UTAS breaches Right to Information Act – again

1. Key points

On 24 February 2022, the Ombudsman made an adverse decision against UTAS in respect of a Right to Information (RTI) application by Alexandra Humphries (ABC).

On 2 June 2023, the Ombudsman made a further adverse decision against UTAS in respect of my RTI application in which I requested copies of UTAS Council Minutes.

The Ombudsman has made some very important criticisms of UTAS, in particular that UTAS breached the Right to Information Act 2009 (RTI Act), misapplied sections of the Act and acted in such a way as to needlessly consume my time and that of his office. He has also reinforced the need for UTAS to observe its obligations under the RTI Act.

• See section 3. The Ombudsman’s decision below for more detail.

However, because the Ombudsman was limited to the facts of one case, and by the terms of my external review request to his office, there are a number of matters on which he was not able to comment.

I can comment on those matters.

What I did not suspect when I lodged my external review application to the Ombudsman’s office was that UTAS had deliberately doctored the 22-page set of UTAS Council Minutes it originally provided to me – a fact only revealed when – under pressure by the Ombudsman’s office – UTAS provided me with a 513-page set of UTAS Council Minutes. (These Minutes are available in two parts – 2015-2018 and 2019-2022 – on the UTAS website).

• See section 4. UTAS doctored Council Minutes below for details.

As with the UTAS Council Minutes, my extensive dealings with UTAS over RTI applications have been like trying to swim in mud.

I believe the deliberate strategy of UTAS has been to delay, obstruct and obfuscate in order to keep key documents, which should long since have been in the public domain, away from scrutiny.

The most notable example of this has been UTAS’ failure to provide its various business cases related to its proposed move to the Hobart CBD.

• Having first, under the terms of the RTI Act, been required to go through the process of internal review by UTAS where original (flawed) decisions have invariably been upheld, I have then been required by UTAS’ strategy to take these matters to the Ombudsman, having already lost months in the process.

• See section 5. UTAS has no desire to share key information below for details.

A strategy of delay, obstruction and obfuscation, of course, works to hinder independent analysis and public debate, and to minimise scope for informed criticism. Even when I have eventually obtained information from UTAS, it is only after many months of work by myself (researching and preparing applications) and the Ombudsman’s office, or with the Ombudsman office’s gaze directly upon UTAS.

• Meanwhile, UTAS keeps moving forward towards the point where it intends to claim the Hobart CBD move is irreversible, in the knowledge that neither the Government nor Opposition will subject it to scrutiny in any meaningful way.

As UTAS’ legal office appears to have consistently worked as one in this strategy, I can only assume that there is a culture that tends in that direction and/or that it has been given direct instruction.

2. Background

On 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.”

On 27 May 2022, Mr Simon Perraton, of the UTAS’ legal office provided me with his decision. Mr Perraton had amended the terms of my request, without my agreement, 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.” [section added by Mr Perraton underlined by me]

Mr Perraton provided me with a 22-page set of UTAS Council Minutes with his decision. The 22 pages included numerous redactions (blacking out of text), supported by claims that redaction was based on various exemption provisions in the RTI Act.

On 18 July 2022, following my request for internal review, UTAS’ General Counsel, Ms Jane Beaumont, provided me her review decision, upholding Mr Perraton’s decision.

On 12 August 2022, I submitted a request for external review of UTAS’ decision to the Ombudsman’s office.

• I received significant support in making my case from Professor Rick Snell.

On 5 December 2022, the Ombudsman’s office asked UTAS to make a fresh decision on my application.

On 16 January 2023, faced with pressure from the Ombudsman’s office, and the prospect of a highly critical decision by the Ombudsman, UTAS issued a ‘fresh decision’ and provided me with a 513-page set of UTAS Council Minutes.

On 2 June 2023, the Ombudsman issued his adverse finding on UTAS’ decision (that is, Mr Perraton’s decision of 27 May 2022 and Ms Beaumont’s review decision of 18 July 2022).

3. The Ombudsman’s decision

Key elements of the Ombudsman’s adverse decision against UTAS include:

1. Mr Perraton was wrong in law to amend the wording of my RTI application and Ms Beaumont was wrong in law to effectively uphold this:

“…the Act does not permit a public authority to unilaterally excise parts of an application for assessed disclosure without the agreement of the applicant.” (Ombudsman’s decision, paragraph 11)

“As noted, the University’s action in amending the scope of Mr Hogan’s application for assessed disclosure without his consent is not permitted under the Act.” (paragraph 32)

2. This error led to a needless drain on resources:

“The University’s actions in this regard resulted in Mr Hogan expressing a justifiable and significant degree of dissatisfaction with the University’s handling of the matter. Although the University is to be commended for promptly agreeing to rectify the problem by issuing a fresh decision, it is unfortunate that considerable resources were required to be expended by this office, the University and Mr Hogan in resolving the issue, which could have been avoided had the University applied the Act correctly in the first place.” (para 33)

• While the Ombudsman diplomatically commended UTAS on the promptness with which it issued its ‘fresh decision’, this cuts two ways. The fact that UTAS could provide a decision based on the actual wording of my RTI application in a little over a month (including the Christmas shutdown period) highlights the fact that there was no practical reason for UTAS rewording my application. In other words, I should have received the 513-page document in April 2022 rather than January 2023. This goes to a systemic issue with UTAS that I will comment on below.

3. The Ombudsman also provided a diplomatically worded rebuke to UTAS over its lack of commitment to the objective of the RTI Act.

“I hope that the University will act more carefully in future to ensure it complies with its legislative obligations, including compliance with s3(4)(b) of the Act to facilitate and promote…the provision of the maximum amount of official information at the lowest reasonable cost.” (para 33)

4. The Ombudsman found no instance in which UTAS’ claims that material in the 22-page set of Minutes had been redacted (exempted) under section 26, section 35, section 37 or section 40 of the RTI Act had been substantiated.

• Section 26 is “Cabinet information“

• Section 35 is “Internal deliberative information“

• Section 37 is “Information relating to the business affair of a third party“

• Section 40 is “Information on procedures and criteria used in certain negotiations of public authority“

I consider this very important as UTAS – inappropriately I believe – has consistently and particularly sought to rely on Sections 35 and 37 to exempt material in documents I have sought through other RTI applications.

5. The Ombudsman (paragraph 67) confirmed that UTAS was wrong to exempt the name of Professor Jamie Kirkpatrick as the one member of the UTAS Council who voted against relocation of UTAS’ southern campus from the Sandy Bay Campus site to the Hobart CBD on 5 April 2019 (UTAS completely wrongly cited Section 33 of the RTI Act – “The public interest test” for this).

• When I contacted Professor Kirkpatrick on this matter in January 2023 he confirmed that UTAS had not even contacted him and stated that he wished to have his name known as an opponent on the proposed move.

Only in respect of exemptions made under Section 38, “Information relating to business affairs of public authority“, did the Ombudsman uphold UTAS’ decisions – and then on a case by case basis.

I now turn to issues not covered in the Ombudsman’s decision.

4. UTAS doctored Council Minutes

In his decision, the Ombudsman stated that:

“The University’s actions in reducing the scope of Mr Hogan’s application resulted in a significant gap between the information he requested in his original application for assessed disclosure and the information that was assessed in the decisions by Mr Perraton and Ms Beaumont.” (paragraph 10).

However, because my request for external review to the Ombudsman’s office was focused only on the issues I could detect in the 22-page set of Council Minutes that UTAS originally provided to me, and UTAS issued the 513 pages set of Minutes under a fresh decision, the Ombudsman has not commented on the most significant issue presented by the Minutes – the fact that the 22-page set of Minutes was doctored.

Before going further, I will restate UTAS’ (Mr Perraton’s) rewording of the scope of my application as this needs to be kept firmly in mind:

“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.“

The 513-page version of the UTAS Council Minutes revealed that UTAS had edited the 22-page set of Minutes to improperly excise material captured by its own scope, without any indication that it had done so.

This was not a failure by omission. UTAS excised sections of the UTAS Council Minutes that “relate to University decision making on the move to a city centric campus” (Mr Perraton’s rewording of my request), generally leaving only bare decisions, while carefully removing all records of background or discussion by the UTAS Council in agenda items that UTAS itself judged relevant.

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’ (relocate to the Hobart CBC) provided in the 22-page set of Minutes.



Here is the text of the same agenda item (6.1) in the 513-page set of Minutes:

The 22 page set of Minutes only included the very last section of the text under agenda item 6.1 that is presented in the 513-page set of Minutes, excising – based on a word count – some 91% of the of the Minutes for this critical item. This excision was made without any form of indication or statement of reasons.

It will be readily observed that all the material that was excised related “to University decision making on the move to a city centric campus” (Mr Perraton’s rewording of my request).

Such excision of material is fully representative of UTAS’ approach throughout the 22-page set of UTAS Council Minutes it originally provided to me. My estimate is that between 100 and 150 pages of text clearly captured by UTAS’ reworded scope was excised without indication.

• For another very significant example, see the difference between 22-page set of Minutes and 513 page-set of Minutes 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 the 22-page document, it should have redacted (blacked out) this material 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 22 page document could only have been through 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 provided a more detailed commentary on this issue in my blog post UTAS doctored Council Minutes.

5. UTAS has no desire to share key information

The Ombudsman quotes Mr Perraton as saying in his original decision letter that:

“The University as a public institution has an obligation and a desire to share the evidence and rationale for the University’s decision surrounding the University of Tasmania Southern Campus Transformation with the community in order that the community can gain a better understanding of how the University reached this
decision.“(paragraph 85)

Yes, UTAS has an obligation to share information; but nothing could be further from the truth than Mr Perraton’s claim that UTAS desires to share information.

UTAS only ever publishes material that it believes suits it case for a Hobart CBD move – propaganda in other words. This material is frequently superficial, misleading and error ridden. I have provided detail of this in many of my previous blog posts – see for example UTAS lacks any credibility on CBD move, Democracy defeats UTAS dollars and deceptions and A Black day for the Truth.

I have now submitted nine RTI applications to UTAS, not because I wanted to but because I could find no substantive evidence in the public realm to support UTAS’ stated rationale for its proposed move. This being the case, it also seemed important to understand UTAS’ decision-making processes.

• I have further outlined my motivations and methodology in my website pages Home and The UTAS Papers, although the latter needs updating.

• I believe UTAS’ decision-making processes were totally flawed.

Having carefully weighed the likely demands on my time (and that of the Ombudsman’s office) in seven of those cases I have proceeded to external review with the Ombudsman’s office.

My view, from my now (unwanted) extensive experience, is that UTAS systematically seeks to delay, obstruct or obfuscate. It does so with the objective of discouraging applications and providing minimal information to the public against which crucial decisions and actions by UTAS with respect to the proposed CBD move can be judged.

• I have been provided with initial decisions by UTAS in respect of RTI applications by another person, in which I believe UTAS misapplied the RTI Act to discourage the applicant from further pursuing their concerns.

• I believe the Humphries case is also testimony to this approach by UTAS.

With respect to the UTAS Council Minutes, as I have already indicated UTAS acted in such a way as to delay my receipt of the 513-page document by eight months.

• UTAS may argue that it could have refused my application outright as it would require an unreasonable diversion of resources (under Section 19 of the RTI Act) but (1) I would have been able to make my case to the Ombudsman for external review two months sooner than I did (internal review not being required for a Section 19 refusal); and (2) the case would not have been sustainable, highlighted by the speed with which UTAS made its fresh decision.

Further examples of UTAS’ obstructive approach relate to the way UTAS misrepresents public consultation and, most importantly, its reluctance to provide any real information to support its proposed CBD move.

As I was advised, by participants in the process, that UTAS had misrepresented the consultation that occurred prior to the UTAS Council’s decision of 5 April 2019 to relocate to the CBD, I submitted an RTI application to UTAS on 12 April 2022, seeking details of the consultation process undertaken by UTAS. UTAS refused my application on 3 May 2022 on the basis that it had made a prior decision to release the requested information within 12 months from the date of my application (as provided for by section 12 of the RTI Act).

This was a ruse. It is now well over 12 months since UTAS’ refusal and the material has still not been released, and UTAS continues to make its glib and, I believe, totally false comments about the consultation process in the period prior to 5 April 2019. The matter is now with the Ombudsman’s office. (See my Blog Post A Black Day for the Truth).

Even more significantly, UTAS has steadfastly resisted providing various business cases relating to the proposed CBD move, which should as a matter of course be in the public domain.

I submitted an application to UTAS on 23 August 2022 for copies of UTAS’ STEM Business Case (for consolidation of STEM facilities in the CBD) and the Southern Future Business Case, which was the basis for the UTAS’ Council’s decision of 5 April 2019 to move from Sandy Bay to the Hobart CBD. After totally refusing my application initially and on review, I submitted a request to the Ombudsman for external review.

Under pressure from the Ombudsman (and in the case of the STEM Business Case also under pressure from the fact that Infrastructure Australia was about to release the document), UTAS released the STEM Business Case and a heavily redacted (66%) version of the Southern Future Business Case on 16 January 2023.

• In its introduction to the heavily redacted version of the Southern Future Business Case, UTAS purports to have released the document “in full“, while redacting key material in the body of the document and almost entirely redacting its appendices, which are an essential element of the document. Even by UTAS’ standards this is extraordinary level of double talk.

In its 335-page submission to the Legislative Council Select Committee’s Inquiry into the Provisions of the University of Tasmania Act 1992 (the LegCo Inquiry), UTAS devoted less than half a page to the business case for its proposed CBD (see Part 13, Appendix 1, page 8).

In this brief treatment, UTAS stated that “a great deal of further work” had been done since the Southern Future Business Case and cited Deloitte Access Economics as producing new, and more favourable, estimates of the financial gains to be made from moving to the Hobart CBD “compared to the long-term redevelopment of Sandy Bay.”

On 26 January 2023, I submitted an RTI application to UTAS seeking the information behind this brief treatment. As I noted in a previous blog post, UTAS refused to provide any of this information in its initial decision. It has since refused to provide any of this information in its review decision.

• I believe that UTAS is intent on obstruction and its grounds for wholesale refusal will not be sustainable. I have submitted a request for external review to the Ombudsman’s office.

Whatever one thinks of the Governments’ Macquarie Point development proposal, it has provided its business case on-line, where it can be read and subjected to rigorous analysis and criticism.

I believe that UTAS will not learn, as it should, from Ombudsman’s decisions because it does not want to. It will only ever put key information into the public domain if it feels compelled to do so – whether by direct pressure from the media, the Ombudsman or the LegCo Inquiry. Even the accuracy and completeness of that material will need to be carefully assessed.

This situation is made worse by the fact that Government agencies have undertaken no analysis of UTAS business case.

There is also the point that the Government, which is required to be transparent (at least up to a point), can be voted out.

As it stands, a UTAS Council that allows, or actively supports, a senior management devoted to keeping critical information out of the public domain, cannot be voted out, as it fully controls its own appointments.

6. Coming Blog Posts

I will shortly publish a further post on UTAS’ reliance on an invalid borrowing approval for the Green Bond, as I have new evidence to add to the picture.

This will be followed by a post on what I believe is the certainty that, if UTAS’ Hobart CBD move goes ahead, it will destroy UTAS’ finances and require a State bail-out, as well as leading to a mass exodus of Tasmanian university students to the mainland.