Association for Berowra Creek Inc v Department of Lands - [2009] NSWADT 157

No judgment structure available for this case.

CITATION: Association for Berowra Creek Inc v Department of Lands [2009] NSWADT 157

DIVISION: General Division

PARTIES:
APPLICANT
Association for Berowra Creek Inc
REPSONDENT
Department of Lands

FILE NUMBER: 083231,083277

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 10 February 2009

DATE OF DECISION:
23 June 2009

BEFORE: Pearson L - Judicial Member

CATCHWORDS: Access to documents – business affairs – government contracts – internal working documents – financial or property interests of the State

LEGISLATION CITED: Administrative Decisons Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED: Administrative Decisions Tribunal v Director General Department of Commerce [2008] NSWCA 140
Cianfrano v Director General, NSW Treasury [2005] NSWADT 7
Cianfrano v Director General, Premier’s Department [2007] NSWADT 216
Freeland v General Manager, Liverpool City Council [1999] NSWADT 95
Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37
Retain Beacon Hill High School Inc v Department of Commerce (GD) [2006] NSWADTAP 58
Retain Beacon Hill High School Committee Inc v NSW Department of Commerce [2006] NSWADT 129
Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55
University of New South Wales v McGuirk [2006] NSWSC 1362
Van de Wall v University of Sydney [2008] NSWADT 213

REPRESENTATION:
APPLICANT
W Blunt, agent
REPSONDENT
J Callaghan, solicitor

ORDERS: 1.In matter 083231 the decision under review is varied, and the Minutes of the meetings of 18 October 2005, 7 July 2006 and 19 December 2007 are to be released in full 28 days after the date of this decision; the decision under review is otherwise affirmed
2.In matter 083277 the decision of the respondent is affirmed.

Background to applications

(i)083231: On 13 March 2008 the applicant Association applied pursuant to the Freedom of Information Act 1989 (the FOI Act) for access to the following documents:

Copies of Minutes of meetings with department officers, Cameron Brae P/L & or their representatives/ agents & or Hornsby Shire Council relating to issues at Berowra Waters. Refer to Ms J McGuffick who has been handling this matter.

1 An accompanying letter clarified the background to the request, which relates to a Car Park at Berowra Waters (Lot 7020 DP 1057993):

The Statement of Environmental Effects attached to DA 1827/2007 lodged by Cameron Brae Pty Ltd with Hornsby Shire Council on 20 November 2007 states that there have been meetings over the past two years with officers of Hornsby Council, the Department of Lands and Cameron Brae, in relation to proposed extensions and alteration to the above Car Park.

2 On 5 May 2008 the respondent’s Freedom of Information Co-ordinator responded to the application, determining to refuse access to the meeting notes and minutes on the basis that those documents were exempt under cl 7(1)(b) of Schedule 1 to the FOI Act. While it was noted that the applicant would accept matters obscured in the document, “the entire document would obscured if the commercial information was obscured”.

3 The applicant requested internal review. On 6 June 2008 the A/Manager Crown Lands Legal notified the applicant that the original determination was upheld and that the documents were exempt under cl 7(1)(b) and (c) of Schedule 1. The applicant applied to the Tribunal for review on 29 July 2008 (Tribunal file 083231).

(ii)083277: On 7 July 2008 the Association applied for access to the following documents:

Provide copy of the Ministers (or delegates) instrument of consultation with the reserve trust Manager (Hornsby Shire Council) relating to the grant of a licence/lease to Cameron Brae Pty Ltd (or associated entity) over part of Reserve R91194 for the provision of car parking spaces as required by section 34A(2)(a)(i) of the Crown Lands Act.

Provide copy of the Ministers notice in the Gazette relating to the grant of a licence/lease to Cameron Brae Pty Ltd (or associated entity) over part of Reserve R91194 for the provision of car parking spaces as required by section 34A(2)(b) of the Crown Lands Act.

Provide copy of the Ministers (or delegates) report of the assessment of the public interest and Crown land management relating to the grant of a licence/lease to Cameron Brae Pty Ltd (or associated entity over part of Reserve R91194 for the provision of car parking spaces as required by section 34A(2)(c) of the Crown Lands Act.

4 On 14 August 2008 the respondent’s Freedom of Information Co-ordinator notified the applicant of its determination, following consultation with a third party. The determination stated that the Agreement referred to in item 1 of the request

“does not exist” and accordingly access was refused; however there was a draft Deed of Agreement “which is subject to ongoing negotiation”. The third party had objected to release of the draft of this document “as an exempt document under clause 7(b)(i)(ii) and clause 7(c)(i)(ii)”, and the respondent had decided to refuse access to the draft Deed of Agreement. The determination further advised that as the draft deed of Agreement was subject to ongoing negotiation it was an exempt document under clause 9 of Schedule 1.

5 The respondent dealt with paragraphs 2, 3 and 4 of the request in the following terms:

In respect of item 3, Crown Lands Division has advised no such notice has issued, and that statutory advertising of the proposed grant of three co-terminant leases to Cameron Brae Pty Ltd, as required by s34(3) of the Act, will proceed in due course: Note that if the proposed licence proceeds pursuant to s34, statutory advertising is required, but no Gazette notice; should the Licence proceed as a s34A instrument as a consequence of present negotiations, the applicant will be entitled to view the s34A(2)(b) notice upon its publication in the Gazette. Accordingly, the Department has refused your application.

In respect of item 4 crown Lands Division has advised there is no “Ministers (or delegates) report of the assessment of the public interest” and that the agreement to enter into private treaty lease negotiations with Cameron Brae Pty Ltd, in respect of its three holdings at Berowra Waters, pre-dates commencement of the Department’s current business rules governing the submission of a Business Case and Public Interest Test. Accordingly, the Department has refused your application.

6 The applicant requested internal review. On 12 September 2008 the A/Manager Crown Lands Legal notified the applicant that the determination had been reviewed and upheld. The determination advised that none of the requested documents exist:

1. An agreement between Cameron Brae Pty Ltd and the Minister regarding the Berowra Waters Marina and reserve 91194 does not exist

2. There is no instrument of consultation with the reserve trust Manager (Hornsby Shire Council)

3. There is no Minister’s notice in the Gazette relating to the grant of a licence/lease to Cameron Brae Pty Ltd, and

4. There is no report from the Minister (or his delegate) for the assessment of the public interest and Crown land management relating to the grant of a licence/lease to Cameron Brae Pty Ltd (or associated entity) over part of Reserve R91194.

7 The applicant applied to the Tribunal for review on 16 September 2008.

8 In the course of discussions between the parties at planning meetings the respondent advised that it was prepared to provide access to certain documents in both matters with deletions. The respondent provided access in that form, and provided copies of the complete documents to the Tribunal on a confidential basis. In relation to matter 083277, the respondent maintained its claim for exemption of the draft Deed of Agreement. Directions were made for filing and serving of witness statements and submissions. The parties agreed to the matters being determined on the papers.

Respondent’s case

9 083231: The documents at issue in this matter are Minutes of Meetings held between officers of the respondent and others, including officers of Hornsby Council and Cameron Brae Pty Ltd, from 28 February 2005 to 24 January 2008. The respondent in a letter dated 3 November 2008 set out the basis for its deletion of certain material from these Minutes:

cl 7(1)(a1) and cl 9

-Meeting 23 February 2006: site rental

cl 9 and cl 15

-Meeting 14 June 2006: number of car spaces

commercial in confidence provisions of a government contract (s15A) and cl 9

-Meeting 7 July 2006: design of car park

cl 7 (commercial in confidence provisions of a government contract), cl 9, cl 15

-Meeting 9 August 2006: authority to enter

cl 7, cl 9, cl 15

-Meeting 20 August 2007:

cost of construction (cl 7)

parking requirements (cl 7, cl 9, cl 15)

rental income (cl 7, cl 9, cl 15)

-Meeting 19 December 2007: term of lease

cl 7, cl 15

-Meeting 14 January 2008: landscaping plan

cl 7(1)(c), cl 9

-Meeting 17 January 2008:

car park (cl 7, cl 9, cl 15)

length of lease (cl 7, cl 9, cl 15)

car park maintenance (cl 7, cl 9).

10 083277: In a letter dated 3 November 2008 the respondent submitted that the Deed of Agreement and the proposed conditions of the proposed leases are in draft form. These documents have commercial in confidence provisions as detailed in s15A of the Freedom of Information Act, and are thus documents affecting business affairs and exempt under cl7 of Schedule 1. The draft documents are also exempt under cl9, and cl15 of Schedule 1.

11 In support of the claimed exemptions in both matters the respondent provided an affidavit by Mr Mark Maloney, Program Manager – Commercial, Sydney Region. In his affidavit Mr Maloney refers to dealings between Cameron Brae Pty Ltd and the respondent, under which the respondent contemplates entering into new commercial agreements with Cameron Brae Pty Ltd with respect to Crown lands at Berowra Waters, pursuant to relevant legislation and the Business Directive for Commercial Leases and Licences approved by the Director-General on 7 September 2004. Cameron Brae Pty Ltd holds commercial leases over crown lands known as Berowra Waters Marina, Berowra Waters Boatshed and Cruisecraft Marina expiring in 2010, 2012 and 2014 respectively, and approval has been given to enter into “private treaty negations” with Cameron Brae for the purpose of granting co-terminant leases for the three holdings for a term of 60 years. As stated in para 4 of the affidavit, commencement of these leases “is predicated on the holder’s fulfilment of obligations to construct certain works at Dusthole Bay, in the vicinity of Berowra Water Marina, and confirmation by the Department of Lands of its satisfaction with such works”. The scope of proposed works required by the respondent includes a decked car park, public boardwalk, sewage pump out facility, landscaping and other ancillary facilities, and is the subject of a Development Application No 1827/2007 to which Hornsby Shire Council granted development consent on 22 August 2008. The proposed works are to be undertaken pursuant to that development consent and in accordance with a Licence to be issued under the Crown Lands Act 1989.

12 Mr Maloney described the content of the proposed Deed of Agreement in the following terms:

8.In addition to the three co-terminant Leases and Licence proposed, the parties intend to enter into a Deed of Agreement that defines their mutual objectives and obligations, together with provisions for dispute resolution, termination of the Deed, definition of time frames and the mechanisms by which the proposed Licence will commence and subsequently be terminated in favour of commencement of the Leases contemplated.

13 Mr Maloney further stated:

9.Negotiations to finalise the commercial agreements have been hampered by the necessity for detailed engineering investigation of the public road adjacent to which construction of the public boardwalk is proposed. It is understood that this matter has now been resolved, thereby facilitating conclusion of the commercial negotiations currently on-foot.

14 Mr Maloney addressed the claimed exemptions in the following terms:

11.For similar reasons, the Department has declined to release information, mostly in the nature of remarks attributed to individuals, recorded as the notes of meetings held between officers of the Department, Council and/or Cameron Brae. Again, the Department’s concern is to ensure that speculative or informal comments, that neither represent the parties’ formal positions nor reflect negotiated outcomes, are not misconstrued within the public domain by individuals or groups that have not been party to complex and continuing commercial negotiations.

12.The Department, mindful of its obligation under section 15A of the Freedom of Information Act 1989 to publish any contracts within 60 days of their becoming effective, wishes to avoid any potential for third parties to rely upon the provisions of draft documents that remain “works-in-progress”.

13.For this reason only, the Department retains a preference for withholding the publication of the draft commercial documentation described until each has been executed and takes effect.

15 In submissions filed on 10 February 2009 the respondent referred to Mr Maloney’s affidavit to support its position that details about such matters as the proposed site rental, the proposed number of car spaces, the proposed car park design, the proposed public access rights, estimated costs of construction, estimated lease term and provisional landscaping plan “are ones which the parties do not yet fully agree upon and are still the subject of negotiations”. The respondent relies on Retain Beacon Hill High School Inc v Department of Commerce (GD) [2006] NSWADTAP 58; Freeland v General Manager, Liverpool City Council [1999] NSWADT 95; and Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37 to support its submission that premature disclosure of commercial documents and reports may have the effect of destroying or diminishing the commercial value of the information they contain. Public disclosure of the information could prejudice the ongoing negotiations, and discourage future proponents from openly and candidly divulging information in confidential business discussions and negotiations. Some of the financial information including probable rent, construction costs and revenue would disclose information that would be included in the commercial-in-confidence provisions of any future contract or lease with Cameron Brae Pty Ltd. In support of the claimed exemption under cl9 of Schedule 1, the respondent submitted that disclosure of the information may jeopardise negotiations between the parties with the result that it could destroy or delay indefinitely the Government from obtaining commercial value from the site and prevent the delivery of a valuable infrastructure upgrade and new services to the local community, and thus would on balance be contrary to the public interest. The respondent submitted in support of the claimed exemption under cl 15 that disclosure of the information could reasonably be expected to interfere with, further delay, or even prevent the progress of the negotiations; and that delay or cancellation of the projects under which community facilities would be provided by the proponent and under which the Department would generate substantial revenue from rental income over the term of the lease and ultimately take ownership of valuable community infrastructure and facilities, would have a substantial adverse effect on the financial and property interests of the State.

16 The respondent provided submissions on the “public interest” tests in clauses 9 and 15, and more generally. The respondent submitted that the official representative of the community, the Council, supported the development and gave planning approval; the information was not relevant to any potential future ultra vires act that might occur if and when the Minister approves or enters into a final agreement; the information was not relevant to whether there had been compliance with the Crown Lands Act 1989; and that it is in the public interest to protect the integrity of the respondent’s confidential and ongoing negotiations with Cameron Brae, to prevent the delay or cancellation of the development and to protect the respondent’s chances of achieving comparable results with alternative future proponents if the current negotiations fail.

Applicant’s case

17 The applicant relies on an affidavit made by its agent, Mr William Blunt. The applicant is concerned that the commercial agreements and the Business Directive for Commercial Leases and Licences may not provide the legal foundations for the proposed actions of the respondent and may be contrary to the Berowra Waters Plan of Management and the Crown Lands Act 1989; that the approval to enter into negotiations for the proposed co-terminant leases may not have been given in accordance with the appropriate legislative provisions; that the development consent 1827/2007 does not adequately describe the contemplated works; that the proposed deed and Licence may be contrary to the Berowra Waters Plan of Management and the Crown Lands Act; and that necessary studies and investigations may not have been completed and will not be completed prior to the finalisation of the proposed commercial arrangements. Mr Blunt states that the applicant and the community already have significant knowledge of matters including the proposed term of the lease, proposals for a second deck on the car park, concerns that not all the works will be completed, car parking requirements for eastern shore operations, and numbers, rental charged to Cameron Brae, fees to be charged for the licence, whether various fees will be waived by the respondent, and responsibility for maintenance provisions. Information providing details of the three businesses operated by Cameron Brae Pty Ltd and relating to the construction of the works is already available. Mr Blunt submits that the applicant is concerned that the respondent has not complied with sections 34A, 112 and 114 of the Crown Lands Act and that it is in the public interest to release the documents to ensure the community is properly informed and can make representations. In planning meetings the applicant argued that certain information, including such matters as the number of car spaces, is included in the terms of the development consent 1827/2007 and thus is already in the public domain.

Relevant legislation

18 Under section 16(1) of the FOI Act, a person has a legally enforceable right to be given access to an agency’s documents. This right is subject to other provisions of the FOI Act, in particular section 25(1)(a), under which an agency can refuse access to a document if it is an exempt document. Section 25(1) is qualified by section 25(4) of the FOI Act, which provides:

(4) An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate):
(a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and

(b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy.

19 Section 25(1) confers a discretion, and an agency may decide to provide access to a document notwithstanding that the document is an exempt document. In University of New South Wales v McGuirk [2006] NSWSC 1362 Nicholas J held that section 63 of the Administrative Decisions Tribunal Act 1997 provides the Tribunal with the discretion to order access to a document which is an exempt document if it decides that to do so is the correct and preferable decision with regard to the material then before it.

20 Under section 61 of the FOI Act, the respondent bears the onus of establishing that its determination of the applicant’s request was justified.

21 The respondent claims that clauses 7, 9 and 15 of Schedule 1 to the FOI Act apply. Clause 7 provides:

7 Documents affecting business affairs

(1) A document is an exempt document:

(a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or

(a1) if it contains matter the disclosure of which would disclose the commercial-in-confidence provisions of a government contract (within the meaning of section 15A), or

(b) if it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets or commercial-in-confidence provisions) that has a commercial value to any agency or any other person, and

(ii) could reasonably be expected to destroy or diminish the commercial value of the information, or

(c) if it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets, commercial-in-confidence provisions or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and

(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made.

22 Clause 9 provides:

9 Internal working documents

(1) A document is an exempt document if it contains matter the disclosure of which:

(a) would disclose:

(i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or

(ii) any consultation or deliberation that has taken place,

in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and

(b) would, on balance, be contrary to the public interest.

(2) A document is not an exempt document by virtue of this clause if it merely consists of:

(a) matter that appears in an agency’s policy document, or

(b) factual or statistical material.

23 Clause 15 provides:

15 Documents affecting financial or property interests

A document is an exempt document if it contains matter the disclosure of which:

(a) could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency, and

(b) would, on balance, be contrary to the public interest.

Consideration

(i)083231: Minutes of meetings

24 The respondent claims that information contained in the meeting notes of 18 October 2005 (term of lease), 14 June 2006 (number of car spaces), 7 July 2006 (design of car park), 9 August 2006 (authority to enter), 20 August 2007 (cost of construction; parking requirements; rental income), 19 December 2007 (term of lease), and 17 January 2008 (car park; length of lease; car park maintenance) is matter the disclosure of which would disclose the commercial-in-confidence provisions of a government contract and is thus exempt under cl7(1)(a1). The term “government contract” is defined in s15A(14):

government contract

(a) a contract between an agency and a private sector entity under which the agency or private sector entity agrees:

(i) to undertake a specific project (such as a construction, infrastructure or property development project), or

(ii) to provide specific goods or services (such as information technology services), or

(iii) to transfer real property to the other party to the contract,

(b) a lease of real property where the parties to the lease are an agency and a private sector entity,

but does not include a contract of employment.

25 The term “commercial-in-confidence provisions” is defined in s15A(14):

commercial-in-confidence provisions

(a) the contractor’s financing arrangements, or

(b) the contractor’s cost structure or profit margins, or

(c) the contractor’s full base case financial model, or

(d) any intellectual property in which the contractor has an interest, or

(e) any matter whose disclosure would place the contractor at a substantial commercial disadvantage in relation to other contractors or potential contractors, whether at present or in the future.

26 Section 15A came into effect on 1 January 2007, and requires agencies to publish certain details of contracts entered into with a private sector entity within 60 days after the contract becomes effective: s15A(1). A government contract “becomes effective” when it is entered into by or on behalf of the agency concerned, or, if the contract contains a provision to the effect that one or more conditions are to be met before the obligations of the parties under the contract are enforceable—when the condition or conditions have been met: s15A(13). The obligation to publish does not include publication of the commercial-in-confidence provisions of the government contract: s15A(9). Guidelines have been formulated for the implementation of the s15A requirements: The NSW FOI Manual, published by the NSW Department of Premier and Cabinet and the NSW Ombudsman in August 2007, Appendix C. The Guidelines include the statement that tenderers “be invited to nominate items they consider are confidential and why”; and envisage the possibility that a request for access to information covered by s15A(9), including “commercial-in-confidence provisions” may be made under the FOI Act, as they include a reference to such a person having appeal rights under the FOI Act.

27 It is apparent that the exemption provided in cl7(1)(a1) is intended to enable an agency to claim that material properly within the definition of “commercial-in-confidence provisions” and thus not subject to the publication requirement in s15A, is exempt, and also to require that agency to consult with the other party to the contract. Section 15A applies to government contracts that have come into effect; the exclusions in s15A(9) accordingly apply to provisions of a contract the terms of which have been finalised and which has come into legal effect. In my view, the exemption in cl 7(1)(a1) has to be read to conform to the s15A obligation, and does not apply to references in notes of meetings to matters that might, at the end of the negotiation process, find their way into a concluded contract. I am not satisfied that cl7(1)(a1) applies to the information in the specified meeting notes as claimed by the respondent.

28 In its submissions of 3 November 2008 the respondent relied on clause 7(1)(b) and (c) in relation to material included in the notes of meetings of 9 August 2006 (authority to enter), 20 August 2007 (cost of construction), 14 January 2008 (landscaping plan), and 17 January 2008 (car park; length of lease; car park maintenance). The respondent’s submissions of 3 November 2008 refer to information concerning the business, commercial and financial affairs of another person, and would thus appear to be relying on cl7(1)(c) in relation to information relating to the business or commercial affairs of Cameron Brae Pty Ltd. The submissions of 10 February 2008, however, are cast more broadly, and refer to the commercial value of some of the information, both to the proponent and to the agency. In Retain Beacon Hill High School Committee Inc v NSW Department of Commerce [2006] NSWADT 129, Judicial Member Handley summarised the requirements for clause 7(1)(b) and (c) (in terms approved on appeal: Retain Beacon Hill High School Committee Inc v Department of Commerce (GD) [2006] NSWADTAP 58):

Leichardt Municipal Council v Roads and Traffic Authority

Freeland v General Manager, Liverpool City Council

8.For a document to be exempt under cl 7(1)(c), first, the document must contain information concerning the business, professional, commercial or financial affairs of any agency or other person and, second, relevantly, disclosure of the information could reasonably be expected to have an unreasonable adverse effect on those affairs. In Vincent Neary v State Rail Authority [1999] NSWADT 107, at par 35, the President of the Tribunal, O’Connor DCJ, said that the Tribunal must adopt an objective approach in assessing what effect can reasonably be expected from the disclosure of the information, and the expectation must be more than a mere risk. In Cianfrano v Director-General, Department of Education and Training [2005] NSWADT 7 (‘Cianfrano’), at par 63, O’Connor DCJ said that “the commercial affairs of an agency can include transactions such as the leasing and sale of property vested in it, and related negotiations”. He found, at par 67, that the release of documents likely to reveal the Government’s approach to developing a price for negotiation in the sale of an asset could reasonably be expected to affect the conduct of potential purchasers in a way adverse to the public’s interest in obtaining an appropriate price.

29 Considering first whether cl 7(1)(b) applies to the material contained in the meeting notes, the respondent’s case is that information relating to the proponent’s estimated costs, expected revenue, projected lease term and design proposal has a commercial value, and that disclosure at a point when negotiations are still continuing may have the effect of destroying or diminishing that value. The applicant contends that some at least of this information is probably already in the public domain, for example by inclusion in the terms of the development consent.

30 The Minutes cover an extended series of meetings over a three year period, described in his affidavit by Mr Maloney as being “complex and continuing commercial negotiations”. Many different matters were discussed over the course of these meetings, and the position of the parties varied over time. The respondent is prepared to release the major part of the Minutes which reflect the changing positions of the parties. Comments on specific matters such as term of the lease and estimated costs need to be read in that context. Having regard to that context, and the contents of the Minutes in their entirety, I am not satisfied that even if the specific matters identified in the Minutes of 9 August 2006, 20 August 2007, 14 January 2008 and 17 January 2008 have a commercial value in isolation that any such value is of substance. The exemption in cl7(1)(b) does not apply.

31 I agree with the respondent’s submissions that this information does concern the commercial or financial affairs of Cameron Brae Pty Ltd and the respondent. The respondent manages public land and the terms on which it is prepared to deal with that land clearly relates to its commercial or financial affairs. Similarly, the terms on which a private sector entity is prepared to enter into a transaction concerning that land concern that entity’s commercial or financial affairs. Clause 7(1)(c) requires that disclosure of that information be reasonably be expected to have an unreasonable adverse effect on those affairs. Considering first the position of the respondent, I accept that disclosure of the material contained in the Minutes of the meeting of 9 August 2006 (authority to enter), 20 August 2007 (cost of construction, rental income) and 17 January 2008 (car park, length of lease) could reasonably be expected to disclose the respondent’s approach for negotiating the lease of its asset and thus have an adverse effect on its ability to continue negotiations. I accept that disclosure of the material contained in the Minutes of the meetings of 20 August 2007 (parking requirements), 14 January 2008 and 17 January 2008 (car park maintenance) could have an adverse effect on the ability of Cameron Brae Pty Ltd to continue negotiations. This information is not information included in the terms of the development consent, or otherwise in the public domain on the evidence before me. The particular material identified in the Minutes of the meetings on 9 August 2006, 20 August 2007, 14 January 2008 and 17 January 2008 is exempt under cl7(1)(c) and I agree with the respondent that the appropriate course is to delete it from the copy of the documents provided to the applicant.

32 The respondent did not rely on cl7 (1)(b) or (c) in relation to the Minutes of the meetings of 18 October 2005 (term of lease), 23 February 2006 (site rental), 7 July 2006 (design of car park), and 19 December 2007 (term of lease) in its submissions of 3 November 2008, instead relying on cl15. However, the submissions of 10 February 2009 are framed to include all of the material in the Minutes as falling within cl7(1)(b) and (c). I am satisfied that the material contained in these Minutes is material relating to the negotiations for the terms in which the respondent is prepared to enter into leases of public land for a significant period, and in respect of which it is anxious to obtain the best possible outcome both in financial terms and provision of community infrastructure. This information therefore concerns the commercial or financial affairs of the respondent agency. In considering whether disclosure of the material contained in these documents could reasonably be expected to have an unreasonable adverse effect on those affairs, the context is relevant. As noted above, this context is an extended period of negotiations between several parties. Some of these negotiations appear to have reached a degree of finality, while others have not.

33 By the time the applicant lodged its application for review, Hornsby Council had determined development application 1827/2007. This determination including conditions is available on the Council’s website, as are subsequent determinations of applications to modify the development consent. The material contained in the Minutes of the meeting of 18 October 2005 and 19 December 2007 has been overtaken by events, as confirmed in the affidavit of Mr Mark Maloney. I am not satisfied that disclosure of this material could reasonably be expected to have the unreasonable adverse effect as required by cl7(1)(c). For the reasons given in paragraph 31 above, I am not satisfied that if this information has, in the overall context of the recorded negotiations, a commercial value that it is of substance, and accordingly cl 7(1)(b) does not apply.

34 The material contained in the Minutes of the meetings of 23 February 2006 and 7 July 2006 is different. Based on the affidavit of Mr Maloney, and considered in light of the material in the Minutes as a whole, I am satisfied that disclosure of this material could have the effect envisaged by cl7(1)(c), and, subject to the separate question of whether the residual discretion should be exercised, should be deleted from the coy of the documents provided to the applicant.

35 The respondent claims that particular material in the Minutes of meetings of 18 October 2005 (term of lease), 14 June 2006 (number of car spaces), and 19 December 2007 (term of lease) are exempt under cl9 of Schedule 1. The relevant principles were outlined by Deputy President Handley in Van de Wall v University of Sydney [2008] NSWADT 213 in the following terms:

Harris v Australian Broadcasting Corporation

37 In the WorkCover case, at paragraph 162, McColl JA said:

“The cl 9(1)(b) public interest issue should, in my view, be determined by reference to the facts of the particular application, not by reliance on theoretical possibilities which flow if disclosed documents thereafter gained wider release.”

Bennett v University of New England

“Even if some diminution in candour and frankness caused by the prospect of disclosure is conceded, the real issue is whether the efficiency and quality of a deliberative process is thereby likely to suffer to an extent which is contrary to the public interest ... In the absence of clear, specific and credible evidence, I would not be prepared to accept that the substance or quality of advice prepared by professional public servants could be materially altered for the worse, by the threat of disclosure under the FOI Act.”

36 I accept that the material identified by the respondent contains matter the disclosure of which would disclose consultation or deliberation that has taken place as part of the negotiation process, and thus in the course of the decision-making functions of the respondent. However, I consider that the material contained in the Minutes of the meetings of 18 October 2005, 14 June 2006, and 19 December 2007 is largely factual material, and thus not included within the cl9 exemption.

37 The respondent relies on cl15 to support its claims for exemption for the material contained in the Minutes of the meetings of 18 October 2005 (term of lease), 7 July 2006 (design of car park), and 19 December 2007 (term of lease). Clause 15 requires that disclosure could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency, and that it would, on balance, be contrary to the public interest.

38 I am satisfied that the material concerns the negotiations for the terms in which the respondent is prepared to enter into leases of public land, and in respect of which it is wishes to obtain the best possible outcome both in financial terms and provision of community infrastructure, and thus relates to the financial and property interests of the State and the respondent. The issue is whether disclosure of this information could reasonably be expected to have a substantial adverse effect on those interests. In Retain Beacon Hill High School Committee Inc v NSW Department of Commerce [2006] NSWADT 129, Deputy President Handley noted:

Leichardt Municipal Council

David Miles Connolly v Department of Finance

39 Deputy President Handley referred to the decision in Retain Beacon Hill High School Committee Inc v Department of Commerce (GD) [2006] NSWADTAP 58 where the Appeal Panel noted that cl15 provides a more stringent exemption than cl7.

40 As noted above, the information recorded in the Minutes of the meetings of 18 October 2005 and 19 December 2007 has been overtaken by subsequent events. I am not satisfied that disclosure would have the substantial adverse effect required by cl15.

41 The material contained in the Minutes of the meeting on 7 July 2006 is different. The affidavit of Mr Maloney addresses the broad concerns with release of what he described as “speculative or informal comments” that do not represent the parties’ formal positions or reflect negotiated outcomes. It is not clear either from that affidavit or the respondent’s submissions why disclosure of the material identified by the respondent in the Minutes of 7 July 2006 could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency, other than in the general sense of making future negotiations possibly more complex. Even if I were satisfied that disclosure would have that effect, there is the public interest to be considered under cl 15(b). The respondent has argued its case on the basis that it is in the public interest to protect the integrity of the confidential and ongoing negotiations, to prevent the delay or cancellation of the project, and to protect the respondent’s chances of achieving comparable results with alternative future proponents if the current negotiations fail. Against this must be balanced the public interest in making available information contained in documents held by government agencies available to the public, as reflected in the statement of objects in s5 of the FOI Act. The applicant has put its case based on its concerns as to the propriety of the process and its desire to have information on which to base its representations. I am not persuaded that it would be contrary to the public interest to disclose this material.

42 In relation to the Minutes of the meetings of 19 October 2005, 7 July 2006 and 19 December 2007, I am not persuaded that the material identified by the respondent is exempt. These documents should accordingly be released in full. In relation to the Minutes of the meetings of 23 February 2006, 9 August 2006, 20 August 2007, 14 January 2008 and 17 January 2008, I agree with the respondent’s claim that the specified material is exempt. The issue then is whether, in the exercise of discretion, that material should be released to the applicant. The principles guiding the exercise of this discretion were discussed by the Tribunal President, O’Connor DCJ, in Cianfrano v Director General, Premier’s Department [2007] NSWADT 216. The ultimate issue is whether, having regard to the objects of the FOI Act in s5, there are strong grounds justifying the overriding of the exemptions that I have found apply to the documents in question. I am not satisfied that there are such grounds.

(ii)083277: Draft Deed of Agreement

43 The draft Deed is a document of some 16 pages, with 4 Schedules, and an Annexure containing the terms of a lease. It is clear from the face of the document, which includes text with tracked changes, that it is still in draft form. The respondent’s case is that this document is exempt under cl7(1)(b), 7(1)(c), 9 and 15 of Schedule 1. In its submissions dated 3 November 2008 the respondent stated that the document contains commercial in confidence provisions as defined in s15A of the FOI Act and is a document affecting business affairs and exempt under cl7.

44 Having considered the document, it must first be acknowledged that much of the document appears to provide what would seem to be relatively standard terms of any agreement relating to the leasing of Crown land. Some parts of the document are more specific, however, containing details of the term and conditions of the leases, and financial matters. I accept that the document as a whole contains matter disclosure of which would disclose information concerning the commercial or financial affairs of the respondent. In considering whether disclosure of this material could reasonably be expected to have an unreasonable adverse effect on those affairs, I note that while still a draft the document appears to be in close to final form. I am not persuaded that simply because the respondent would be obliged by s15A of the FOI Act to publish the agreement once it has become effective, subject to the commercial-in-confidence exclusions in s15A(9), that the draft version of the contract is automatically exempt under cl7. I accept the evidence of Mr Maloney that release of the draft document may be misleading if continuing negotiations require significant revision. The Tribunal has in previous decisions, including Cianfrano v Director General, NSW Treasury [2005] NSWADT 7 and Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55, accepted that release of documents likely to reveal the government’s approach to the negotiation for sale or leasing of property could reasonably be expected to affect the conduct of potential purchasers in a way adverse to the public’s interest in obtaining an appropriate price. I accept that disclosure of the outcome of negotiations such as those reflected in the draft Agreement at a point close to finalisation could reasonably be expected to have an adverse effect on the respondent’s commercial or financial affairs should there be a requirement to re-negotiate some points with Cameron Brae Pty Ltd, or to negotiate with another possible proponent. The likely effect of this disclosure is different to disclosure of the trend of the negotiations as reflected in the meeting notes, as it clear from the context of the meeting notes that they do not reflect a final form of agreement. I accept the respondent’s submission that the draft Agreement is exempt under cl7(1)(c), and that it would not be practicable to delete material in accordance with s25(4).

45 As was the case with the Minutes of the meetings, the next issue to consider is whether to exercise the residual discretion. The applicant has argued that much of the information is already in the public domain. However, apart from referring to the terms of the development consent, which is publicly available, the applicant has provided no evidence in support of this claim. Given the commercial sensitivity of some of the information contained in the draft Agreement and its place in the overall context of negotiations between the respondent and the proponent, I consider that there is the potential for adverse consequences for the proper administration of the Government should access be granted. I am not persuaded that there are strong grounds that would justify releasing the draft Agreement.

(iii) 083277: other documents requested

46 The terms of the applicant’s request for access are set out in paragraph 4 above. The respondent’s determination was that with the exception of the draft Deed of Agreement, there were no documents falling within the terms of the request for access. As determined by the Court of Appeal in Administrative Decisions Tribunal v Director General Department of Commerce [2008] NSWCA 140, the Tribunal has no jurisdiction to go behind an agency’s determination that it has provided access to all the documents it holds that fall within the terms of a request for access.

Orders

47 In matter 083231 the decision under review is varied, and the Minutes of the meetings of 18 October 2005, 7 July 2006 and 19 December 2007 are to be released in full 28 days after the date of this decision; the decision under review is otherwise affirmed.

48 In matter 083277 the decision of the respondent is affirmed.

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Citations

Association for Berowra Creek Inc v Department of Lands [2009] NSWADT 157

Cases Citing This Decision

0

Cases Cited

13

Statutory Material Cited

2

Retain Beacon Hill High School Committee Inc v Department of Commerce (GD) [2006] NSWADTAP 58

Freeland v General Manager, Liverpool City Council [1999] NSWADT 95

Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37

CITATION:	Association for Berowra Creek Inc v Department of Lands [2009] NSWADT 157
DIVISION:	General Division
PARTIES:	APPLICANT Association for Berowra Creek Inc REPSONDENT Department of Lands
FILE NUMBER:	083231,083277
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	10 February 2009
DATE OF DECISION:	23 June 2009
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	Access to documents – business affairs – government contracts – internal working documents – financial or property interests of the State
LEGISLATION CITED:	Administrative Decisons Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Administrative Decisions Tribunal v Director General Department of Commerce [2008] NSWCA 140 Cianfrano v Director General, NSW Treasury [2005] NSWADT 7 Cianfrano v Director General, Premier’s Department [2007] NSWADT 216 Freeland v General Manager, Liverpool City Council [1999] NSWADT 95 Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37 Retain Beacon Hill High School Inc v Department of Commerce (GD) [2006] NSWADTAP 58 Retain Beacon Hill High School Committee Inc v NSW Department of Commerce [2006] NSWADT 129 Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55 University of New South Wales v McGuirk [2006] NSWSC 1362 Van de Wall v University of Sydney [2008] NSWADT 213
REPRESENTATION:	APPLICANT W Blunt, agent REPSONDENT J Callaghan, solicitor
ORDERS:	1.In matter 083231 the decision under review is varied, and the Minutes of the meetings of 18 October 2005, 7 July 2006 and 19 December 2007 are to be released in full 28 days after the date of this decision; the decision under review is otherwise affirmed 2.In matter 083277 the decision of the respondent is affirmed.