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Forestry Tasmania and the Freedom of Information Act

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Forestry Tasmania was initially subject to the provisions of the Freedom of Information Act (1991). However, when its was corporatised as a government business enterprise on July 1, 1994, it was exempted from the provisions of the legislation. Later, the agency voluntarily opted to comply with the FOI provisions for less controversial applications whilst claiming it was exempt for the remainder. After ongoing controversy over the management of the state's forests, the exemption was removed in late 2004.[1]

Winning an exemption ...

When the Forestry Corporation was created as a Government Business Enterprise in 1994 with the passage of the Forestry Amendment (Forestry Corporation) Act 1994, the agency was exempted from the Freedom of Information Act. Asked by the Tasmanian Greens member, Christine Milne, on whether the new agency would be exempt from the FOI Act, the Premier, Ray Groom, said that "in respect to personal information, of course FOI will still apply. As far as commercial information is concerned, however, we believe it is appropriate it should not apply."[2]

In introducing the bill in the House of Assembly, Groom stated that "the Government has decided that both the corporation and Private Forests, Tasmania should be exempt from FOI except for the provision of personal information. This is in keeping with the more commercial nature of the businesses they conduct, and much of their information relates to the commercial and related dealings of their customers or clients, which FOI was never intended to cover. Normal public release of technical reports, management plans and other documents will continue to be made by the new corporation. There are requirements to release management plans for public comment and so on under different sections of the relevant act. It is pertinent to note that since the introduction of the Freedom of Information Act, and up until 24 November 1993, the commission had received 32 requests under FOI, of which three‑quarters or 24 were by one member of the House of Assembly ... Ms [Peg] Putt was the person who sought information via 24 out of the 32 requests. As that member will maintain the right to ask questions in the House so long as she is here, or to seek ministerial briefings on related matters, it appears from experience that this approach to the provision of information will not unduly restrict access to general information by the public of Tasmania as a whole."[3]

A member of the government, Bill Bonde, sought to portray the exemption from FOI as necessary to protect information from commercial competitors, even though a specific exemption caters for just that under the legislation. "I would suggest that there is nothing wrong with making sure that the people who are running the corporation and the shareholders' interest are protected from competitors or people who are seeking to do business with the corporation. If they are able to get hold of confidential information it certainly makes it much more difficult for the government department or corporation to do business," he said.[3] The Labor Opposition's spokesman, Julian Amos, offered muted passing criticism over the FOI exemption. Amos told Parliament Forestry Tasmania "must be open to public scrutiny; it must be under public control, and I am a little suspicious that by establishing the corporation we are removing from that body access by the public to information; access by the public to control; and access by the public to ensure that the asset is being properly maintained."[4]

Forestry Tasmania – Voluntary Participation in FOI Act[5]
Year Full Access Part Access Denied Use of Section 32A Exemption from FOI Act
1993-94 12 1 3
1994-95 25 2 3
1995-96 4 1 2 No reported use
1996-97 4 4 5 Used 4 times
1997-98 4 3 3 Used 3 times
1998-99 13 3 5 Used 4 times
1999-00 4 0 1 Used once
2000-01 2 1 1 not used
2001-02 0 1 1 not used
2002-03 3 0 3 Used 3 times

(This table was compiled by Rick Snell, Senior Lecturer in Law at the University of Tasmania. While unpublished, it is used with his permission).

... and Losing it

In October 2004, the Tasmanian Labor government introduced legislation to remove Forestry Tasmania's exemption from the FOI legislation. In the second reading speech bill in Parliament, the then Minister for Infrastructure, Energy and Resources, Bryan Green, sought to portray the change as being necessary to address the perception, not the reality, of Forestry Tasmania being secretive. "The Government has made a considered decision to repeal section 32A of the Freedom of Information Act 1991 to address community concerns regarding the perception that Forestry Tasmania and Private Forests Tasmania were not accountable, or that the public could not access information on their activities. Mr Deputy Speaker, these are of course perceptions, as both organisations have consistently received and processed requests for information in accordance with the act, and have rarely used section 32A to exempt information," he said.[6] The Opposition Liberal Party, which had initially introduced the exemption, supported its removal.[7] The bill was passed by the Legislative Council unamended.[8] The change took effect from July 1, 2005.

Struggling to comply

Despite being brought back under the FOI Act, Forestry Tasmania has gained a reputation for resisting disclosing information.

Requests to Forestry Tasmanian Under the FOI Act

Year Requests Received Requests Decided Full Access Part access Exempt/Exceptions Denied Refusals - Transferred Refusals - Withdrawn
1999-2000[9] 5 5 Not available online Not available online Not available online Not available online Not available online Not available online
2000/01[10] 3 3 Not available online Not available online Not available online Not available online Not available online Not available online
2001/02[11] 2 2 0 1 1 Nil Nil Nil
2002/03[12] 6 6 3 0 3 11 Nil Nil
2003/04[13] 7 7 5 1 3 2 Nil Nil
2004/05[14] 12 12 6 3 8 3 Nil Nil
2005/06[15] 20 18 12 4 9 2 Nil Nil
2006/07[16] 26 25 8 3 N/A 14 1 Nil
2007/08 [17] 16 16 6 6 N/A 3 Nil Nil

Ombudsman's rulings on appeals against Forestry Tasmania decisions

Under the Freedom of Information Act, applicants have the option of seeking an internal agency review of an initial decision. Then, if still dissatisfied, they can seek a review by the Ombudsman. Some applicants that are either granted only partial access to documents or have had their request denied in total appeal all the way through to the Ombudsman. Since 2006, the results of appeals to the Ombudsman against internal Forestry Tasmanian decisions have been posted to the Ombudsman's website. The cases have been:

  • Forestry Tasmania MOU with Gunns: Greens Member of the House of Assembly, Tim Morris, applied in September 2006 for records relating to a wood supply agreement for a proposed pulp mill. In October 2006 he submitted a revised request for "all information pertaining to any agreement between Gunns Limited and Forestry Tasmania related to either an informal or formal wood supply agreement for the proposed pulp mill". Forestry Tasmania identified an April 2004 Memorandum of Understanding (MOU) but refused access, the Ombudsman stated, "on the basis that it was claimed to be exempt information under s 31 (the exemption for information disclosing an undertaking to competitive disadvantage), s 32 (the exemption for an agency engaged in trade or commerce) and s 33 (the exemption for information obtained in confidence) of the FOI Act."[18]
While Gunns objected to the possible disclosure of the MOU, Forestry Tasmania claimed that two attachments to the document fell outside the scope of the revised FOI request and therefore could not be the subject of a review by the Ombudsman. The Ombudsman rejected their argument, stating that "on examination there is no doubt that the MOU was drafted with the intention that all the attachments (including the attachments in dispute) were to form part of the entire agreement entered into between Forestry Tasmania and Gunns ... In my view, the MOU cannot be sensibly read and/or understood unless reference is made to all of the attachments, including the attachments in dispute." However, The Ombudsman found that -- especially as the material claimed as exempt "does not need to survive a public interest balancing test" -- the timber volume an pricing information qualified as being exempt.[18]
The Ombudsman was also dismissive of Forestry Tasmania's claim that the material was exempt under s 33 of the FOI Act. Section 33 allows material to be exempt if it "relates to information provided to an agency "would divulge information communicated in confidence by or on behalf of a person or a government to an agency or a Minister, and – (a) the information would be exempt information if it were generated by an agency or a Minister; or (b) the disclosure of the information would be contrary to the public interest because the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future." Having already exempted the volume and pricing information, the Ombudsman wrote that "I am not satisfied that the disclosure of the remaining information contained in the MOU would be reasonably likely to impair the ability of Forestry Tasmania to obtain similar information in the future."[18]
Forestry Tasmania also made further submissions. One claimed that, as the MOU was date April 2004 and Forestry Tasmania's exemption from the FOI Act was repealed on July 1, 2005, the act did not apply to documents that pre-dated the change. Forestry Tasmania stated that "the right to access information may be characterised as (or analogous to) a cause of action. In this case, and even if the repealing amendment is seen as essentially procedural, the fact that our right to withhold information has changed means that to allow an applicant to reach back beyond 1.7.2005 is a retrospective act, and it is not permissible in the absence of clear statutory terms [Maxwell v Murphy (1957) 98 CLR 261 at 277-8]".[18]
The Ombudsman rejected their argument. "In my view in construing the FOI Act and its conjunction with the repeal of s 32A, the clear intention of the Parliament was to promote the underlying object of the FOI Act, being to give members of the public the right to obtain information contained in the records of the Government and its agencies limited only by necessary exceptions and exemptions. The result being that the exemptions which can be applied to the information requested by the access applicant are those existing as at the date when the request was made. In this matter s 32A was repealed before the request was made and has no application," he wrote.[18]
  • Forestry Tasmania Documents on Ta Ann/Newood Huon: In April 2007, Greene MP, Tim Morris, requested documents relating to the construction of two veneer mills. Initially Hans Drielsma claimed an exemption under section section 20 as requiring too much of the agency's resources. Following a revision of the request, Drielsma claimed that some of the records were exempt as "internal working documents" (section 27), others were exempt under section 9(a) and that as others involved third parties, he we required to consult with them as to whether the material related to trade secrets (section 31).[19]
At the outset the Ombudsman noted that Forestry Tasmania had not created a schedule listing the documents and which exemptions were claimed for each document. Drielsma also informed the Ombudsman that it was Forestry Tasmania's view that there was no specified time period in which the consultations with third parties needed to be completed. Some of the documents Forestry Tasmania claimed were exempt were media releases and a speech by former Forestry Tasmania head, Evan Rolley.[19]
While Newood and Te Ann did not provide submissions to the Ombudsman, Forestry Tasmania did. While it submitted comments on each document, the Ombudsman stated that "these submissions were insufficiently specific to be of much value to me in carrying out this review." As to Forestry Tasmania's concern over information provided to it by third parties, the Ombudsman noted that the argument that it made in its letter "were not followed up ... with any submission by FT in relation to any specific document that the exemption applied, or with any evidence in support of the notion that there was information in the documents which had been provided in confidence, or with with any evidence that disclosure of information in the documents would be reasonably likely to impair the ability of FT to obtain similar information in the future. I have not therefore been equipped to consider whether s33 might apply to any of the information, and have not done so. I note in this respect that the onus of establishing that information is exempt is on the agency which seeks the benefit of the exemption." Forestry Tasmania then sought and gained a meeting with the Ombudsman at which it was granted a further limited period to make further submissions. Forestry Tasmania followed up with a letter setting out its arguments as to why classes of information should be deemed to be exempt with a listing of how these arguments applied to different documents.[19]
In its original letter of a decision to Morris, Forestry Tasmania had outlined reasons for why disclsoure of information would be contrary to the public interest under section 27. The Ombudsman noted that "the reasons do not relate specifically to the documents in question and are very similar, if not identical, to reasons provided to Mr Morris in response to previous FOI requests where FT has claimed that information is exempt under s 27." On examining the documents, the Ombudsman determined that none of the documents was exempt under S 27.[19]
The Ombudsman was equally dismissive of Forestry Tasmania's claim that some of the documents were exempt under section 31 (1) a and b. The Ombudsman wrote that "I do not find that any of the information in the documents relates to trade secrets. Nor do I find that any of the information in them is a trade secret of FT, in case that is also being asserted. The reasons is that no evidence has been provided to me to substantiate the submissions made ... all I have been given to work with on the trade secret issue are bare assertions that trade secrets are involved."[19]
  • Forestry Tasmania Forest Inventory and Culvert Location Data: Mr D Jaskierniak, a PhD student, sought information from Forestry Tasmania as part of a research project into water resource management tools. The data he sought forest inventory data and details of the location of pipe culverts on land managed by Forestry Tasmania. Forestry Tasmania released the requested information on culverts but argued that the forest inventory data was a trade secret. Based on submissions made by Forestry Tasmania, the Ombudsman found that that data "can be classified as trade secrets of FT and are therefore exempt under s 32 (a) (i) of the FOI Act." While Forestry Tasmania had agreed to provide the applicant with some data on culverts, the Ombudsman wrote:
"I express my concern at the fact that FT did not provide the access applicant with the culvert data in digital form. It is the case that he had no right under the FOI Act to receive the data in this form, but it is surprising that he should have been put to the inconvenience of only having a printed copy, and therefore of having to manually put the information into his own computer so that he could work with it."
"Finally, I make the comment that it is incumbent on FT to observe the requirements of s 20 (4) of the FOI Act. FT failed to consult with the access applicant with a view to assist him in refining his request. No attempt was made to comply with that section."[20]

Forestry Tasmania documents released under FOI

Since April 2008, documents released by Forestry Tasmania have been posted to a section of the agency's website. FT's Managing Director, Bob Gordon, announced that "in keeping with our commitment to operate in an open and transparent manner, FT will post on its web site, wood supply agreements, as well as responses to requests under Freedom of Information ... This will be accompanied by an e-mail advisory to media notifying them of new content, with links to where the documents can be found on the FT web site."[21]

While Forestry Tasmania load documents released under FOI to their website, they do not provide links to the Ombudsman's reviews of their decisions.

Webpage: http://www.forestrytas.com.au/forest-management/freedom-of-information-requests-foi

Ombudsman's Decisions on appeals against Forestry Tasmania FOI decisions

Articles and resources

Related SourceWatch articles

References

  1. Bryan Green, Forest Practices Administrative Reform (Transitional and Consequentional) Bill 2004: Second Reading", House of Assembly Hansard, October 28, 2004.
  2. Ray Groom, "Freedom of Information", Hansard, House of Assembly, February 16, 1994.
  3. 3.0 3.1 Ray Groom, "Forestry Amendment (Forestry Corporation) Bill 1993: Second Reading", Hansard, House of Assembly, February 16, 1994.
  4. Julian Amos, "Forestry Amendment (Forestry Corporation) Bill 1993: Second Reading", Hansard, House of Assembly, February 16, 1994.
  5. Rick Snell (Senior Lecturer in Law, University of Tasmania), unpublished, based on FOI Annual Reports 1993-2003, Department of Justice.
  6. Bryan Green (Minister for Infrastructure, Energy and Resources), Forest Practices Amendment (Administrative Reform) Bill 2004", House of Assembly Hansard, October 28, 2004.
  7. Rene Hidding, Forest Practices Amendment (Administrative Reform) Bill 2004", House of Assembly Hansard, October 28, 2004.
  8. "Forest Practices Amendment (Administrative Reform) Bill 2004", House of Assembly Hansard, November 24, 2004.
  9. Department of Justice, "Table 3 Prescribed Authorities – Requests Received and Requests Decided 1999/00 - 2001/02", FOI Annual Report 2001-02, Department of Justice, page 7.
  10. Department of Justice, "Table 3 Prescribed Authorities – Requests Received and Requests Decided 1999/00 - 2001/02", FOI Annual Report 2001-02, Department of Justice, page 7.
  11. Department of Justice, "Table 3 Prescribed Authorities – Requests Received and Requests Decided 1999/00 - 2001/02", FOI Annual Report 2001-02, Department of Justice, page 7.
  12. Department of Justice, "Freedom of Information Annual Report 2002/03", Department of Justice, page 11.
  13. Department of Justice, "Freedom of Information Annual Report 2003/04", Department of Justice, page 8.
  14. Department of Justice, "Freedom of Information Annual Report 2004/05", Department of Justice, page 10.
  15. Department of Justice, "Freedom of Information Annual Report 2005/2006: Table 8", Department of Justice, page 11.
  16. Department of Justice, "Freedom of Information Annual Report 2007/2008", Department of Justice, September 2007, page 11.
  17. Department of Justice, "Freedom of Information Annual Report 2007/2008", Department of Justice, page 9.
  18. 18.0 18.1 18.2 18.3 18.4 Simon Allston (Tasmanian Ombudsman), "Tim Morris MHA and Forestry Tasmania - Reasons for Decision", Case Reference: 700-0610001, April 3, 2007.
  19. 19.0 19.1 19.2 19.3 19.4 Simon Allston, "Tim Morris MHA and Forestry Tasmania - Reasons for Decision", August 2007.
  20. Simon Allston, "Mr D Jaskierniak and Forestry Tasmania; Reasons for Decision", Reference: File No 700-0803023, August 11, 2008, page 11.
  21. Bob Gordon, "FT to publish Wood Supply Agreements", Branchline, Forestry Tasmania, April 21, 2008.

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