Forestry challenges Ombudsman’s order to disclose Going Bush costs

Forestry Tasmania have launched a Supreme Court action aimed at overturning a decision by the Tasmanian Ombudsman, Simon Allston, requiring public disclosure of the costs of the first two series of the Going Bush television series.

In March 2010 the Ombudsman ruled in favour of Greens MP Kim Booth that, in response to a Freedom of Information (FOI) request, the costs to Forestry Tasmania of the first two five-program series should be made public. While Forestry Tasmania have not disclosed the costs of the three series produced to date, it is likely that they have cost well in excess of $1 million for the first two series. The third and current series, which may be outside the terms of Booth’s FOI request, is likely to have cost in excess of a further $500,000.

Phantom exemptions

Forestry Tasmania claim that under sections 31 (1) (b) and 32 (a) (i) and (ii) of the Freedom of Information Act they are entitled to withhold the details of the costs of the series. The first section allows information to be claimed as exempt if it was acquired from a business and “would be likely to expose the undertaking to competitive disadvantage” while the relevant section 32 allows a government agency engaged in trade or business to withhold information if it is “likely to expose the undertaking to competitive disadvantage”.

In his initial decision Dr. Hans Drielsma, the Executive General Manager of Forestry Tasmania, wrote that “information about prices and costs and specific market arrangements may expose both Forestry Tasmania and its consultant [Southern Cross] to competitive disadvantage.”

In a submission to the Ombudsman, Bob Gordon, the Managing Director of Forestry Tasmania claimed that “public release of this information would expose Forestry Tasmania to competitive disadvantage in its future dealings with other consultants, by significantly reducing its negotiating power”. Gordon also stated that Southern Cross Television also objected to the release of the information. “It [Southern Cross] noted that its main competitor has recently started producing similar television programs, and that releasing the financial arrangements pertaining to the production of Going Bush would weaken its position as a producer of local television programs,” Gordon wrote.

In its own submission in December 2009, Southern Cross argued that if the information were released “a competitor would be able to use this information to its own advantage (which would be to TNT’s detriment).”

Not surprisingly, Booth disagreed and instead argued that there were many examples of where government departments put projects out to tender for media production and where the information was disclosed.

Following a detailed consideration of the provisions of the legislation and the submissions put to him, the Ombudsman rejected both Forestry Tasmania and Southern Cross Television’s arguments.

In relation to the subsections of 31 (1)(b), Allston dismissed Southern Cross Television’s claim and bluntly stated that there “there is nothing about the quoted information, and nothing in the other evidence before me, which satisfies me that the disclosure of the quoted information would be likely to expose TNT to competitive disadvantage, unreasonably or otherwise.”

As for whether Forestry Tasmania could claim the information was exempt under the subsection of section 32, Allston was equally dismissive. “If FT competes with anyone, it competes with organisations and individuals which market similar goods and services to those which it markets, in Australia or overseas. It does not compete with those with whom it contracts for the provision of goods and services as part of carrying on its business,” he wrote.

Allston concluded that while “it is conceptually possible that an agency might be so disadvantaged in its profitability by the release of information that compromises its ability to negotiate appropriate deals with customers and/or contractors that its ability to compete with other businesses is likewise compromised. However, this is an improbable scenario, and FT has not provided me with any evidence to make out such a case here.”

As a result of his review, Allston ruled that “none of the information at issue is exempt from release” and that it should be released to Booth.

Forestry Tasmania … a lawyer’s best friend

While Allston’s ruling is unsurprising, Forestry Tasmania have launched an appeal against it in the Supreme Court of Tasmania. In a statement posted on Forestry Tasmania’s website Drielsma claimed that “an organisation’s capacity to achieve the best possible price either as a buyer or seller, would be compromised if the minimum price was publicly disclosed before negotiation.”

Drielsma also claimed that Allston’s ruling “has the potential to seriously impact on Forestry Tasmania’s commercial competitiveness.”

How exactly the disclosure of the cost of the Going Bush television series would affect Forestry Tasmania’s ability sell logs remains to be seen. (In the year to June 2009 Forestry Tasmania earned $155,272,000 from the sale of forest products. The income earned from the sale of the Going Bush DVD’s is so insignificant that it is not listed in Forestry Tasmania’s annual financial statements.)

A brief directions hearing on Forestry Tasmania’s challenge to the Ombudsman’s decision is set down for Courtroom 2 at 12 noon, today (Tuesday April 20) at the Supreme Court in Salamanca Place in Hobart.