Agreement That Involves Storage of Radioactive Waste at ARPANSA's building in Yallambie
Dear Office of the Australian Information Commissioner,
I seek access under the Freedom of Information Act 1982 to information regarding the Memorandum of Understanding (MOU) between the University of Melbourne and the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA). The MOU is an agreement that involves ARPANSA funding for a project at the university, transfer of radioactive waste from the university to ARPANSA, and indefinite storage of drums of the aforementioned radioactive waste at ARPANSA's building in Yallambie. I request that a copy of the MOU document, including any attachments, be made available.
My request was first to the Department of Health, and it was transferred to ARPANSA. I applied directly to ARPANSA as well on 4 May 2018. I applied for access over two months ago (ARPANSA extended things by an additional 30 days}, but have not received notice of a decision. I concluded that the CEO of ARPANSA personally made a decision refusing to give access to the document (refer to s 15AC).
This document exists. The MOU was signed by the CEO of ARPANSA in December of 2017. The agreement describes payments from ARPANSA that total nearly one million dollars. Access to this document is clearly in the public interest.
ARPANSA have been unresponsive in this simple request. On 13 June 2018, ARPANSA wrote to me:
"I can confirm that the University has made a submission to me and has objected to any part of the document being released. I am currently considering the grounds for their objections and will inform you of my decision shortly.
No doubt you are aware that should I decide to grant access to the document, I am required to advise the University of that decision and in accordance with sub-sections 26A(4), 27(7) and 28(6) I must not give you access to the document until after all the opportunities for appeal by the University have been exhausted and the decision to grant access still stands or is confirmed."
I received no information about a decision. It is clear that the agency plans to continue to delay, and that access to the MOU is not forthcoming. ARPANSA is a small agency and the FOI administrator works directly for the CEO; they've undoubtedly discussed this request.
I therefore respectfully request an IC review of this "deemed" decision to refuse me access.
Yours faithfully,
Anonymous
Our reference: MR18/00458
Anonymous
Sent by email: [FOI #4677 email]
Dear Anonymous
Your IC review application about an FOI decision by the Australian
Radiation Protection and Nuclear Safety Agency
Thank you for your correspondence seeking to lodge an IC review
application with the [1]Office of the Australian Information Commissioner
(the OAIC) about the Australian Radiation Protection and Nuclear Safety
Agency (ARPNSA).
Please note:
o The OAIC has initiated preliminary inquiries with the Department, we
will contact you once the Department responds to advise the next
steps.
o If your circumstances change, or your request has been resolved
directly with ARPNSA, please advise us by email as soon as
practicable.
Should you wish to follow up on this matter, please contact the OAIC
enquiries line on 1300 363 992 or email [2][email address] and quote
the reference number at the top of this email.
Yours sincerely
Carl English | Assistant Review and Investigation Officer | Freedom of
Information Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218 SYDNEY NSW 2001| [3]www.oaic.gov.au
Phone: +61 2 9284 9745 | E-mail: [email address]
Protecting information rights – advancing information policy
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Our reference: MR18/00458
Anonymous
Sent by email: [1][FOI #4677 email]
Dear Anonymous
I write to you regarding your application for IC review of a decision the
Australian Radiation Protection and Nuclear Safety Agency (the ARPNSA) was
deemed to have made on 3 July 2018.
On 6 July 2018, ARPNSA notified the Office of the Australian Information
Commissioner it had made a revised decision to refuse you access to the
information under s 45 of the FOI Act.
Can you please notify us by 20 July 2018, if you now wish to:
o Proceed with a review of ARPNSA’s access refusal decision, and
o If you wish to make a submission about the grounds on which you wish
to proceed.
If you have any questions regarding this email please contact me on 02
9284 9745 or via email [2][email address]. Please quote OAIC reference
number MR18/00458 in all correspondence.
Yours sincerely
Carl English | Assistant Review and Investigation Officer | Freedom of
Information Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218 SYDNEY NSW 2001| [3]www.oaic.gov.au
Phone: +61 2 9284 9745 | E-mail: [email address]
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Dear FOIDR,
After waiting until the extended timeframe expired, ARPANSA refused to release the requested document. ARPANSA claimed that the document is exempt under sections 47B, 47E and 47G of the FoI Act. I respectfully request that you proceed with a review of ARPANSA’s access refusal decision.
The ARPANSA FoI adminstrator works directly for the CEO and they undoubtedly collaborated on their response. An internal review would be useless.
ARPANSA claimed that the requested document consists of information conveyed in confidence and that disclosure of the document would divulge information between the Commonwealth and a State. However little detail is provided to explain why the MOU is confidential; although ARPANSA stated that there could be "damage to the University's reputation", it's not clear why this might happen. There's no real grounds for expecting any damage to occur. No evidence was provided. A mere possibility of damage is insufficient to meet the ‘reasonable expectation’ test. The requested document is not marked confidential and its contents have been discussed widely among ARPANSA staff.
ARPANSA stated that release of the MOU could result in loss of trust if its partners feel they cannot rely on ARPANSA to honour confidentiality obligations. Note however that the FoI Act is law. Compliance with the law must take precendence. If an agency has a statutory obligation to publish or release specified information, that obligation must outweigh any undertaking or understanding by the agency to treat the information confidentially. Therefore ARPANSA's justification is based on circular reasoning (that is, the document is FoI exempt because we undertook to keep it a secret).
ARPANSA stated that release of the document would disclose information concerning the business, commercial or financial affairs of the University. This is obviously true. I believe the MOU involves payments by ARPANSA of nearly $1 million. However both parties to the MOU are government entities that rely on taxpayer monies. They should be accountable.
ARPANSA claimed that release of the MOU would undermine the reputation of the University. This is doubtful. However this would be no reason to exempt the requested document from FoI. When government agencies make mistakes or are involved in wrongdoing, their reputations suffer. To the extent that the MOU gives rise to embarrassment, this claim of reputational damage could be true. However this would be a strong argument in support of FoI and disclosure.
The requested document, an MOU, is believed to be an agreement that involves ARPANSA funding for a project at the University of Melbourne, transfer of radioactive waste from the university to ARPANSA, and indefinite storage of over 100 drums of this radioactive waste at ARPANSA's building in Yallambie. It's believed that some of the waste has already been relocated to Yallambie, although a project to modify the building is not yet complete. The CEO of ARPANSA is both regulator and licence holder in this case; as such, the MOU appears to be his approval of his own request to store radioactive material in Yallambie.
Release of the MOU is very clearly in the public interest. Disclosure will promote the objects of the Act, inform debate on a matter of public importance and promote effective oversight of public expenditure.
Yours sincerely,
Anonymous
Dear Anonymous
Thank you for your confirmation.
Your matter can now move to the assessment stage. Once you matter has been assessed we will contact you to advise the next steps.
Kind regards
Carl English | Assistant Review and Investigation Officer | Freedom of Information Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218 SYDNEY NSW 2001| www.oaic.gov.au
Phone: +61 2 9284 9745 | E-mail: [email address]
-----Original Message-----
From: Sun Shine <[FOI #4677 email]>
Sent: Friday, 6 July 2018 12:14 PM
To: FOIDR <[email address]>
Subject: Re: MR18/00458 - IC review application [SEC=UNCLASSIFIED]
Dear FOIDR,
After waiting until the extended timeframe expired, ARPANSA refused to release the requested document. ARPANSA claimed that the document is exempt under sections 47B, 47E and 47G of the FoI Act. I respectfully request that you proceed with a review of ARPANSA’s access refusal decision.
The ARPANSA FoI adminstrator works directly for the CEO and they undoubtedly collaborated on their response. An internal review would be useless.
ARPANSA claimed that the requested document consists of information conveyed in confidence and that disclosure of the document would divulge information between the Commonwealth and a State. However little detail is provided to explain why the MOU is confidential; although ARPANSA stated that there could be "damage to the University's reputation", it's not clear why this might happen. There's no real grounds for expecting any damage to occur. No evidence was provided. A mere possibility of damage is insufficient to meet the ‘reasonable expectation’ test. The requested document is not marked confidential and its contents have been discussed widely among ARPANSA staff.
ARPANSA stated that release of the MOU could result in loss of trust if its partners feel they cannot rely on ARPANSA to honour confidentiality obligations. Note however that the FoI Act is law. Compliance with the law must take precendence. If an agency has a statutory obligation to publish or release specified information, that obligation must outweigh any undertaking or understanding by the agency to treat the information confidentially. Therefore ARPANSA's justification is based on circular reasoning (that is, the document is FoI exempt because we undertook to keep it a secret).
ARPANSA stated that release of the document would disclose information concerning the business, commercial or financial affairs of the University. This is obviously true. I believe the MOU involves payments by ARPANSA of nearly $1 million. However both parties to the MOU are government entities that rely on taxpayer monies. They should be accountable.
ARPANSA claimed that release of the MOU would undermine the reputation of the University. This is doubtful. However this would be no reason to exempt the requested document from FoI. When government agencies make mistakes or are involved in wrongdoing, their reputations suffer. To the extent that the MOU gives rise to embarrassment, this claim of reputational damage could be true. However this would be a strong argument in support of FoI and disclosure.
The requested document, an MOU, is believed to be an agreement that involves ARPANSA funding for a project at the University of Melbourne, transfer of radioactive waste from the university to ARPANSA, and indefinite storage of over 100 drums of this radioactive waste at ARPANSA's building in Yallambie. It's believed that some of the waste has already been relocated to Yallambie, although a project to modify the building is not yet complete. The CEO of ARPANSA is both regulator and licence holder in this case; as such, the MOU appears to be his approval of his own request to store radioactive material in Yallambie.
Release of the MOU is very clearly in the public interest. Disclosure will promote the objects of the Act, inform debate on a matter of public importance and promote effective oversight of public expenditure.
Yours sincerely,
Anonymous
-----Original Message-----
Our reference: MR18/00458
Anonymous
Sent by email: [1][FOI #4677 email]
Dear Anonymous
I write to you regarding your application for IC review of a decision the
Australian Radiation Protection and Nuclear Safety Agency (the ARPNSA) was
deemed to have made on 3 July 2018.
On 6 July 2018, ARPNSA notified the Office of the Australian Information
Commissioner it had made a revised decision to refuse you access to the
information under s 45 of the FOI Act.
Can you please notify us by 20 July 2018, if you now wish to:
o Proceed with a review of ARPNSA’s access refusal decision, and
o If you wish to make a submission about the grounds on which you wish
to proceed.
If you have any questions regarding this email please contact me on 02
9284 9745 or via email [2][email address]. Please quote OAIC reference
number MR18/00458 in all correspondence.
Yours sincerely
Carl English | Assistant Review and Investigation Officer | Freedom of
Information Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218 SYDNEY NSW 2001| [3]https://apac01.safelinks.protection.outl...
Phone: +61 2 9284 9745 | E-mail: [email address]
References
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Dear FOIDR,
Just an update. I'm awaiting the completion of your assessment regarding the release of the Memorandum of Understanding (MOU) between the University of Melbourne and the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA). The MOU is an agreement from December 2017 that involves ARPANSA funding for a project at the university, transfer of radioactive waste from the university to ARPANSA, and indefinite storage of drums of the aforementioned radioactive waste at ARPANSA's building in Yallambie.
It should be noted that, since my original request, much of the information in the MOU has already become public knowledge. ARPANSA recently released information about the Yallambie Radioactive Waste Store Expansion project.
https://www.righttoknow.org.au/request/r...
In light of the fact that information is now public knowledge, the MOU should be released in its entirety. It can't be considered confidential.
Yours sincerely,
Anonymous
Dear Anonymous
Thank you for your email.
Your application is currently being assessed. Once the assessment is complete we will write to you to advise the next step.
Kind regards
Carl English | Assistant Review and Investigation Officer | Freedom of Information Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218 SYDNEY NSW 2001| www.oaic.gov.au
Phone: +61 2 9284 9745 | E-mail: [email address]
-----Original Message-----
From: Sun Shine <[FOI #4677 email]>
Sent: Wednesday, 29 August 2018 2:31 PM
To: FOIDR <[email address]>
Subject: RE: MR18/00458 - IC review application [SEC=UNCLASSIFIED]
Dear FOIDR,
Just an update. I'm awaiting the completion of your assessment regarding the release of the Memorandum of Understanding (MOU) between the University of Melbourne and the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA). The MOU is an agreement from December 2017 that involves ARPANSA funding for a project at the university, transfer of radioactive waste from the university to ARPANSA, and indefinite storage of drums of the aforementioned radioactive waste at ARPANSA's building in Yallambie.
It should be noted that, since my original request, much of the information in the MOU has already become public knowledge. ARPANSA recently released information about the Yallambie Radioactive Waste Store Expansion project.
https://apac01.safelinks.protection.outl...
In light of the fact that information is now public knowledge, the MOU should be released in its entirety. It can't be considered confidential.
Yours sincerely,
Anonymous
-----Original Message-----
Dear Anonymous
Thank you for your confirmation.
Your matter can now move to the assessment stage. Once you matter has been assessed we will contact you to advise the next steps.
Kind regards
Carl English | Assistant Review and Investigation Officer | Freedom of Information Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218 SYDNEY NSW 2001| https://apac01.safelinks.protection.outl...
Phone: +61 2 9284 9745 | E-mail: [email address]
-------------------------------------------------------------------
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If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
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with any attachments.
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Our reference: MR18/00458
Agency reference: 2017/01196
Anonymous
By email: [FOI #4677 email]
Your application for IC review of an FOI decision
Dear Anonymous,
Please find attached correspondence relating to your IC review of a
decision made by the Australian Radiation Protection and Nuclear Safety
Agency on 4 July 2018.
Kind regards
Megan McKenna | Assistant Review Officer | Freedom of Information Dispute
Resolution
Office of the Australian Information Commissioner
Level 3, 175 Pitt Street, SYDNEY NSW 2000
GPO Box 5128 SYDNEY NSW 2001| [1]www.oaic.gov.au
Phone: +61 2 8231 4292| E-mail: [2][email address]
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Dear FOIDR,
It's been well over four months since you provided an initial status. The requested MOU was signed in December 2017, the radioactive waste was transferred for storage at Yallambie in 2018 and ARPANSA have spent a significant amount of money.
Yours sincerely,
Anonymous
Our reference: MR18/00458
Agency reference: 2017/01196
Anonymous
By email: [1][FOI #4677 email]
Dear Anonymous
Thank you for your email requesting an update on the status of your
matter.
At this stage your matter is awaiting allocation to a case review officer.
Unfortunately the OAIC has received an increase in the number of IC review
applications and we are endeavouring to process these as soon as
practicable. I apologise for the delay.
However, by way of an update, although your IC review is currently
unallocated, your matter has been progressing through the initial stages
of an IC review. The initial stages of an IC review may include assessment
by senior member of the FOI Dispute Resolution team, requesting
submissions from an agency in support of their FOI decision or requesting
documents at issue. Further information on IC reviews can be found in
[2]Part 10 of the FOI Guidelines and here:
[3]https://www.oaic.gov.au/freedom-of-infor...
As soon as your matter is allocated, the case officer will contact you
directly to discuss the next steps in the process.
In the meantime, please do not hesitate to contact us at
[4][email address] if you have any further queries.
Kind regards
[5]O A I C logo Adie Chang | Assistant
Review Officer
Freedom of Information Dispute
Resolution
Office of the Australian
Information Commissioner
GPO Box 5218 Sydney NSW
2001 | [6]oaic.gov.au
+61 2 9284 9686 |
[7][email address]
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-----Original Message-----
From: Sun Shine <[FOI #4677 email]>
Sent: Monday, 21 January 2019 3:31 PM
To: FOIDR <[email address]>
Subject: Re: MR18/00458 - Your application for IC review
[SEC=UNCLASSIFIED]
Dear FOIDR,
It's been well over four months since you provided an initial status. The
requested MOU was signed in December 2017, the radioactive waste was
transferred for storage at Yallambie in 2018 and ARPANSA have spent a
significant amount of money.
Yours sincerely,
Anonymous
-----Original Message-----
Our reference: MR18/00458
Agency reference: 2017/01196
Anonymous
By email: [FOI #4677 email]
Your application for IC review of an FOI decision
Dear Anonymous,
Please find attached correspondence relating to your IC review of a
decision made by the Australian Radiation Protection and Nuclear Safety
Agency on 4 July 2018.
Kind regards
Megan McKenna | Assistant Review Officer | Freedom of Information Dispute
Resolution
Office of the Australian Information Commissioner
Level 3, 175 Pitt Street, SYDNEY NSW 2000
GPO Box 5128 SYDNEY NSW 2001|
[1][13]https://apac01.safelinks.protection.outl...
Phone: +61 2 8231 4292| E-mail: [2][email address]
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Dear FOIDR,
It's now been 10 months since my initial request was made to ARPANSA. It's been seven months since I requested an IC review of ARPANSA's decision to refuse my FoI request. In late August last year, you informed me that my request would be "allocated" within four months. I'm unsure when my request will move to the "assessment stage" (or what these terms mean).
Could you please tell me when the IC review might occur?
Yours sincerely,
Anonymous
Dear Anonymous
Thank you for your email. I apologise for the continuing delay in this
matter.
The assessment of your IC review has already been completed. Your IC
review is now currently waiting for allocation to a review officer.
Unfortunately, I am unable to estimate how long it may take until your
matter is allocated to a review officer.
However, I note that currently we have matters which have been waiting on
allocation since mid-March 2018.
Kind regards
Carl English | Acting Review Adviser (Legal)
Freedom of Information Dispute Resolution
[1][IMG][2][IMG] Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001 | [3]oaic.gov.au
+61 2 9284 9745 | [4][email address]
[5][IMG][6][IMG] | [7][IMG][8][IMG] | [9][IMG][10][IMG] |
-----Original Message-----
From: Sun Shine <[FOI #4677 email]>
Sent: Friday, 1 March 2019 11:36 AM
To: FOIDR <[email address]>
Subject: Re: MR18/00458 - Your application for IC review
[SEC=UNCLASSIFIED]
Dear FOIDR,
It's now been 10 months since my initial request was made to ARPANSA. It's
been seven months since I requested an IC review of ARPANSA's decision to
refuse my FoI request. In late August last year, you informed me that my
request would be "allocated" within four months. I'm unsure when my
request will move to the "assessment stage" (or what these terms mean).
Could you please tell me when the IC review might occur?
Yours sincerely,
Anonymous
-----Original Message-----
Our reference: MR18/00458
Agency reference: 2017/01196
Anonymous
By email: [1][FOI #4677 email]
Dear Anonymous
Thank you for your email requesting an update on the status of your
matter.
At this stage your matter is awaiting allocation to a case review officer.
Unfortunately the OAIC has received an increase in the number of IC review
applications and we are endeavouring to process these as soon as
practicable. I apologise for the delay.
However, by way of an update, although your IC review is currently
unallocated, your matter has been progressing through the initial stages
of an IC review. The initial stages of an IC review may include assessment
by senior member of the FOI Dispute Resolution team, requesting
submissions from an agency in support of their FOI decision or requesting
documents at issue. Further information on IC reviews can be found in
[2]Part 10 of the FOI Guidelines and here:
[3][11]https://apac01.safelinks.protection.outl...
As soon as your matter is allocated, the case officer will contact you
directly to discuss the next steps in the process.
In the meantime, please do not hesitate to contact us at
[4][email address] if you have any further queries.
Kind regards
[5]O A I C logo Adie Chang | Assistant
Review Officer
Freedom of Information Dispute
Resolution
Office of the Australian
Information Commissioner
GPO Box 5218 Sydney NSW
2001 | [6]oaic.gov.au
+61 2 9284 9686 |
[7][email address]
[11]Subscribe [12]Subscribe to
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Dear FOIDR,
I understand that all three payments (totaling nearly $1 million) by ARPANSA under the MOU have been made. Approximately 200 drums of radioactive waste are now stored in Yallambie. As such the MOU is no longer in effect.
It's expected that these 200+ drums will remain in Yallambie until such time that the national radioactive waste facility is opened. The CEO of ARPANSA will therefore be motivated to approve the opening of such a facility in the coming years.
Are you able to provide any updated information regarding my request? The MOU is now an historical document.
Yours sincerely,
Sun Shine
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information regarding the submissions be required.
Extensions of time for processing FOI requests
Where an agency in unable to make a decision on an FOI request within the
timeframes for processing FOI requests, the agency can seek an extension
to time to process the FOI request, either from the FOI applicant or from
the OAIC.
Information for FOI applicant regarding extensions of time under the FOI
Act can be found at:
[7]https://www.oaic.gov.au/freedom-of-infor....
Information for agencies regarding the extension of time provisions in the
FOI Act and how to apply to the OAIC for an extension of time can be found
at:
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Requests for documents of other agencies
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agencies. If you wish to request access to documents of another agency,
you will need to make a request to that agency under the FOI Act.
Information about [9]how to make an FOI request is available on the OAIC
website.
Kind regards
Intake and Early Resolution Team
Freedom of Information Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001 | [10]oaic.gov.au
1300 363 992 | [11][email address]
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11. mailto:[email address]
Dear Office of the Australian Information Commissioner,
It's fast approaching two years and I still have no indication that the Office of the Australian Information Commissioner has done anything to address my request. The requested MOU should be made public. I respectfully request that someone from your office be assisgned.
At some point, we have to acknowledge that delays undermine the spirit of the FoI Act. One has to ask what, if anything, does this office do to promote the Act or 'to increase recognition that information held by the Government is to be managed for public purposes".
Yours faithfully,
Anonymous