Ensham Resources Pty Ltd and Department of Natural Resources and Water
(210706, 19 October 2009)
AOAI Insurance Co Limited (FOI Applicant), applied to the Department of Natural Resources and Water (now known as the Department of Environment and Resource Management) (Department) for access to various documents under the FOI Act (FOI Application). The documents sought relate to the Ensham Central Project, more particularly to the flood risk and/or flood protection levee banks in the Nogoa River floodplain.
The Department consulted Ensham Resources Pty Ltd (Ensham) in relation to the possible release of a number of documents responding to the FOI Application. Ensham objected to release and relied on sections 45(1)(c), 46(1)(b) and 41(1) of the Freedom of Information Act 1992 (Qld) (FOI Act). Despite Ensham’s objections, the Department decided to release a number of documents and Ensham applied for external review of the Department’s decision.
As the Department decided to disclose matter contrary to Ensham’s view, Ensham had the onus of establishing that a decision not to disclose the matter in issue was justified and/or that the Information Commissioner should give a decision adverse to the FOI Applicant. Assistant Commissioner Henry invited Ensham on several occasions to provide updated submissions addressing the suggestion that the matter in issue was largely publicly available. Ensham declined the opportunity to provide further substantive submissions in support of its case.
Assistant Commissioner Henry decided that much of the matter in issue was publicly available and accordingly a claim that such information was exempt could not be sustained in the circumstances.
The Assistant Commissioner also decided that some of the matter in issue:
· appeared to be aged or out of date, was likely to have been significantly revised or superseded and was likely to have lost any commercial sensitivity due to subsequent events and/or the passage of time
· was not only commonly known information, but was also general in nature and did not reveal any detailed information about Ensham or its operations,
and accordingly, the requirements for exemption under sections 45(1)(c), 46((1)(b) or 41(1) of the FOI Act were not satisfied in the circumstances.
In summary, Assistant Commissioner Henry found that the matter in issue did not qualify for exemption from disclosure under the FOI Act.