Elaine Anderson and Director of Inland Fisheries (April 2021)
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.
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).
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.
Ivan Dean MLC and Department of Health (June 2020)
The Department proposed, in a regulatory impact statement (RIS), new laws regarding e-cigarettes, tobacco licensing and smoking. It published most submissions on the RIS, but not six marked confidential. Ivan Dean MLC applied for those six submissions. The Department refused to release them. On internal review, Mr Dean sought to narrow the scope of his application to submissions by tobacco companies. The Department contested his ability to do so, reviewed all six submissions and again refused to release any. The Ombudsman determined that: an applicant is entitled to limit the scope of information sought on internal review; and the one submission by a tobacco company should be released in full. Although marked 'Private and Confidential', the submission was not, in law, ‘communicated in confidence’. Nor would its release impair the Department's ability to obtain similar information in the future. Furthermore, non-disclosure would be antithetical to Australia’s international treaty obligations and to the public interest.
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.
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.
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.
Mandy Squires and Department of Primary Industries, Parks, Water, and the Environment (March 2019)
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.
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.
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.