– Bronya Lipski, Lawyer
When EJA was preparing its submission to the (apparently never-ending) Victorian coal-fired power station licence review, we acquired Major Industry Assessment (MIA) reports for the remaining Victorian power stations under Freedom of Information (FOI) law in Victoria.
A Closed Door Process
The MIA is a type of audit conducted by the Victorian Environment Protection Authority (EPA) so it can assess a licence holder’s environmental management system, and whether the licence holder has identified environmental risks and associated controls. A MIA focusses on whether or not a licence holder has identified key risks and has appropriate controls in place to prevent environmental harm. The MIA process is a “closed door” process conducted between industry, licence holders and the EPA, with no public involvement. The EPA does not publicly release its findings after an MIA is finalised.
In those reports, we learned that specific documents were prepared that detail the state of EnergyAustralia Yallourn (EAY) coal-fired power station’s electrostatic dust precipitator (EDP). The EDP is the single substantial air pollution control technology installed at the EAY power station. EAY doesn’t have any other pollution controls installed at the power station to reduce emissions. The EDP is the only substantial piece of equipment that stands between the power station’s toxic emissions and the Latrobe Valley community’s exposure to toxic fine particle pollution like PM2.5.
In March last year, we lodged an FOI request with the EPA requesting access to these reports about EAY’s EDP. We did receive the reports, but they were so heavily redacted that they were meaningless.
Freedom of Information Laws
Under FOI laws, there is what’s called a presumption in favour of disclosure of information. This means that when an FOI officer is making a decision about whether information should be released, the presumption is that the information should be released provided it does not contain “exempt information”. “Exempt information” relates to a range of maters. Of relevance here is the exemption that can be applied to matters of a business, commercial or financial nature where the release of information would be likely to expose an undertaking such as a company unreasonably to disadvantage. These exemptions can be overridden though if the decision maker believes that the public interest in the release of information outweighs the disadvantage to a company that might arise as a result of that release.
The EPA redacted the EAY EDP reports heavily on the basis that the documents contain commercially sensitive information of EnergyAustralia’s, who claim that the information would reveal a range of things that would unreasonably expose the power station owner to disadvantage, including:
- The performance and operation of the EDP;
- The current condition and life of the EDP;
- The consultant’s conclusions with respect to improving the performance of the EDPs;
- Risks associated with the EDPs; and
- Business decisions of EnergyAustralia Yallourn with respect to the EDP
We don’t think that exempting information on these grounds was the correct decision. One of the unique things about Victoria’s FOI law is that the Freedom of Information Act states that the public interest in government regulation of environmental controls is the type of matter that may outweigh the disadvantage to a company that might arise as a result of that release. We think the public interest in the documents about EAYs EDP outweighs the disadvantage to EnergyAustralia – if the company is exposed to unreasonable disadvantage at all.
On 20 December 2019, we issued review proceedings in the Victorian Civil and Administrative Tribunal (VCAT) to challenge the EPA’s decision to heavily redact information contained in reports about the EDP which detail the historical performance and current condition of the power station’s EDPs. We will be attending a compulsory conference in early May. After that, we will know if a hearing is needed to resolve the matter entirely.
The right to information
All communities exposed to pollution should have access to information that helps them understand how companies and environmental regulators control pollution that affects them. The Latrobe Valley community deserves to understand the state of the electrostatic dust precipitator at Yallourn power station and whether it is operating properly. And it deserves to understand this through the specific documents that have assessed the state of the EDP.
At any given moment lawyers at EJA are helping clients obtain information under Freedom of Information laws. Transparency, access to information and the release of documents under FOI law are fundamental to a healthy democracy and regulatory process. We will always fight hard to ensure that people can access information and ensure the public right to know is upheld.