G Level, RCG Centre

47 Mitchell Street
Darwin NT 0800

Postal address
GPO Box 4621
Darwin NT 0801

E infoact.dlghcd@nt.gov.au
Mr Royce Kumelovs
T 08 8999 8490
Professional Freelance Journalist
File reference: IA20/0112
Via email: mail@roycekumelovs.com

Dear Mr Kumelovs

RE: Request for Government Information

Thank you for your request for government information which has now been processed in
accordance with sections 19(1)(a) & (b) and 20 of the Information Act 2002 (the Act). This letter
represents my Notice of Decision in relation to your request for:

A copy of the confidentiality clause contained in the 2019 Service Agreement between the
Department and Indigenous Essential Services (IES). This clause was cited in the decision
letter sent as part of an application for documents (IA20/0099) dated 1 September 2020; and

A copy of the reasons provided by Power and Water Corporation to the Department during
third party consultations in relation to IA20/0099.

In regards to the first part of the request, the scope is limited solely to the specific clause
mentioned and any relevant section that may help define the specific terms contained within
to aid in interpretation. This is not a request for any other portion of the document.

Assessment

In response to your request, I have captured the confidentiality provision from the Agreement
verbatim as it appears in the Agreement for Provision of Essential Services to Nominated
Aboriginal Communities 2019 – 2020, below:

10 Confidentiality

Except as required or permitted at law, neither party will release to third parties any
information received from the other (being information not already in the public domain)
without that party’s consent.

Also included with the Agreement is a provision that supports the collaborative working
relationship and to meet the objectives of the Agreement. This would also include meeting the
Confidentiality obligations of both parties.

1. Guiding Principles of the Agreement

Part (g) includes a requirement and principle that relates to “… a commitment to work closely
and cooperatively in a partnership arrangement to achieve the objectives of the Agreement.”

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 Also, part (j) relates to clause 10, in that the open flow of information is between the parties to
the Agreement.

This clause allows the free flow of information to those parties subject to the provisions of the
Agreement, however with Clause 10 provision relating to confidentially and consent, the parties
are restricted from disseminated without the consent of each party.

Upon examination of the “Agreement for Provision of Essential Services to Nominated Aboriginal
Communities 2019 – 2021” (the Agreement), it was noted that the principal owner of the
Agreement is the Indigenous Essential Services Pty Ltd, a subsidiary of Power and Water
Corporation (PWC). Both of which are not required to comply with the provisions of the Act.

The parent corporation, PWC operates as a Government Owned Corporation (GOC) and is for
the purposes of its operations, a private entity. Section 5(4) of the Act provides that a GOC is
only classed as a public sector organisation for the purposes of personal information. All
corporate documents and business records are not captured under the Act. This also applies to
their subsidiary, Indigenous Essential Services. For all intent and purposes, a GOC is a
privately operated entity and only considered a public sector organisation for the collection, use,
disclosure and security of personal information.

As a subsidiary of PWC, IES as a private entity does not release of corporate documents,
agreements and details of its business operations as they are outside the provisions of the Act.
Without consent of the signatories to the Agreement or principle owner of the document,
information under the Agreement cannot be released.

In response to your enquiry relating to the request to PWC for consent to release the
Agreement, I provide the following:

• On approximately 20 August 2020, I contacted one of the signatories to the Agreement at

PWC by telephone to ascertain their position in relation to a release of the document
under freedom of information.
• I spoke directly with the signatory in relation to your initial request for a copy of the
Agreement under the Information Act 2002.
• I was advised that PWC is not required to meet the provisions of the Information Act
2002 as they are determined to be a Government Owned Corporation, and as such do
not have to comply with the legislation in respect of their corporate documents and
business operations.
• I sought advice in relation to, under what circumstances would consent be granted to the
release of the documents.
• I was advised that PWC do not release corporate documents, however all essential
reporting and corporate information is readily available in their Annual Report.
• IES also have their Annual Reports available and can be accessed online.
• I was reminded by the signatory of the Confidentiality clause in the agreement and
without mutual consent as part of the partnership, the Department should not release the
document.
• The signatory then advised formally, that consent to release the Agreement was not
supported and access was refused.
• As previously advised, a confidentiality provision requiring consent from both parties to
agree to release prior to any dissemination, is included in the Agreement at Clause 10.

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 Notice of Decision

In accordance with your request, information has been obtained to provide greater detail and
understanding of the decision not to release the Agreement in your request IA20/0099. I trust
this supporting information clarifies the enquiries you have raised.

Your Right of Review

If you are aggrieved by my decision you can apply to the Department under section 38 of the Act
for an internal review of the decision. The review is to be undertaken by an impartial,
independent officer who was not involved in the original decision making process.

Any application for an internal review must be made within 30 days of receipt of the decision and
must:
• Be made in writing, including by email sent to Infoact.dlghcd@nt.gov.au.
• Specify your name and address for correspondence.
• Identify the decision and your original application for access.
• Clearly set out the reasons you are seeking the review and any evidence to
support your argument.

Following receipt of the review decision, should you disagree with the outcome, you can make a
formal complaint to the Information Commission within 90 days of receiving the review decision.
Further information regarding your right of complaint can be obtained directly from the Office of
the Information Commissioner at www.infocom.nt.gov.au or phoning 1800 005 610.

Please do not hesitate to contact me if I can be of further assistance.

Yours sincerely

Karan Aitken
A/Director Governance and
Information Management

6 October 2020

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