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Thursday, September 06, 2012

Apache bravely fights Varanus FOI disclosures - without success

Four years since the explosion at the Varanus Island gas plant operated by Apache Northwest off the Western Australian coast that had drastic consequences for natural gas supplies in WA, Apache has continued to argue in two jurisdictions against disclosure of documents under freedom of information laws

In the latest development, the Western Australian Court of Appeal upheld a decision to release to Lander and Rogers Lawyers, documents relating to the company and its facilities on the island where a gas pipeline ruptured causing the explosion. Decisions in this case previously by the Information Commissioner and a judge in the Supreme Court had gone against Apache. 

The WA cases are separate from proceedings earlier in the year at the federal level where the Freedom of Information Commissioner upheld, over objections by the company, a decision by a Commonwealth agency to release documents to AFR journalist Geoff Winestock. Winestock reported in April that that decision was being appealed.

FOI related issues concerning access to documents that might throw light on what happened have been swirling around since the 2008 election campaign. The Government released an investigation report and the response from the Department Of Mines and Petroleum in May 2012 having earlier discontinued a prosecution against Apache.  Alcoa for one is suing Apache over the incident. And the FOIs have been rolling...

Western Australian Court of Appeal
The Department of Mines and Petroleum initially refused an access application by Lander and Rogers Lawyers in 2008. However following an internal review, and despite objections by Apache, a third party consulted prior to release accesswas granted to:
  • Document 1: Varanus Hub Safety Case, dated 27 September 2000 (171 pages);
  • Document 3: Varanus Hub Safety Case, dated 5 July 2007 (1,954 pages);
  • Document 4: Sales Gas Pipelines - 5 year Integrity Review, dated 30 May 2007 (19 pages);
  • Document 4A: 31/05/06 PL 12 Renewal - Assessment Report, dated 31 May 2006 (214 pages);
  • Document 9: Operational Pipeline Management Plan, dated 10 April 2008.
Apache sought a review of that decision.The Information Commissioner, with limited exceptions, upheld the decision to release: Re Apache Northwest Pty Ltd and Department of Mines and Petroleum [2010] WAICmr 35.

An appeal by Apache against that decision was dismissed by Edelman J: Apache Northwest Pty Ltd v Department of Mines and Petroleum [No 2] [2011] WASC 283. Final orders were made on 26 October 2011: see Apache Northwest Pty Ltd v Department of Mines and Petroleum [No 3] [2011] WASC 314. 

Apache appealed to the Court of Appeal which on 23 August upheld Justice Edelman's decision: see Apache Northwest Pty Ltd v Department of Mines and Petroleum 2012 WASCA 167.

The Court rejected arguments that the primary judge erred in law in that he should have found the Information Commissioner misconstrued exemption clauses concerning endanger life or physical safety of any person, or security of any property, or prejudice the maintenance or enforcement of a lawful measure for protecting public safety.

Information commissioners can take heart from this: occasional loose language won't be held against you, if overall and in context you apply the proper test:
 36. And in reading the reasons for decision of the Commissioner, it must be borne in mind that they are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287. The court should not be 'concerned with looseness in the language ... nor with unhappy phrasing': Collector of Customs v Pozzolanic Enterprises Pty Ltd (287). As the High Court observed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272, the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
The judgment [57-86] involves detailed consideration of  the meaning of the term "could reasonably be expected"  (the subject of this recent post about NSW cases) in the business affairs and other relevant exemptions, and conflicting WA precedents on whether this requires the application of a balance of probabilities test. On this point, a mild "could be clearer" rebuke for the commissioner's attempt at reconciling the irreconcilable:
66 It must be said, with respect, that the reasoning of the Commissioner on this topic lacks the degree of clarity which would have been desirable. It is evident that the Commissioner was at some pains to attempt to reconcile the decision in Winterton, where the balance of probabilities had been used, with the decisions in Manly and Cockroft where it had been disavowed. His endeavours to do so led him to attempt to break the 'standard of proof' down into two limbs, the first (to which the balance of probabilities applied) to be applied to the argument and reasoning, and the second to the outcome (to which it did not). The passage referred to in IC [93] occurred in the context of that analysis.
67 It might be thought that in attempting to reconcile the decisions the Commissioner was attempting the impossible. Be that as it may, what I think is apparent is that while the Commissioner sought to reconcile the authorities and engaged in some (it must respectfully be said, rather obscure) consideration of how that might be done, in the end he did not 'consider it desirable to attempt to quantify the standard of proof' (IC [92]). The approach he ultimately took appears from IC [94] of his reasons, where the Commissioner adopted the statement of Owen J in Manly as the applicable test.
68 Having regard to the context as a whole, I am satisfied that the primary judge correctly found that the Commissioner did not apply the balance of probabilities. I did not understand Apache to take issue with the approach in Manly and nor in my opinion could it. I do not consider that any error has been made out.

Australian Information Commissioner
Earlier in the year Apache, again as a third party but unnamed in the proceedings, had sought to block release of documents by the National Offshore Petroleum Safety Environmental Management Authority to AFR correspondent Geoff Winestock concerning the investigation into the fire.

In E and National Offshore Petroleum Safety Environmental Management Authority [2012] AICmr 3 in March the Freedom of Information Commissioner upheld  the decision. Winestock reported in April that that decision was being appealed.The documents in this case are:
  • a briefing, dated 9 September 2009, from the Chief Executive Officer of NOPSEMA to the Minister for Resources and Energy, about an investigation by the Western Australian Department of Industry and Resources into a fire that occurred on Varanus Island on 3 June 2008 as a result of a ruptured gas pipeline, and
  • an extract from a letter (four appendices), dated 26 September 2009, to the Minister concerning NOPSEMA's involvement in that investigation.
FOI commissioner Popple ruled that a third party objecting to disclosure has a right to be heard only in respect of the relevant business affairs exemption (47G), not other exemptions it might contend should apply.

With regard to "unreasonably affect [the IC review applicant] adversely in respect of [its] lawful business ... affairs'- s 47(1)(a)-the commissioner found:
25. The documents concerned are now over two years old. The incident to which they relate occurred over three years ago. The incident raised questions of public safety and has been the subject of public debate. I agree with NOPSEMA's assessment that the documents contain only a limited level of detail relating to the IC review applicant, which is expressed in neutral terms.
26. For all of these reasons, the threshold is high for deciding that the effect of disclosure upon the IC review applicant's business would be unreasonable. An affected third party seeking IC review of an access grant decision bears the onus of establishing that access should be refused (s 55D(2)). The IC review applicant in this case has not provided any reasons why the adverse effect that it says will result from disclosure would be unreasonable.
With regard to prejudice supply of information -s 47(1)(b):

27. Section 47G(1)(b) will apply if disclosure of the information in the documents ‘could reasonably be expected to prejudice the future supply of information to ... an agency for the purpose of the administration of a law of the Commonwealth ... or the administration of matters administered by an agency'.
28. The IC review applicant submitted that the second document (appendices to a letter) includes information provided to NOPSEMA by the IC review applicant ‘beyond what is strictly required by law':
[The IC review applicant] provides more fulsome information to the government on the understanding that such information will remain confidential. If such information were released pursuant to an FOI request, it is likely that only the information specifically required to be produced would be provided rather than the fulsome information presently provided.
29. NOPSEMA argues, in response, that the information contained in that document was ‘information usually collected by [NOPSEMA] in the application of its legislated powers to inspect and to require improvements to health and safety', and that the IC review applicant had been legally required to provide that information to NOPSEMA.
30. It is not apparent to me that there is any material in that document that the IC review applicant would not be required to provide to NOPSEMA. Three of the four appendices relate to the IC review applicant's operations. They set out NOPSEMA's past regulatory activities at a broad and factual level. The fourth appendix is a summary of the legislative framework relevant to NOPSEMA's operations. The IC review applicant has not identified what material in these appendices derives from information that it provided to NOPSEMA, much less what material it provided even though it was not legally required to do so.
31. The IC review applicant has not discharged the onus on it to establish that access should be refused.
 Presumably this is now somewhere in the AAT.

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