Lake Maintenance Pty Ltd and Homes Tasmania (July 2023)
In 2018, the then Department of Communities issued a request for tender (RFT) that sought to engage contractors for the provision of maintenance services for social housing properties in Tasmania. The RFT attracted 13 applications, one of which was submitted by the applicant, Lake Maintenance Pty Ltd.
The applicant was unsuccessful in this tender process and on 15 February 2019 submitted an application for assessed disclosure under the Right to Information Act 2009 (the Act) seeking information regarding the selection process.
On 10 April 2019, a decision was issued to the applicant. 1,434 pages of information was identified as being responsive to the applicant’s request with the substantial majority of this information was released in full. However, the evaluation report regarding the tender process was found to be partially exempt from disclosure under s37(1)(b) of the Act. This decision was affirmed on internal review.
On 18 July 2019, the applicant submitted an application for external review. Homes Tasmania is now the relevant public authority following the disbandment of the Department of Communities.
The Ombudsman determined that some information contained in the report was exempt under ss35 and 37 of the Act.
Lake Maintenance Pty Ltd and Homes Tasmania (PDF, 201.7 KB)
The Eaves Family and Department of State Growth (June 2023)
On 2 September 2019, the Eaves family made an application for assessed disclosure under the Right to Information Act 2009 (the Act) to the Department of State Growth (the Department). The Eaves family sought information relating to the Department’s processes for assessing Expressions of Interest in relation to leasing a property in the Burnie area for the accommodation of the Department’s Transport Groups operations. On 20 November 2019, the Department released a decision to the Eaves family. It determined to release the information in part, with some information found to be exempt under ss35, 36, 37 and 39 of the Act.
The Eaves family applied for internal review and sought answers to further questions. On 16 January 2021 the Department released its decision. While the Secretary of the Department did provide some further answers and clarification to the Eaves family, the Department relied on the same provisions of the Act to exempt the remaining information. The Eaves family then sought external review, though they did not contest the exemption of information under s36 of the Act.
The Ombudsman determined that exemptions claimed pursuant to s35, 37 and 39 were varied.
The Eaves Family and Department of State Growth (PDF, 404.7 KB)
Robert Hogan and University of Tasmania (June 2023)
Mr Robert Hogan is opposed to the plan to relocate the campus of the University of Tasmania (the University) to central Hobart. On 24 March 2022, Mr Hogan made an application for assessed disclosure under the Right to Information Act 2009 (the Act) to the University for copies of the minutes of meetings of the University Council.
On 27 May 2022, the University released a decision to Mr Hogan. He was provided with some information but other information was found to be exempt under ss37 and 38 of the Act. Mr Hogan sought internal review and on 18 July 2022, the University released an internal review decision which affirmed the original decision. Mr Hogan sought external review of that decision.
The Ombudsman found that exemptions claimed by the University under s37 were not made out and those claimed under s38 were to be varied.
Robert Hogan and University of Tasmania (PDF, 267.4 KB)
Manuel Sessink and Department of Justice (May 2023)
On 13 October 2019, Mr Manuel Sessink made an application for assessed disclosure under the Right to Information Act 2009 (the Act) to the Department of Justice (the Department) seeking information relating to the siting of the proposed northern prison. On 20 November 2019, Mr Sessink sought external review under s45(1)(f) of the Act because the timeframe for a decision to be provided by the Department had elapsed and he was not in receipt of that decision.
On 21 November 2019, the Department issued a decision to Mr Sessink. It decided to release the requested information, in part, exempting the remainder from disclosure under ss35, 37, and 39 of the Act. Mr Sessink extended his external review request to a full review without seeking internal review.
The Ombudsman determined that exemptions claimed pursuant to ss35, 37, and 39 should be varied.
Manuel Sessink and Department of Justice (PDF, 280.3 KB)
Woolnorth Wind Farm Holding Pty Ltd and Department of Natural Resources and Environment (April 2023)
On 7 August 2019, the now the Department of Natural Resources and Environment (the Department) accepted a request for information under the Right to Information Act 2009 (the Act) from a journalist in relation to bird strikes at wind farms. A search of the records in the Department’s possession identified some information in relation to Woolnorth Wind Farm Holding Pty Ltd (Woolnorth). The Department consulted with Woolnorth pursuant to section 37(2) of the Act and Woolnorth objected to the disclosure of certain information, claiming it was exempt under ss36 and 37.
The Department notified Woolnorth on 13 September 2019 that it had decided to release all the relevant information in their possession except for information that it considered exempt under s36. Woolnorth agreed to the release of some information but sought internal review of the decision based on concerns that the release of certain photographs of bird strikes would harm its competitive position. Woolnorth believed that the information should be exempt under s37 of the Act. On 4 October 2019, the Department released an internal review decision which upheld the original decision that determined s37 did not apply.
Woolnorth sought external review and the Ombudsman determined that the information was not exempt pursuant to s37.
Ari Zaetz and City of Hobart (October 2022)
On 6 March 2019, Mr Zaetz applied for assessed disclosure under the Right to Information Act 2009 with the then Hobart City Council, now City of Hobart (Council). The information requested was about the Council’s tender process for the development of a pay-by-phone application for on street car parking. EasyPark ANZ Pty Ltd (EasyPark) was awarded the contract and the information sought by Mr Zaetz was the contract between Council and EasyPark and the procurement documents. Council consulted with EasyPark pursuant to s37(3) in assessing the application for information.
On 8 April 2019, Council released the procurement documents but claimed exemption over the contract between Council and EasyPark, pursuant to s39. On 28 June 2019 the internal review decision was released, in which Council’s position changed from relying on s39 to reliance on s37 (information relating to the business affairs of the third party). Further information in the contract was released but significant portions remained redacted.
The Ombudsman determined that the exemptions claimed by Council pursuant to s37 should be varied, with information in only four clauses found to be exempt.
Ari Zaetz and City of Hobart (PDF, 162.3 KB)
Blue Derby Pods Ride Pty Ltd and Department of Natural Resources and Environment (June 2022)
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). A 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 Department of Natural Resources and Environment (PDF, 191.9 KB)
Cassy O'Connor MP and Department of Natural Resources and Environment (14 April 2022)
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 Department of Natural Resources and Environment (PDF, 238.0 KB)
Robert Vellacott and Devonport City Council (April 2022)
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 (PDF, 258.6 KB)
C and Department of Primary Industries, Parks, Water and Environment (December 2021)
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.
C and Department of Primary Industries, Parks, Water and Environment (PDF, 182.5 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).
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)
Nick McKim and Department of Primary Industries, Parks, Water, and the Environment (December 2019)
In June 2014, the Tasmanian Government called for expressions of interest for developments in Tasmanian national parks. Senator McKim requested the proposed locations these developments in November 2014. The Department claimed this information was exempt as it was obtained in confidence and that it was not in the public interest to release it to the public. The Ombudsman overturned this decision and the list was released to Senator McKim.
Nick McKim and DPIPWE (PDF, 6.0 MB)
Environment Tasmania and Department of Primary Industries, Parks, Water, and the Environment (November 2019)
Environment Tasmania asked the Department to provide a range of information about fin-fish farming around Tasmania. The first response was a possible refusal under s19. This was due to the size and complexity of what has been sought. The scope was revised and focused on a smaller sub-set of information about Okehampton Bay. The Department refused its release claiming it would expose a third party to competitive disadvantage under s37. The Ombudsman set this decision aside. While s37 might have been able to apply, it did not satisfy the public interest test.
Environment Tasmania and DPIPWE (PDF, 2.5 MB)
Christine Smart and City of Launceston
Ms Smart requested information relating to the legal costs incurred by Council in relation to her property, specifically her fence line that bordered an alleyway, that had historically been there for decades. A review of the boundaries identified the discrepancy and Ms Smart was asked to correct it.
Ms Smart's application for assessed disclosure sought the the amount of legal costs incurred by Council after she challenged Council's decision. This matter primarily looks at whether or not the legal costs incurred constitute privileged information.
Christine Smart and City of Launceston (PDF, 1.1 MB)
Mandy Squires and Department of Primary Industries, Parks, Water, and the Environment (March 2019)
Ms Squires (a journalist with NewsCorp) sought information from the Department about the death of 16 ponies on the Spirit of Tasmania. This was a serious incident and sparked a lot of interest among the media and the public. This is an interesting matter in that a strong public interest does not necessarily guarantee release of information in the right circumstances. The Department relied on exemptions due to enforcement of the law, third party business information, and information obtained in confidence. The decision only upholds those exemptions relating to the enforcement of the law and overturns the others.
Mandy Squires and DPIPWE (PDF, 2.2 MB)
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.
Tim Baird and City of Launceston (PDF, 689.3 KB)
Huon Aquaculture Group Pty Ltd and Department of Primary Industries, Parks, Water and Environment (July 2017)
On 7 November 2013, an application for assessed disclosure under the Right to Information Act 2009 (the Act) was received by the Department of Primary Industries, Parks, Water and Environment (the Department) from Tassal Operations Pty Ltd (Tassal). Tassal sought information relating to Huon Aquaculture Group Pty Ltd (Huon) and any interaction it has had with wildlife. A large number of documents were collated and the Department consulted with Huon pursuant to section 37(2) of the Act. Huon was advised that while some information was deemed exempt under the Act, the Department had decided to release a significant amount of information.
Huon sought an internal review, and the internal review decision was made on 16 July 2014. While further information was exempted, the Department’s internal review decision still proposed to release the majority of the relevant information. Huon continued to object to this and sought an external review.
The external review relates to exemptions claimed under ss37, 39 and 42 of the Act.
The Ombudsman determined that:
- Exemptions claimed pursuant to s37 were varied; and
- Exemptions claimed pursuant to ss39 and 42 were affirmed.
Environment Tasmania and Environment Protection Agency (June 2017)
Environment Tasmania requested information about Huon Aquaculture’s Lonnavale Hatchery and its effect on the Russell River. Some information was released but the EPA considered that all other information was exempt under s39(1) of the Right to Information Act 2009 (Information obtained in confidence) in the first instance because it had been voluntarily provided by Huon. On review the Ombudsman determined that none of the remaining information was exempt under s39(1) as disclosure of the information would not be reasonably likely to impair the ability of a public authority or Minister to obtain similar information in the future: s39(1)(b). However, much of the information was found to be exempt under s37(1) (Information relating to business affairs of third party) and, whilst it was contrary to the public interest to release raw monitoring data, the Ombudsman determined that it was not contrary to release all other information.
Environment Tasmania and Environment Protection Agency (PDF, 1.6 MB)
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.
Richard Baines and Department of Health and Human Services (PDF, 1.8 MB)
Michael Atkin and Department of Primary Industries, Parks, Water, and the Environment (April 2017)
Mr Atkin (a journalist with the ABC) requested information in relation to a fish mortality event in Macquarie Harbour that occurred between 1 December 2014 and 28 February 2015. Some laboratory report information as to the probable cause of the fish mortality event was released by the Department on internal review. The Ombudsman determined that information relating to the reporting of the fish mortality event by the relevant enterprise to the Department was exempt under s37 of the Right to Information Act 2009 but that, in terms of s33, it was not contrary to the public interest to disclose this. By contrast, whilst the remaining laboratory report information was exempt under s39, it was contrary to the public interest to disclose any further information from this report.