O and Department of Police, Fire and Emergency Management (No 2) (August 2023)
On 10 November 2019, O made an application for assessed disclosure, under the Right to Information Act 2009 (the Act) to the Department of Police, Fire and Emergency Management (the Department), for information related to the death of her sister. On 22 November 2019, the Department refused O’s request on the basis the information was otherwise available (s12) or a repeat application (s20(a)). O sought internal review and the Department affirmed its decision on 3 December 2019. O then sought external review.
The Ombudsman has already considered the correct application of s6 in a previous decision relating to the same parties in O and the Department of Police, Fire and Emergency Management No 1 (June 2023) and found that it had been incorrectly applied in the past.
The Ombudsman determined that the Department:
- was not entitled to rely on s20(a) to refuse the application as a repeat, but was not required to reassess the relevant information as it is excluded under s6 of the Act;
- did not undertake a sufficient search for information responsive to O’s request, but has now taken appropriate steps to rectify this issue; and
- was entitled to refuse to provide information in relation to the remainder of O’s request, as this was otherwise available under s12(3)(c)(i) or did not exist.
O and Department of Police, Fire and Emergency Management (No 2)
(PDF, 258.4 KB)
Camille Bianchi and the Department of Health (November 2021)
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.
Camille Bianchi and the Department of Health (PDF, 298.0 KB)
Lawrence Archer and Dorset Council (June 2021)
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).
Lawrence Archer and Dorset Council (PDF, 298.0 KB)
Rhiana Whitson and Department of Primary Industries, Parks, Water and Environment (DPIPWE) (May 2021)
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).
Adam Stanway and Tasmania Police (May 2021)
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.
Adam Stanway and Tasmania Police (PDF, 243.7 KB)
Clive Stott and Hydro Tasmania (February 2021)
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).
Clive Stott and Hydro Tasmania (PDF, 262.1 KB)
Michael Atkin and Tasmania Police (October 2019)
Mr Atkin, an ABC journalist, submitted a request to Tasmania Police seeking information in relation to the gun trafficking trade in Tasmania in February 2015. Nearly 300 pages of information were claimed exempt under a range of different sections given the sensitivity of the information. The application of the various sections was largely supported by this office with a few minor changes to Tasmania Police’s decision.
Michael Atkin and Tasmania Police (PDF, 1.1 MB)
Atkin and Forestry Tasmania (Sustainable Timber Tasmania)
After the 2014 state election, Mr Atkin, a Tasmanian-based journalist for the ABC at that time, submitted an application for assessed disclosure seeking information that covered emails and other briefings about FSC certification. This included an Incoming Government Briefing (IGB).
This primarily considers the exemption of the IGB and the decision of this office to release parts of it as purely factual information.
Atkin and Forestry Tasmania (Sustainable Timber Tasmania) (PDF, 1.3 MB)
Damien Matcham and Brighton Council (January 2018)
Mr Matcham requested seven years' worth of Council related credit card statements and several years worth of the General Manager's diary appointments among other things. Council refused the bulk of the decision under s19 on the basis the work required would be a substantial and unreasonable diversion of its resources from its other work. Some of the information, it claimed, was already publicly available and it subsequently refused to release it under s12 of the Act. The use of s19 was varied - set aside for the credit card statements, but affirmed for the diary entries. A refusal under s12 is not a reviewable decision under the Act.
Damien Matcham and Brighton Council (PDF, 1.0 MB)
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)