(NB: When I refer to UTAS in my writings, I am generally referring only to the senior decision makers in the University rather than the University, or the staff of the University, in general. My meaning can normally be judged from the context).

Key Points

  • Under scrutiny by the Ombudsman, on 16 January 2023, UTAS provided me with a remade decision on my Right to Information application of 24 March 2022, in which I requested copies of the UTAS Council Minutes for the period 1 January 2015 to 24 March 2022.

  • With the remade decision, UTAS provided me with a set of Minutes 513 pages long compared to the 22 page document it provided to me under its original decision.

  • While I had anticipated many of the differences between the two documents, I was shocked to find that, even within the narrow terms that UTAS had used in constructing the 22-page document, it had excised a large amount of relevant material, without any indication of doing so, in contravention of the Right to Information Act 2009.

  • For example, in the case of the UTAS Council’s decision to adopt a ‘City-Centric Campus model’, this involved excision of some 91% of the minutes.

  • The new (513-page) document unequivocally confirms that Vice-Chancellor Rufus Black was wrong in claims he made about release of the UTAS Council Minutes in July and August 2022.

  • In the release of this document – and two others – on 16 January 2023, UTAS may have been posturing for the benefit of the Ombudsman and the Legislative Council Select Committee Inquiry into the Provisions of the University of Tasmania Act 1992.  It has instead added emphasis to the need for critical scrutiny of its actions and words.

Introduction

On 27 May 2022, UTAS decided to release to me an extract from the UTAS Council Minutes, with some redactions (blacked out text), in response to a Right to Information (RTI) application. This extract – which UTAS purported to be “the minutes of all meetings of the UTAS Council conducted between 1 January 2015 and 24 March 2022 that relate to University decision making on the move to a city centric campus” – totalled only 22 pages, even counting the redactions (Minutes 1).

Following my application to the Ombudsman seeking external review of UTAS’ decision, UTAS remade its decision and released a 513 page document, with redactions, to me on 16 January 2023 (Minutes 2).

I suspect that UTAS remade it decision, and provided Minutes 2 to me, as an alternative to the Ombudsman publicly issuing an adverse judgement against it, such as he did in Alexandra Humphries and University of Tasmania. UTAS has a strong incentive to avoid such an adverse judgement with the Legislative Council Select Committee Inquiry into the Provisions of the University of Tasmania Act 1992 (LegCo Inquiry) underway.

In its (remade) decision letter of 16 January 2023, UTAS also advised me that it had published online the STEM Business Case (unredacted) and the Southern Future Business Case (with redactions), the latter being the critical document that informed the UTAS Council’s decision on 5 April 2019 to adopt the ‘City-Centric Campus [Hobart CBD] model’.

  • Having requested these documents from UTAS in an RTI application on 23 August 2022, and been refused (both initially and on internal review by UTAS), I submitted a request for external review to the Ombudsman on 8 December 2022.

  • Far from being evidence of a newfound transparency on UTAS’ part – albeit now under scrutiny by the Ombudsman’s office – publication of these documents also raises issues, including the fact that well over 50% of the Southern Futures Business Case has been redacted.

In what follows below, I will initially and mainly focus on what Minutes 2 reveal about Minutes 1, before briefly looking at other issues. In particular I will focus on the fact that Minutes 2 reveal that the contents of Minutes 1 were improperly edited to excise relevant text from the agenda items presented, without any indication of excisions being made.

  • The omission of material identified as relevant can only occur through formal exemption within the terms of the Right to Information Act 2009 (RTI Act). Under section 22 of the RTI Act, reasons must be provided for exemptions. The Ombudsman’s Manual, pages 55-60, provides guidance to state institutions on this issue.

Taking UTAS’ improper editing of Minutes 1 together with UTAS’ poor RTI performance overall, and matters such as the $45 million (52%) cost blowout on the Forestry Building reported in the Mercury on 20 January 2023, I do not see how the Government or the Parliament can go on according UTAS any credibility.

  • It is certainly a gross dereliction of its responsibilities for the Government to continue allowing UTAS to act as the de facto government in UTAS’ self-appointed domain, which includes development of the equivalent of a new suburb on the Sandy Bay campus site. (This is a matter on which I will provide new detail in my next blog post).
    • This link provides notes on the Forestry Building cost blowout by Peter Bicevskis.

The UTAS Council Minutes provided on 27 May 2022 were improperly edited by UTAS

Essential Background

(A chronology of, and some commentary on, my dealings with UTAS regarding the UTAS Council Minutes is provided in the final section of this post – Chronology).

On 24 March 2022, I submitted a Right to Information (RTI) application to UTAS in which I requested:

“copies of the minutes of all meetings of the UTAS Council conducted between 1 January 2015 and 24 March 2022.“

UTAS unilaterally reworded my request, narrowing it to:

“Copies of the minutes of all meetings of the UTAS Council conducted between 1 January 2015 and 24 March 2022 that relate to University decision making on the move to a city centric campus.” [my underlining; the added words narrowed my request]

As noted above, in its decision on my RTI application of 27 May 2022, UTAS provided me with a (purpose made) extract of 22 pages from the UTAS Council Minutes (ie, Minutes 1), including redactions.

I sought internal review of this decision from UTAS (unsuccessful) before seeking external review of the decision by the Ombudsman. In preparing my case for the Ombudsman I was assisted by Professor Rick Snell.

My case centred on a number of issues, including:

1. UTAS had no legislative basis under the RTI Act for narrowing the scope of my RTI application.

2. The narrowed scope allowed UTAS to exercise subjective judgement in determining what was relevant “to University decision making on the move to a city centric campus.“

3. Even allowing for UTAS’ own subjective choice of the agenda items to include in Minutes 1, there were gaps whereby earlier and/or later considerations of the matters covered by those agenda items were clearly missing.

4. UTAS’ exemptions (indicated by redactions) were excessive and unsustainable under the RTI Act.

Excision of relevant text

Without going into detail here (but perhaps for a later day) Minutes 2 has confirmed, as expected, that the enumerated issues in the case for review above were all validly raised. In particular, even on the most superficial scanning of the document, there are many agenda items on many dates that I, and I believe most people, would consider relevant “to University decision making on the move to a city centric campus” that were totally excluded from Minutes 1,

However, this was expected.

What has come as a total surprise, and genuinely shocked me, is that Minutes 2 reveals that UTAS improperly edited Minutes 1 to excise relevant text from the agenda items presented, without any indication that it had done so.

What I mean here is best shown by an example. This is the record of the UTAS Council Minutes agenda item 6.1, relating to the Council’s critical decision of 5 April 2019 to adopt the ‘City-Centric Campus model’, provided in Minutes 1:

(photograph from Minutes 1, as provided by UTAS)

The presentation of this agenda item is typical of all the agenda items presented in Minutes 1. This being the case, I had formed the view that UTAS’ Council Minutes were fairly minimalist, recording only decisions.

  • Indeed, in my request to UTAS for internal review, I characterised the UTAS Council Minutes as being “of a kind that record decisions only rather than also summarising discussion“.

In fact, UTAS Council Minutes include background and discussion, frequently at considerable length, as well as decisions. Here is the text of the minutes for the same agenda item (6.1) in Minutes 2:

(photograph from Minutes 2, as provided by UTAS)

Minutes 1 only included the very last section of text under agenda item 6.1 presented in Minutes 2, excising – based on a word count – some 91% of the of the minutes here. This excision was made without any form of indication or statement of reasons.

Such excision of material is fully typical of UTAS’ presentation of the agenda items that UTAS chose to include in Minutes 1.

  • For another very significant example, see the difference between Minutes 1 and Minutes 2 for agenda items 5.1-5.2 of 11 August 2017.

If UTAS believed it had reason to delete parts of the minutes for the agenda items contained in Minutes 1, it should have blacked this material out and provided a reference to the relevant section of the RTI Act on which it had relied for determining that material was exempt. The consistent excising of text from the agenda items included in Minutes 1 could only have been a deliberate action.

I believe that excision of relevant material, without appropriate indication, is not only a breach of the RTI Act, but constitutes unconscionable behaviour. I say this from the perspective of one who oversaw responses to many Freedom of Information requests in the Commonwealth public service.

I have many other issues with the way UTAS has handled my RTI applications, which I have frequently raised on this site, but which I will document in full when time is available (I have a number of other UTAS issues warranting immediate attention).

Revisiting Vice-Chancellor Black’s interview with Mel Bush

This is an exchange from VC Black’s interview with Mel Bush on ABC radio on 14 July 2022:

Mel Bush: When, Rufus Black, did the University Council authorise the total relocation of the Sandy Bay campus into the city?

Rufus Black: In 2019 was when that, was when that, decision was made.

Mel Bush: And did the decision support the move completely, the complete move of the Campus?

Rufus Black: Yes, yes.  That’s, I mean that people would remember back then, you know, in The Mercury and other places, there are kind of the picture of all the different parts of that, all the different parts of that move. You know, very clearly kind of set out. We ran a kind of consultation room for a considerable period; set out both sides of that. And then we actually held back then a community summit, a large multi-day community summit with representatives from right across the community, exploring what it would be and giving us really good guidance about what it would take. We then went on and developed again, with wide consultation, an urban development framework in order to shape the city moves. So this next round of consultation we’re doing is actually part of what has been quite a long journey of consultation, but it really matters to keep hearing from people in Hobart. So that we ensure this doesn’t just create great, great, teaching and research facilities, but adds amenity to the city.

Mel Bush: And in terms of that meeting that you held back into 2019 that you’re talking about, the decision, have the minutes from that been published? [my underlining]

Rufus Black: The um, which?

Mel Bush: Of the University Council.

Rufus Black: I think we’ve released those under a freedom of information request relatively recently. [this is a reference to my RTI application; my underlining]

….

Mel Bush: And where were those minutes published? [my underlining]

Rufus Black: Um, ah, it’s a good question Mel. I’m not sure where they’ve ultimately, ultimately, ended up but look, if you go to our website you’ll find the kind of very extensive documentation around all of the different aspects of the move and the decisions, decisions around it. [my underlining]

I wrote to VC Black on 14 July 2022 challenging aspects of his characterisation of the redacted draft of the UTAS Council Minutes provided to me, as highlighted above. His reply of 18 July 2022 included the following:

“I would like to confirm that my account was factually correct. This is so because the University did receive your RTI application and did publish the University minutes as they relate to decision-making on the move to the city. The information that was redacted was consistent with the exemptions in the RTI Act“. [my underlining]

I had further correspondence with VC Black on this matter (see section entitled Correspondence with the UTAS Vice-Chancellor, Rufus Black) and I wrote about my correspondence with him as recently my last blog post of 16 January 2023, but this was before I looked at Minutes 2. Prior to looking at Minutes 2, I tended to view VC Black’s response to Mel Bush as misleading and his responses to me as evasive and disingenuous. Now it is clear that he was just plain wrong.

Not only did UTAS provide to me (and publish) a redacted extract constituting around only 5% of the UTAS Council Minutes for the period I nominated, but it published only part of the minutes for the agenda items it had determined related “to the decision-making on the move to the city,” breaching the RTI Act in the process.

As seen above, this involved excision of 91% of the minutes dealing with the UTAS Council’s decision of 5 April 2019 (agenda item 6.1) to adopt the ‘City-Centric Campus model.’

VC Black may or may not have been aware of the excision of this text, but for such an unconscionable act to occur, I believe that there are clearly cultural issues within UTAS, including a pervading secrecy, for which VC Black as CEO should stand accountable. I would also add that, if he did not know what he was talking about when he responded to Mel Black, I believe that he should have. He should certainly have informed himself better before responding to me.

Minutes 2: Issues

I have not had an opportunity to consider the substantive content of Minutes 2. I will seek to provide comment on any major issues of substance that I identify at a later date, but readers may wish to do their own analysis now.

I note two major issues in the presentation of Minutes 2.

First, Minutes 2 include a number of redactions where material has been exempted. These are identified, and reasons provided by UTAS, in this Table. I will need to consider these redactions in detail, but one initial comment I would make is that UTAS has maintained the redaction in Minutes 2 of the name of the person who objected to the choice of the ‘City-Centric Campus model’ (see the photos of item 6.1 of the Council Minutes for 5 April 2019 above).

Professor Rick Snell and I argued in our supplementary submission to the Ombudsman that “If a member of the UTAS Council has requested that ‘his‘ vote be recorded in the UTAS Council Minutes then UTAS needs to conclusively demonstrate why it is not in the public interest for this information to be released.“

UTAS has not attempted to do this, and this does not inspire confidence in UTAS’ judgement in making other redactions.

Professor Jamie Kirkpatrick was the person who objected to the ‘City-Centric Campus model’. Professor Kirkpatrick has never been contacted by UTAS in relation to having his name withheld and has confirmed to me that he is happy to be identified as the objector.

Second like Minutes 1, Minutes 2 appears to take the form of a purpose made document, with Minutes from UTAS Council meetings joined together one after the other, albeit in two parts. My preference would have been to receive copies of the original UTAS Council Minutes, as indicated in my original RTI application. This is particularly the case as:

  • UTAS’ improper excision of parts of agenda item minutes in Minutes 1, without indication or reason, has made me wonder whether it might have done something similar in Minutes 2.

  • UTAS’ internal review decision letter indicated that the UTAS Council Minutes that I requested were “approximately 750 pages” in length, rather than a figure closer to the 513 pages provided to me in Minutes 2.

  • I have found different kinds of embedded formatting throughout Minutes 2.

There may be a simple explanation, but these three issues could have been avoided by providing photocopies of the Council Minutes, with redactions where justified.

The STEM Business Case and the Southern Future Business Case

I have not examined the substance of these documents, but intend to do so in the near future. I also encourage others to examine the documents closely.

With regard to the release of the two documents, I would make the following points:

  • I believe that there were a number of factors placing significant pressure on UTAS to release the STEM Business Case, including pressure from the Ombudsman and the fact of the LegCo Inquiry.

  • UTAS’ argument, both in its initial and internal review decisions, for not providing the STEM Business Case was so ludicrous that it was likely to open UTAS up to public ridicule if publicised. As stated in its internal review letter UTAS’ argument was that:
    • “The final STEM business case is the final decision and has been made public and available for viewing here: https://www.infrastructureaustralia.gov.au/sites/default/files/2019-06/UTAS-STEM-summary_0.pdf“
    • This document is in fact Infrastructure Australia’s 6 page evaluation of UTAS’ STEM Business Case rather than UTAS’ 147 page STEM Business Case itself.
    • I had repeatedly pointed this out to UTAS making it clear that my request was for UTAS’ STEM Business Case.
    • In this circumstance, I can only believe that UTAS was being disingenuous and willfully obstructive.

  • As UTAS was a third party consulted by Infrastructure Australia (IA), it was surely aware the IA was also about to provide me with a copy of the STEM Business Case under Freedom of Information – something IA did coincident with UTAS’ own timing of 16 January 2023. I might note that I believe IA was not prepared to give UTAS the ‘free ride’ on exemptions that Tasmanian government agencies seem to have unquestioningly provided to UTAS.
    • As I noted in a letter of 27 September 2022 to Jenny Gale, the Secretary of the Department of Premier and Cabinet (DPAC) and Head of the State Service, among other things, seeking internal review of DPAC’s decision regarding an RTI application by me:
    • “Few documents originating from UTAS have been provided to me, or have even been identified as exempt in the schedules of documents considered by DPAC, DSG [the Department of State Growth] and DE [the Department of Education]. I believed (and continue to believe) it likely that the agencies would hold a number of relevant documents from UTAS, and I had attributed part of the delay in responding to my RTI application to the need for consultation with UTAS (and necessary redactions being made after consultation).“
    • I have still not received an internal review decision from DPAC.

  • UTAS’ dramatic shift from what I believe was willful obstruction in effectively refusing to provide me with the STEM Business Case (with or without redactions), to public release of the document in an unredacted form five months after I lodged my RTI application, while welcome, should only add to questioning of UTAS’ handling of RTI applications.

  • As noted previously, over 50% of the Southern Future Business Case has been redacted. As UTAS has not provided me with a remade decision on this, I have not been provided with any reasons for the exemption of this large amount of material. I also have difficulty believing that page after page of material can be legitimately redacted. There will surely be material amongst this that cannot be considered exempt.

  • I will be maintaining my application to the Ombudsman for external review of my RTI application requesting a copy of the Southern Future Business Case.

  • I believe that in releasing the Council Minutes and the two Business Cases, UTAS may also have been making a virtue of necessity, and seeking to portray itself as a more transparent organisation than it actually is, while the LegCo inquiry is underway.

Chronology

24 March 2022 – I submitted an RTI application to UTAS requesting:

“copies of the minutes of all meetings of the UTAS Council conducted between 1 January 2015 and 24 March 2022.“

In this application, I sought a fee waiver on the basis of the public interest in the material I was seeking.

4 April – I received a response from UTAS, among other things, seeking evidence of “the general public interest to justify waiver of the fee.” Rather than delay the process further, I paid the fee on 6 April.

12 April – UTAS wrote to advise me that it was considering refusal of my application on the basis that it would involve an unreasonable diversion of resources (Section 19(2) of the RTI Act). UTAS sought to refine the scope of my RTI application to:

“Minutes of the University of Tasmania Council between 1 January 2015 and 24 March 2022 that describe decisions directly affecting the move of University of Tasmania’s Sandy Bay campus to Hobart City.”

28 April – after an exchange of emails with UTAS, exploring this UTAS’ proposal, I declined this proposal, principally on the basis that it involved:

“too high a degree of subjectivity to be acceptable, as your interpretation of ‘decisions directly affecting the move’ would, no doubt, be different to mine.”

l maintained the scope of my original request.

29 April – UTAS advised that it had accepted “this application” – I understood – reasonably I believe – that this meant UTAS had accepted the original terms of my request.

27 May – I received UTAS’ decision letter. This narrowed the terms of my request to:

“Copies of the minutes of all meetings of the UTAS Council conducted between 1 January 2015 and 24 March 2022 that relate to University decision making on the move to a city centric campus.”

  • As well as there being no provision under the RTI Act for UTAS to unilaterally vary the terms of my request, this was somewhat different wording from that originally proposed by UTAS.

27 June – I submitted a detailed request for external review of this decision to UTAS (requests for internal review must generally be made before pursuing a request for external review).

18 July – I received UTAS’ review decision letter, which upheld UTAS’ initial decision. Among new information included in this letter, I was advised that the terms of my initial request covered “approximately 750 pages.”

11 August 2022 – I lodged an application for external review of UTAS’ decision with the Ombudsman, attaching copies of all my interactions with UTAS on the Council Minutes.

9 September – the Ombudsman accepted my request for priority consideration of my application for external review on public interest grounds.

19 September, I lodged a supplementary submission to my application for external review. This was prepared in conjunction with Professor Rick Snell.

During December 2022, I was advised by the Ombudsman’s office that there would likely be a response to my external review application in mid-January 2023.

On 16 January 2023, rather than receiving the Ombudsman’s decision on the UTAS Council Minutes, as I had expected, I received a remade decision by UTAS, this being an option available under the RTI Act when external reviews are undertaken.

I take it that UTAS has been reasonably forthcoming in providing the 513 pages of Minutes 2 to avoid the possibility of an adverse public decision by the Ombudsman at a pivotal time.

However, as indicated above, I am considering whether UTAS’ remade decision is satisfactory, especially in light of the fact that UTAS did not provide what it purported to provide in Minutes 1, excising significant amounts of material, without indication or provision of reasons.

By : Robert Hogan