How does NPI confidentiality work?

Commercial confidentiality

Unless a jurisdiction’s own law provides otherwise, the state or territory agency assesses a commercial-in-confidence claim using agreed procedures. The occupier must justify the claim, and the agency weighs it against the public interest in disclosure. Information under a claim that has not yet been assessed is not published. If the claim is granted, the information is published only in a form that keeps it confidential, for example aggregated with other data.

National security

The Commonwealth assesses claims on national security grounds. While such a claim is pending, or once it is granted, the occupier does not have to provide the information.

Information that stays private

Under clause 9(9) of the NEPM, data on fuel and waste burnt and the integrity data behind transfer and emission estimates are not released without the occupier’s consent, unless the law requires it or another government data program needs it.

State procedures

Each jurisdiction has its own process. In Western Australia, for example, the Department of Water and Environmental Regulation publishes a commercial-in-confidence guideline for NPI claims.

Legal status of NPI information

Under clause 26 of the NEPM, information provided solely for the NPI will not be used by a jurisdiction as evidence in court proceedings about an occupier’s breach of other obligations. In Western Australia the equivalent provision does not protect information that is false or misleading.

In New South Wales, a commercial-in-confidence claim is made by written notice to the EPA and is taken to be refused if the EPA has not decided within 90 days.

Why it matters

Claims are weighed against the public interest in disclosure, so the bar is high. Operators should prepare a clear justification and raise the claim with their agency well before the data is published.