On 23 October 2023, the Tasmanian Ombudsman, Mr Richard Connock, decided a third Right to Information (RTI) case overwhelmingly in my favour against UTAS (click for copy of decision).

The case relates to my RTI application of 26 January 2023 requesting copies of research undertaken for UTAS by Deloitte Access Economics (DAE). UTAS had relied heavily on DAE’s research, in claiming that CBD relocation from its Sandy Bay campus to the Hobart CBD was necessary for UTAS’ financial sustainability, in its submission to the Legislative Council Select Committee Inquiry into the Provisions of the University of Tasmania Act 1992 (LegCo Inquiry).

  • While financial sustainability is UTAS’ principal argument for relocation, the section on this in its LegCo submission amounted to less than a page in its 335-page submission. A copy of this section is at Appendix 1 below.

UTAS refused to provide me with DAE’s research – revealed in the Ombudsman’s decision as comprising two documents – both in its initial and internal review decisions, in which it claimed total exemption from release for the documents under the RTI Act.

I requested an external review of UTAS’ decisions by the Ombudsman on 29 May 2023.

The Ombudsman rejected three of UTAS’ grounds for exemption under the RTI Act (sections 35, 36 and 37) outright. With regard to the other ground (section 39, which relates to information obtained in confidence), the Ombudsman first decided that a large part of DAE’s two reports was not exempt as it was factual in nature (approximately 56 of 104 pages). He then proceeded to determine that exemption of the remainder of the two documents was entirely almost overridden by the public interest.

Consequently, UTAS must provide me with the two documents by DAE totalling approximately 104 pages, of which only part of one page has been allowed for exemption by the Ombudsman, by 6 November 2023.

Some key aspects of the Ombudsman’s decision

1. The public interest

In making his decision, the Ombudsman repeatedly emphasised the importance of the public interest in this case, for example:

“In addition, the pro-disclosure object of the Act and matter (a) [of matters listed as relevant to assessment of the public interest in the RTI Act] – the general public need for government information to be accessible – are always relevant and weigh in favour of release of information in any public interest assessment.” (Ombudsman’s decision, para 88)

“The University is a public institution and, as such, is accountable to the public like other government agencies.” (para 89) 

“…the information [ie DAE’s two reports] was relied upon in [UTAS’] submission to the Legislative Council Select Committee Inquiry, as mentioned above. Therefore, in my view, if the University is so reliant upon the information as to cite it in its submission to the Tasmanian Government inquiry, it should be available for scrutiny by the public.” (para 114)

“In my view, there is clearly a public interest in how the only higher education institution in Tasmania makes decisions in relation to its functions under its governing legislation, particularly where this involves the administration of public funds.” (para 117)

2. Rejection of UTAS’ arguments

As well as his statements on the public interest, the Ombudsman substantially rejected all UTAS’ arguments for exemption. As the Ombudsman’s decision is 32 pages long, I will provide only a few examples here. Later this week I will publish a more detailed summary, for those who are interested. This may also be useful for future RTI applicants.

The Ombudsman on UTAS’ claim that it was sufficient for UTAS and DAE to have agreed that material that passed between them was confidential to exempt that material from release (and that if UTAS was forced to release that material it would jeopardise its ability to obtain information in the future):

“I am not persuaded by any argument the University has presented that disclosure of the information would prejudice the University’s ability to obtain similar information in the future. The University should be aware that the operation of the Act cannot be circumvented by contract. I find it highly unlikely that the third party would not be aware that entering into arrangements with public authorities in Tasmania may result in disclosure of the resulting reports and information. This is the nature of doing business with government, and such contractors and consultants who do business with government, particularly professional enterprises who are as experienced as Deloitte, will be well aware of this.” (paragraph 94; my bolding)  

 The Ombudsman on UTAS’ claim that the two documents were the Intellectual Property of DAE:

“Likewise, I find that the argument regarding the intellectual property of the third party is ill conceived. It is usual practice that where a party commissions a report, the commissioning party retains copyright….

In addition, while Ms O’Keefe [UTAS’ internal review decision] sets out that intellectual property in the Deloitte reports rests with Deloitte, disclosure of the information under the Act is not an infringement of any intellectual property retained by Deloitte.…

Finally, I am not persuaded that this situation with Deloitte is any different from the numerous third parties who have been engaged by the University to consult and produce reports which are already publicly available on the University’s website. Use of consultants is widespread by public authorities and it would thoroughly undermine the public’s right to information if publicly funded consultant reports were considered to belong to the consultants and disclosure were not permitted.” (paragraphs 95-97; my bolding)

The Ombudsman on UTAS’ claim that the two documents were exempt because they were in draft:

“…the information [in the two documents] was relied upon in [UTAS’] submission to the Legislative Council Select Committee Inquiry, as mentioned above….if the University is so reliant upon the information as to cite it in its submission to the Tasmanian Government inquiry, it should be available for scrutiny by the public.

In addition, this appears to debunk the University’s other argument that the information consists of working drafts and is meant for internal use only. If the information has been cited to the Government inquiry, it could be presumed to be a substantially complete iteration. This is a use of the information that is clearly not internal. Finally, it appears that documents are in a sufficient state of finality that they have been delivered to the client (the University) by the consultant (Deloitte) presumably in completion of the terms of its engagement. 

Thus, using the label “draft” is not sufficient to prevent disclosure under the Act. There must be some sort of evidence that shows that a document is in draft form and not yet a finalised piece of work. This is not the case here, where the evidence seems to show (in referring to the material in a submission to Parliament, and delivery of the report by the consultant to the client) that the work is past the point of being in draft and is a final product. (paragraphs 114-116)

3. Criticism of UTAS’ broad brush approach to exemption

“I agree with Mr Hogan, in this instance, that the University has taken an overly broad approach to exemption and appears to have considered the information holistically rather than undertaking a line by line assessment genuinely considering whether the information could be released. While the redaction of entire documents is not necessarily inconsistent with the object of the Act if the information is legitimately exempt, as I discussed in a previous decision with these same parties, it is unusual that internal deliberative information would contain zero purely factual information or detail that can be released.

This is clearly demonstrated in this instance, as there is factual information and publicly available information in the material responsive to Mr Hogan’s request and it is disappointing that the University has claimed a blanket exemption over entire documents. While there may have been valid claims for exemption made over some information, the University has been perfunctory in its assessment and failed to acknowledge the substantial amount of purely factual information contained within the documents.” (paragraphs 112-113; my bolding)

UTAS’ credibility is zero

As mentioned above, the Ombudsman’s decision on DAE’s research is the third decision (in three cases) in my favour against UTAS. The previous cases were:

  • My RTI application of 24 March 2022 for a copy of the UTAS Council Minutes for the period 1 January 2015 to 24 March 2022. UTAS’ initial and internal review decisions involved providing me with a heavily redacted 22-page set of Council Minutes. Under pressure from the Ombudsman, UTAS provided me with a ‘remade decision’ and 513-page set of Council Minutes on 16 January 2023. A copy of the Ombudsman’s decision relating to this matter is here. The difference between receiving a 22-page document and a 513-page is obvious, and the newly released material included much important material. I believe that UTAS’ handling of this application raises serious issues regarding its conduct and on 23 January 2023 I published a blog post on this entitled UTAS doctored Council Minutes (see also my blog post on the Ombudsman’s decision entitled UTAS breaches Right to Information Act – again).

  • My RTI application of 11 August 2022 for UTAS’ STEM Business Case and Southern Future Business Case (SFBC), the latter being the basis for the UTAS Council’s decision of 5 April 2019 to relocate to the Hobart CBD. UTAS totally refused my application in both its initial and internal review decisions. Under pressure from the Ombudsman, and the fact that Infrastructure Australia was about to release it to me, UTAS published the STEM Business Case in full on its website on 16 January 2016. While purporting to also publish the complete SFBC on that date, UTAS published only about one-third of the document. It was not until after the Ombudsman’s decision in my favour on 30 June 2023 requiring release of the document that UTAS published the SFBC in its entirety on 11 July 2023 – 11 months to the day since my initial RTI application. Again, given its significance, the SFBC should have been long since in the public domain (for the significance of the SFBC see, for example, my blog post at Tasmanians would bear cost of UTAS folly – $4 billion plus at stake).

I also note the earlier adverse decision by the Ombudsman against UTAS on 24 February 2022 in a case brought by ABC journalist Alexandra Humphries.

UTAS’ approach to decision-making in all four of the RTI the cases examined by the Ombudsman has been to apply broad brush exemptions in which it seeks to find arguments under the RTI Act for withholding information rather than releasing as much as it can.

UTAS has also continued to recycle arguments for exemption that have already been rejected by the Ombudsman – not only in the cases mentioned here but also in its rejection of other RTI applications.

  • I have several other RTI cases involving UTAS currently with the Ombudsman. I have also seen typical broad brush rejection letters provided by UTAS to other RTI applicants, who – taking UTAS at its word – did not seek review of UTAS’ decisions.

UTAS repeated ‘mistakes’ in handling RTI applications raises a question of the extent to which incompetence is involved, as distinct from obstruction, obfuscation and deception.

Certainly, I believe there is a pervading culture in UTAS (meaning the UTAS management hierarchy) of secrecy and misrepresentation of ‘facts’ – see for example my blog posts: UTAS doctored Council Minutes; UTAS lacks any credibility on CBD move; and Chancellor Watkins’ email shows she has head in the sand on costs of UTAS move.

I will shortly publish a blog post in which I provide details of all my RTI dealings with the University and consider these issues more closely.

For now, Tasmania’s politicians should ask themselves, “If UTAS cannot be trusted on RTI, why are we (blindly) trusting it with a $4 billion relocation?”

Appendix 1 – Excerpt from UTAS’ LegCo submission

(Document image sourced from page 8 of Attachment 1 of Part 13 of UTAS’ submission to the LegCo Inquiry).

By : Robert Hogan

1 Comment

  1. Thank you, Robert Hogan, for your persistence for truth from the University of Tasmania’s relocation plan. Finally, the information is provided because of your unwavering commitment.

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