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Ref: IR 80785
Rob Cawthorne
Via emai
l: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Cawthorne
Freedom of Information request – Internal Review Decision
I refer to your request dated and received by the Department of Climate Change, Energy, the
Environment and Water (
department) on 28 July 2025, for internal review of the department’s
decision under the
Freedom of Information Act (
FOI Act) dated 28 July 2025 (
Primary
Decision).
My decision
I have decided to
affirm the Primary Decision.
The reasons for my decision are set out at
Attachment A.
You can ask for a review of my decision
You may apply directly to the Office of the Australian Information Commissioner (
OAIC) to
review my decision. An application for review by the Information Commissioner must be made
in writing within
60 days after the day you are notified of this decision. You can also make a
complaint to the Information Commissioner if you have concerns about how the Department
handled your request. You can find information about requesting a review, making a complaint,
and other information about FOI on the OAIC websi
te www.oaic.gov.au or phone the OAIC on
1300 363 992.
Further assistance
If you have any questions, please emai
l xxx@xxxxxx.xxx.xx.
Yours sincerely
Nicole Thomas
A/g Branch Head
Climate Change Policy Branch
Climate Change Policy Adaption and Risk Division
August 2025
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Attachment A
REASONS FOR DECISION
What you requested
On 1 July 2025, you sought access to the following:
‘Please provide copies of the current and previous versions of the register of non-
compliance under the Climate Active program as described in clause 12.4 of the climate
active license agreement. If no register has ever been produced, please advise.’
Primary Decision
On 28 July 2025, the primary decision-maker provided partial access to one (1) document that
fell within the scope of the request. The primary decision-maker decided that certain parts of
the document were exempt under the FOI Act as they contained:
Business information, the disclosure of which would, or could reasonably be
expected to, unreasonably affect a person in respect of its lawful business,
commercial or financial affairs (section 47G(1)(a)).
Request for Internal Review
On 28 July 2025, you applied for an internal review of the Primary Decision in the following
terms:
‘Thank you for the information supplied so far.
12.4 of the Climate Active license agreement states:
In addition to our rights under this clause 12, we may record your non-compliance
with this Licence Agreement (or an Approved Affiliate Entity’s non-compliance with
the terms of an Affiliate Agreement) at our discretion on a non-compliance register that
we maintain which may be made publicly available.
Organisations that have signed this license agreement have already accepted that their
non-compliance can be publicised. On this basis I ask that you remove the redaction of
organisation names.’
What I took into account
In reaching my decision, I took into account:
your original request dated 1 July 2025;
the Primary Decision dated 28 July 2025;
your internal review request dated 28 July 2025;
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the documents that fall within the scope of your original FOI request and this internal
review;
information about:
o the nature of the documents; and
o the Department’s operating environment and functions;
guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (
Guidelines); and
the FOI Act.
Reasons for my decision
I am authorised to make decisions under section 23(1) of the FOI Act in relation to your request.
I have decided to affirm the Primary Decision to grant partial access to the document as it
contains information which is conditionally exempt under section 47G of the FOI Act.
My findings of fact and reasons for affirming the Primary Decision are set out below.
Section 47G of the FOI Act – Business information
Section 47G of the FOI Act relevantly provides:
‘(1) A document is conditionally exempt if its disclosure under this Act would disclose
information concerning a person in respect of his or her business or professional
affairs or concerning the business, commercial or financial affairs of an organisation
or undertaking, in a case in which the disclosure of the information:
(a) would, or could reasonably be expected to, unreasonably affect that person
adversely in respect of his or her lawful business or professional affairs or that
organisation or undertaking in respect of its lawful business, commercial or
financial affairs; or
(b) could reasonably be expected to prejudice the future supply of information to
the Commonwealth or an agency for the purpose of the administration of a law
of the Commonwealth or of a Territory or the administration of matters
administered by an agency.’
I have considered the document and, having formed my own view, I have decided to affirm the
Primary Decision that certain parts of the document are conditionally exempt under section 47G
of the FOI Act, and do not accept your contention that full access to the document should be
granted.
You note in your submissions that:
‘Organisations that have signed this license agreement have already accepted that their
non-compliance can be publicised. On this basis I ask that you remove the redaction of
organisation names.’
I have considered the document and agree with the reasons provided in the Primary Decision for
exemptions applied under section 47G. As noted in the Primary Decision, the document was
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not created for the purpose of publication under the meaning of clause 12.4 of the License
Agreement Terms and Conditions for Certification Against the Climate Active Carbon Neutral
Standard and Use of the Certification Trademark (License Agreement).
The information contained in the document reflects the ongoing relationships with 219 external
entities for the purpose of facilitating the functions of the Climate Active program. On this basis,
I am satisfied that the document contains information concerning a person’s business,
commercial or financial affairs.
I am also satisfied that disclosure of the entities names, in connection with their compliance
record, which may be outdated and incomplete, could reasonably be expected to detrimentally
impact the reputations of the entities if published.
As such, I have decided to affirm that the documents are conditionally exempt under section
47G(1) of the FOI Act.
Public interest considerations
Section 11A(5) of the FOI Act provides:
'The agency or Minister must give the person access to the document if it is conditionally
exempt at a particular time unless (in the circumstances) access to the document at that time
would, on balance, be contrary to the public interest.'
When weighing up the public interest for and against disclosure under section 11A(5) of the FOI
Act, I have taken into account relevant factors in favour of disclosure. In particular, I have
considered the extent to which disclosure would:
promote the objects of the FOI Act; and
inform debate on a matter of public importance, being the use of the Climate Active
trademark
I have also considered the relevant factors weighing against disclosure, indicating that access
would be contrary to the public interest. In particular, I have considered the extent to which
disclosure could reasonably be expected to:
adversely affect the entities’ lawful business;
prejudice the department’s ability to efficiently obtain information in the future.
Based on the above factors, I have decided that in this instance, the disclosure would, on
balance, be contrary to the public interest.
I have not taken into account any of the irrelevant factors set out in section 11B(4) of the FOI
Act in making this decision.
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