In May 2018, C made an application to the Department of Primary Industries, Parks, Water and Environment (the Department) for assessed disclosure, seeking copies of commercial filming agreements and drone use approved between 1 January 2013 and 21 May 2018 in the Arthur-Pieman Conservation Area. Consultation occurred with the commercial flying agreement applicants under s36(2) and s37(2). Following this consultation, the names and personal information relating to some entities applying for filming were redacted under s36, as well as the personal information of some Departmental staff. C sought external review of this decision.

The Ombudsman determined that the Department’s use of s36 should be varied. Some personal information of contact people listen on the commercial filming applications was validly exempt, but the Department had not discharged its onus under s47(4) to show why the names and Australian Business Numbers of some commercial entities, and the personal information of some Departmental staff, should be exempt under s36.

Mrs Anna Porretta is involved in the operation of the Ivory Lounge Bar.  She made an application in July 2018 for assessed disclosure to the Department of Police, Fire and Emergency Management regarding its representations relating to an application for an out-of-hours permit submitted to the Liquor and Gaming Branch of the Department of Treasury and Finance.  In particular, she sought to obtain the names and rankings, in terms of Tasmania Police call outs, of other licensed premises to give context to information included in the representations.  The Department released a decision on 2 August 2018 and an internal review decision on 22 September 2018, both determining that all information was exempt pursuant to s30(1)(e) of the Right to Information Act 2009, as it considered that the information would disclose information gathered, collated and created for intelligence purposes.  Mrs Porretta then sought external review of this decision.

The Ombudsman determined that the information amounted to intelligence as defined by the Act and affirmed the Department's decision to exempt the information under s30(1)(e).

D alleges he was sexually assaulted as a child by an older man, E.  E was investigated for gross indecency then later charged with indecent practices between males.  He was acquitted at trial.  D applied to Tasmania Police for assessed disclosure of information regarding the investigation, as he was seeking to make a civil claim against E.  A proof of evidence that included E's record of interview was found to be responsive to D's request. Tasmania Police consulted E under s36(2) when considering whether to release the document.  E objected to the release, but Tasmania Police decided that the document was not exempt information under s36 and should be provided to D with certain personal information redacted.  E sought internal review of the decision and Tasmania Police affirmed its original decision.  E sought external review of Tasmania Police's internal review decision to release the information to D.

The Ombudsman considered E's objections and relevant public interest factors.  He concluded that the proof of evidence that included E's record of interview should be released to D in the redacted form provided to E in the Tasmania Police internal review decision.

D applied for assessed disclosure from the Department of Education (the Department) of information concerning E, who is a former Departmental employee and the alleged perpetrator of child sexual abuse against D.  D sought information held by the Department regarding E’s suspension from teaching duties, his subsequent reinstatement and any subsequent complaints. During the assessment of D’s application, the Department located a letter containing E’s personal information which was responsive to the request. The Department consulted E under s36(2), seeking his view on the potential disclosure of his personal information. E objected to the release of the information, but the Department proposed to release it in partially redacted  form and maintained this view on internal review. E sought external review on 11 February 2019.

The Ombudsman determined that the exemption claimed by the Department under s36 should be varied, with E’s signature ordered to now be redacted in addition to his address, telephone number and email address. It is not contrary to the public interest to release the remainder of the document to D.

Ms Camille Bianchi is a freelance journalist who sought information from the Department of Health regarding the response to allegations of misconduct from its former employee at Ward 4K of the Launceston General Hospital, nurse James Griffin. The Department released a decision on 22 July 2020 on the 104 pages of information it located responsive to Ms Bianchi’s request, determining that all documents were exempt pursuant to ss35, 36 and 39 of the Right to Information Act 2009. Ms Bianchi then sought external review of this decision.

During the external review process, the Department reconsidered some of its proposed exemptions and located additional documents responsive to Ms Bianchi’s request, which had not previously been assessed.

The Ombudsman ordered that:
* Exemptions claimed by the Department under ss30 and 39 are not made out;
* Some information was validly exempt under s35 but the release of the majority was not contrary to the public interest;
* The personal information of patients, members of the public, Department staff raising concerns about Mr Griffin and Ward 4K staff was exempt under s36, except job titles for Ward 4K staff;
* The personal information of Mr Griffin, except his personal address, telephone number or date of birth, and the work related personal information of other Department staff, union representatives and consultants is not exempt under s36 and is to be released to Ms Bianchi; and
* Some documents were out of scope of the request or publicly available and not required to be released.

Patrick Billings, a journalist with the Mercury newspaper, sought information from the Department of Justice regarding prisoners who had been incorrectly released. The Department located information relating to seven prisoners and released the gender and age of each prisoner, the date of early or late release, the correct earliest release date, the date each prisoner was returned to custody and the Tasmania Prison Service’s assessment of how the errors were made. Offence information relating to the prisoners was claimed to be exempt pursuant to s36 of the Right to Information Act 2009.

Mr Billings sought external review and the Ombudsman determined that offence information relating to prisoners about whom a decision or comments on passing sentence had been published is exempt under s36. Offence information relating to prisoners about whom there were no decision or comments on passing sentence published was not exempt as it did not render the identity of the prisoners reasonably ascertainable and was to be released to Mr Billings.

The Ombudsman reconsidered his decision due to the accidental omission of the opportunity for the Department to provide input on an adverse decision, but did not alter his original determinations following the reconsideration.

In June 2018, former councillor Mr Lawrence Archer made an application to the Dorset Council for assessed disclosure. He sought a list of the monthly allowances and expenses incurred by individual elected members of Council, and copies of bank statements for Council credit cards used by the Mayor and General Manager.

Council refused to provide information regarding the councillors’ allowances and expenses, claiming that it was available to Mr Archer at a point in time (before he left Council) in what was known as Audit Panel papers.  The Council refused to provide information requested about expenses outside of the Audit Papers, as it indicated that this was not able to be provided accurately. It also refused to provide the credit card statements pursuant to s20(b), as it stated that this was a vexatious request.

The Ombudsman determined that he had no jurisdiction to review Council’s decision to refuse allowance and expense information under s12(3)(c)(i). However, he found that the remainder of Mr Archer’s application should be reassessed in accordance with the provisions of the Act, as s20(b) did not apply and other information appeared to be able to be extracted and provided in accordance with s18(3).

Mr Stanway sought information from Tasmania Police regarding its classification of the Warwick WFA1 bolt action rifle as a prohibited firearm and membership of its Firearms Categorisation Assessment Committee [FCAC]. Tasmania Police released some information regarding the decision to classify the WFA1 as a prohibited firearm, but claimed other information exempt under s35 or s36. Tasmania Police released information regarding most FCAC members, but not one who it had engaged from another jurisdiction. Tasmania Police decided that member's information was exempt under s34 and/or s36.

During the Ombudsman's external review, Tasmania Police agreed to the release of that member's name and biographic information, after his consent. The Ombudsman therefore determined that information was not exempt under s34 or s36. That had been Mr Stanway's main concern.

Mr Stanway agreed he did not require personal information of FCAC members contained in emails between them, beyond that already released to him by Tasmania Police or by the Australian Criminal Intelligence Commission under the Freedom of Information Act 1982 (Cth). Due to that and s12(3)(c)(i), the Ombudsman was able to finalise the application on the basis of its scope and without determining the exemptions claimed by Tasmania Police pursuant to s35.

Mr Nigel Matcham suffered a serious head injury while working at the chocolate factory at Cadbury Road in Claremont. His brother, Mr Damien Matcham, applied on behalf of Nigel to WorkSafe Tasmania (part of the Department of Justice) for documentation it held regarding Nigel. The Department released emails, letters, medical certificates, a workplace attendance record and, on internal review, medical reports. However, it decided four statements, each signed by another person working at the factory that night then provided to WorkSafe by the employer, Mondelez Australia Pty Ltd, were exempt in full under s36.

The Ombudsman's office consulted each author of a statement (which the Department had not done). One author opposed release of their statement. The Ombudsman considered the meaning of 'personal information' as defined in s5(1). He found that each statement contained some personal information, but parts of the statements were clearly not personal information. The Ombudsman considered the public interest test under s33 and Schedule 1 of the Act. He found only matter (m) in Schedule 1 weighed, in part, against release of one statement, given its author's objection. By contrast, a number of matters weighed in favour of disclosure (including, in part, matter (m)), given the significant interests of Nigel Matcham in obtaining the statements regarding the circumstances of his injury. The Ombudsman determined the public interest test required disclosure of all four statements in full, so reversed the Department's decision regarding the statements.

The Department made no submission on the preliminary/draft decision under s48(1)(a). It noted that the 'matter dates back to 2017 and the Department now, as a general rule, releases such witness statement [sic] as a matter of course for the reasons outlined in the decision.'

Ms Whitson (a journalist for the ABC) sought information from the Department about the death of 16 polo ponies in January 2018 which were transported on the Spirit of Tasmania ferry. The Department refused to provide any information responsive to the request, considering it fully exempt pursuant to s30(1)(a) of the Right to Information Act 2009, as information relating to the enforcement of the law, on the basis of an ongoing investigation and potential prosecutions relating to the incident. Since the Department’s original decision, charges have been laid under the Animal Welfare Act 1993 in relation to the incident and their prosecution remains ongoing.

The Ombudsman predominantly upheld the Department’s decision but found that some information was not exempt, consistent with a previous external review decision in Mandy Squires and Department of Primary Industries, Parks, Water and Environment (March 2019). This information was nonetheless not required to be provided to Ms Whitson, as it was otherwise available under s12(3)(c)(i).

Ms Anderson applied for information about the lease of the Salmon Ponds heritage property to Nekon Pty Ltd. The Director of Inland Fisheries decided that: the lease was exempt in full under s39 (information obtained in confidence); and it was contrary to the public interest disclose it.

The Ombudsman determined that the lease (which included the grant of a licence) was not exempt information as two requirements of s39 were not satisfied. Firstly, disclosure of the lease under the Act would not divulge information communicated in confidence to a public authority: s39(1). Secondly, its disclosure would not be reasonably likely to impair the ability of a public authority to obtain similar information in the future: s39(1)(b). Neither was s39(1)(a) applicable. The Ombudsman, therefore, did not need to determine the public interest test under s33. However, he indicated that, had he needed to do so, he may well have differed from the Director's conclusion that it was contrary to the public interest to disclose the lease.

Mr Smith applied to Council for assessed disclosure of a wide variety of information regarding its City Heart redevelopment project. Council released some information and claimed some exemptions. This review concerned Mr Smith's request for '(3) Total expenditure on community engagement for City Heart planning.'

Council had decided this sought information not in its possession, but which would require analysis to produce. Council submitted that analysis was needed to extract and cost the time of its in-house staff and other Council resources spent on the community engagement / consultation.

Before the Ombudsman's decision, Council (consistently with s12) undertook analysis to produce answers to questions 3 and 4 of Mr Smith's request, annexed to the decision.

At Council's request, the Ombudsman made a determination. He ultimately concluded that, in undertaking its analysis to produce accurate answers to Mr Smith’s questions 3 and 4, Council (consistently with s12) went above and beyond its duty under s18(3). It was commended for doing so.

X alleges he was sexually abused as a child by an older man, Y. Y was charged with indecent assault (of a child) but this was discontinued. X applied to Tasmania Police for assessed disclosure  of information relating to the indecent assault investigation and prosecution, as he was seeking to make a civil claim against Y. Tasmania Police consulted Y under s36(2) when considering whether to release a transcript of his record of interview and associated signed notes in relation to the matter. Y objected to the release, but Tasmania Police decided that the documents were not exempt information under s36 and should be provided to X with the personal information of Y and other alleged victims redacted. Y sought internal review of the decision and Tasmania Police affirmed its original decision. Y sought external review of Tasmania Police's internal review decision to release the information to X.

The Ombudsman considered Y’s objections and relevant public interest factors. He concluded that Y’s record of interview and associated signed notes should be released to X in the redacted form provided to Y with the Tasmania Police internal review decision. This would not be contrary to the public interest.

B made an application for assessed disclosure of information to the Department of Justice. In that application, B sought information pertaining to declared conflicts of interest by the Chief Executive Officer of the Integrity Commission. The Department did not hold this information, so transferred the request to the Integrity Commission pursuant to s14. Due to the subject matter of the request for disclosure, the Integrity Commission delegated Ms Amanda Russell, the then Deputy Secretary, Corporate, Strategy and Policy at the Department of Justice to respond to the application. Ms Russell did not provide a decision within the time frame required under the Act, so B sought external review due to the deemed refusal of his application under s45(1)(f). Under s6, the Integrity Commission is an excluded body to which the Act does not apply, except for information related to the administration of that body. The Ombudsman determined that the information B sought did not relate to the administration of the Integrity Commission. Therefore, the Act did not apply to the information and B was not entitled to it.

On 21 March 2018, Mr Robin Smith submitted an application for assessed disclosure under the Right to Information Act 2009 to the Launceston City Council (Council). His application sought information relating to 15 specific questions regarding the City Heart development.

After scope negotiations with Mr Smith, Council’s General Manager, Mr Michael Stretton, released a decision on 11 April 2018, refusing Mr Smith’s application pursuant to s19 of the Act as it found that providing the information requested would substantially and unreasonably divert its resources from its other work.

Mr Smith requested an external review of Council’s decision. After discussions with Council, it agreed to re-consult with Mr Smith to remove any confusion, providing him with its responses to the matters in Schedule 3 in clear terms.

Mr Smith refined his application, and the matter was returned to Council for it to process the remaining balance of his application for assessed disclosure pursuant to the process set out in Division 2 of Part 2 of the Act. No determination was required from the Ombudsman, as the matter had resolved.

In May 2018, C made an application to the Department of Primary Industries, Parks, Water and Environment (the Department) for assessed disclosure, which included a request for copies of commercial filming agreements approved between 1 January 2013 and 21 May 2018 in the Arthur-Pieman Conservation Area.  An application Z had made through his media company was found to be responsive to the request and he was consulted under s36(2) and s37(2) by the Department.  Z did not object to the release of his commercial filming application but was concerned about the release of an associated email which he did not consider to be in the public interest. The Department decided that the email should be released to C, with Z’s personal information redacted. Z sought an internal review of this decision, which upheld the original decision except for one sentence, which was also redacted. Z then sought external review of this decision. The Ombudsman considered that the Department’s redactions struck an appropriate balance between releasing information about commercial filming agreements approved in public spaces and protecting Z’s personal information. The Ombudsman determined that the email should be released to C in the redacted form provided to Z in the Department’s internal review decision.

Mr Howlin has been in dispute with the City of Clarence regarding which party has responsibility for Marsh Street, Opossum Bay. He made an application in July 2017 for assessed disclosure of information regarding planning approvals, maintenance and other records to support his claim against the City of Clarence. Council refused his application pursuant to subsections 20(a) and (b) of the Right to Information Act 2009. Council considered it was: (a) a repeat request for information provided in response to a previous 2010 application by Mr Howlin on the same subject; and (b) a vexatious application as Council considered it a further attempt to gain evidence to prove arguments already rejected in court proceedings against Council. The Ombudsman found on external review that Council should not have refused his application on this basis, except for one aspect which was appropriately refused as that information had already been provided. The Ombudsman directed Council to reassess the application in accordance with the provisions of the Act.

Mr Stott requested information from Hydro Tasmania ('Hydro') regarding the fault in the Basslink cable which caused it to shut down in 2015. Hydro released some information to Mr Stott but refused the majority of his request on the basis that it considered that: the information was already publicly available (s12); the work involved in providing the information would substantially and unreasonably divert Hydro’s resources from its other work (s19); or the information was exempt (under a section noted below). Mr Stott sought external review of this decision.

Late in the external review process, Mr Stott agreed to redaction of some personal information relating to personnel internal or external to Hydro. Hence, while the reasons consider exemptions claimed under s36, ultimately a s36 review decision was not required.

The Ombudsman found that:

1. He does not have the power to review a decision under s12 to refuse to provide information which is already publicly available.

2. Hydro had not complied with the requirements of s19 to give Mr Stott a reasonable opportunity to consult with it to refine his request to a form which would not substantially and unreasonably divert its resources. Mr Stott’s request was returned to Hydro to reassess under the Act.

3. Exemptions claimed under s31 (legal professional privilege) should be varied, releasing additional documents to Mr Stott.

4. Exemptions claimed under s37 (information relating to the business affairs of a third party) and s38 (information relating to the business affairs of a public authority) were not made out and relevant documents should be released to Mr Stott.

5. The exemption claimed over a document under s39 (information obtained in confidence) was not made out, but the document was otherwise exempt under s30 (information relating to the enforcement of the law).

The Ombudsman varied the Minister’s decision, determining that most of the information in the ministerial briefings was ‘purely factual information’ within the meaning of s27(4) and s35(2). As such, that information was not exempt and should be released to the applicant. A table overview of [then] ‘current prosecutions and significant investigations’ under the Work Health and Safety Act 2012 was now no longer: current; nor exempt under s30.

The Ombudsman agreed that some information was exempt under: s26(1)(d); s27; or (after applying the public interest test, only the name of the mother of a deceased worker) s36.