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)
Janiece Bryan and Glenorchy City Council (June 2023)
On 21 June 2019, Ms Janiece Bryan made an application for assessed disclosure under the Right to Information Act 2009 (the Act) to the Glenorchy City Council (Council). Ms Bryan requested access to legal advice Council had received about whether it had the ability to sell the Derwent Entertainment Centre and surrounding land.
On 11 July 2019 Council issued a decision to Ms Bryan, determining that the information responsive to her request was exempt under s31 of the Act on the basis that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
On 4 November 2019, Ms Bryan made a second application for assessed disclosure to Council, as she considered Council had since waived privilege over the legal advice. On 21 November 2019, Council issued a decision to Ms Bryan in relation to her second application for assessed disclosure. Council refused to accept the application under s20(a) of the Act, setting out that it was a repeat application and that there was no reasonable basis for seeking the same information again. Council also asserted that the requested information was exempt from disclosure under s31 of the Act.
This decision was affirmed on internal review and, on 16 December 2019, Ms Bryan made an application for external review. The Ombudsman determined that:
- Council was not entitled to refuse the application under s20(a);
- exemptions claimed pursuant to s31 were varied; and
- exemptions under s35 apply.
Janiece Bryan and Glenorchy City Council (PDF, 219.2 KB)
O and Department of Police, Fire and Emergency Management (June 2023)
On 15 August 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). The information sought by O related to the investigation into the death of her sister, P.
On 16 August 2019, the Department released some further information but claimed the information could not be provided due to s6, as it related to coronial proceedings and the coroner is an excluded person.
The request was also refused in part under s20(a), as the Department claimed it was a repeat application for the same or similar information as had been previously requested. This was affirmed on the internal review on 5 September 2019.
The Ombudsman found that the Department:
- has previously misapplied s6 but was entitled to rely on it where information was in possession of a police officer assisting the coroner; and
- was not entitled to refuse O’s application as a repeat under s20(a).
O and Department of Police, Fire and Emergency Management (PDF, 198.1 KB)
Robin Smith and City of Launceston No.2 (September 2022)
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 (September 2022) (PDF, 250.3 KB)
Andrew McCullagh and Northern Midlands Council (June 2022)
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 June 2022 (PDF, 162.1 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)
Darryl Howlin and Clarence City Council (February 2021)
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.
Darryl Howlin and Clarence City Council (PDF, 184.9 KB)
Rosalie Woodruff and Department of Primary Industries, Parks, Water, and the Environment (June 2018)
In an original application, Ms Woodruff requested information from the Department in relation to four fin-fish farming organisations. The Department originally applied s19 and appropriately offered Ms Woodruff an opportunity to revise her application.
Ms Woodruff did this, cutting the application down to just one of those companies. Once that decision was completed, Ms Woodruff then submitted two additional applications - each one dealing with one of the three remaining companies removed from her original application. The Department refused this under s20 claiming it a repeat application.