009 but that, in terms of s33, it was not contrary to the public interest to disclose this.  By contrast, whilst the remaining laboratory report information was exempt under s39, it was contrary to the public interest to disclose any further information from this report.

Michael Atkin and Department of Primary Industries, Parks, Water, and the Environment (PDF, 974.8 KB)

Environment Tasmania and Environment Protection Agency (June 2017) 

Environment Tasmania requested information about Huon Aquaculture’s Lonnavale Hatchery and its effect on the Russell River. Some information was released but the EPA considered that all other information was exempt under s39(1)  of the Right to Information Act 2009 (Information obtained in confidence) in the first instance because it had been voluntarily provided by Huon.  On review the Ombudsman determined that none of the remaining information was exempt under s39(1) as disclosure of the information would not be reasonably likely to impair the ability of a public authority or Minister to obtain similar information in the future: s39(1)(b). However,  much of the information was found to be exempt under s37(1) (Information relating to business affairs of third party) and, whilst it was contrary to the public interest to release raw monitoring data,  the Ombudsman determined that it was not contrary to release all other information.

Environment Tasmania and Environment Protection Agency (PDF, 1.6 MB)

Richard Baines and Department of Health and Human Services (June 2017) 

The applicant sought information about a for-profit residential care provider, including payments made to it by the Department. On review the Ombudsman affirmed that much of the information was exempt under s27, s35, s36 and s39 of the Right to Information Act 2009 and that it was contrary to the public interest to disclose this information. Despite the claims of the Department, no information was found to be exempt under s37. However, some information was to be disclosed, including payments made by the Department to the provider, subject to redaction of identifying personal information, as well as factual information contained in information which might otherwise be exempt under s27(1) or s35(1) of the Act.  The Department submitted that certain information could not be disclosed by virtue of either s16, s103 or s111A of the Children, Young Persons and their Families Act 1997 Act but the Ombudsman was not generally satisfied of this, considering that the Department was taking too broad a view of the purpose of that Act, although some information was found to be subject to s111A and was not to be disclosed.

Richard Baines and Department of Health and Human Services (PDF, 1.8 MB)

Tim Baird and City of Launceston (November 2017)

Mr Baird requested information relating to the City of Launceston's plan to upgrade the Sea Port Boardwalk.  Specifically, Mr Baird sought information leading to the appointment of Darcon Pty Ltd as the successful tenderer.

This decision considered the points of 'competitive disadvantage' under s37 and the balance between public interest and deliberative information.

Tim Baird and City of Launceston (November 2017) (PDF, 689.3 KB)

Michael Atkin and Department of Primary Industries, Parks, Water, and the Environment (April 2017) 

Mr Atkin (a journalist with the ABC) requested information in relation to a fish mortality event in Macquarie Harbour that occurred between 1 December 2014 and 28 February 2015.  Some laboratory report information as to the probable cause of the fish mortality event was released by the Department on internal review. The Ombudsman determined that information relating to the reporting of the fish mortality event by the relevant enterprise to the Department was exempt under s37 of the Right to Information Act 2009 but that, in terms of s33, it was not contrary to the public interest to disclose this.  By contrast, whilst the remaining laboratory report information was exempt under s39, it was contrary to the public interest to disclose any further information from this report.

Michael Atkin and Department of Primary Industries, Parks, Water, and the Environment (PDF, 974.8 KB)

Environment Tasmania and Environment Protection Agency (June 2017) 

Environment Tasmania requested information about Huon Aquaculture’s Lonnavale Hatchery and its effect on the Russell River. Some information was released but the EPA considered that all other information was exempt under s39(1)  of the Right to Information Act 2009 (Information obtained in confidence) in the first instance because it had been voluntarily provided by Huon.  On review the Ombudsman determined that none of the remaining information was exempt under s39(1) as disclosure of the information would not be reasonably likely to impair the ability of a public authority or Minister to obtain similar information in the future: s39(1)(b). However,  much of the information was found to be exempt under s37(1) (Information relating to business affairs of third party) and, whilst it was contrary to the public interest to release raw monitoring data,  the Ombudsman determined that it was not contrary to release all other information.

Environment Tasmania and Environment Protection Agency (PDF, 1.6 MB)

Richard Baines and Department of Health and Human Services (June 2017) 

The applicant sought information about a for-profit residential care provider, including payments made to it by the Department. On review the Ombudsman affirmed that much of the information was exempt under s27, s35, s36 and s39 of the Right to Information Act 2009 and that it was contrary to the public interest to disclose this information. Despite the claims of the Department, no information was found to be exempt under s37. However, some information was to be disclosed, including payments made by the Department to the provider, subject to redaction of identifying personal information, as well as factual information contained in information which might otherwise be exempt under s27(1) or s35(1) of the Act.  The Department submitted that certain information could not be disclosed by virtue of either s16, s103 or s111A of the Children, Young Persons and their Families Act 1997 Act but the Ombudsman was not generally satisfied of this, considering that the Department was taking too broad a view of the purpose of that Act, although some information was found to be subject to s111A and was not to be disclosed.

Richard Baines and Department of Health and Human Services (PDF, 1.8 MB)

Cassy O’Connor and Minister for Parks, Environment, and Heritage (April 2016) 

The issue for determination was whether a decision made by the delegate of a Minister is subject to internal review under the Right to Information Act 2009 and whether the Ombudsman has jurisdiction under the Act to conduct an external review of such a decision. The review considered Sections 43, 44 and 45 of the Act and found that there was no right to internal review of such a decision and therefore no jurisdiction to accept an application for external review.

Cassy O’Connor and Minister for Parks, Environment, and Heritage (PDF, 171.9 KB)

A and Tasmania Police (March 2017) 

The information at issue was whether the will of the applicant’s late parent should be disclosed to them. This decision discusses the requirements of s36 (personal information of a person) of the Right to Information Act 2009 and the intersection it has with the Wills Act 2008. As these Acts appear at face value to contradict each other, the issue of implied repeal by later statute is also considered.

A and Tasmania Police (PDF, 97.5 KB)

Patrick Billings and Department of Health and Human Services (December 2016) 

Mr Billings (a journalist on ‘The Mercury’ newspaper) requested CCTV footage of an event at Ashley Youth Detention Centre in July 2016.  The Ombudsman determined that the footage should not be released, as various exemption grounds under s30(1) of the Right to Information Act 2009 were satisfied.  Under the Act, s30 exemptions are not subject to the public interest test at s33.

Patrick Billings and Department of Health and Human Services (PDF, 448.4 KB)

Richard Baines and Department of Health and Human Services (June 2017) 

The applicant sought information about a for-profit residential care provider, including payments made to it by the Department. On review the Ombudsman affirmed that much of the information was exempt under s27, s35, s36 and s39 of the Right to Information Act 2009 and that it was contrary to the public interest to disclose this information. Despite the claims of the Department, no information was found to be exempt under s37. However, some information was to be disclosed, including payments made by the Department to the provider, subject to redaction of identifying personal information, as well as factual information contained in information which might otherwise be exempt under s27(1) or s35(1) of the Act.  The Department submitted that certain information could not be disclosed by virtue of either s16, s103 or s111A of the Children, Young Persons and their Families Act 1997 Act but the Ombudsman was not generally satisfied of this, considering that the Department was taking too broad a view of the purpose of that Act, although some information was found to be subject to s111A and was not to be disclosed.

Richard Baines and Department of Health and Human Services (PDF, 1.8 MB)

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Decisions Pre 2016

C and Department of Police and Emergency Management (August 2012) 

The issue for determination in this review was whether information relating to a family violence order made by the Applicant's wife against the Applicant in 2008 was exempt from production under s 30(l)(c) (the exemption applying to disclosure of methods for preventing, detecting or investigating breaches of the law) and s 36 (the exemption applying to law enforcement) of the Right to Information Act 2009.

C and Department of Police and Emergency Management (PDF, 130.5 KB)

Christopher Ward and Tasmania Police (February 2011) 

The information was found to be exempt under s30(1)(b) of the RTI Act, because it would reveal a confidential source of information if it was disclosed. The decisions of Mauger v General Manager, Wingercarribee Shire Council [1999] NSWADT 35 and Re McEneiry and Medical Board of Queensland [1994] QICMR 2; (1994) QAR 349 were applied.

Christopher Ward and Tasmania Police (PDF, 1.6 MB)

D and Motor Accidents Insurance Board (August 2012) 

The issue for determination in this review was whether some information on the Motor Accident Insurance Board's files in relation to the Applicant was exempt from production under s 31 (the exemption applying to legal professional privilege) and/or s 35 (the exemption applying to internal deliberative information) of the Right to Information Act 2009.

D and Motor Accidents Insurance Board (PDF, 114.9 KB)

Archers and Georgetown Council (January 2011) 

The issue for determination in this review was whether some information on the Motor Accident Insurance Board's files in relation to the Applicant was exempt from production under s 31 (the exemption applying to legal professional privilege) and/or s 35 (the exemption applying to internal deliberative information) of the Right to Information Act 2009.

Archers and Georgetown Council (PDF, 2.6 MB)

Reece Sullivan and Motor Accident Insurance Board (November 2010) 

The information was created at the behest of MAIB for the purpose of seeking legal advice. It attracted legal professional privilege, and was exempt under s31 of the Right to Information Act. The decisions of Pratt Holdings Pty Ltd v Commissioner of Taxation, and State of New South Wales v Betfair Pty Ltd were followed.

Reece Sullivan and Motor Accident Insurance Board (PDF, 24.1 KB)

D and Motor Accidents Insurance Board (August 2012) 

The issue for determination in this review was whether some information on the Motor Accident Insurance Board's files in relation to the Applicant was exempt from production under s 31 (the exemption applying to legal professional privilege) and/or s 35 (the exemption applying to internal deliberative information) of the Right to Information Act 2009.

D and Motor Accidents Insurance Board (PDF, 114.9 KB)

A and Department of Health and Human Services (July 2012) 

The information at issue was whether the disclosure of the private contact details and previous employment history of a successful applicant for a position in the Department would be contrary to the public interest.

A and Department of Health and Human Services (PDF, 110.5 KB)

B and Tasmania Police (July 2012) 

The information at issue was whether a police statement regarding family violence should be disclosed to the accused party. This decision discusses the requirements of s 36 of the Right to Information Act 2009 and the application of the public interest test.

B and Tasmania Police (PDF, 115.1 KB)

C and Department of Police and Emergency Management (August 2012) 

The issue for determination in this review was whether information relating to a family violence order made by the Applicant's wife against the Applicant in 2008 was exempt from production under s 30(l)(c) (the exemption applying to disclosure of methods for preventing, detecting or investigating breaches of the law) and s 36 (the exemption applying to law enforcement) of the Right to Information Act 2009.

C and Department of Police and Emergency Management (PDF, 130.5 KB)

E and Tasmania Police (July 2012) 

The issue for determination was whether information in relation to complaints between DPEM employees and a third party was exempt from production under s 39 (the exemption for information obtained in confidence) of the Right to Information Act 2009.

E and Tasmania Police (PDF, 112.2 KB)

K and Department of Infrastructure, Energy and Resources (June 2011) 

The information at issue was the personal information of a third party, and it was found that disclosure was contrary to the public interest. This decision discusses the requirements of s36 of the RTI Act, and the application of the public interest test.

K and Department of Infrastructure, Energy and Resources (PDF, 1.4 MB)

G and Tasmania Police (July 2012) 

The issue for determination in this review was whether a decision made by Tasmania Police that information was exempt information, could be reviewed under s 44 (l) (b) (ii) of the Right to Information Act 2009, in circumstances where the Applicant has made application for internal review of the decision but that application had not been received.

G and Tasmania Police (PDF, 113.6 KB)