Suzanne Pattinson and Department of Education (August 2022)
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.
F and Department of Education (June 2022)
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.
Geoffrey Swan and Huon Valley Council (June 2022)
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).
Graham Murray and City of Hobart (June 2022)
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.
Michael Rowan and Kingborough Council (May 2022)
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.
Todd Dudley and Department of Natural Resources and Environment Tasmania (May 2022)
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.
Simon Cameron and the Department of Natural Resources and Environment Tasmania (January 2022)
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.
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.
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.
Rebecca White MP and Minister Barnett, Minister for Resources, Minister for Building and Construction (January 2021)
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.
Debbie Wisby / Jennifer Crawford and Department of Premier and Cabinet (August 2020)
The Glamorgan Spring Bay Council’s General Manager (GM) conducted an investigation into an alleged breach of confidentiality. Two Councillors applied for all information relating to or touching upon: the investigation; or contact regarding it between the GM and specified officers of the Department’s Local Government Division (LGD). The Department released most of the information, but not emails in which the GM requested, and an officer of the LGD provided, advice regarding the investigation. These were claimed to be exempt pursuant to s35(1)(b) and, on internal review, s39(1)(b).
The Ombudsman considered the emails under both s35(1)(b) and s39(1)(b). It was arguable they came within these exemptions. However, the Ombudsman was not satisfied disclosure would be reasonably likely to impair the ability of the LGD to obtain similar information in the future, as required for exemption under s39(1)(b). Both sections are subject to the s33 public interest test. After considering a range of relevant matters, the Ombudsman determined that the emails should be disclosed as this would not harm the public interest.
T and Tasmania Police (June 2020)
T sought information in relation to her complaint to police about an alleged abuser. Tasmania Police processed the request and found most of the information to be exempt. This was mainly on the basis it involved information relating to the enforcement of the law, information subject to legal professional privilege, internal information, or personal information of other people. The Ombudsman considered the decision of Tasmania Police and, while mostly upholding it, held that some further information should be released to T.
George Lane and Tasmania Police (April 2020)
Dr George Lane is a scientist who had been undertaking some consultancy work for which he ordered equipment from China. Tasmania Police was alerted to a parcel potentially containing glassware consistent with drug manufacture. A search warrant was issued and Dr Lane's property was searched. He sought information from the Police Service relating to the incident. Tasmania Police exempted much of the material as it related to the enforcement of the law, or for other reasons such as internal deliberative and personal information. While most of the information remained exempt, the Ombudsman made some variations to the Police Service’s decision.
Louise Grahame and City of Hobart (March 2020)
Louise Grahame ran a stall at the Salamanca Market. Conflict between Ms Grahame and a number of other stallholders saw complaints made to the Council, which manages the market, by other stallholders about Ms Grahame. She sought copies of these complaints and emails relating to her and the market. The Council released a large amount of information but exempted in full or part various documents it claimed were internal deliberative information or information obtained by Council in confidence. It also redacted some personal information. The Ombudsman determined that most of the information was not exempt, including the identities of stallholders who had made complaints about Ms Grahame. While the latter was personal information, the public interest, including reasons of procedural fairness, entitled Ms Grahame to know the identities of those who had complained about her. However, a complainant's argument that their telephone number and personal email address were exempt information was upheld.
Rudra Sharma and Department of Primary Industries, Parks, Water, and the Environment (March 2020)
Mr Sharma has had ongoing interactions with the Land Titles Office in relation to his property in Sandy Bay. There was an adverse decision not to approve something Mr Sharma sought and he subsequently submitted a request for the information relating to that decision.
The Department refused the release of the information on the basis it formed internally deliberative material and the public interest test did not support its release. The Ombudsman found this was not fully correct and he varied the decision.
The common issues with this decision relate to proper consideration of use of s35 and the public interest test.
Richard Webb and Department of Primary Industries, Parks, Water, and the Environment (January 2020)
Mr Webb sought information from the Department in relation to the development proposal on Halls Island, Lake Malbena. The request sought a range of information that primarily included some leases for Halls Island and some documents to the relevant Minister.
One of the core parts of this review was whether or not the two leases sought for Halls Island was information obtained in confidence as claimed by the Department. The Ombudsman overturned this in full on the basis the Department's own lease documents could not constitute information obtained in confidence that, if released, would impair its ability to obtain similar information in the future.
Damon Smith and Tasmania Police (October 2019)
Mr Smith sought information from Tasmania Police in relation to a complaint he had made. Specifically, he sought a copy of the investigation notes and details that resulted from his complaint.
Tasmania Police exempted some information and released other pieces directly to the applicant. There was some negotiation with Police during this review that resulted in Tasmania Police voluntarily releasing extra information. As a result there were very few pieces of information the Ombudsman determined should additionally be released to the applicant.
Atkin and Forestry Tasmania (Sustainable Timber Tasmania) (October 2018)
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.
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.
Bryan Green MP 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.
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.
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.
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.