Australian Conservation Foundation and Secretary, Department of Agriculture, Water and the Environment (Freedom of information)

[2021] AATA 4619

Australian Conservation Foundation and Secretary, Department of Agriculture, Water and the Environment (Freedom of information) [2021] AATA 4619 (14 December 2021)

Division:GENERAL DIVISION

File Number:          2020/4161

Re:Australian Conservation Foundation

APPLICANT

AndSecretary, Department of Agriculture, Water and the Environment

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date:14 December 2021

Place:Melbourne

The delegate’s decision of 28 May 2019 is affirmed in respect of Documents 3, 10, 11, 22 (other than such parts covered by the Consent Direction made by the Tribunal dated 9 April 2021), 25 and 44b. The delegate’s decision in respect of Document 1 is set aside and remitted to the Respondent with the Direction that the Applicant be provided with access to Document 1 no later than once the third party’s review rights are exhausted.

........................................................................

Mr A. Maryniak QC, Member

Catchwords

FREEDOM OF INFORMATION – request for access to documents – obtained in confidence exemption under section 45(1) – section 47E(d) public interest conditional exemption relating to substantial adverse effect on the proper and efficient conduct of Commonwealth agency – decision refusing access affirmed in part and remitted in respect of Document 1

Legislation

Environment Protection andBiodiversity Conservation Act 1999 (Cth) s 74
Freedom of Information Act 1982 (Cth) ss 11A, 11B, 45(1), 47E(d), 61(1)(b)

Cases

Coco v AN Clark (Engineers) Ltd (1969) 86 RPC 41
Re Diamond & Chief Executive Officer of the Australian Curriculum Assessment & Reporting Authority [2014] AATA 707
Francis and Department of Defence [2012] AATA 838

Secondary Materials
Office of the Australian Information Commissioner, Guidelines issues by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982

REASONS FOR DECISION

Mr A. Maryniak QC, Member

14 December 2021

Introduction

1. The Applicant, a national environmental and charitable organisation, seeks review of a decision of the Respondent’s Department of Agriculture, Water and the Environment (the Department) dated 28 May 2019, in respect of various documents which the Applicant was refused access to, pursuant to a Freedom of Information request.  Seven documents remain in issue, relating to the proposed development of Toondah Harbour, Moreton Bay, Queensland, by Walker Group Holdings Pty Ltd (Walker Group).

2. On 15 June 2020, the Information Commissioner advised it had finalised a review (essentially declining to conduct a review) of the Department’s decision pursuant to s 54W(b) of the Freedom of Information Act 1982 (Cth) (the Act) enabling this application for review under s 57A(1)(b) of the Act.[1]

   [1] T-Documents 21: 1825-1835.

3. In light of the submissions of the parties, including that the Respondent no longer seeks exemption over it, the Tribunal sets aside the delegate’s decision in so far as it relates to Document 1, subject to exhaustion of the party review rights.[2] This part is remitted with a Direction that access to Document 1 be provided to the Applicant no later than once the third-party review rights are exhausted.

   [2] Respondent's Closing Submissions dated 23 April 2021, [17]-[21].

4. As to Documents numbered 3, 10, 11, 22, 25 and 44b or relevant non-disclosed parts thereof (the Documents), the Tribunal’s review is confined to a determination as to whether:

   (a)a conditional exemption applies to the ­Documents under s 47E(d); and

   (b)there is an exemption under s 45(1) of the Act, in respect of Document 3 only.

   Should such exemptions not be found, no further consultation with a third party is required, and no other exemptions are claimed.[3]

   [3] Transcript of Proceedings, 8:25-34, 19:19-24, 26:31-33.

5. The general Objects of the Act, by s 3, include to:

   (a)give the Australian community access to information held by the Commonwealth Government;

   (b)increase public participation in government processes and increase scrutiny, discussion, comment and review of government activities;

   (c)increase recognition that information held by the Government is a national resource which should be managed for public purposes; and

   (d)facilitate and promote public access to information, promptly and at the lowest reasonable cost.

6. By s 61(1)(b) of the Act, the Respondent has the statutory onus of establishing to the Tribunal’s satisfaction that the delegate’s decision was justified, or that the Tribunal should give a decision adverse to the Applicant. The Applicant submits such onus has not been satisfied.

7. The Tribunal notes, whilst it has access to the Documents, the Applicant’s ability to make submissions is somewhat restricted by the fact that the Applicant does not have such access.

8. The Tribunal is to conduct a de novo review based upon the evidence before it, together with the submissions of the parties and assess the Documents as at the time of this review.

   Exemption relating to material obtained in confidence

9. Pursuant to s 45(1) of the Act, a document is an exempt document if its disclosure would found an action by a person (other than an agency or the Commonwealth) for breach of confidence. Access to a document is not required to be given at a particular time if, at that time, the document is an exempt document.[4] An ‘exempt document’ is a document that is exempt for the purposes of Part IV Division 2 of the Act and consideration of the public interest test under s 11B is not required.

   [4] Freedom of Information Act 1982 (Cth) s 11A(4) (‘FOI Act’).

10. The well-established elements of a breach of confidence action are:

    (a)the information must be identified with specificity;

    (b)it must have the necessary quality of confidentiality;

    (c)it must have been communicated and received on the basis of a mutual understanding of confidence;

    (d)it must have been disclosed or threatened to be disclosed, without authority; and

    (e)unauthorised disclosure of the information has or will cause detriment.[5]

    [5] Coco v AN Clark (Engineers) Ltd (1969) 86 RPC 41; Office of the Australian Information Commissioner, Guidelines issues by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 at [5.158]-[5.159].

11. Government agencies are required to consider the guidelines published by the Information Commissioner under s 93A of the Act (the FOI Guidelines).[6] With respect to s 45, these Guidelines state:

    5.155 Section 45(1) provides that a document is an exempt document if its disclosure would found an action by a person (other than an agency or the Commonwealth) for breach of confidence. In other words, the exemption is available where the person who provides the confidential information would be able to bring an action under the general law for breach of confidence to prevent disclosure, or to seek compensation for loss or damage arising from disclosure.

    [6] Francis and Department of Defence [2012] AATA 838 at [18].

12. Document 3 is a record of a pre-referral meeting on 26 April 2017. The question for the Tribunal, on the evidence, is whether the content of Document 3 was communicated and received on the basis of a mutual understanding of confidentiality as between the Department and Walker Group around the time of its creation and whether its disclosure now would found an action for breach of confidence.  Relevant evidence was given by Andrew McNee, of the Department, by sworn affidavit dated 11 December 2020.  Mr McNee also gave oral evidence and was cross examined.

13. The Applicant points out that there were no documents or indications on the Department’s website stating that pre-referral meetings would always be treated as confidential and that Mr McNee had no specific awareness of there being any agreement with the proponent as to the confidentiality that should attach to Document 3. However, Mr McNee directly deposes as to the Department’s practice in respect of pre-referral stage discussion documents and their confidential status.[7]  His oral evidence was consistent with this, albeit only providing such confirmation during re-examination, during questioning by the Tribunal.[8]

    [7] Affidavit of Andrew McNee at [19].

    [8] Transcript of Proceedings, 41:14-34.

14. The Tribunal accepts, on balance, Mr McNee’s consistent evidence as to the Department’s approach to confidentiality as provided in paragraphs [16] to [26] of his affidavit, and his evidence given orally during the hearing relevant to this. The Tribunal consequently accepts the Respondent’s submissions that the elements of breach of confidence are made out, as set out in paragraphs [50] to [52] of the Respondent’s Closing Submissions dated 23 April 2021. Such submissions are supported by the evidence. Accordingly, the Tribunal finds the elements of breach of confidence as set out in paragraph 10 above are established in respect of Document 3.

15. The Tribunal is satisfied as to the confidential status of the content of Document 3 and that its release would found an action for breach of confidence based upon the evidence discussed above. The Tribunal therefore determines that the delegate’s decision was justified in respect of Document 3 and so finds.

    Agency Operations-Conditional Exemption

16. By s 47E(d) of the Act, a document is conditionally exempt if ‘its disclosure under the Act would, or could reasonably be expected to… have a substantial adverse effect on the proper and efficient conduct of the operations of an agency’.

17. In assessing whether a substantial adverse effect ‘would or could reasonably be expected’ to occur, a definite expectation of such an effect is not required.[9] What is required is an assessment of the applicable provisions in the Act and related guideline material, the documents in issue, and any relevant advice as to the possible negative consequences of disclosure.[10]

    [9] FOI Guidelines at [5.17].

    [10] Ibid at [5.19].

18. The Tribunal must have logical or probative material before it which reasonably permits an inference that there is a probability (would) or a possibility (could) of the risk resulting from disclosure.[11]

    [11] Re Diamond & Chief Executive Officer of the Australian Curriculum Assessment & Reporting Authority [2014] AATA 707 at [100]–[101] and [113] (‘Diamond’).

19. The terms ‘proper and efficient conduct of the operations of an agency’ were discussed in Diamond. In the context of s 47E(d) of the Act, the ordinary meanings of the word ‘operations’ are:

    …1 an act, method or process of working or operating. 2 the state of working or being active…3 an activity; something done. 4 an action or series of actions which have a particular effect...[12]

    The ordinary meanings of the word ‘conduct’ include to manage or control.

    [12] Ibid at [119] referring to Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers.

20. The relevant FOI Guidelines highlight that the substantial adverse effect must relate to an agency’s proper and efficient conduct of operations.[13]

    [13] FOI Guidelines at [6.120]-[6.123]; see also Diamond at [114]-[118] and [119]-[120].

21. The Respondent relies upon the conditional exemption in relation to the Documents. The Respondent submits they comprise notes, documents, minutes and correspondence relating to meetings and discussions between the Department and the Walker Group during the pre-referral part of the Environment Protection andBiodiversity Conservation Act 1999 (the EPBC Act) application process and records of subsequent decision-making processes once the formal application was made. Following inspection, the Tribunal is satisfied that the relevant content of such documents is consistent with that submission. The Tribunal notes, by way of background, that the Walker Group made three referrals to the Department in respect of the Toondah Harbour Development between 2015 and 2018.

22. The referral process and the assessment of the Toondah Harbour project was conducted pursuant to the EPBC Act.

23. By s 74(3) of the EPBC Act, the Minister must, as soon as practicable after receiving a referral for a proposed action, publish the referral and relevant material on its website and invite public comment for a period of 10 days. By s 74(3A) of the EPBC Act, the Minister may refuse to publish certain material on its website relevant to the referral if it is satisfied that that material is commercial in confidence. The Minister must not make a decision against disclosure unless:

    (a)release of the information would cause competitive detriment to the person; and

    (b)the information is not in the public domain; and

    (c)the information is not required to be disclosed under another law of the Commonwealth, a State or a Territory; and

    (d)the information is not readily discoverable.[14]

    [14] Environment Protection andBiodiversity Conservation Act 1999 (Cth) s 74(3B).

24. Access to the requested information is limited to staff of the Department, Walker Group, and involved Commonwealth and State Government entities on a need-to-know basis for the purpose of facilitating the referral process under the EPBC Act.[15] On the evidence before the Tribunal, the information contained in the Documents remains confidential and has not been made publicly available to date.

    [15] Affidavit of Andrew McNee at [13]-[14].

25. The confidential pre-referral process serves a distinct and useful purpose which is beneficial to the efficient conduct of the Department’s operations. Its confidential status enables referring parties to be less guarded and to be more willing to take part in such meetings. The Tribunal finds that it is reasonable to expect that without such pre-referral information being provided, the Department’s decision-making process would become more complex and burdensome, as any such referrals may not contain as extensive or necessary information, or adequately address any of the preliminary indications or advice that would have been otherwise provided to an applicant by the Department during that per-referral stage. The advantages of narrowing issues and eliminating issues occasioned by the pre-referral process would be seriously undermined if the confidential nature of such a process was dissolved. Further, if access to the Documents was granted, referring parties would be unlikely in the future to disclose sensitive and commercial in confidential information and consequently, the Department would be unlikely to provide preliminary advice which would otherwise assist in the efficient formation of any formal application received pursuant to the EPBC Act. The evidence of Mr McNee supports such findings.

26. The evidence establishes that the disclosure of the Documents could reasonably be expected to discourage others in the future from sharing information with the Respondent outside of formal statutory processes and would have a detrimental impact on the Department’s operations.[16]

    [16] Ibid [27]-[39]; Transcript of Proceedings 28:25-45.

27. The Tribunal is of the view that the disclosure of the Documents could have a significant adverse effect on the functioning of the Department and how it continues to handle and assess other referral applications in the future. The Tribunal is satisfied that the Documents are conditionally exempt under s 47E(d) of the Act.

    Access to documents contrary to the public interest?

28. Further, s 11A(5) of the Act requires that access must be given to a conditionally exempt document unless access to the document at the time would, on balance, be contrary to the public interest.[17]

    [17] See also FOI Act s 11B.

29. Section 11B of the Act sets out a non-exhaustive list of facts which inform the statutory construct of the relevant public interest: ss 11B(1)&(2). Such considerations are in addition to the factors which already weigh in favour of disclosure set out in s 11B(3) including promoting the objects of the Act, informing debate on a matter of public importance, and promoting effective oversight of public expenditure.

30. With regard to the public interest test, the FOI Guidelines provide relevantly:

    The public interest test

    6.4There is a single public interest to apply to each of the conditional exemptions. This public interest test is defined to include certain factors that must be taken into account where relevant, and some factors which must not be taken into account.

    6.5The public interest test is considered to be:

    ·something that is of serious concern or benefit to the public, not merely of individual interest

    ·not something of interest to the public, but in the public interest

    ·not a static concept, where it lies in a particular matter will often depend on a balancing of interests

    ·necessarily broad and non-specific, and

    ·related to matters of common concern or relevance to all members of the public, or a substantial section of the public.

    6.6It is not necessary for a matter to be in the interest of the public as a whole. It may be sufficient that the matter is in the interest of a section of the public bounded by geography or another characteristic that depends on the particular situation. A matter of public interest or benefit to an individual or small group of people may also be a matter of general public interest.

31. The Applicant asserts that access to the Documents is not contrary to the public interest and it disputes the ‘chilling effect’ as found by the delegate.[18] The Applicant submits that that aspects of the public interest were conceded by Mr McNee and highlights the need for proper balancing of the various factors favouring access as set out in s 11B(3) of the Act, and that such a process is heavily weighted in favour of disclosure.[19]

    [18] Applicant’s Closing Submissions at [52]-[53].

    [19] Ibid at [57].

32. The Applicant submits that multi-factorial public interests would be enhanced if the content of discussions in pre-referral meetings between representatives of a major commercial entity, such as the Walker Group and a government department, about a project of major environmental significance were disclosed.

33. It is clear on the evidence before the Tribunal that the proposed development of Toondah Harbour is of considerable public importance and interest. It is also clear that disclosure of the Documents would promote the objects of the Act, including the promotion of ‘Australia’s representative democracy by contributing towards…increasing scrutiny, discussion, comment and review of the Government’s activities’.[20] The evidence also establishes that disclosure would promote effective oversight of public expenditure as referred to in the FOI Guidelines.[21]

    [20] FOI Act s 3(2)(b).

    [21] FOI Guidelines at [6.19(c)].

34. Whilst the Act does not specify particular factors against giving access, the FOI Guidelines include a non-exhaustive list of such factors.

35. By reason of the evidence discussed above, the Tribunal finds that there is a significant risk that individuals would reasonably be expected to be discouraged from disclosing ideas or discussions that were ultimately not canvassed in a final referral application. The Tribunal is satisfied that the disclosure of the Documents could reasonably be expected to prejudice the Department’s:

    (a)ability to obtain confidential information;

    (b)ability to obtain similar information in the future; and

    (c)management function.

36. In balancing the relevant factors, the Tribunal notes that the FOI Guidelines provide ‘the pro-disclosure principle declared in the objects of the FOI Act is given specific effect in the public interest test, as the test is weighted towards disclosure’.[22] Whilst there is public interest in the disclosure of the Documents, such disclosure could also have a substantial adverse impact upon the Department’s operations. On balance, the Tribunal is satisfied that the countervailing harm weighs against disclosure of the Documents.

    [22] FOI Guidelines at [6.8].

1. The Tribunal is satisfied that the Applicant’s application for access to the Documents should not be granted. The correct or preferable decision is that the Documents are conditionally exempt pursuant to s 47E(d) of the Act and it is not in the public interest that access to the Documents be granted at this time.

2. The Tribunal affirms the decision under review in respect of the Documents.  

I certify that the following 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision of Mr A. Maryniak QC, Member

........................[sgd].........................................

Associate

Dated: 14 December 2021

Date of hearing:

Date of last submission:

11 March 2021

3 May 2021

Advocates for the Applicant:

Ms Sarah Porritt and Mr Chris McDermott

Solicitor for the Applicant: 

Environmental Justice Australia

Advocate for the Respondent:

Ms Chantal Tipene

Solicitors for the Respondent:

Sparke Helmore Lawyers