Guideline for managing and disclosing unpublished information that may impact on biodiversity credit prices

Part A – Purpose, application and definitions

Purpose

The purpose of this guideline is to provide guidance on managing and disclosing unpublished information that could impact on biodiversity credit prices.

It aims to support fair, transparent and efficient access to information that may impact participants in the NSW biodiversity credits market in pricing credits and making decisions to create, buy or sell credits.

Application

This guideline applies to business areas within the NSW Department of Climate Change, Energy, the Environment and Water that are responsible for administering or supporting the administration of the NSW Biodiversity Offsets Scheme (a relevant business area).

Relationship with legal and other guidelines and obligations

This guideline should be considered subject to any other rights and obligations about managing and disclosing information, including under the:

• Government Information (Public Access) Act 2009
• Privacy and Personal Information Protection Act 1998
• Biodiversity Conservation Act 2016
• NSW Government Information Classification, Labelling and Handling Guidelines
• NSW Government Ethical Framework
• (former) NSW Department of Planning and Environment Code of Ethics and Conduct.

Commencement

This guideline comes into effect for applicable information that comes into the possession by a relevant business area after 31 March 2024.

Information to which this guideline applies

For the purpose of this guideline, unpublished information that may impact on biodiversity credit prices means information that is held by a relevant business area, is not in the public domain, and could reasonably be expected to materially impact the price or value of biodiversity credits. It can include information about:

• previous, current or potential future demand, supply or price of credits
• the costs of generating biodiversity credits
• changes in policy or operational settings.

Information is not in the public domain if it cannot be accessed by a member of the public on a NSW Government website.

Information has a material impact on the price or value of biodiversity credits if it could reasonably influence a person in deciding to create, buy or sell biodiversity credits.

Part B – Sharing and managing unpublished information that may impact on biodiversity credit prices

Principle

Unpublished information that may impact on biodiversity credit prices is clearly labelled and only shared for a legitimate purpose.

Sharing unpublished sensitive information with other entities

A relevant business area should only share unpublished information that may impact biodiversity credit prices with another entity if it:

• is legally required to provide the information to the other entity, or
• is directed by the Environment Agency Head to do so in writing, or
• is satisfied that:
  • it needs to share the information with the other entity to properly perform its functions, or
  • sharing the information is in the interests of the overall credits market, or
  • the other entity is not involved in buying and selling credits and has a legitimate need for the information, or
  • the other entity already has access to the information (even though the information is not published).

A relevant business area should also only share this information with another entity if it is satisfied that the entity understands the sensitive nature of the information and has in place appropriate arrangements for handling that information.

Marking and managing access to unpublished sensitive information

A relevant business area should ensure that unpublished information that may impact biodiversity credit prices:

• is marked as ‘sensitive’ (this includes files and documents containing this information (including emails)
• is stored in a secure and auditable document management system
• can only be accessed by people who have a legitimate reason to access it
• cannot be deliberately or inadvertently accessed or received by people who are not authorised to access this information.

Part C – Disclosing unpublished information that may impact biodiversity credits prices to the public

Principle

Unpublished information that may impact on biodiversity credit prices should be disclosed to the public in a pro-active, timely and meaningful way, unless there is a compelling reason against disclosure.

What unpublished information should be disclosed

A relevant business area should disclose to the public all unpublished information that may impact on biodiversity credit prices.

However, a relevant business area may withhold disclosure of this information if it is satisfied that one or more of the following exceptions applies:

• disclosure of the information would be a breach of a legal obligation
• the information is Cabinet-in-Confidence or commercial-in-confidence
• the information is in draft
• the information is an opinion or is insufficiently definite to warrant disclosure
• the information relates directly to the price of credits or the costs of supplying credits, and the relevant business area considers that the information meets any one of the following 3 criteria:
  1. the information is an unreliable indicator of the price of credits, or
  2. disclosing the information would set unreasonably low or high price expectations for credit price, or
  3. if the information is disclosed, for a significant period it would be the only source of this type of information and anchor price expectations
• disclosure of this information would not be in the public interest, or
• the information is wholly derived from publicly available information.

These exceptions are subject to any legal or other obligations to publish information, such as requirements under the Biodiversity Conservation Act 2016 to make information about biodiversity credits available on a public register.

When unpublished information should be disclosed

A relevant business area should disclose unpublished information that may impact on biodiversity credit prices as soon as practicable after this information comes into its possession unless:

• it has a legal obligation to disclose the information at another time, or
• it is satisfied that timely disclosure would not be in the public interest, or
• the information relates to a change in policy or operational settings that has not yet been announced, or
• it is satisfied that it is more practical to disclose the information as a package at regular intervals.

How unpublished information should be disclosed

The Biodiversity Offset Scheme Branch (BOS Branch) in the NSW Department of Climate Change, Energy, the Environment and Water will establish and maintain a ‘disclosure log’ on the Biodiversity Offset Scheme webpages.

The disclosure log will provide a record of each instance when unpublished information is disclosed.

The log will comprise of standing and ad-hoc disclosures:

• Standing disclosures are for the disclosure of information that occurs frequently, such as updates to the statutory Biodiversity Credits Supply Register.
• Ad-hoc disclosures are for the disclosure of information that is released infrequently or on an ad-hoc basis, such as the outcomes of a Biodiversity Conservation Trust credit tender process.

To disclose unpublished information, a relevant business area should:

• publish the information on its website or otherwise in accordance with any relevant legal obligation
• provide details about the disclosure to the BOS Branch. The BOS Branch will arrange an entry on the ‘market disclosure log’ to coincide with the release of the information.

Details for each entry in the disclosure log should include:

• a link and a short summary of the information
• the date the information was generated, the date it was disclosed, and if applicable, the reasons for any delay in its disclosure
• a summary of why the information is sensitive
• a summary of any limitations of the information.

Log for disclosures of information that may affect credit prices

The department has established a guideline for how the Biodiversity Offsets Scheme Branch, the Credits Supply Taskforce and the Biodiversity Conservation Trust manage and disclose information that may affect the price of biodiversity credits.

The department has also established disclosure logs to make it easier for stakeholders to access and interpret information disclosed under the guideline. There are 2 disclosure logs:

• a standing disclosure log for information that is frequently disclosed
• an ad-hoc disclosure log for information that is not frequently disclosed.