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.
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.
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.
Alexandra Humphries and University of Tasmania (February 2022)
The University of Tasmania purchased the former Fountainside, MidCity and Theatre Royal hotels in central Hobart and expressed its intention to convert the properties to student accommodation. Plans to convert the ‘Old Commerce Building’ in French Street, Sandy Bay to student accommodation were also reported in the media.
On 12 February 2019, Ms Alexandra Humphries, a journalist with the ABC, made an application to the University under the Right to Information Act 2009 for information regarding the purchase price of the Fountainside Hotel and business, refurbishment costs of the Fountainside, MidCity and Theatre Royal hotels, engineering reports regarding the French Street property and the amount the University paid in rates to the Hobart City Council. Except for an Occupancy Permit relating to the French Street property, the University did not disclose any information responsive to Ms Humphries’ request, claiming the information was exempt under s38(1)(ii). It maintained this position on internal review. Ms Humphries sought external review on 14 May 2019.
The Ombudsman determined that the University’s use of s38 should be varied and that its use of s39, in the alternative, was not made out. Some information regarding the refurbishment costs for the Fountainside and Theatre Royal hotels was found to be exempt under s38, but the Department had not discharged its onus under s47(4) to show why the remaining information should not be disclosed.
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.
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).
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.