Opinion
The decision by the Minister for Water, the Hon Dave Kelly MLA, not to provide Parliament with all the requested information was reasonable and therefore appropriate.
Background
In Parliament on 15 August 2017, the Hon Robin Chapple MLC asked the Minister for Regional Development representing the Minister for Water for details of proposed water use by Gogo Station, as follows:
Legislative Council Question on Notice 145
I refer to Gogo Station in the Kimberley and their proposed water use for irrigation and ask:
(a) has the Department of Water received any documents from Gogo Station or anyone acting on their behalf, which detail the pumping of water from any waterways or aquifers;
(b) if yes to (a), will the Minister list the titles of those documents and table them;
(c) if no to (b), why not;
(d) is the Minister aware of how much water Gogo Station wants to pump from surface water; and
(e) if yes to (d), will the Minister please provide details of how much water Gogo Station wants to pump from surface water, and how this water would be harvested?
On 30 November 2017, the Minister provided the following answers:
(a) Yes.
(b) Yes [See tabled paper no 949.]. Information of a personal, confidential or commercially sensitive nature has been redacted by the Department of Water and Environmental Regulation after consultation with the project’s proponent.
(c) Not applicable.
(d) Yes.
(e) 50 gigalitres per year, harvested from an offtake channel about three metres above the bed level of the Margaret River.
On 4 December 2017, the Auditor General received the Minister’s notification of his decision not to provide the information in accordance with section 82 of the FM Act.
Key findings
The decision by the Minister not to provide all the requested information, but to provide redacted versions of the information, was reasonable and therefore appropriate.
The Minister properly sought advice from the Department of Water and Environmental Regulation (Department), before responding to the request. The Department recommended the Minister provide the documents with information of a personal, confidential or commercially sensitive nature redacted. The Minister followed the Department’s advice and provided Parliament with 4 redacted documents, listed below.
We assessed the information that was redacted from the documents using our criteria for information that is confidential to a third party. Specifically:
Criterion 1 – the confidential information must be specifically identified
This criterion was met. Four documents were provided to the Department by the owners of Gogo Station and their consultant: 2 licence applications and 2 support documents. They include technical, financial and personal information. Gogo Station considered the documents to be confidential. The Department assessed the confidential nature of the information before advising the Minister on which parts to redact. The assessment was carried out using principles from the Freedom of Information Act 1992 which we note is consistent with the Department’s Privacy Policy.
Criterion 2 – the information should be sufficiently secret
This criterion was met. We found the majority of the redacted information was not generally known or ascertainable using publicly available sources at the time the Minister declined to provide it. This included details of Gogo Station’s financial planning, business proposal and budgeting information which was contained in the 2 support documents. These documents were marked as copyright, with 1 also marked as confidential.
The small amount of redacted personal information that was publicly available on the internet at the time the Minister declined to provide it included email addresses, telephone numbers and position titles.
Criterion 3 – disclosure would cause unreasonable detriment to the owner of the information or another party. Disclosure would not be in the public interest
This criterion was met. In assessing this, we weighed the public interest in releasing the information against the possible harm to the interests of government or another party.
We agreed with the Department’s view that the information was commercially confidential and that the interests of Gogo Station could be adversely affected if their confidential commercial and financial development plans were released. Reasonable grounds exist for keeping the information confidential.
We also found that the interests of government could be adversely affected if the information was released. Disclosure may discourage applicants from providing information that is useful to the Department in assessing applications, and may discourage development in the region.
Criterion 4 – the information was provided on the understanding that it would remain confidential
This criterion was met. The information was supplied by Gogo Station for the sole purpose of applying for 2 water licences. While there was no expressed understanding of confidentiality, the Department generally treats applicant data, business and operational plans as confidential and does not publish applications in their entirety. This approach is consistent with the Department’s Privacy Policy which aligns with the Commonwealth Privacy Act 1988. The applicants likely provided the information under an expectation that it would not be made public, as evidenced by their objection to its release.
Whilst members of the public can request information from the Department, the type of information that was redacted from the documents is generally not provided.
The Department consulted with the owner and consultant regarding the release of the information before providing advice to the Minister. Both the owner and consultant objected to the release of the information on the basis that it contained commercially sensitive and confidential information that should not be publicly released.