Gordon Resources Limited and Department of Employment, Economic Development and Innovation and BHP-Billiton Mitsubishi Alliance Coal Operations Pty Ltd (Third Party) (310147)

Gordon Resources Limited and Department of Employment, Economic Development and Innovation and BHP-Billiton Mitsubishi Alliance Coal Operations Pty Ltd (Third Party) (310147, 21 September 2011)

Section 47(3)(b) Right to Information Act – refusal of access

Section 49 Right to Information Act – contrary to public interest

The applicant owned a 50% interest in land on which BHP-Billiton Mitsubishi Alliance Coal Operations Pty Ltd (Third Party) operated a coal mine. The applicant was entitled to private royalties from the coal mine and the access application arose in the context of an alleged overpayment of those royalties to the applicant for the September 2008 quarter. The applicant sought access to documents concerning the royalty return provided to theDepartment of Employment, Economic Development and Innovation (Department) by the Third Party for the coal mine, for that quarter. The Department consulted with the Third Party and decided to refuse access to relevant documents on the basis that disclosure would, on balance, be contrary to public interest. The applicant sought external review of the Department’s decision.

During the course of the review, certain information in the documents in issue was eliminated from consideration. The information remaining in issue consisted of the following two categories of information:

§ BMA Information—for example, tonnage, revenue, applicable royalty rates, deductions (including port charges) and rail freight; and

§ Aggregate Private Royalty Information—figures regarding the total of royalties payable to all relevant private land holders presented as aggregate amounts.

The Information Commissioner considered whether disclosure of the information in issue would, on balance, be contrary to public interest and found the following public interest factors relevant:

Factors favouring disclosure in the public interest

§ disclosure could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability

§ information regarding amounts, figures and calculations relevant to private royalty payments is not otherwise available to private royalty recipients

§ disclosure could reasonably be expected to contribute to the administration of justice generally, by avoiding unnecessary litigation.

Factors favouring nondisclosure in the public interest

§ disclosure of the information is prohibited by section 334 of the Mineral Resources Act 1989 (Qld) (MR Act)

§ disclosure of the BMA Information could reasonably be expected to:

o prejudice the business, commercial or financial affairs of an entity (ie the Third Party)

o cause a public interest harm because it would disclose information concerning the business, commercial or financial affairs of a person (ie the Third Party) and could reasonably be expected to have an adverse effect on those affairs.

The Information Commissioner considered the above public interest factors in relation to each category of information and found as follows:

BMA Information

· disclosure of the BMA Information would not further the public interest in open discussion or government accountability to any great extent

· the public interest in contributing to the administration of justice generally is significant

· the public interest in providing a private royalty recipient with further information regarding the calculation of private royalty payment amounts is significant—particularly as there is apparently no other mechanism to obtain such information

· the public interest in nondisclosure of information, the disclosure of which is prohibited under an Act is significant, however here the significance is reduced because there is apparently no mechanism for a private royalty recipient to obtain information regarding royalties payable to them

· the prejudice and adverse affect to the business, commercial or financial affairs of the Third Party is of relatively great weight, given the potential impact that disclosure could reasonably be expected to have on the Third Party’s interests.

Aggregate Private Royalty Information

· disclosure of the Aggregate Private Royalty Information would not further the public interest in open discussion or government accountability to any great extent

· the public interest in contributing to the administration of justice generally is significant

· the public interest in providing a private royalty recipient with further information regarding the calculation of private royalty payment amounts is significant—particularly as there is apparently no other mechanism to obtain such information

· the only factor favouring nondisclosure to be given any weight in regards to the Aggregate Private Royalty Information is that its disclosure is prohibited under an Act, however less weight should attach to this factor with respect to the Aggregate Private Royalty Information than the BMA Information because the Aggregate Private Royalty Information is of a similar nature to information otherwise available to the applicant.

Accordingly, the Information Commissioner found that:

· the weight of the public interest factors favouring nondisclosure of the BMA information outweighed those factors favouring disclosure of the BMA Information and accordingly disclosure of the BMA information would, on balance, be contrary to the public interest under sections 47(3)(b) and 49 of the RTI Act

· the factors favouring disclosure of the Aggregate Private Royalty Information outweigh the factor favouring nondisclosure, and that disclosure of this information would, on balance, be in the public interest.