Geelong Community for Good Life Inc v Environment Protection Authority & Anor (General) [2009] VCAT 2429

For Respondent: Mr M Batskos, solicitor, FOI Solutions

For Other: Mr J Pizer of counsel instructed by Blake Dawson

1. Geelong Community for Good Life Inc (GCGL) sought access to documents under the Freedom of Information Act 1982 (FOI Act) from the Environment Protection Authority (EPA) in relation to EPA licence EM 30626, issued to Shell Refining (Australia) Pty Ltd (Shell) for its oil refinery premises in Corio, and the Shell Geelong Refinery Environment Improvement Plan, 2004.
2. The Shell refinery is managed by the EPA through that EPA licence under s 20 of the Environment Protection Act 1970 (EP Act) and a Soil and Groundwater Clearup Notice issued on 13 October 2004 under s 62A of the EP Act.
3. In summary, the applicant sought the following documents :

Licence amendment application lodged by Shell to EPA (late 2005)

Application for amendment to WA55963 for Bensat plant lodged by Shell and granted by EPA October 2005

All correspondence between Shell and EPA regarding the new CAP structure proposed by Shell for community consultation from 01/01/05 to 19/01/06

All correspondence between Shell and EPA regarding licence requirement reports, and EIP (Environment Improvement Plan) from 01/01/05 to 19/01/06

All internal notes, correspondence, emails, of EPA relating to Shell from 01/01/05 to 19/01/06 relating to licence requirements and environmental performance

Copies of all licence reports submitted by Shell to EPA Vic for the March 2005, June 2005, September 2005 and December 2005 (Quarterly Reports) due under the current licence conditions - including any supplementary information provided

A copy of the "Benzene Risk Assessment" from Shell, required under the licence condition - due date 31/03/05

1. The request was large. It was dealt with in two parts. Ultimately decisions were made on 29 May 2006 and 7 July 2006. The first refused access to documents on the basis that they were exempt from release under s 34 of the FOI Act, were trade secrets and contained commercially sensitive material.
2. The second part was refused on the basis that it was a voluminous request (s 25A).
3. On 28 July 2006, GCGL applied to this Tribunal for review. Numerous directions hearings and compulsory conferences were held to clarify and identify documents sought, to narrow the issues and to arrive at a sample of documents in dispute, so there could be a manageable hearing. Shell Refining (Australia) Pty Ltd (Shell) was joined as a party to the proceeding.

1. The hearing took place on 27, 29, 30 and 31 October 2008 and 5 November 2008. Final submissions were received on 18 March 2009.
2. Ms Suzanne McLean, Secretary and Public Officer of GCGL represented GCGL. GCGL had been represented by the Environment Defender's Office until 29 May 2008 when it advised the Tribunal it had ceased to act. Mr Batskos represented the EPA and Mr Pizer of counsel represented Shell. All parties tendered material and called witnesses who gave evidence and were cross-examined.
3. Hearings under the FOI Act can be difficult for those not familiar with the legislation, and understandably difficult for someone like Ms Mclean who was representing a community group. The focus of such a hearing is on whether or not a particular exemption under the FOI Act in respect of a particular document or documents claimed by a respondent to be exempt is made out. What is relevant for the making of such a decision can be quite limited. Hearings are not investigations into all the concerns and issues that might be of interest to an applicant
4. Every opportunity was given to Ms McLean to present the case. She prepared two statements, one of 210 paragraphs with 24 attachments and the other with 39 paragraphs. Her submissions were 155 pages. She was given every opportunity to cross-examine fully the witnesses for the respondent and joined party. Even at the conclusion of her evidence, she was given the opportunity to file and serve further documents together with a short explanation, which she did, to give her the opportunity to counter evidence given by some of the joined party's witnesses, as she had requested.
5. The respondent and joined party filed written submissions and Ms McLean had such time as she sought to complete her submissions. They were a mixture of submission and further evidence and contained a recitation of the full history of her dealings with the EPA and Shell. The submission contained claims she had not been given a reasonable opportunity to present the applicant's case. For example, she claims "the applicant was not provided the opportunity to examine or re-examine its witness Suzanne McLean". I reject those claims.
6. During the hearing it became clear that GCGL had all or parts of some of the sample documents and that that material was in the public domain either because it was released under the FOI Act or because it was exhibited to an affidavit tendered in Supreme Court proceedings. In those circumstances, Shell indicated it did not press its claim for exemption for Document 34 in full and Documents 37, 39 and 44 in part.
7. The EPA indicated that documents 34 and 16 were released in full during the hearing and thus were no longer in issue.
8. At the conclusion of the hearing, there remained in dispute 7 categories of documents and a sample of 9 documents.

1. For convenience the table below sets out the seven remaining categories of documents, the sample document in dispute in each category, its description, and the exemptions claimed in respect to it.

Document prepared for Shell by URS, entitled 'Report on licence condition 4.14' - 66 pages

ss 29A(1B)(a); 33(1); & 34(1)(a)&(b) FOI Act s 38(s.60(1) EP Act)

19, 20, 22, 23, 27,30,34,48,53,55, 56,57,58,60,61,62, 63,65, 66

Document prepared by Shell/Geelong Refinery entitled 'Geelong RCCU particulate reduction project - EPA meeting - Update on Progress'

s 34(1)(a)&(b) FOI Act & s 38 (s.60(1) EP Act 1970)

18, 19, 20, 22, 23, 27, 30, 48, 53, 55, 56, 57, 58, 60, 61, 62, 63, 65, 66

Bundle of documents, including letters regarding licence reporting conditions, compiled by Shell/Geelong refinery

18, 19, 20, 22, 23, 27, 30, 34, 53, 55, 56, 57, 58, 60, 61, 62, 63, 65, 66

Document prepared for Shell by AWN entitled 'Licence condition 3.3 & 3.4' - 4 pages

18, 19, 20, 22, 23, 27, 30, 34, 48, 53, 55, 56, 58, 60, 61, 62, 63, 65, 66

Document prepared by Shell/Geelong Refinery entitled 'Email re Shell selective hydrogenation unit'

ss 33(1)&34(1)(a)&(b) FOI Act & s 38 (s 60(1) EP Act)

Document prepared by Shell/Geelong Refinery entitled 'Geelong Refinery Operating Procedure- Sulphur Dioxide Management (GROP 00.10)'

Document prepared by Shell/Geelong Refinery entitled 'EPA licence amendment submission' (pages 5-31)

ss 33(1) & 34(1)(a)&(b) FOI Act & s 38 (s 60(1) (EP Act)

Document prepared by Shell/Geelong Refinery entitled 'Geelong Refinery: Vapour Recovery Unit: Design and Procedures Report'

ss 29A(1B)(a), 33(1) & 34(1)(a)&(b) FOI Act & s 38(s 60(1) EP Act)

H. Mogas Improvement Project - Works Approval W55963

Letter from Shell to EPA entitled 'Mogas Improvement Project (MIP) - Works Approval W55963 & Platformate Splitter Project'

ss 33(1) & 34(1)(a)&(b) FOI Act & s 38 (s 60(1) EP Act)

Document prepared by Shell Global Solutions entitled 'Review of Geelong - PRU Expander Re-instatement Study report - (OG.02.20544)'

ss 33(1) & 34(1)(a)&(b) FOI Act & s 38 (s60(1) EP Act)

1. Before turning to the documents in question, some context for how the request came to be made is helpful. From the early 1990s, Shell engaged in community consultation through a community liaison group. GCGL became involved in that community consultation process in 2003. In addition to those community liaison groups, separate working group meetings were organised in relation to the formation and implementation of the Environment Improvement Plan signed on 24 November 2004 by Shell, the EPA and representatives of the community, including GCGL.
2. According to Shell, an Environment Improvement Plan is a voluntary public commitment by a company to improve its environmental performance. That community liaison group was disbanded by Shell in October 2005 because it considered that it was no longer a constructive one, was affecting refinery employees and was not meeting the objectives of communicating with the broader public. A different community engagement strategy commenced in November 2005 called a community advisory panel. This panel provides strategic advice on the refinery's Social Performance Plan, Social Investment Plan, Environment Improvement Plan and Community Engagement Plan and continues.
3. In the period leading up to the disbanding of the community liaison groups, members of the GCGL were actively involved. Shell became concerned at the increasing number of its employees who were engaged in that process seeking stress counselling because of their dealings with GCGL. According to Shell, up until the group was disbanded, it had provided significant amounts of information to the working groups. From Shell's perspective, it was clear that such information and documents were provided solely for progressing the consultation processes, and that they were provided on the basis they would not be disclosed to the media or to Shell's competitors. As information was provided, Shell says the demands for more and more data increased, such that a formal request procedure was introduced. Shell says that GCGL wanted refinery operating procedures and a wide array of other materials which, in its view, would be available to a regulator but not to a "lay" community group.
4. In March 2006, GCGL made the request for access to the documents the subject of these proceedings.

1. Category A contains documents to do with licence reports. A number of documents were identified. They have been divided into 4 groups and one document has been selected in each group as the sample document.

1. This document is a 66 page report entitled "Risk-based Review of the Corio Refinery Leak Detection and Repair (LDAR) Program". Shell provided the report which is dated 16 May 2005 to the EPA as required by condition 4.14 of its licence. Parts of the report have not been released.
2. It was prepared on Shell's behalf by URS Australia Pty Ltd. Those parts not released are claimed to be exempt from release under ss 29A(1B)(a); 33(1); 34(1)(a) and (b) and 38. There was some suggestion that the applicant may have had this document and that it had been provided during the Environment Improvement Plan process. However, as it was never demonstrated that this document was in the public domain, unlike some of the other documents, I proceed on the basis that it is not.
3. Mr Paul Cristofani was the Sustainable Development and Health, Safety, Security and Environment Manager with Shell, when he prepared two statements for these proceedings. By the time of the hearing Mr Stan Filippis had taken on that manager's role. He prepared a statement in which he comprehensively adopted the contents including the opinions expressed by Mr Cristofani. He was cross-examined. The applicant was critical of his knowledge and expertise in relation to the documents. Whilst Mr Filippis was not the manager at the time the documents were created, I accept that his knowledge is sufficient for him to be able to give an informed opinion about matters relevant to the exemptions claimed.
4. The evidence from Shell about Document 18 and the effects of disclosure is as follows :
   • Document 18 contains detailed technical information about Refinery processes and methods of operation. Specifically, the document contains Refinery operating procedures, Shell's global IP (such as the proprietary risk assessment methodology) and details of operating units and specific material flows through and adjacent to these units.
   • The information in Document 18 is commercially sensitive and is not available to Shell's competitors, who would have great difficulty in reverse engineering or otherwise duplicating the information [without the document]. Shell expended considerable effort and money in developing the information, and it is of significant commercial value to Shell. As a result, Shell ensures that this information is kept confidential to the greatest extent practicable. For example, Shell limits the number of employees or contractors who come into contact with the information, and those employees and contractors are covered by strict confidentiality agreements.
   • Disclosure of Document 18 would be likely to cause substantial harm to Shell's competitive position in the market. It would give its competitors an unfair competitive advantage as they would be able to exploit the information in the document to their own competitive advantage at Shell's expense. If Shell's competitors had access to this information, it could be copied enabling achievement of at least the same manufacturing performance outcomes without incurring the expense in developing the IP that Shell has. This would give Shell's competitors an unfair competitive advantage.
   • The harm referred to in the previous paragraph would be unreasonable in all the circumstances. That is particularly so as disclosure of the document would not advance or promote the public interest in the community's right to have access to pollution information or the public interest in the community's right to have access to information in relation to industry performance and compliance.
   • The document contains the results of risk assessments of the consequences of uncontrolled leaks at the Refinery operating units. Disclosure of such risk assessments would enable the targeting of specific plant areas by anyone seeking to cause harm to the Refinery. It is reasonable, and not far fetched or fanciful, to expect that disclosure of this information would lead to the safety of the Refinery being endangered.
5. Mr Filippis adopted this evidence about Document 18 during the hearing. He also confirmed that URS Australia Pty Ltd had signed a confidentiality agreement with Shell that included a term requiring it to keep confidential information it acquired in the course of preparing the report.
6. Mr Christopher Mardon, Chemical Engineer, had prepared a statement for GCGL in relation to this proceeding. He had been asked to consider whether the documents claimed to be exempt might be considered to contain "matters of a business, commercial or financial nature" and whether the release "would be likely to expose the undertaking (Shell) unreasonably to disadvantage".
7. He asserts that Document 18 should be released, on the basis as I understand his evidence, that equipment used at the refinery is standard process equipment widely used in the chemical industry and other refineries.
8. Mr Aberle, project manager at the refinery gave comprehensive evidence about the matters Mr Mardon raised. He agreed that on one level Mr Mardon was correct and that the refinery used equipment common throughout the industry. At another, he thought his view was simplistic and incorrect for two reasons. In summary, first, because the equipment has been modified specifically for Shell and secondly, and more importantly, that the specific documents contain information which reveals how Shell uses and configures equipment at the refinery, and he gave specific examples of that.
9. Given that Mr Mardon has not had the advantage of actually seeing the information, it makes his assertion less sustainable. I prefer Mr Aberle's evidence, accepted it, and that of Mr Filippis.
10. Mr Quentin Cooke, Industry Specialist in the Regional Services Directorate of the EPA, had prepared a statement, gave evidence and was cross-examined.
11. His evidence about Document 18 was that it is a document relating to Shell's method of operation and contains commercially sensitive information obtained by the EPA during the course of administering the EP Act. I accepted his evidence.
12. Is Document 18 exempt under s 38 and s 34(1) of the FOI Act?
13. Section 38 of the FOI Act provides :

A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.

1. Thus, a document is exempt under this section if :
   • (a) there is an "enactment" in force;
   • (b) the enactment applies specifically to information of a kind contained in the document; and
   • (c) the enactment prohibits persons referred to in the enactment from disclosing such information, whether the prohibition is absolute or subject to exceptions and qualifications.
2. Section 60(1) of the EP Act is a secrecy provision for the purposes of s 38 and clearly an "enactment in force". It provides -

(1) A person must not disclose any trade secret, or information about another person's method of operation, manufacturing process, profits or financial position, or any other commercially sensitive information, obtained during the course of the persons' duties under this Act.

1. It applies specifically to information about any trade secrets, methods of operation, manufacturing processes and other commercially sensitive information which might be contained in those parts of Document 18 not released.
2. I am satisfied that s 60(1) prohibits disclosure of information which, according to Mr Cooke's evidence, was obtained during the course of EPA officers' duties under the EP Act and related to Shell's method of operation, was commercially sensitive and obtained during the course of administering the EP Act.
3. Given the evidence above which I accepted, I am satisfied those parts of Document 18 not released are exempt under s 38 of the FOI Act.
4. In Shell's submissions, there is a useful summary of the requirements that need to be satisfied for the exemptions under s 34(1)(b) to be made out. A similar summary is set out in EPA's submissions. There is no debate between the parties about what the legal requirements are so, for convenience, I set out Shell's summary -

A document will be exempt under section 34(1)(b) of the Act if the following conditions are satisfied :

(a) first, disclosure of the document would disclose information acquired by the EPA from a business, commercial or financial undertaking;

(b) secondly, that information relates to matters of a business, commercial or financial nature other than trade secrets; and

(c) thirdly, disclosure of that information would be likely to expose the undertaking unreasonably to disadvantage.

Disclosure of information would be likely to expose an undertaking to disadvantage if that disclosure would be likely to cause damage or harm to the undertaking's commercial or financial interests. Disclosure would be likely to cause such damage or harm if, for example, it :

(a) would give a competitor of the undertaking a competitive financial advantage : see State Bank of New South Wales v Department of Treasury ((1991) 5 VAR 78 at 84; or

(b) would enable that competitor to engage in destructive competition with the undertaking : see Marple v Department of Agriculture (1995) 9 VAR 29 at 49.

When determining whether disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage, the VCAT may have regard to factors set out in section 34(2) of the Act. That provision (which is not, as the Applicant suggests in paragraph 60 of its legal contentions, a 'public interest override') identifies the following factors :

(a) whether the information is generally available to competitors of the undertaking;

(b) whether the information would be exempt matter if it were generated by an agency or a Minister;

(c) whether the information could be disclosed without causing substantial harm to the competitive position of the undertaking; and

(d) whether there are any considerations in the public interest in favour of disclosure which outweigh considerations of competitive disadvantage to the undertaking, for instance, the public interest in evaluating aspects of government regulation of corporate practices or environment controls -

and any other consideration or considerations which in the opinion of the agency or Minister is or are relevant.

1. It is clear from Mr Cooke's and Mr Filippis' evidence, which I accepted, that disclosure would be likely to cause substantial harm to Shell's competitive position in the market. It would give its competitors an unfair competitive advantage as they would be able to exploit the information in the document to their own advantage at Shell's expense.
2. I accept that were Shell's competitors to have access to this information it could be copied enabling achievement of at least the same manufacturing performance outcomes without incurring the expense in development the intellectual property that Shell has, thus giving its competitors an unfair advantage.
3. I accept Mr Filippis' evidence that disclosure would preclude Shell from potentially selling the information in Document 18 for a price. I also accept Mr Cooke's evidence that the EPA obtained this information from Shell.
4. I am therefore satisfied that :
   • (a) disclosure of Document 18 would disclose information acquired by the EPA from Shell, which is a business, commercial or financial undertaking;
   • (b) the information in Document 18 relates to matters of a business, commercial or financial nature other than trade secrets;
   • (c) disclosure of that information would be likely to expose Shell to disadvantage; and
   • (d) that disadvantage would be unreasonable having regard to the fact that the information is not generally available to Shell's competitors, the fact that the information could not be disclosed without causing substantial harm to Shell's competitive position, and the fact that there are no considerations in the public interest in favour of disclosure that outweigh the considerations of competitive disadvantage to Shell

such that Document 18 is also exempt under section 34(1)(b) of the Act.

1. This is a bundle of documents, including letters and emails regarding licence reporting conditions, prepared by Shell.
2. The only information withheld are names of EPA officers.
3. The EPA claims this information is exempt from release under s 33 of the FOI Act.
4. Section 33(1) of the FOI Act provides that :

(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).

1. Section 33(9) says that "information relating to the personal affairs of a person" includes information that identifies any person or discloses their address or location, or from which their identity, address or location can reasonably be determined. It is well accepted that the name or position or title of staff clearly falls within s 33(9) and is information related to the personal identity or affairs of those individuals. I am satisfied that if access were granted to the name an agency officer, it would involve the disclosure of information relating to their personal affairs. Thus the first limb of s 33(1) is made out.
2. Would disclosure be unreasonable? Determining this, requires a balancing of competing interests. On the one hand, the interests of the person seeking access to the information and, on the other, the rights of the individuals whose personal information is sought to maintain their privacy.
3. The GCGL, according to Ms McLean, is a small voluntary environment group that has taken a keen interest in the operations of the Shell Oil Refinery in Geelong and the dealings the EPA has had with Shell about the refinery.
4. As best I could understand it, the applicant seeks the names of EPA staff "to determine the EPA's assessment process in relation to the licence compliance by Shell, particularly the extent of assessment and level of expertise of EPA staff assessing compliance with" particular requirements.
5. GCGL's submissions regarding the exempt material in Document 48 describe at length its perspective on relations between GCGL, Shell and the EPA. While GCGL was engaged in the Community EIP and Shell Community Liaison Group, the engagement was not cordial. Ms McLean herself acknowledges that.
6. Whilst Ms McLean maintains that she never harassed or threatened anyone, it is clear that is not how others have regarded her behaviour and that of other members of the GCGL, as attested to by the evidence of Ms McGovern, the Communications Manager of Shell and Mr Aberle.
7. Under s 53A of the FOI Act, where an agency has refused to grant access to a document under s 33(1) of the FOI Act, the agency must give written notice to the person to whom the information relates, where an application for review is lodged.
8. A summary of the responses to this notification from all 7 current and former EPA staff concerned revealed the following concerns :
   • Threat of serious physical violence traumatising a person and their family
   • Family members of EPA staff being contacted by GCGL members in an attempt to locate EPA staff
   • Verbal abuse and threats of physical violence resulting in fear for personal safety
   • Aggressive and rude behaviour and unfair personal attacks by GCGL members causing resignation
   • Aggressive, irrational and abusive behaviour resulting in fear of family harassment
   • Objection to disclosure because of lack of opportunity to address when the person's professional standing and integrity was going to be further defamed.
9. Those sentiments were echoed and supported by the evidence of Ms McGovern. Apart from her own experiences of being threatened and harassed particularly by Ms McLean, she recites a history of GCGL members behaving in an antagonistic, aggressive and threatening manner towards Shell and EPA staff, leading to the need for stress counselling because of their dealings with the group and causing employees to feel harassed particularly by Ms McLean.
10. Mr Aberle also gave evidence of experiencing similar aggressive, hostile and intimidatory behaviour of GCGL members at meetings. He recited that at one meeting, matters were so intense, he placed himself between staff and GCGL members. He too referred to the need for counselling for himself and staff.
11. Whatever Ms McLean's perspective is on those matters, I accept that those who have had dealings with her and the GCGL felt threatened and harassed.
12. Although the information sought relates to events almost 5 years ago, I agree with the EPA's submissions that the evidence and the s 53A responses clearly show that release of the information is of ongoing concern to those persons. Given the history of poor relations between the EPA and GCGL, I accept that there is real likelihood that if the information were disclosed apprehension of future threat to those persons is not without some foundation.
13. In those circumstances, I am satisfied that the personal information of the EPA officers in Document 48 is exempt from release under s 33(1) of the FOI Act.

1. This is a 4 page undated report titled "Licence Condition 3.3 and 3.4". It is apparent from reading the document that it was prepared by Air, Water and Noise Consultants, and outlined the steps required to be taken by Shell to obtain accreditation from the National Association of Testing Authorities (NATA) for ambient air quality monitoring and continuous source emission monitoring. The EPA claims it is exempt from release under s 38 of the FOI Act.
2. I accepted Mr Filippis' evidence adopting Mr Cristofani's statement that it contains detailed technical information about the suite of specific requirements necessary to achieve NATA certification for the refinery's pollution monitoring and reporting program. I also accept that the report was submitted by Shell to the EPA in response to a request by the EPA.
3. I have already set out the requirements for such an exemption to be made out.
4. Mr Cooke gave evidence, which I accepted, that Document 57 relates to Shell's method of operation, in particular the steps that Shell must take to achieve accreditation, contains commercially sensitive information and was obtained by the EPA during the course of administering the EP Act.
5. Mr Cooke's evidence that it is commercially sensitive information was supported by Mr Filippis' evidence adopting Mr Cristofani's statement. I accepted his evidence that it is information not available to Shell's competitors, who may be advantaged were they to have it. I accepted his evidence that Shell expended considerable effort and money in developing the information and that it is of significant commercial value to Shell, such that it is kept confidential with Shell to the greatest extent practicable. I accepted his evidence that disclosure would be likely to cause substantial harm to shell's competitive position in the market.
6. It follows that Document 37 is exempt under s 38 of the FOI Act.

1. There are 5 documents in Category B, and Document 25 has been selected as the sample document. The EPA claims it is exempt from release under s 33(1), s 34(1)(a) and (b) and s 38 of the FOI Act.
2. Document 25, dated 5 July 2005, is a 2 page email from Shell to the EPA regarding its selective hydrogenation unit (SHU). This unit adds hydrogen to less stable unsaturated molecules in raw gasoline to minimise gum formation. Document 25 is about the recommissioning of that unit. A perusal of the document confirms the evidence of Mr Cristofani adopted by Mr Filippis, that it contains details about the capacity of the unit and other operating parameters. I accept the evidence that release would enable a competitor to reverse engineer refinery production capacity in key product lines. I accept that it is commercially sensitive information not available to Shell's competitors and is of commercial value to Shell and that disclosure would enable Shell's competitors to replicate and adapt Shell's technology, such that I am satisfied disclosure would be unreasonable. I accept Mr Cooke's evidence that the document relates to the method of operation of a particular unit and that it contains commercially sensitive information that was obtained by the EPA during the course of administering the EP Act.
3. I am satisfied that s 60(1) of the EP Act applies specifically to information of this kind. As s 60(1) is a secrecy provision for the purposes of s 38 of the FOI Act, and given my findings, Document 23 is exempt from release under s 38 of the Act.
4. I am also satisfied that Document 25 is exempt from release under s 34(1)(b) of the Act, given my findings that its release would disclose information acquired by the EPA from Shell, a business; that the information relates to matters of a business or financial nature, and that disclosure would be likely to expose Shell unreasonably to disadvantage.
5. Release of the document would not assist in establishing emissions reduction actions taken by Shell as contended by the applicant such that it could be contended release would not expose Shell unreasonably to disadvantage. Nor do I accept that disclosure would assist in determining whether Shell had complied with its 2004 licence emission limit, as confirmed by Mr Aberle's evidence which I accepted.
6. I am also satisfied that the names and positions of EPA officers in the document are exempt from release under s 33 for the same reasons articulated earlier in these reasons.

1. There are 6 documents in Category D, and Document 2 has been selected as the sample document. The EPA claims it is exempt from release under s 34(1)(a) and (b), and s 38 of the FOI Act.
2. Document 2, dated 20 April 2004, is a Refinery Operating Procedure entitled "Sulphur Dioxide Management".
3. A perusal of the document confirms the evidence of Mr Cristofani adopted by Mr Filippis that it contains detailed commentary about the Refinery's methods of operation and its equipment. I also accept the evidence that it contains detailed refinery design information which has been drawn from the global knowledge base of Royal Dutch Shell.
4. I also accept the evidence that the document is of a technical nature, is commercially sensitive and not available to Shell's competitors, who would have great difficulty in reverse engineering or otherwise duplicating the information without the document. I accept the evidence that Shell has expended considerable money and effort in developing the information and that it is of commercial value to Shell. I accept the evidence that Shell ensures this information is kept confidential even within Shell, to the greatest extent possible including staff and contractors being subject to confidentiality agreements. I did not accept Ms McLean's evidence contained in her submissions that merely because management procedures for sulphur dioxide are widely available within the refinery, chemical and mining industries, this document was not commercially sensitive.
5. I accept the evidence that release would be likely to cause harm to Shell's competitive position in the market for to disclose the information would enable its competitors to gain a detailed understanding into the refinery's operation and an insight into Shell's know-how. I accept that if the intellectual property in the document were available to Shell's competitors, it would enable them to achieve at least the same performance outcomes without any significant investment outlay, to Shell's disadvantage. In these circumstances, I am satisfied release would expose Shell to disadvantage.
6. I accept Mr Cooke's evidence that the document contains detailed technical information relating to Shell's method of operating the refinery, and that the information in it is commercially sensitive and was obtained by the EPA during the course of administering the EP Act.
7. I am satisfied that s 60(1) of the EP Act applies specifically to information of this kind. As s 60(1) is a secrecy provision for the purposes of s 38 of the FOI Act and given my findings, I am satisfied Document 2 is exempt from release under s 38 of the Act.
8. I am also satisfied that Document 2 is exempt from release under s 34(1)(b) of the Act, given my findings that its release would disclose information acquired by the EPA from Shell, a business; that the information relates to matters of a business or financial nature, and in accordance with my findings above, that disclosure would be likely to expose Shell unreasonably to disadvantage.

1. There are 4 documents in Category E and part of Document 39 has been selected as the sample document. The EPA claims it is exempt from release under s 33(1), s 34(1)(a) and (b) and s 38 of the FOI Act.
2. Category E documents concern licence amendment. Document 39 dated 23 November 2005, is a bundle of documents and reports including Shell's licence amendment submission to the EPA.
3. It had been released in part and further parts were released during the hearing. As I understand it, the exemption under s 33(1) was no longer pressed.
4. I accepted the evidence of Mr Cristofani adopted by Mr Filippis that Shell provided this document to the EPA. That evidence is that the application contains detailed technical information on three key areas of Shell's business : namely, the volatilisation characteristics of various materials stored at the refinery, the emission generation profiles of produce and crude tanks and other storage vessels and the results of around $1M investment in the investigation and assessment of vapour recovery technology for its potential application on an unprecedented scale. I did not accept the applicant's mere assertion contained in submissions without more, that Document 39 is a published public document.
5. I accept the evidence that the information is commercially sensitive and not available to Shell's competitors who would have great difficulty in reverse engineering or otherwise duplicating the information without the document. I accept the evidence that Shell has expended considerable money and effort in developing the information and that it is of significant value to Shell. I accept the evidence that Shell goes to considerable lengths to keep the information confidential.
6. I accepted Mr Aberle's evidence that the figures on page 12 would enable a competitor to deduce refinery throughputs. I accept that disclosure would be likely to cause substantial harm to Shell's competitive position, that disclosure would be unreasonable because it would enable its competitors to gain knowledge of the logistical capability of the refinery and use that to improve their market positions.
7. I accepted Mr Cooke's evidence that the information withheld on pages 7, 12, 13 and 14 relates to Shell's method of operation and it is very detailed information. I accept his evidence that it is commercially sensitive information obtained by the EPA during the course of administering the EP Act.
8. I am satisfied that s 60(1) of the EPA Act applies specifically to information of this kind. As s 60(1) is a secrecy provision for the purposes of s 38 of the FOI Act and given my findings, I am satisfied that Document 39 is exempt from release under s 38 of the Act.
9. I am also satisfied that Document 39 is exempt from release under s 34(1)(b) of the Act, given my findings that its release would disclose information acquired by the EPA from Shell, a business; that the information relates to matters of a business or financial nature, and that disclosure would be likely to expose Shell unreasonably to disadvantage.

1. There are 9 documents in this category. Document 37 has been selected as the sample document. The EPA claims that it is exempt from release under s 29A(1B)(a), s 33(1)(a) and (b) and s 38 of the FOI Act.
2. Document 37 is a confidential report prepared by Shell in November 2005, on the design and operating procedures for the vapour recovery unit (VRU). Such a unit collects and recovers vapour coming off raw materials and products being stored in vessels or tanks where there exists a vapour space between the product level and the roof or top of the vessel.
3. I accept the evidence of Mr Cristofani adopted by Mr Filippis that it was provided to the EPA by Shell in response to a request.
4. I accept his evidence that it contains details of the tankage and movements capacity of significant storage vessels. I accept that like other refinery production processes and throughput capacities, the information is of a technical nature, is commercially sensitive and is not available to Shell's competitors, who would have difficulty in reverse engineering or otherwise duplicating the information without the document. I accept Shell has expended effort and money in developing the information, and that it is of significant commercial value to Shell. I accept that Shell takes steps to keep the information confidential. I accept that release would cause harm to Shell's competitive position, enabling its competitors to calculate the production of key product lines which would disadvantage Shell's competitive position because it would provide competitors with an insight into Shell's strengths and weaknesses in relation to production, storage supply and distribution of key product lines. I accept that release would expose Shell unreasonably to disadvantage.
5. Mr Mardon asserted, without the benefit of inspecting the document, that it could not be proprietary information because vapour recovery unit equipment is not at all special and therefore release would not cause unreasonable disadvantage. I refer again to Mr Aberle's evidence and prefer it to Mr Mardon's for the same reasons expressed with respect to Document 18.
6. I accepted Mr Cooke's evidence that Document 37 relates to Shell's methods of operation and that it contains process and instrument diagrams and various other technical specifications that is not in the public domain. I accepted his evidence that it is commercially sensitive and was obtained by the EPA during the course of administering the EP Act.
7. I am satisfied that s 60(1) of the EP Act applies specifically to information of this kind.
8. As s 60(1) is a secrecy provision for the purposes of s 38 of the FOI Act and given my findings, I am satisfied Document 37 is exempt from release under s 38 of the Act.
9. I am also satisfied that Document 37 is exempt from release under s 34(1)(b) of the Act, given my findings that its release would disclose information acquired by the EPA from Shell, a business; that the information relates to matters of a business or financial nature, and that disclosure would be likely to expose Shell unreasonably to disadvantage.
10. Having found the document exempt under s 38 and s 34(1)(b), it is not necessary to address the s 29A exemption.

1. There are 2 documents in this category and Document 14 has been selected as the sample document. The EPA claims that that part of it not released is exempt from release under s 34(1)(a) and (b) and s 38 of the FOI Act.
2. Document 14 is a letter from Shell to the EPA dated 18 March 2005, regarding the Mogas Improvement Project. A shorter version of this letter is already in the public arena. There remains one part of the fuller version unreleased.
3. The letter was prepared to provide the EPA with the details of two projects being undertaken at the refinery, being the design and operation of the proposed vapour recovery unit and details of the platformate splitter project. Collectively, the two projects are referred to as the Mogas Improvement Project.
4. I accept the evidence of Mr Filippis who adopted Mr Cristofani's statement that the remaining information withheld is of a technical nature, is commercially sensitive and not available to Shell's competitors, who would have difficulty in reverse engineering or duplicating the information without the document. I accept the evidence that Shell has expended effort and money developing the information which is of value to Shell.
5. I accepted Mr Aberle's evidence that the remaining information relates to flow rates and equipment identifiers which would be very valuable to Shell's competitors.
6. I accepted Mr Cooke's evidence that the information relates to Shell's method of operation, is commercially sensitive and was obtained by the EPA in the course of administering the EP Act.
7. I am satisfied that s 60(1) of the EP Act applies specifically to information of this kind.
8. As s 60(1) is a secrecy provision for the purposes of s 38 of the FOI Act and given my findings, I am satisfied Document 14 is exempt from release under s 38 of the Act.
9. I am also satisfied that Document 14 is exempt from release under s 34(1)(b) of the Act, given my findings that its release would disclose information acquired by the EPA from Shell, a business; that the information relates to matters of a business or financial nature, and that disclosure would be likely to expose Shell unreasonably to disadvantage.

1. There are two documents in this category and Document 44 is the sample document. The EPA claims that it is exempt from release under s 33(1), s 34(1)(a) and (b) and s 38 of the FOI Act.
2. Document 44 is a report prepared by Shell Global Solutions (SGSI) in 2005. It was developed in relation to the Power Recovery Unit Expander project by SGSI. I accept the evidence that ownership of the technology intellectual property described in the report belongs to SGSI, not Shell. A small part has been released and I did not understand that the s 33(1) exemption was still pressed.
3. I accept Mr Filippis' evidence , adopting Mr Cristofani's statement that the report contains detailed technical information about refinery processes and methods of operation. I accept it is commercially sensitive information which is not available to Shell's competitors who would have great difficulty in reverse engineering or otherwise duplicating the information without it. I accept the evidence that SGSI expended considerable effort and money in developing the information and that Shell paid a significant sum of money to SGSI for its development. I am therefore satisfied it is of high commercial value to Shell and SGSI. I accept Shell ensures this information is kept confidential to the greatest extent possible.
4. I accepted Mr Cooke's evidence that the information relates to Shell's method of operation, is commercially sensitive and was obtained by the EPA in the course of administering the EP Act.
5. I am satisfied that s 60(1) of the EP Act applies specifically to information of this kind.
6. As s 60(1) is a secrecy provision for the purposes of s 38 of the FOI Act and given my findings, I am satisfied Document 44 is exempt from release under s 38 of the Act.
7. I am also satisfied that Document 44 is exempt from release under s 34(1)(b) of the Act, given my findings that its release would disclose information acquired by the EPA from Shell, a business; that the information relates to matters of a business or financial nature, and that disclosure would be likely to expose Shell unreasonably to disadvantage.

1. Even though I have found documents exempt from release under s 34(1)(b) and s 38, I need to consider under s 50(4) of the FOI Act whether the public interest requires their release. This "public interest override" though, does not apply to those documents I have found exempt from release under s 33(1) of the FOI Act.
2. For the public interest to apply, I need to be satisfied that the public interest demands the release of the information, even though such release might breach the confidentiality promised by s 60(1) of the EP Act and despite the documents being exempt under s 34(1)(b) of the FOI Act. There are therefore major considerations which must be countervailed before the public interest override can operate.
3. The EPA submitted on a number of grounds that s 50(4) did not apply to the documents. Comprehensive submissions were made about what was required before one could be satisfied that the public interest required release. There is no need to set out that part of the submissions.
4. In summary, the EPA submitted first that disclosure of the documents would not advance any public interest asserted by GCGL. Secondly, that there was nothing to suggest that disclosure would benefit the community in general as distinct from an individual. No public interest exists where disclosure would merely gratify curiosity or provide information or amusement to an individual. The applicant it was contended had asserted no ground of "public interest". It is purely private interest of members of the applicant.
5. Thirdly, the release of the documents would not show any illegality, wrongdoing or inappropriate behaviour by the EPA or Shell. There is no reason to "clear the air".
6. Fourthly, disclosure would seriously undermine the operation of the EPA and specific provisions in relation to secrecy which Parliament has clearly intended to represent the proper public interest balance. The secrecy provision of the EP Act is recognised in s 38 of the FOI Act and should not be undermined given the absence of any or any sufficiently high public interest reasons such as to require, necessitate or demand disclosure. It could not be said in this case that the Tribunal has no practical alternative but to allow access. Nor is this a case where unless access were granted, the public interest would suffer in some way.
7. Shell also made comprehensive submissions on what was required to be made out before one could be satisfied s 50(4) applied to the documents. There is no need to set those out here.
8. On a number of grounds, Shell contended that disclosure was not required. First, even assuming the matters of public interest raised by GCGL, which I will return to later, it was submitted that disclosure of the documents in question is not "clearly adapted to achieve" or "calculated to promote" those public interests and it relied on Mr Aberle's evidence. In particular that disclosure of Shell's operating procedures would not provide any additional pollution information or industry performance/compliance given Mr Cristofani's evidence adopted by Mr Filippis. Secondly, that disclosure of that part of the licence amendment application (Document 39) would not enable one to establish the true VOC emissions from the refinery given Mr Aberle's evidence that the methodology in the document was used to estimate the emissions.
9. Further, Shell submitted that even if the Tribunal were satisfied that disclosure was "clearly adapted to achieve" or "calculated to promote" the asserted public interests, those considerations in this case are not so strong as to override those factors that confer exempt status on the documents in the first place. Finally, this is not a proceeding where it may be said that the case for access is "irresistible"; nor one where the Tribunal could hold the opinion that "unless access was granted to public interest would suffer or be diminished in some way". It is not a case where there is some obligation, necessity or compulsion for access. Shell it was contended has taken numerous measures to ensure that information relating to pollution measures at the refinery is readily available in the public domain.
10. The public interest grounds relied on by GCGL were as follows :
    • The documents sought are related to pollution emitted by the Shell refinery and the administration of the licencing regime by the EPA.
    • Geelong Community rely on related grounds of public interest in seeking release of these documents :
      1. 'Community right to know' - being the basic right of the public to know what pollution is being emitted in the area they live and work, including :
         1. The right to have access to pollution information, including highly toxic substances that are dangerous to human health and the environment
         2. Community right to have access to information in relation to industry performance and compliance
      2. Accountability of government agencies in the exercise of their functions including :

1. Performance of statutory functions by statutory authorities, including the EPA.

• These broad and related grounds of public interest are supported by domestic and international policy and examples, including :
  1. Principle 10 of the Rio Declaration on Environment and Development :

'Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided'.

1. The Australian National Pollution Inventory and International equivalents, including :
   1. Canada - National Pollutant Release Inventory (Environment Canada)
   2. England and Wales - Environment Agency Pollution Inventory
   3. France - Registre Francais des Emissions Pollutantes (in French)
   4. Japan - 2001 PRTR Data Report (Ministry of Economy, Trade and Industry and Ministry of the Environment
   5. Mexico - Registro de Emisones y Transferencia de Contaminantes (RETC)
   6. Netherlands - Data Warehouse Emission Registration (in Dutch)

vii)Scotland - Scottish Pollutant Release Inventory

viii)Sweden - Swedish Pollutant Release and Transfer Register (Swedish Environmental Protection Agency)

1. Switzerland - Swiss Pollutant Emission Register (SAEFL)

• Principles of Environmental Protection contained in the EP Act and State Environment Protection Policies (SEPP), including sections 1 and 13 EP Act, Clauses 7 and 14 SEPP (AQM), and Clause 6 SEPP(WOV).
• Geelong Community also rely on the Charter of Human Rights and Responsibilities Act 2006, ... in the interpretation of the Freedom of Information Act 1982 and in support of the public interest grounds outlined above, particularly :

a. Section 15 - Freedom of Expression

c. Section 24 - Fair hearing.

1. In the written submissions prepared by Ms McLean for GCGL, there are numerous claims that disclosure of the documents is required for a particular purpose. For example, it is contended that release of Document 18 is required to assess the actual level of emissions from the refinery to the air and water in Geelong and to assist the community to assess the veracity of emissions information. The evidence of Mr Filippis, adopting Mr Cristofani's statement, makes it clear that disclosure would not provide any additional pollution information not already available, and I accept that evidence.
2. Similarly access to Document 15 is sought to assess the accuracy of information given to the public about pollution in their community. A perusal of the document together with Mr Filippis' evidence about this document confirms release would not advance this interest. It is about recommissioning the SHU and release will not assist in determining actual fluoride emission or the veracity of claims of fluoride reduction.
3. Access to Document 39 is said to be required to establish the reasons put forward by Shell for the inability to comply with licence conditions and their inaction on environmental improvements to reduce emissions and further to determine EPA's assessment of the application for licence amendment and lack of enforcement actions against Shell in relation to licence breaches. A refusal of exempt parts would not assist with those matters, and I refer to Mr Aberle's evidence which I accept.
4. Similarly, access to that part of Document 14 not released is said to be required to determine the projected and actual emission reductions achieved as a result of the project and to assist in determining emission levels from the refinery and compliance with licence conditions. Suffice to say it is apparent from the face of the document that release would not advance those matters.
5. Access to Document 37 is claimed to be required to determine the projected and calculated emission reductions achieved as a result of the project and to assist in determining emission levels from the refinery and compliance with licence conditions. Whilst Mr Aberle's evidence is that the document does not establish what is achieved in the way of "actual emissions", even if the document did show that, which I am not satisfied it does, I would not be satisfied that the public interest required its release.
6. The refinery operates under an EPA licence, and the EPA is the body charged by Government with the responsibility of administering the EP Act. Whilst I accept that a particular interest group would be interested in having access to as much information as is of interest to them, there has to be far more compelling reasons established for release of documents found to be exempt from release to be required than merely to determine, for example, emission reductions achieved and whether there has been compliance with licence conditions, which is the role of the EPA.
7. Those observations apply equally to Ms McLean's submissions for GCGL that release of the exempt documents is crucial to the public interest. She claims that access to information relating to the regulatory control of environmental issues from industry is crucial because the public has been misled in relation to these emissions. She maintains they should be available so their accuracy can be checked, so there can be a proper and democratic debate about her claims that the environmental regulator has failed to properly enforce environmental legislation. She is aggrieved that the EPA has not responded to GCGL's request to be allowed to make a proper submission to the EPA regarding Shell's licence amendment application.
8. Ms McLean has made numerous allegations in her submissions of collusion and obfuscation by Shell and the EPA. It is not the Tribunal's function in a freedom of application hearing to determine where the truth lies on these matters.
9. Returning to the public interest grounds filed. The mere right of the community to know, and claims that government agencies in the exercise of their functions need to be accountable, is not sufficient to establish that release of the information is required. The case for access needs to be demonstrated to be irresistible.
10. Further, regarding the public interest ground advanced that those environmental issues are best handled with participation of all concerned citizens, and by giving individuals appropriate access to information, the evidence in this case is that there is a process of community involvement and consultation and that Shell does provide information in the consultation process and on its website about these matters. Ms McLean may well be dissatisfied with the information provided but I am not satisfied that this claim demonstrates that access is required to the documents.
11. In her written submissions Ms McLean has made numerous allegations. For example, she claims there is collusion and obfuscation between Shell and EPA, and that release is necessary to expose Shell's and the EPA's duplicity.
12. I have had the opportunity to inspect the documents myself, conscious I cannot carry out this inspection with full engineering expertise. Nevertheless I remain unpersuaded that if these documents were published, they could give the lie to the published position of the EPA and Shell.
13. I am not satisfied that it is in the public interest that the documents be released.

1. In the public interest grounds submitted by the Public Defender's Office, there is a claim in support of the public interest grounds advanced, that ss 15, 18 and 25 of the Charter of Human Rights and Responsibilities Act 2006 apply.
2. This claim was not addressed any further by any of the parties. In any event, GCGL Inc being an incorporated body does not enjoy human rights under the Charter (see s 6 of the Charter)

1. For these reasons I affirm the decision of the respondent.