2022 Decisions

Mr Robin Smith is the owner of a small business in Launceston’s Brisbane Street Mall. He has a keen interest in how the City of Launceston (Council) is conducting its City Heart project. On 11 April 2019, Mr Smith submitted a request for assessed disclosure under the Right to Information Act 2009 (the Act) to Council. He sought 33 types of information relating to Council’s use of resources and actions in relation to the project.

On 16 May 2019 the Principal Officer of Council released a decision to Mr Smith, refusing all aspects of his application pursuant to s20(a) of the Act. Council determined that the information was the same or similar to information sought in previous applications by Mr Smith and that his current application did not disclose any reasonable basis for again seeking access to the information. Mr Smith applied for external review of the decision.

The Ombudsman determined that:

  • Council had applied and interpreted s20(a) too broadly in relation to the majority of the items of information sought and it was to assess those parts of Mr Smith’s application in accordance with the provisions of the Act;
  • Council was entitled to refuse, pursuant to s12(3)(c)(i), four parts of Mr Smith’s application; and
  • Council was not required to respond to Item 29 of Mr Smith’s request, as it posed a clarifying question rather than seeking information already in existence.
Robin Smith and City of Launceston No. 2 (29 Sep 2022) (PDF File, 250.3 KB)

Mr Robin Smith is the owner of a small business in Launceston’s Brisbane Street Mall. He has a keen interest in how the City of Launceston (Council) is conducting its City Heart project. On 16 January 2019, Mr Smith submitted a request for assessed disclosure under the Right to Information Act 2009 (the Act) to Council. He sought 11 types of information relating to Council’s use of resources and actions in relation to the project.

After negotiations with Mr Smith, Council released a decision on 6 February 2019, refusing all aspects of his application pursuant to s19 of the Act. Council determined that the work involved in providing the information requested would substantially and unreasonably divert the resources of Council from its other work. Following an application for internal review from Mr Smith, Council released a further decision on 26 April 2019, which affirmed the original decision. Mr Smith applied for external review of the decision.

The Ombudsman determined that:

  • Council’s reliance on s19 was reasonable in relation to the broad and imprecise parts of Mr Smith’s request and it was entitled to refuse those parts of his request; and
  • Council was not entitled to refuse the more confined parts of Mr Smith’s request pursuant to s19. Council was directed to assess the information responsive to these parts of Mr Smith’s request in accordance with the provisions of the Act.
Robin Smith and City of Launceston No.1 (29 Sep 2022) (PDF File, 185.8 KB)

On 11 September 2020, Ms Suzanne Pattinson made an application for assessed disclosure under the Right to Information Act 2009 (the Act) to the Department of Education (the Department). Ms Pattinson sought information relating to the Department’s management of the Rose Bay High School 2016 European School Tour and subsequent investigations. On 14 January 2021, the Department released a decision to Ms Pattinson. It determined to release the information in part, with some information found to be exempt under ss35 and 36 of the Act.

Ms Pattinson applied for internal review and on 4 March 2021 the Department released slightly more information to Ms Pattinson but relied on the same provisions of the Act to exempt the remaining information. Ms Pattinson then sought external review of the Department’s internal review decision. As part of her external review Ms Pattinson sought a review of whether there had been an insufficiency in searching for information by the Department.

The Ombudsman determined that:

  • Exemptions claimed pursuant to s35 were varied;
  • Exemptions claimed pursuant to s36 were varied; and
  • The Department’s search for information was sufficient.
Suzanne Pattinson and Department of Education ( Aug 2022) (PDF File, 292.2 KB)

On 18 October 2021, Mr Geoffrey Swan made an application for assessed disclosure under the Right to Information Act 2009 to the Huon Valley Council (Council). He sought information relating to the investigation into the recruitment process of Council’s new General Manager, commissioned following controversy regarding the way Council managed a conflict of interest that arose during that process. Council issued a decision on 13 October 2021 to refuse the application in full, on the basis that it considered the information exempt due to it relating to:

  • legal professional privilege (s31); and
  • information related to closed meetings of council (s32).

Mr Swan then sought external review of Council’s decision.

The Ombudsman determined that:

  • Council’s use of s31 was varied;
  • Council’s use of s32 was varied; and
  • Information was found to be exempt pursuant to s35 (internal deliberative information).
Geoffrey Swan and Huon Valley Council ( Jun 2022) (PDF File, 193.9 KB)

F and G are parents of a young son, A, who attended a school run by the Department of Education (the Department). F and G had concerns their son had been subjected to regular bullying by another boy, B. On 15 March 2018, F made an application under the Right to Information Act 2009 for information regarding A’s alleged bullying and the Department’s response to incidents and concerns raised by F and G.

On 14 June 2018, the Department released a decision to F which released some information and found the remainder to be exempt under ss27, 35 and 36. F sought internal review regarding the exemptions applied and disputing that all relevant documents had been located and assessed. On 9 August 2018, the Department released an internal review decision to F. It located and released some additional information, finding the remainder to be exempt for on the same bases as in the original decision. F sought external review, again disputing the exemptions applied and whether the Department had undertaken a sufficient search for information responsive to his request.

The Ombudsman determined that:

  • Exemptions claimed pursuant to s27 were affirmed;
  • Exemptions claimed pursuant to s35 were varied; and
  • Exemptions claimed pursuant to s36 were affirmed.

He also determined that the Department did not conduct a sufficient search for information responsive to F’s request, but had taken appropriate steps to rectify the issues in searching by the conclusion of his external review.

F and Department of Education ( Jun 2022) (PDF File, 264.0 KB)

Mr Andrew McCullagh is a ratepayer in the Northern Midlands Council (Council) municipality who operates a Facebook group entitled Northern Midlands Council Watch and takes a keen interest in Council’s fiscal management and operations. On 26 May 2020, Mr McCullagh made an application under the Right to Information Act 2009 to Council for information regarding various projects being undertaken or proposed in the municipality. On 19 June 2020, Council released a decision to Mr McCullagh refusing to provide the information sought pursuant to ss20(a) and (b) as it considered part of the request to be a repeat and part to be vexatious. This position was maintained on internal review and Mr McCullagh then sought external review of the decisions.

The Ombudsman determined that ss20(a) and (b) did not apply to Mr McCullagh’s application and directed Council to assess the information requested for disclosure in accordance with the provisions of the Act.

Andrew McCullagh and Northern Midlands Council ( Jun 2022) (PDF File, 162.1 KB)

On 16 March 2019, Mr Clive Stott made an application for assessed disclosure under the Right to Information Act 2009 to TT-Line Company Pty Ltd (TT-Line). He sought air quality monitoring reports in relation to the Spirit of Tasmania I and Spirit of Tasmania II, following the deaths of 16 polo ponies on a truck which travelled on one of the vessels in 2018. TT-Line issued a decision on 9 May 2019 to refuse the majority of Mr Stott’s request on the basis that it considered that:

  • the disclosure of the information would prejudice an ongoing investigation into the deaths of the ponies (s30);
  • the information contains personal information of a person other than Mr Stott (s36); and
  • the release of the information would expose TT-Line to competitive disadvantage (s38).

This decision was upheld at internal review and Mr Stott sought external review of that decision.

The Ombudsman determined that exemptions claimed under ss30, 36 and 38 were not made out and relevant documents should be released to Mr Stott.

Clive Stott and TT-Line Company Pty Ltd ( Jun 2022) (PDF File, 185.5 KB)

On 31 January 2020, an applicant made an application for assessed disclosure under the Right to Information Act 2009 (the Act) to the now Department of Natural Resources and Environment Tasmania (the Department).Lease and Business Licence Agreement (the Agreement) between Blue Derby Pods Ride Pty Ltd (Blue Derby) and the Department was responsive to this request. The Department consulted with Blue Derby pursuant to section 37(2) of the Act and Blue Derby objected to the disclosure of information in the Agreement.

The Department notified Blue Derby on 17 March 2020 that it had decided to release the majority of the Agreement except for some information it considered exempt pursuant to s37. Blue Derby sought internal review of this decision based on concerns the release of the information would reveal trade secrets and harm its competitive position. Blue Derby believed the information should be exempt pursuant to ss37 and 39. On 21 April 2020, the Department released an internal review decision which upheld its original decision and determined that s39 was not relevant. Blue Derby then sought external review of this decision.

The Ombudsman determined that:

  • Exemptions claimed pursuant to s37 were not made out; and
  • Exemptions claimed pursuant to s39 were varied.
Blue Derby Pods Ride Pty Ltd and the Department of Natural Resources and Environment Tasmania ( Jun 2022) (PDF File, 191.9 KB)

Mr Trevor Burdon invested in the Managed Investment Schemes (MIS) regarding plantations grown by Gunns Plantations Limited (Gunns) on land managed by Forestry Tasmania, now Sustainable Timber Tasmania (STT). When Gunns became insolvent in 2013, legal disputes arose between STT and the liquidators for Gunns regarding issues impacting Mr Burdon. On 7 December 2018, Mr Burdon made an application for assessed disclosure under the Right to Information Act 2009 (the Act) seeking information regarding the legal settlement of the dispute and alleged ‘gross underpayment’ of MIS investors by STT in that settlement. On 17 April 2019, STT released a decision to Mr Burdon which found that all information responsive to his request was exempt from release pursuant to ss31, 35, 37, 38 and 40 of the Act. Mr Burdon sought external review of this decision.

The Ombudsman determined that:

  • Exemptions claimed pursuant to s31 were varied;
  • Exemptions claimed pursuant to s38 were varied; and
  • Exemptions claimed pursuant to ss35, 37 and 40 were not required to be assessed, as the relevant information was otherwise exempt.
Trevor Burdon and Sustainable Timber Tasmania ( Jun 2022) (PDF File, 193.1 KB)

Mr Graham Murray is a supporter of the proposal to construct and operate a cable car on kunanyi/Mount Wellington in Hobart. On 22 August 2018, Mr Murray submitted a request for assessed disclosure under the Right to Information Act 2009 (the Act) to the City of Hobart (Council). He sought information on a range of issues regarding the cable car project.

On 27 September 2018, Council released a large amount of information to Mr Murray, but refused to assess part of his application under s10 and claimed a further 324 pages were exempt pursuant to ss31, 35, 36 and 39. A second decision was released on 24 October 2018, following consultation under s36(2), and a further part of Mr Murray’s request was refused under s19. A final decision was released on 9 November 2018, which released further information and refused the remaining part of Mr Murray’s request, as there was no recognised list of ‘cable car or anti cable car websites’ to enable the information to be collated. Mr Murray then sought external review of all of Council’s decisions.

The Ombudsman determined that:

  • He had no power to review Council’s decision under s10 and it remained unchanged;
  • Council’s use of s19 was affirmed;
  • Council’s use of section 31 was varied;
  • Council’s use of s35 was varied;
  • Council’s use of s36 was affirmed; and
  • Council's use of s39 was varied.
Graham Murray and City of Hobart ( Jun 2022) (PDF File, 255.9 KB)

Mr Todd Dudley, the president of the North East Bioregional Network Inc., made an application on 18 August 2018 under the Right to Information Act 2009 (the Act) to the Department of Natural Resources and Environment (the Department) seeking information regarding the environmental impact of proposed mountain bike tracks in the St Helens area. The Department located nine pages of information responsive to his request and made a decision on 3 December 2018 to redact parts of the information pursuant to ss35 and 36. Mr Dudley sought internal review and the Department’s internal review decision of 29 March 2019 affirmed its original decision. Mr Dudley then sought external review on the bases that the exemptions claimed were not valid and that there had been an insufficient search for information responsive to his request.

The Ombudsman determined that:

  • The Department’s search for information was sufficient; and
  • Exemptions claimed by the Department pursuant to ss35 and 36 were not made out.
Todd Dudley and Department of Natural Resources and Environment Tasmania ( May 2022) (PDF File, 226.6 KB)

Professor Michael Rowan is the co-owner of a property in the Kingborough Council (Council) municipal area. A bushfire safety bunker has been installed at the property and Council has been pursuing compliance action on the basis that proper approvals under the Building Act 2016 were not obtained for the bunker. Professor Rowan made an application on 3 December 2021 under the Right to Information Act 2009 (the Act) to Council seeking information regarding such bunkers in general and regarding the bunker at his property in particular. Council located eleven documents and released the majority of the information responsive to his request, with some redactions made pursuant to ss35 and 36. Professor Rowan sought internal review and Council’s internal review decision of 21 January 2022 primarily affirmed its original decision. Professor Rowan then sought external review disputing one s35 redaction in an email, on the basis that the information should not be exempt and was of particular importance in defending imminent enforcement action from Council.

The Ombudsman determined that the exemption claimed by Council under s35 was not made out and the information should be released to Professor Rowan.

Professor Michael Rowan and Kingborough Council ( May 2022) (PDF File, 129.0 KB)

Ms Cassy O’Connor MP made a request for information under the Right to Information Act 2009 to the Department of Natural Resources and Environment (the Department) in May 2018, seeking copies of Reserve Activity Assessments (RAAs) regarding proposed developments in Tasmanian national parks and reserves. On 3 April 2019, the Department released a decision to Ms O’Connor regarding the RAA for the Maydena Bike Park and decided that it was exempt in full pursuant to ss36, 37 and 39. Ms O’Connor sought external review and the Department was directed to undertake an internal review. On 10 May 2019, the Department released a further decision which also exempted all the relevant information in full pursuant to s39 (or s37 in the alternative).

The Ombudsman considered that the majority of the 184 page RAA should be released, except for 15 pages which were actually likely to expose the Maydena Bike Park proponent to competitive disadvantage. Accordingly, he determined that:

*Exemptions claimed pursuant to s39 were not made out; and
*Exemptions claimed pursuant to s37 were varied.

Cassy O’Connor MP and the Department of Natural Resources and Environment Tasmania (14 Apr 2022) (PDF File, 238.0 KB)

Ms Cassy O’Connor MP made a request for information under the Right to Information Act 2009 for correspondence regarding the health and welfare of animals being transported on the Spirit of Tasmania vessels. She refined her request to restrict it to correspondence between the Department of Natural Resources and Environment (the Department), TT-Line Pty Ltd and the office of the Minister for Primary Industries, following an indication from the Department that her request was likely to be refused, due to it being a substantial and unreasonable diversion of resources from its other work, unless this occurred. On 29 March 2019, the Department released a decision to Ms O’Connor in which it found that eight pages of information were responsive to her request and all were exempt from release pursuant to s30. Ms O’Connor sought external review under s45(1)(e), on the grounds that she believed an insufficient search for information had been carried out, due to the very small quantity of information assessed. The Ombudsman directed the Department conduct an internal review under s47(1)(f) and its fresh decision affirmed the finding of the original delegate, that the information responsive was exempt under s30, and refuted that there was any insufficiency of searching.

On external review, the Ombudsman determined that the Department had conducted a sufficient search for information responsive to Ms O’Connor’s request. He noted, however, that the issues raised on external review may have been resolved through more consistent communication with Ms O’Connor and a broader interpretation of the scope of her request by the Department.

Cassy O’Connor MP and Department of Natural Resources and Environment Tasmania (1 Apr 2022) (PDF File, 152.0 KB)

In October 2018, Mr Robert Vellacott made an application for assessed disclosure under the Right to Information Act 2009 (the Act) to the Devonport City Council seeking information about the Providore Place development (now re-named Market Square Pavillion). Council released a decision which provided some explanation of details regarding Council expenditure and contributions to the project, but refused under ss32 and 37 of the Act to provide the majority of information sought, including the signed lease agreement between it and Providore Place Devonport Pty Ltd, any amendments to that lease, and individual figures for fit-out of tenancies. This decision was affirmed on internal review on 24 December 2018. Mr Vellacott sought external review of the exemptions applied to the information and whether a sufficient search for information responsive to his request had been made by Council.

The Ombudsman determined that:

  • Exemptions claimed by Council pursuant to s32 of the Act were varied, as the signed lease agreement was not exempt;
  • Exemptions claimed by Council pursuant to s37 of the Act were upheld; and
  • There had been a sufficient search for relevant information by Council.
Robert Vellacott and Devonport City Council ( Apr 2022) (PDF File, 258.6 KB)

The University of Tasmania purchased the former Fountainside, MidCity and Theatre Royal hotels in central Hobart and expressed its intention to convert the properties to student accommodation. Plans to convert the ‘Old Commerce Building’ in French Street, Sandy Bay to student accommodation were also reported in the media.

On 12 February 2019, Ms Alexandra Humphries, a journalist with the ABC, made an application to the University under the Right to Information Act 2009 for information regarding the purchase price of the Fountainside Hotel and business, refurbishment costs of the Fountainside, MidCity and Theatre Royal hotels, engineering reports regarding the French Street property and the amount the University paid in rates to the Hobart City Council. Except for an Occupancy Permit relating to the French Street property, the University did not disclose any information responsive to Ms Humphries’ request, claiming the information was exempt under s38(1)(ii). It maintained this position on internal review. Ms Humphries sought external review on 14 May 2019.

The Ombudsman determined that the University’s use of s38 should be varied and that its use of s39, in the alternative, was not made out. Some information regarding the refurbishment costs for the Fountainside and Theatre Royal hotels was found to be exempt under s38, but the Department had not discharged its onus under s47(4) to show why the remaining information should not be disclosed.

Alexandra Humphries and University of Tasmania ( Feb 2022) (PDF File, 232.9 KB)

Mr Simon Cameron owns a sheep farming property in central Tasmania. Allegations were made against his farm manager by officers of the then Department of Primary Industries, Parks, Water and Environment, now the Department of Natural Resources and Environment Tasmania (the Department), regarding whether the management of feral deer was in breach of the Wildlife (General) Regulations 2010. This eventually led to the farm manager lodging a complaint against the Department with the Integrity Commission and an investigation by the Department into whether misconduct had been committed by its officers. Mr Cameron made an application in November 2017 for assessed disclosure under the Right to Information Act 2009 (the Act) seeking the investigation report and associated documentation. The Department released a decision on 12 December 2017, finding all 766 pages found to be responsive to the request were exempt from disclosure under ss30, 31, 35, 36 and 39 of the Act. Mr Cameron then sought external review of this decision.

The Ombudsman determined that:

  • Exemptions claimed pursuant to s30 were primarily not made out, but some information was validly exempt under s30(1)(a)(ii);
  • Exemptions claimed pursuant to s31 were upheld; and
  • Some information was validly exempt under ss35, 36 and 39 but the release of the remainder was not contrary to the public interest.
Simon Cameron and Department of Natural Resources and Environment Tasmania ( Jan 2022) (PDF File, 497.8 KB)