Our Refs: 345670 and 357313 Contact: Antonia Di Maio

Ombudsman Fairness for all

9 April 2014

Mr Simon Johnson By email:[email protected]

Dear Mr Johnson Official Information Act complaints Environmental Protection Authority Information regarding emission units surrendered under emissions trading scheme I refer to previous correspondence concerning your Official Information Act (OIA) complaints against the Environmental Protection Authority (EPA). I apologise for the delay that has occurred in investigating your complaints. Having received and considered a copy of the information, and the EPA's reasons for refusing your request, I am now able to clarify the matter. As you know, the EPA suggested that "the 01A does not apply to the information in question as the information is subject to the restriction on the availability of information set forth in section 99 of the Climate Change Response Act 2002 [CCRA] ". I understand you are concerned that the EPA is interpreting the CCRA as "allowing it to ignore sections 5 to 9 of the [01A]". I can advise that the OIA does apply to the information at issue. However, section 18(c)(i) of that Act provides a proper basis for refusing your request. Section 18(c)(i) applies where it would be "contrary to the provisions of a specified enactment" to

The relevant parts of section 99 state: "99 Obligation to maintain confidentiality (1) (a) to the chief executive, the EPA, an enforcement officer, and any other person who performs functions or exercises powers of the chief executive, the EPA, or an enforcement officer under this Part and Part 5; and (b) at the time during which, and any time after which, those functions are performed or those powers are exercised. (a) must keep confidentialall information that comes into the person's knowledge when performing any function or exercising any power under this and Part and Part 5;

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(i)

with the consentof the person to whom the information relates or of the person to whom the information is confidential; or (ii) to the extent that the information is already in the public domain; or (iii) for the purposes of, or in connection with, the exercise of powers conferred by this Part or for the administration of this Act; or (iv) as provided underthis Act orany other Act;or (iiia) for the purposes of, or in connection with, reporting requirements of the Public Finance Act 1989; or (v) in connection with any investigation or inquiry (whether or not preliminary to any proceedings) in respect of, or any proceedings for, an offence against this Act or any other Act; or (vi) for the purpose of complying with any obligation under the Convention or the Protocol."(My emphasis) The information at issue came to the EPA's knowledge as a result of the requirement for participants to submit an annual emissions return under Part 4 of the CCRA (see section 65). Accordingly, it must be kept confidential unless one of the exceptions in section 99(2)(b) applies. The only exception that might arguably be relevant in the context where the parties have expressly declined consent to release is section "as provided under ... any other Act". I am not persuaded that the OIA is an Act that provides for the disclosure of information in s 99(2)(a) of the CCRA. The OIA confers a right to request official information and requires that such requests be processed in accordance with its provisions, but those provisions do not provide for the disclosure of information under the CCRA (or any other Act that imposes restrictions on the availability of official information). Instead, section 52(3)(b)(i) of the OIA provides that nothing in that Act derogates from any provision which is contained in any other Act which imposes a prohibition or restriction in relation to the availability of official information. Section 99 is such a section. Accordingly, the OIA does not override the restrictions imposed by section 99 of the CCRA and it would be contrary to that section for the requested information to be made available to you. Consequently, section 18(c)(1) of the OIA provides a reason to refuse your request on that basis. I apologise that we were not in a position to undertake the necessary analysis to provide you with this advice earlier. Subject to your comments, the Ombudsman will discontinue his investigation on the basis discussed above. Yours sincerely

Leo Donnelly Deputy Ombudsman