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Wedge-tailed eagle (Tas)© Dave Watts

Stretching FOI Exemptions:Properly Protecting Business or Pulping the Public Interest?

Tom Baxter, Lecturer in Corporate Governance, University of Tasmania

Gunns Limited current Bell Bay woodchip export site © ABC News File NE Highlands, Tas 2006 © tws.org.au

Spotted-tail Quoll

The Three Wise Monkeys, Tosho-guShrine, Wikipedia.com

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“Only world’s best technology utilising a low impact TotalChlorine Free (TCF) mill will be looked at.”

Later, his became:

“The mill will be elementalchlorine free (ECF)”: Gunns’Integrated Impact Statement (IIS), Executive Summary

(emphasis added)

Gunns initially promised a TCF mill:

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Herzfeld report: early FOI history28 April 2008: Australian Greens Senator Christine Milne requested, under the Freedom of

Information Act 1982 (Cth) from the Department of Environment, Water, Heritage and the Arts (the Department): (a) Any scientific advice, report or correspondence, since November 2007 by the Independent Expert Group (IEG) to the Minister and/or the Department on the potential impacts on the Commonwealth or Tasmanian marine environment from Gunns Ltd’s proposed pulp mill; (b) Any and all correspondence relating to Commonwealth or Tasmanian marine impacts, between the Department and Gunns Ltd or the Minister and Gunns Ltd since November 2007.

28 May 2008: Letter from the Department to Senator Milne stating that the charge for the information would be $1667.55.

6 June 2008: Senator Milne narrowed the FOI request to a copy of a report prepared by Dr Michael Herzfeld concerning the potential marine impact of effluent from Gunns’ pulp mill on Commonwealth and Tasmanian waters (the Herzfeld report)

24 July 2008: After 3rd party consultations, the Department initially ruled the Herzfeld report should not be released: see Peter Burnett, ‘Statement of Reasons’, 24 July 2008 at http://christine-milne.greensmps.org.au/files/Letter%20of%20FOI%20Rejection%20and%20Statement%20of%20Reasons%202008.pdf

Herzfeld report: FOI history continued 22 August 2008: Senate Milne sought an internal review under section 54 of the

Freedom of Information Act 1982 and outlined argument as to why the report should be released.

22 September 2008: the Department advised it had decided that the Herzfeld report should be released: see Gerard Early ‘Statement of Reasons’, 19 September 2008. However, the report could not yet be released as Gunns Ltd had the right to seek review to the Administrative Appeals Tribunal (AAT).

16 October 2008: Gunns applied to the AAT for review of the Department’s release decision.

23 October 2008: Senator Milne applied to join the AAT review proceedings.– Gunns engaged Clayton Utz to act on its behalf.– The Department engaged the Australian Government Solicitor to act on its behalf.– Senator Milne engaged Bleyer Lawyers to act on her behalf.

5 December 2008: AAT directions orders set timeline, including that Gunns to file by 30 January 2009: affidavit(s); and a Statement of Facts and Contentions.

5 January 2009: Minister Garrett grants EPBC Act approval for Gunns pulp mill construction, but operational approval to be dependent on further studies

29 January 2009: Gunns discontinues AAT proceedings and releases Herzfeld report, together with various modules.

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FOI Act 1982 (Cth), s 43A43A Documents relating to research

(1) A document is an exempt document if:

(a) it contains information relating to research that is being, or is to be, undertaken by an officer of an agency specified in Schedule 4; and

(b) disclosure of the information before the completion of the research would be likely unreasonably to expose the agency or officer to disadvantage.(2) This section does not apply to a document that, so far as it contains information relating to research, only contains information relating to research that has been completed.

The Australian National University

Commonwealth Scientific and Industrial Research Organisation

Schedule 4 — Research institutionsSection 43A

FOI Act 1982 (Cth), s 4343 Documents relating to business affairs etc.

(1) A document is an exempt document if its disclosure under this Act would disclose:

(a) trade secrets;

(b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or

(c) information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerningthe business, commercial or financial affairs of an organization or undertaking, being information:

(i) the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs; or

(ii) the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.

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Initial Refusal: ‘exempt document’

Initial Refusal: ‘exempt document’

Ghandi Ashram, Ahmedebad

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Review decision: release - not exempt

Review decision: release - continued

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Some extracts

from Herzfeld report

Executive Summary

Numerical modelling has been performed to characterise the effluent plumefrom the proposed Bell Bay Pulp Mill outfall in Bass Strait. This modelling ispreliminary in the sense that detailed comparisons of model results withmeasured data have not been performed so as to verify the accuracy of themodel. It does, however, address many of the weaknesses present in theprevious modelling commissioned by Gunns and performed by GHD.

Under appropriate configuration, and realistic parameterisation and forcing,the model indicates that the plume assumes the character of a long ribbonextending many kilometres from the outfall (e.g. Figure 4.4.1). The plumefrequently undergoes extremely large, rapid, variations in position. Whencurrent speeds are low, the effluent released from the outfall pools at thesurface. This results in high concentrations within the plume. As currentspeeds increase, the effluent is not simply mixed back to low concentrations,but rather transported many kilometres from the outfall by the currents as acoherent pool of high concentration (e.g. Figure 4.3.3).

The proposed extent of the mixing zone surrounding the outfall derived frommodelling performed by GHD is considered to be an underestimate. Theprincipal factor responsible for this underestimate has been identified as theuse of excessive values of horizontal mixing in their model (e.g. Figure 4.6.3).For the space and time scales resolved by the model, these values areapproximately an order of magnitude greater than that expected in theoceanic environment surrounding the outfall.

Using definitions of the mixing zone extent and Water Quality Objectives forchlorate as prescribed in the State Pulp Mill Permits, the modelling performedin this study indicates that the chlorate Objectives are frequently exceededoutside the mixing zone. Specifically, during the model simulation periods,concentrations in excess of the WQO’s were found in Commonwealth waterson almost a daily basis (e.g. Figure 4.4.4). There is every reason to expectthat the mechanisms responsible for these exceedances would apply in otherperiods.

Disclaimer: Information in this report is believed accurate within the bounds stated, but CSIRO accepts no responsibility for any subsequent use by the client of the information and modelling results provided.

Herzfeld report

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Herzfeld summary, p36(emphasis added)

Based on criteria prescribed in the State Pulp Mill Permits (2007), maximum effluent concentration for Chlorate (the most prescriptive constituent in terms of mixing zone extent) and target dilutions prescribed by GHD, the modelling indicates that during the periods simulated the effluent dispersion would be in breach of the State permit conditions on an almost daily basis. There is every reason to expect that the mechanisms responsible for these exceedanceswould apply in other periods.

Herzfeld summary, p37(emphasis added)

This analysis would be strengthened by the inclusion of a comprehensive calibration, inclusion of the Tamar Estuary in the intermediate model, high resolution model simulations during different seasons, use of actual effluent concentrations & background values and detailed statistical representation of the plume. As such the modelling contained in this report cannot be considered definitive, but rather a better indication of expected plume behaviour when the weaknesses in the modelling performed to date have been addressed.

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EPBC Act

Luke Henning cartoon, Mercury, Thursday 8 January, 2009

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Recommendation:

Giant freshwater crayfish

As well as offence provision(s), add to the FOI Act an express duty to further the objects of the Act, eg:

‘Any person exercising functions or powers under this Act must use their best endeavours to further the objects of the Act.’

For Tas examples, see eg:Environmental Management and Pollution Control Act 1994 (Tas), section 14:The functions of the EPA Board are to administer and enforce the provisions of EMPCA, and in particular, to use its best endeavours:• to further the objectives of EMPCA; and…

See also LUPAA and RMPAT Act, and EDO submission to Tas FOI Act Review, 20 February 2009, pp 2-3, at http://www.edo.org.au/edotas/pdf/foi_review_0902.pdf

Tasmania and Australia also need:– FOI Version 2.0 (as advocated by Rick Snell)– for ‘digital natives’ & new-generation monkeys