Freedom of Information Act/Tasmania, Australia - Key Provisions and Ombudsman Reviews

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Key provisions of the 1991 Freedom of Information Act include:

Exemptions

The Freedom of Information legislation provides for a number of exemptions. In a December 2008 decision on an FOI appeal, the Tasmanian Ombudsman stated that "the application of exemption provisions frequently requires evidence. If an agency fulfills its obligations under s 22 of the Act in making both the original decision and any internal review decision, I should have the necessary evidence to make my decision on an application for review under s 48. If evidence necessary to make out a claim for exemption is not provided, there is no prospect of me upholding that claim."[1]

He also noted that "the process of making a decision on a request for information under the Act requires intellectual rigour. When faced with a request, an agency might legitimately look at the political or policy consequences of release as a first step, but only for the purpose of deciding whether or not to release information irrespective of whether or not an exemption might be claimed under the Act - see s 12. Beyond that, the correct process is to look at the information which is identified as being responsive to the request and determine with objectivity whether or not any exemption applies to it. Some sections of the Act, such as ss 27 and 30, bring public interest issues into play in this process, but political or policy consequences of release are only relevant in that context."[1]

Some of the exemptions most commonly cited by government officials are:

Section 27. Internal working information

The provision

The legislation states that:"(1) Information is exempt information if –

(a) it consists of –
(i) an opinion, advice or a recommendation prepared by an officer or a Minister; or
(ii) a record of consultations or deliberations between officers and Ministers – in the course of, or for the purpose of, the deliberative processes included in the functions of an agency or Minister or of the Government; and
(b) its disclosure would be contrary to the public interest.
(2) Subsection (1) does not include purely factual information.
(3) Subsection (1) does not include –
(a) a final decision, order or ruling given in the exercise of an adjudicative function; or
(b) a reason which explains such a decision, order or ruling.
(4) The disclosure of information is not contrary to the public interest for the purpose of subsection (1)(b) merely because of –
(a) the seniority of the person who created, annotated or considered the information; or
(b) the possibility that the public may not readily understand any tentative or optional quality of the information.
(5) If a decision is made that an applicant is not entitled to information by virtue of this section, the notice given under section 22 shall state the public interest considerations on which that decision was based.
(6) Subsection (1) ceases to apply in respect of information incorporated in a record after the commencement of this Act 10 years after its incorporation."[2]

Ombudsman's Comments

In a review of an appeal by the Australian Broadcasting Corporation, the Tasmanian Ombudsman stated that:

"Section 27(1) of the Act deals with internal working information of an agency. Such information is exempt from disclosure if two conditions are satisfied. The first condition turns upon an objective description of the information itself. It must be information the disclosure of which would disclose matter consisting of an opinion, advice or recommendation prepared by an officer, or a record of consultations or deliberations between officers, in the course of, or for the purpose of, the deliberative process included in the functions of an agency."
"If information answers that description, then a second conditions applies. The second condition for exemption is that disclosure of the information would be contrary to the public interest. A conclusion that the disclosure of internal working information would be contrary to the public interest involves a judgement as to where the public interest lies."[3]

In another decision, the Ombudsman wrote that:

"by way of explanation, I note that there are a number of basic elements which must be established for the section to apply -
  • that the relevant information consists of an opinion, advice or recommendation prepared by an officer or a Minister;
  • alternatively, that the information consists of a record of consultations or deliberations between officers and Ministers;
  • that the opinion etc. was prepared, or that the consultations or deliberations occurred, in the course of, or for the purpose of, deliberative processes included in the functions of the agency or Minister, or the Government;
  • that the disclosure of the information would be contrary to the public interest; and
  • that the information is not purely factual information.
It is well-established that "deliberative processes" of the kind mentioned in the section represent predecisional thinking processes within the agency as it moves towards the making of a decision or towards embarking upon a course of action - see Re Waterford and Department of Treasury (No. 2) (1985) 5 ALD 588."[1]

Discussion in the 2009 Review of the FOI Act

In the 2009 review of the 1991 Act, the Review Team noted that "The review team concluded that the deliberative processes of government are important and it is in the public interest that they be, so-called, “frank and fearless”. The review team recommends that the wording of this provision be clarified to make its intent clear and we also concluded that guidelines in relation to induction of staff in administrative law and the practicable aspects of version control and what constitutes a record are also essential. Of course this clarification, which may be seen as a tightening up of the release, needs to be seen as balanced by the earlier recommendations which would encourage Ministers and public authorities to release information in a similar way as in section 12 of the current Act:

"This Act does not prevent and is not intended to discourage an agency or a Minister from publishing or providing information (including exempt information), otherwise than as required by this Act."[4]

Section 30. Information affecting personal privacy

The provision

The legislation states that:" (1) Information is exempt information if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of a person.

(2) Subsection (1) does not include information relating to the personal affairs of the person making the request.
(3) Before deciding whether to provide personal information relating to a person (other than the person making the request) an agency or Minister shall, if practicable –
(a) notify that person that the agency or Minister has received a request for the information; and
(b) state the nature of the information requested; and
(c) seek that person's view as to whether the information should be provided.
(4) If an agency or Minister, after seeking a person's view in accordance with subsection (3)(c), decides to provide the information requested the agency or Minister shall notify that person of the decision.
(5) A notice under subsection (4) shall –
(a) state the nature of the information to be provided; and
(b) if the decision was made on behalf of an agency – state the name and designation of the person who made the decision; and
(c) inform the person to whom the notice is addressed of –
(i) that person's right to apply for a review of the decision; and
(ii) the authority to which the application for review can be made; and
(iii) the time within which the application must be made.
(6) An agency or Minister shall not provide the information referred to in a notice given to a person under subsection (4) until –
(a) 28 days after that person has been notified; or
(b) if during those 28 days the person applies for a review of the decision – that review or any subsequent review determines that the information should be provided.
(7) If –
(a) a request is made to an agency or Minister for information of a medical or psychiatric nature concerning the person making the request; and
(b) it appears to the principal officer of the agency or to that Minister that the provision of the information to that person might be prejudicial to the physical or mental health or well-being of that person – the principal officer or Minister may direct that the information should not be provided to the person who made the request but should instead be provided to a legally qualified medical practitioner nominated by that person and approved by the principal officer or Minister.
(8) This section does not affect the procedures for access to adoption records contained in the Adoption Act 1988."[5]

Ombudsman's Comments

In a review of an appeal by the Australian Broadcasting Corporation, the Tasmanian Ombudsman stated that:

"The test for whether information qualifies for exemption under section 30(1) is in two parts. First, would disclosure of the information at issue disclose information that can properly be characterised as information concerning the personal affairs of a person? Secondly, if the information does relate to the personal affairs of a person, would disclosure of the information be unreasonable?"[6]

The Ombudsman cited a New South Wales Court of Appeal case (Commissioner of Police v District Court of New South Wales) which held that "In it's context, the words personal affairs mean the composite collection of activities personal to the individual concerned." The Ombudsman stated that "I have adopted this definition in considering the meaning of the phrase in this review. It is a question of fact whether in particular circumstances the name of a person concerns their personal affairs."[6]

The Ombudsman also stated that another case, Chandra and Minister for Immigration and Ethnic Affairs, "is authority for the proposition that whether or not disclosure of information would be "unreasonable" requires a consideration of all the circumstances, including the interest that the applicant has in the information in question, the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance." The Ombudsman also comments that section 30 subsections 3, 4 and 5 are important provisions "designed to protect the interests of third parties who may be harmed by disclosure of personal information in the possession of an agency."[7]

In another case, the Ombudsman stated that:

"Since the purpose of the provision is to prevent the unreasonable invasion of the privacy of third parties, the issue of unreasonableness must be viewed from the perspective of what is unreasonable when considering the interests of the individual whose personal affairs are at issue, in the context of the overall responsibilities of government. The application of the unreasonableness requirement in s 30 is much more straightforward where the individual affected is resisting release. In that setting, it is entirely obvious that the information should only be released where there are powerful public interest considerations which outweigh the public interest in protecting privacy which is inherent in the section, and which make it reasonable to release the information notwithstanding the consequences of so doing for the privacy of the individual."[1]

Section 32: Information relating to trade secrets, &c., of agency

The provision

"Information is exempt information –

(a) if it is –
(i) a trade secret of an agency; or
(ii) in the case of an agency engaged in trade or commerce – information of a business, commercial or financial nature that would, if disclosed under this Act, be likely to expose the agency to competitive disadvantage; or
(b) if it consists of the result of scientific or technical research undertaken by or on behalf of an agency, and –
(i) the research could lead to a patentable invention; or
(ii) the disclosure of the results of an incomplete state would be reasonably likely to expose a business, commercial or financial undertaking unreasonably to disadvantage; or
(iii) the disclosure of the results before the completion of the research would be reasonably likely to expose the agency or the person carrying out the research unreasonably to disadvantage; or
(c) if it is contained in –
(i) an examination, a submission by a student in respect of an examination, an examiner's report or any such similar record; and
(ii) the use for which the record was prepared has not been completed."[8]

Ombudsman's comments

In one case, an applicant who was a PhD student, sought information 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. In a decision on the applicants appeal against Forestry Tasmania's decision to claim the forest iunventory data was exempt, the Ombudsman set out first how he would assess whether it was or not.

"The relevant authorities as to the meaning of trade secret are usefully collected in Cannon v. Australian Quality Egg Farms Limited (Queensland Information Commissioner, S94/1993). Cannon explains that the term should be given its ordinary meaning in Australian law, which parallels that given in the American Restatement of the Law of Torts, 1939, Vol 4, para 757, which is any formula, pattern or device or compilation of information which gives an advantage over competitors who do not know or use it. The ordinary meaning requires that the information be both secret, and used or useable in trade or business. Beyond that, factors which assist in determining whether a trade secret exists are –
  • the extent to which the information is known outside the relevant business;
  • the measures which have been taken to guard the secrecy of the information;
  • the potential advantage to competitors of obtaining the information;
  • whether the information is of a technical character, a factor which is not a requirement but which will make it more likely that a trade secret exists; and
  • the ease or difficulty with which the information could be properly acquired or duplicated by others."
"See also Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 and Searle Australia Pty Ltd v. Public Interest Advocacy Centre (1992) 36 FCR 111."[9]

In this specific case, the Ombudsman requested further information from Forestry Tasmania in support of its claim that the data was a trade secret. In particular, he asked:

  • "In what particular markets FT might sustain competitive disadvantage.
  • Who the competitors are who might obtain an advantage over FT.
  • How FT uses, and intends to use, the information in dispute to its own advantage.
  • In what ways FT might sustain disadvantage.
  • Whether FT has previously been able to benefit from providing the information requested.
  • Whether FT has previously sold products and services from the requested information.
  • Whether any of the information requested is a trade secret within the terms of s 32(a)(i)of the FOI Act."[9]

In it's response, Forestry Tasmania, argued in part that:

  • "These datasets are valuable in the market for obtaining and/or leveraging external research funds";
  • "These data furthermore have direct value to FT in the provision of direct saleable products and consultancy services";
  • "these datasets give FT real negotiating advantage in the commercial market for supply of wood products";
  • "Competitors: Within the research funding market, Forestry Tasmania’s competitors include other forest managers and other research providers";
  • "Competition also includes forest consultancy firms who could take our datasets and provide consultancy services in competition with us to our own customers and a wide range of others interested in developments on State forest"."[10]

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."[11]

Section 33: Information obtained in confidence

The provision

The legislation states that:"

(1)Information is exempt information if its disclosure under this Act 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.

(2) Information referred to in subsection (1) is not exempt information if it is in the public interest that the information should be given under this Act.

(3) Subsection (1) does not include information that –

(a) was acquired by an agency or a Minister from a business, commercial or financial undertaking; and
(b) relates to trade secrets or other matters of a business, commercial or financial nature; and
(c) was provided to an agency or Minister pursuant to a requirement of any law.

Ombudsman's comments

Discussion in the 2009 Review of the FOI Act

In the 2009 review of the 1991 Act, the Review Team proposed that information relating to business affairs of both a third party or a public authority would be "Exempt only if 'contrary to the public interest' to disclose". For information supplied by a third party, the review team proposed Need to provide notice to third parties where 'it might be reasonably expected to be of substantial concern',", "a right of review accrues to the third party," and that it "would assist application if the Ombudsman’s guidelines clarified the factors to consider when determining what constitute 'competitive disadvantage'." (Only the latter point would apply to the business affairs of a public authority.)[12]

Articles and resources

Related SourceWatch articles

References

  1. 1.0 1.1 1.2 1.3 Simon Allston, "Simon Cullen and the Department of Premier and Cabinet", Case Reference: 700-0808048, December 18, 2008, page 2.
  2. "Section 27", Freedom of Information Act 1991 (No. 22 of 1991).
  3. Tasmanian Ombudsman, Australian Broadcasting Corporation / Tasmania Police: Reasons for Decision", May 23, 2008, page 4.
  4. Strengthening trust in Government - everyone’s right to know, Tasmanian Government, page 48.
  5. "Section 30", Freedom of Information Act 1991 (No. 22 of 1991).
  6. 6.0 6.1 Tasmanian Ombudsman, Australian Broadcasting Corporation / Tasmania Police: Reasons for Decision", May 23, 2008, page 3.
  7. Tasmanian Ombudsman, Australian Broadcasting Corporation / Tasmania Police: Reasons for Decision", May 23, 2008, pages 3-4.
  8. "Section 32", Freedom of Information Act 1991 (No. 22 of 1991).
  9. 9.0 9.1 Simon Allston, "Mr D Jaskierniak and Forestry Tasmania; Reasons for Decision", Reference: File No 700-0803023, August 11, 2008, page 9. Cite error: Invalid <ref> tag; name "FT" defined multiple times with different content
  10. Simon Allston, "Mr D Jaskierniak and Forestry Tasmania; Reasons for Decision", Reference: File No 700-0803023, August 11, 2008, pages 5-6.
  11. Simon Allston, "Mr D Jaskierniak and Forestry Tasmania; Reasons for Decision", Reference: File No 700-0803023, August 11, 2008, page 11.
  12. Strengthening trust in Government - everyone’s right to know, Tasmanian Government, page 52.

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