Bellamy v Transport for NSW

[2019] NSWCATAD 54

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Bellamy v Transport for NSW [2019] NSWCATAD 54
Hearing dates:	21 November 2019
Date of orders:	05 April 2019
Decision date:	05 April 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	(1) Pursuant to section 63(3)(d) of the Administrative Decisions Review Act 1997, the decision under review is set aside. The matter is remitted for reconsideration in relation to the issue of whether further information falling within the scope of the access application is held by the Respondent’s Transport Coordination Division. (2)   The redetermination is to be completed by 23 April 2019 (3)   The decision under review is otherwise affirmed. (4)   The matter is listed for a further case conference at 9:30 am on 7 May 2019
Catchwords:	Administrative Law – –access to government information - cabinet material –whether reasonable grounds for withholding information established - commercially confidential information – reasonableness of searches.
Legislation Cited:	Government Information (Public Access) Act 2009 Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997
Cases Cited:	Amos v Central Coast Council [2018] NSWCATAD 101 BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156 Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5 D'Adam v New South Wales Treasury [2015] NSWCATAP 61 Park v Transport for NSW [2018] NSWCATAD 82 Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353 Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7, (1994) 1 QAR 464 Webb v Port Stephens Council [2018] NSWCATAP 224
Texts Cited:	Nil
Category:	Principal judgment
Parties:	John Bellamy (Applicant) Transport for NSW (Respondent)
Representation:	Counsel: D Birch (Respondent)   Solicitors: J Bellamy (Self Represented)(Applicant Crown Solicitor’s Office (Respondent)
File Number(s):	2018/00189716
Publication restriction:	Nil

Reasons for Decision

Introduction

1. This is an application for review of a decision by Transport for NSW (“the Respondent” or “the agency” or “TfNSW”) in response to an access application brought by Mr John Bellamy (“the Applicant”) under the Government Information (Public Access) Act 2009 (“the GIPA Act”). Mr Bellamy is seeking information relating to traffic modelling for the CBD and South East Light Rail project (“the CSELR”).

The CSELR

1. The CSELR is a light rail service, currently under construction, which will connect Circular Quay, the Sydney CBD and Sydney's South East. The CSELR project also includes the introduction of a pedestrian zone along George Street and integration of the new light rail network with the existing Inner West Light Rail. The Respondent has been responsible for planning, procuring and delivering the CSELR project since 2011.

The access application

1. By his access application made on 16 December 2016 the Applicant sought:

“1   Information revealing

a   The licensed and forecast average operational loadings for the light rail vehicles in the morning peak hour from 8am - 9am on the CSELR

b   The number of buses to be replaced by the light rail vehicles in the morning peak hour from 8am - 9am

c   The licensed and average operational capacities of those buses

2   Documents revealing the details of any traffic modelling undertaken for the CSELR project. In this respect I specifically seek information which is not subject to cabinet-in-confidence provisions, which contains any of the following information

a   Cost/benefit analysis between light rail and electric buses

b   Cost/benefit analysis between light rail and business-as-usual (eg Our current buses)

c   Forecast likely average light rail journey time from Kingsford to the City and Randwick to the City.”

2. The access application was framed in consultation with the Respondent. The Applicant is seeking a limited amount of information relating to the proposed operation of the CSELR and figures that will allow a comparison with the existing transport capacity.

The Respondent Determinations

1. The access application has been the subject of a number of decisions by the Respondent and has also been the subject of review by the Information & Privacy Commissioner (“the IPC”). Decisions by officers of the Respondent were:

2. Decision by David Gosling (A/Manager, Information and Privacy) dated 23 January 2017;

3. Internal review decision by Clarinda Campbell (A/Principal Manager, Information and Privacy) dated 21 July 2017;

4. Further internal review decision by Patrick O'Meally (Senior Legal Counsel - Regulatory) dated 31 January 2018; and

5. Supplementary decision by Jarrod Whitbourn (Associate Director, Information Access) dated 21 September 2018.

6. Reviews by the IPC were undertaken and completed on:

7. 6 April 2017 - review of the original decision

8. 12 December 2017 - review of Ms Campbell’s internal review decision

9. 14 May 2018 - review of Mr O'Meally’s internal review

10. The Respondent’s original decision found no documents matched the access application other than those publicly available. It identified a document entitled 'CBD and South East Light Rail Project Submissions Report, Incorporating Preferred Infrastructure Report - Volume 1 - Main Volume' as falling within the scope of the request and advised the Applicant that the report was publicly available on the Sydney Light Rail's dedicated website.

11. On review, the IPC found that the searches undertaken by the Respondent were inadequate and recommended that it make a new decision by way of an internal review. As a result of that review the Respondent located a further 9 documents that it identified as falling within the scope of the access application. It identified these documents as:

12. Sydney CBD and South East Light Rail End State SCATISM Modelling Transport Modelling Assessment

13. Strategic Plan - Options Identification Report (Booz & Co)

14. Strategic Plan - Integrated Transport and Land Use Milestone 5: Option Assessment (Booz & Co)

15. Strategic Plan - Integrated Transport and Land Use Milestone 5: Options Assessment Volume II Appendices (Booz & Co)

16. Transport Operations Report (Booz & Co)

17. Strategic Plan - Transport Network Context (Trevor Townson Consulting)

18. Rapid Economic Appraisal Addendum Report 2: Bus Comparator (PWC)

19. CBD Bus and Traffic Network Plan for Light Rail - Discussion Paper (TfNSW)

20. CBD Bus and Traffic Paramics Modelling (SKM)

21. Access to each of those documents was refused as follows:

22. Document 1 - Access to the document is refused on the basis that there is an overriding public interest against disclosure

23. Document 2 - Access to the document is refused on the basis that the document is out of scope.

24. Document 3 - Access to the document is refused on the basis that the document is cabinet information and on the basis that the document is out of scope.

25. Document 4 - Access to the document is refused on the basis that part of the document is out of scope and that part of the document that is within scope is cabinet.

26. Document 5 - Access to the document is refused on the basis that it is publicly available

27. Document 6 - Access to the document is refused on the basis that the document is cabinet information and on the basis that the document is out of scope.

28. Document 7 - Access to the document is refused on the basis that the document is cabinet information and on the basis that the document is out of scope.   

29. Document 8 - Access to the document is refused on the basis that the document is cabinet information and on the basis that the document is out of scope.

30. Document 9 - Access to the document is refused on the basis that the document is cabinet information and on the basis that the document is out of scope.

31. I understand that Document 2 was subsequently released to the Applicant.

32. The Applicant again sought review by the IPC. In response to the IPC's second review, the Respondent released parts of Document 1. Document 1 comprises 756 pages. Of these, the Respondent released 157 pages, with some redactions.

33. On review, the IPC declined to make a further recommendation.

34. On 21 September 2018, the Respondent's supplementary decision identified a further 12 documents responsive to the access application. These are identified as documents SD1 to SD12. Access was provided to 5 of the 12 documents. Documents SD4, SD5, SD6, SD7, SD8, SD9 and SD12 have not been disclosed on the basis that they are confidential cabinet documents. These documents are described as:

35. SD4 - "Business Case: Project Brief: CBD and South East Light Rail" or "Final Business Case";

36. SD5 - "Transport for NSW - CBD and South East Light Rail Detailed Economic Appraisal" or "PWC Final Report";

37. SD6 - "Transport for NSW - Sydney Light Rail Strategic Plan: Preliminary Economic Appraisal (Draft report V1.0)" or "PWC Draft Report";

38. SD7 - "Sydney CBD Bus and Traffic Paramics Modelling (Rev 2.0 Draft Final) (28 June 2012)" or "Draft SKM Report";

39. SD8 - "Sydney CBD Bus and Traffic Paramics Modelling - Stage 2 (Rev 2.0 Draft Final)" or "Draft SKM Stage 2 Report";

40. SD9 - "Sydney CBD Bus and Traffic Paramics Modelling – Independent Technical Review Stages 1 & 2 - prepared by GTA Consultants" or "GTA Final Report"; and

41. SD12 - "Initial Light Rail Operations Simulation and Analysis - Interfleet Technology 26 April 2013" or "Interfleet Document".

The Application to the Tribunal

1. The Applicant is dissatisfied with the totality of the Respondent's decisions to withhold some of the information that has been found to be within the scope of the access application. He sought review of the following aspects of the decision:

2. the limited access provided to Document 1;

3. the determination of Document 2 being 'out of scope';

4. the determination that there are reasonable grounds for the Respondent’s claim that Documents 3, 4, 6, 7, 8 and 9 and Documents SD4, SD5, SD6, SD7, SD8, SD9 and SD12 are cabinet information and therefore attract a conclusive presumption against disclosure; and

5. the adequacy of the searches conducted.

6. As noted, I understand that Document 2 has been released and therefore it is not necessary to consider the question of whether it is out of the scope of the access application.

The material before the Tribunal

1. The Respondent has provided an affidavit of Mr Jarrod Whitbourn, Associate Director of the Respondent’s Information Access Unit; open and confidential affidavits of Mr Matthew McKibbin - the Respondent’s Deputy Executive Director, Integrated Network Planning, Transport Planning within the Freight, Strategy and Planning Division; and statutory declarations of Ms Kara McGowan - General Counsel for Transdev Australasia Pty Ltd and its subsidiaries.

2. Access to information contained in Document 1 was refused on the basis that release of the information would have prejudicial effect on the business, commercial or financial interests of Transdev. Transdev objected to releasing the information.

3. The Respondent has provided a copy of Document 1 to the Tribunal and Mr Birch has provided both written and oral submissions.

4. The Applicant relies on his own written and oral submissions and material in support of those submissions.

Applicable legislation

1. The parties are in general agreement in regard to the applicable legislation.

2. The object of the GIPA Act is to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective by providing access to government information and, relevantly, restricting such access only when there is an overriding public interest against disclosure: section 3

3. The term "government information" means information contained in a record held by an agency and an "agency" includes a government department.

4. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information unless there is an overriding interest against disclosure.

5. Section 13 of the GIPA Act provides that there is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

6. Section 13 of the GIPA Act requires decision makers to:

7. identify relevant public interest considerations in favour of disclosure,

8. identify relevant public interest considerations against disclosure,

9. attribute weight to each consideration for and against disclosure, and

10. determine whether the balance of the public interest lies in favour of or against disclosure of the government information.

11. Section 14(1) provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 to the GIPA Act. Schedule 1 details the government information to which section 14 applies and clause 2 of schedule 1 includes "Cabinet information". Clause 2 provides:

2 CABINET INFORMATION

(1)   It is to be conclusively presumed that there is an overriding public interest against disclosure of information (referred to in this Act as

"Cabinet information" ) contained in any of the following documents:

(a)   a document that contains an official record of Cabinet,

(b)   a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration (whether or not the document is actually submitted to Cabinet),

(c)   a document prepared for the purpose of its being submitted to Cabinet for Cabinet's approval for the document to be used for the dominant purpose for which it was prepared (whether or not the document is actually submitted to Cabinet and whether or not the approval is actually given),

(d)   a document prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions,

(e)   a document prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet,

(f)   a document that is a preliminary draft of, or a copy of or part of, or contains an extract from, a document referred to in paragraphs (a)-(e).

(2)   Information contained in a document is not Cabinet information if:

(a)   public disclosure of the document has been approved by the Premier or Cabinet, or

(b)   10 years have passed since the end of the calendar year in which the document came into existence.

(3)   Information is not Cabinet information merely because it is contained in a document attached to a document referred to in subclause (1).

(4)   Information is not Cabinet information to the extent that it consists solely of factual material unless the information is contained in a document that, either entirely or in part, would:

(a)   reveal or tend to reveal information concerning any Cabinet decision or determination, or

(b)   reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet.

(5)   In this clause,

"Cabinet" includes a committee of Cabinet and a subcommittee of a committee of Cabinet.

12. The burden in establishing that a decision is justified lies with the Respondent: section 105(1) of the GIPA Act.

13. Section 106 of the GIPA Act establishes a special procedure for the review of decisions about Cabinet and executive council information and provides as follows:

106 DECISIONS ABOUT CABINET AND EXECUTIVE COUNCIL INFORMATION

(1) On an NCAT administrative review of a decision by an agency that there is an overriding public interest against disclosure of information because the information is claimed to be Cabinet or Executive Council information (as described in Schedule 1), NCAT is limited to deciding whether there were reasonable grounds for the agency's claim and is not authorised to make a decision as to the correct and preferable decision on the matter.

(2)   If NCAT is not satisfied, by evidence on affidavit or otherwise, that there were reasonable grounds for the claim, it may require the information to be produced in evidence before it.

(3)   If NCAT is still not satisfied after considering the evidence produced that there were reasonable grounds for the claim, NCAT is to reject the claim when determining the review application and may then proceed to make a decision as to the correct and preferable decision on the matter.

(4)   NCAT is not to reject the claim unless it has given the Premier a reasonable opportunity to appear and be heard in relation to the matter.

(5)   The Premier is a party to any proceedings on an application under this section.

14. Section 107 of the GIPA Act provides a regime for dealing with public interest considerations and for ensuring the confidentiality of information for which there is an overriding public interest against disclosure.

15. The procedure for the review of decisions about Cabinet information has been considered in several decisions of this Tribunal. See for example the discussion in the matter of Park v Transport for NSW [2018] NSWCATAD 82.

16. As a first step, the Tribunal is limited to determining whether there are reasonable grounds for the Respondent’s claims that the withheld information is Cabinet information. If the ‘reasonable grounds’ argument is upheld, then the decision is affirmed without proceeding to any further steps. If reasonable grounds are not found, then the Tribunal may move to have the ‘information’ produced before it.

17. The Tribunal "is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. Where it is considered necessary, the Tribunal receives evidence and hears argument in the absence of the public, to prevent the disclosure of information for which there is an overriding public interest against disclosure.

18. The Applicant contends that the information that he is seeking is straightforward detail that relates to the proposed operation of the CSELR and figures that will allow a comparison with the existing transport capacity. He submits that it should be released to allow the public to be informed about a significant piece of infrastructure that has caused considerable disruption to the city. He noted that much of the information will be readily apparent on the first day of operation of the CSELR. He submits that the most cost effective way that the Respondent could deal with this application is to create a new document that provides the information that he seeks. The Respondent could do this pursuant to section 75 of the GIPA Act which provides:

75 PROVIDING ACCESS BY CREATING NEW RECORD

(1)   An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information.

(2)   An agency's obligation to provide access to government information in response to an access application does not require the agency to do any of the following:

(a)   make a new record of information held by the agency,

(b)   update or verify information held by the agency,

(c)   create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency.

19. The Tribunal has no power to direct that the Respondent adopt this approach.

20. As noted, access to parts of Document 1 was refused on the basis that it contained commercially sensitive information. The decision was made pursuant to clauses 4(c) and (d) of the table to section 14 of the GIPA Act. These clauses provide:

14 PUBLIC INTEREST CONSIDERATIONS AGAINST DISCLOSURE

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2)   The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

…

4   Business interests of agencies and other persons

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

…

(c)   diminish the competitive commercial value of any information to any person,

(d)   prejudice any person's legitimate business, commercial, professional or financial interests

...

21. Section 53 of the GIPA Act imposes an obligation on an agency to conduct reasonable searches in response to an access application. Section 53 provides:

53 SEARCHES FOR INFORMATION HELD BY AGENCY

(1)   The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2)   An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.

(3)   The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.

(5)   An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.

22. Section 60(1)(a) of the GIPA Act provides:

60 DECISION TO REFUSE TO DEAL WITH APPLICATION

(1)   An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason):

(a)   dealing with the application would require an unreasonable and substantial diversion of the agency's resources …

23. The Applicant contends that the searches that the Respondent undertook were inadequate and that it is reasonable to expect that the agency holds further information that falls within the scope of his request that has not been identified.

24. The Respondent did not make an explicit decision that it does not hold further documents that fall within the scope of the access application. The correct approach to dealing with the issue of the adequacy of searches has been the subject of some discussion in other matters before the Tribunal. Mr Birch has provided written submissions in regard to this issue for the purposes of these proceedings.

25. The Tribunal is to deal with the matter on the basis that it was an implicit decision that further documents were not held: see Webb v Port Stephens Council [2018] NSWCATAP 224 which refers to the discussion and decision in Amos v Central Coast Council [2018] NSWCATAD 101 at paragraphs [15] to [34].

26. The question of what constitutes an adequate search has been considered in many decisions under the GIPA Act and similar legislation. In Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7, (1994) 1 QAR 464, the Queensland Information Commissioner outlined a two-stage approach to the question of what constitutes an adequate search:

(1)   whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency and, if so,

(2)   whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.

27. The decision in Shepherd has been followed in a number of decisions of this Tribunal in matters under the GIPA Act. See, for example, Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5, and BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156.

28. The Tribunal’s task is to determine the correct and preferable decision at the time of the decision. If there are reasonable grounds to believe that the agency holds more information than it has identified, the correct and preferable decision will not be to affirm the agency’s decision that it does not hold the information. As Senior Member Lucy noted in Amos v Central Coast Council, this may be the case even if the agency’s searches appear to have been reasonable at the time they were conducted.

Document 1

1. Document 1 is titled "Sydney CBD and South East Light Rail End State SCATSIM Modelling Transport Modelling Assessment”. It is dated 26 August 2016.

2. Following the hearing in this matter the Respondent advised the Tribunal and the Applicant that it had reconsidered its position in regard to Document 1 and determined to provide access to those parts of the document that were not identified by Ms McGowan as giving rise to an overriding consideration against disclosure. A revised, redacted version of Document 1 was provided to the Applicant. Accordingly, I will only address those parts of Document 1 that are the subject of the objection.

3. Document 1 comprises some 750 pages. Of those, 14 pages have not been disclosed.

4. In her statutory declaration of 10 September 2018 Ms McGowan referred to a total of 9 pages of Document 1 (pages 20, 21, 22, 23, 29, 30, 31, 32, and 33) and asserted that Transdev would suffer adverse commercial affects if the information contained on those pages were released.

5. Ms McGowan stated:

Transdev considers that section 4.3 (Light Rail Travel Time Reliability) of the Document should be, and should remain, redacted together with the related Figures on pages 21, 22 and 23 (inclusive).

The information included within this section (and related figures) is regarded by Transdev as commercially confidential, the release of which may prejudice our legitimate business, commercial, professional and/or financial interests

…

Transdev considers that section 4.5 (Light Rail Travel Time and Speed) should be, and should remain, redacted together with the related Figures 4 17-4 24 (inclusive).

6. She stated that the redacted information is both commercially confidential and valuable to Transdev and that it is not generally available to members of the public or competitors of Transdev. Its release would reveal, inter alia, the operating parameters or technical principles of Transdev which have been developed based on pre-existing intellectual property of Transdev.

7. She further stated that the information would be of value to market competitors. Its release would cause substantial harm to the competitive position of Transdev if made known to competitors or third parties, thus placing Transdev at a competitive disadvantage.

8. In her further statutory declaration of 11 September 2018 Ms McGowan referred to a further 5 pages of Document 1 (pages 2, 3, 4, 5 and 6.

9. She stated that the assumptions found on pages 2 and 3 and the comments and questions on pages 4, 5 and 6 of Document 1 are both commercially confidential and valuable to Transdev due to their relationship to sections 4.3 and 4.5 referred to above. She confirmed that the information is not generally available to members of the public or competitors of Transdev, and that its disclosure may cause substantial harm to the competitive position of Transdev.

10. Ms McGowan was not required for cross-examination and therefore her evidence has not been challenged. I accept her evidence and I am satisfied that the redacted information that she identified is both commercially confidential and valuable to Transdev. I am satisfied on the basis of this evidence that the redacted information would be of value to Transdev’s market competitors and that its release could cause harm to the competitive position of Transdev. In my view, the public interest considerations against disclosure pursuant to clauses 4(c) and (d) of the table to section 14 of the GIPA Act should be given significant weight.

11. As noted above, section 13 of the GIPA Act requires that the Tribunal undertake a balancing process taking account of the relevant public interest considerations in favour of disclosure. Section 5 establishes a presumption in favour of disclosure of government information. Section 12 of the GIPA Act provides a number of examples of public interest considerations in favour of disclosure. These include:

“(a)    Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b)   Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c)   Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

...”

12. Each of these considerations is relevant to Document 1. As an indication of the high level of public interest in issues relating to the CSELR, the Applicant has also pointed to:

13. The findings of the Auditor General's Report on the CSELR;

14. The evidence provided to the NSW Parliamentary Upper House Inquiry;

15. The estimated cost to the public of $2.1 bn; and

16. The number of people whose daily travel will be affected

17. I agree with the Applicant that the public interest considerations in favour of disclosure should be given significant weight. However, in light of the amount of information contained in Document 1 and the information that has already been disclosed from other sources, it is my view that greater weight should be given to the potential disadvantage that could result to Transdev if the information redacted from Document 1 were to be released.

18. That being the case it is my view that the decision to not release the 14 pages that have been redacted from Document 1 should be affirmed.

Cabinet Information

1. The aspect of the Applicant's access application seeking information revealing the details of any traffic modelling undertaken for the CSELR project excluded documents containing Cabinet information from the scope of the request. Accordingly, documents that contain details of any traffic modelling that are Cabinet information are outside the scope of the request.

2. As noted, the Respondent contends that Documents 3, 4, 6, 7, 8 and 9 and Documents SD4, SD5, SD6, SD7, SD8, SD9 and SD12 are cabinet information and therefore attract a conclusive presumption against disclosure. In order to determine whether these documents are within the scope of the access application it is necessary to determine whether there are reasonable grounds for the Respondent’s claims that the withheld information is Cabinet information.

3. Each of the parties has provided written submissions and they are in general agreement in regard to the approach to be taken by the Tribunal. The procedure established by section 106 of the GIPA Act with respect to Cabinet information was recognised by the Appeal Panel in D'Adam v New South Wales Treasury [2015] NSWCATAP 61 at paragraphs [11] - [12].

4. In the matter of Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353 Senior Member Lucy considered the question of whether Cabinet documents could be released in a redacted form. She stated at paragraphs [78] – [81]:

78.    Mr Robinson made the submission, in relation to particular documents which were subject to the claim that they contained Cabinet information, that those documents could be released in a redacted form. That is, he submitted that where only some of the information in a document was Cabinet information, he should be given access to the remainder. I note that, in some cases, the respondents have given Mr Robinson access to parts of a document and redacted other parts which are claimed to contain Cabinet information.

79. The GIPA Act, unlike its predecessor the Freedom of Information Act, generally applies to information. This means that, if there is no overriding public interest against disclosure of the information, then an access applicant is entitled to be granted access to it, even if other information in the same document is subject to an overriding public interest against disclosure. The Cabinet information consideration, in cl 2(1) of Sch 1 to the GIPA Act, is different. It applies to information contained in a document meeting the description of any of the paragraphs (a) to (f) of cl 2(1). Thus, if the document meets such a description, all the information in the document is subject to an overriding public interest against disclosure.

80. A possible qualification to this is that, “to the extent that [information] consists solely of factual material,” it is not Cabinet information, unless specified circumstances apply (GIPA Act, Sch 1, cl 2(4)). It is unclear whether cl 2(4) is intended to allow for the provision of access to solely factual material in documents meeting a description in cl 2(1), or whether cl 2(4) applies where an entire document (for example one submitted to Cabinet) consists solely of factual material. In any event, Mr Robinson did not seek to rely on cl 2(4) and I do not consider that any of the documents in issue consist solely of factual material.

81. For these reasons, subject to the possible qualification referred to above, I do not consider that the GIPA Act permits the Tribunal, when conducting a review, to make a decision that an applicant be given access to some of the information in a document meeting the description of a paragraph in cl 2(1), and that the applicant be denied access to the remainder of the information. Rather, once the information is found to be contained in a document meeting the description of a paragraph in cl 2(1), the effect of cl 2(1) is that there is an overriding public interest against disclosure of that information.

5. I agree with that view.

6. In the circumstances of this matter, it is for the Respondent to establish that each of the withheld documents is cabinet information for the purposes of schedule 1, clause 2.

7. As noted, the Tribunal needs to determine whether there are reasonable grounds for the Respondent’s claims that the withheld information is Cabinet information: section 106(1) of the GIPA Act.

8. The words “reasonable grounds” are to be given their ordinary meaning. Reasonable grounds for a claim may entail facts and circumstances sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the claim: see discussion in Robinson v Transport for NSW at paragraph [70] – [71].

9. In support of its case the Respondent relies on the evidence of Mr Matthew McKibbin. It is not in dispute that Mr McKibbin was closely involved in the CSELR Project between August 2011 and December 2014. He was responsible for leading a planning study to identify the preferred project and then for the development of a final business case, transport planning and demand forecasting. He provided two affidavits in which he outlined his involvement and particularly referred to each of the withheld documents. Much of his evidence in relation to the documents has been redacted from the open affidavit that has been given to the Applicant. A copy of the complete affidavit has been provided to the Tribunal on a confidential basis as is provided for by section 107 of the GIPA Act.

10. I note that Mr McKibbin was not required for cross-examination. In any event, the Applicant was not given the confidential parts of the affidavit and therefore he was unable to question that evidence.

11. Mr McKibbin’s evidence is that he has reviewed the withheld documents and he provided details of the purposes for which each document was created. He has personal knowledge of the processes involved because of his involvement with the CSELR Project. In his affidavit dated 11 September 2018 he provided detailed background information about each of documents 3, 4, 6, 7, 8 and 9.

12. Mr McKibbin he stated that in his opinion:

13. Documents 3 and 4 tend to reveal the position that the Minister was recommended to take in Cabinet;

14. Document 6 is not Cabinet information. However, it is not captured by the terms of the applicant's access application. It does not contain information within any of the categories of information that was specified.

15. Document 7 tends to reveal the position that the Minister was recommended to take in Cabinet;

16. Document 8 tends to reveal the position that the Minister was recommended to take in Cabinet; and

17. Document 9 tends to reveal the position that the Minister was recommended to take in Cabinet.

18. In his affidavit dated 24 October 2018 Mr McKibbin provided detailed background information about each of the remaining withheld document and he stated that in his opinion:

19. Document SD4 contains recommendations that were made to the Minister regarding the position that she should take in Cabinet. This document was considered in other GIPA proceedings before the Tribunal (Park v Transport for NSW matters 17/69686 and 17/129838). It was referred to as Document 2.6 in those proceedings and the Tribunal found that there were reasonable grounds for the claim that Document 2.6 was Cabinet information: Park v Transport for NSW at paragraph [82].

20. Documents SD5 and SD6 tend to reveal the position that the Minister was recommended to take in Cabinet;

21. Document SD7 is a draft of Document 9. The release of this document would tend to reveal the position that the Minister was recommended to take in Cabinet;

22. Document SD8 tends to reveal the position the Minister was recommended to take in Cabinet;

23. Document SD9 tends to reveal the position that the Minister was recommended to take in Cabinet; and

24. Document SD12 tends to reveal the position that the Minister was recommended to take in Cabinet.

25. As noted, under section 106 (1) if the ‘reasonable grounds’ argument is upheld, then the decision is affirmed without proceeding to any further steps. Mr McKibbin provided a complete affidavit and a redacted affidavit. The redacted parts of the affidavit provide additional details regarding each of the withheld documents that have not been given to the Applicant. These details expand on the information provided in the open affidavit and explain more fully how each of the documents relates to the access application and also explain its relationship with the cabinet process.

26. On the basis of the evidence before me, it is my view that there are reasonable grounds for the Respondent’s claim that that Documents 3, 4, 6, 7, 8 and 9 and Documents SD4, SD5, SD6, SD7, SD8, SD9 and SD12 are cabinet information and therefore attract a conclusive presumption against disclosure. Accordingly, this aspect of the Respondent’s decision should be affirmed without proceeding to any further steps.

The Searches

1. Under section 53 of the GIPA Act the agency must undertake reasonable searches for any of the requested information, using the most efficient means reasonably available.

2. In regard to the searches that were undertaken the Respondent relies on the affidavit evidence of Mr Jarrod Whitbourn. Mr Whitbourn was not required for cross-examination and his evidence is therefore unchallenged. The Respondent contends that its search efforts were reasonable in all the circumstances of this particular case.

1. However, the Applicant contends that the searches were inadequate because the Respondent did not undertake all the searches that should have been undertaken. The Applicant contends that the searches were limited to documents that were dated prior to 2014 but that the application was not limited in time. The access application should have captured all relevant information that was held at the time of the request.

2. In his affidavit Mr Whitbourn set out the approach that he took to locate any information that would be captured by the access application. He stated that as a result of the numerous applications that he has handled over the years he is familiar with the various divisions of the Respondent and has an understanding of where information will be held. He identified three areas within the agency that would be most likely to hold the information that was requested as:

3. Sydney Light Rail ("SLR") within the Infrastructure & Services Division;

4. Freight, Strategy and Planning ("FSP") Division and, in particular, the Transport Planning Branch; and

5. Transport Coordination.

6. Because of the nature of the information that had been requested he did not consider that any other Divisions within the Respondent would hold documents within the scope of the Applicant's access application. He explained his reasoning for taking this approach as follows:

The FSP Division is responsible for developing strategy, policy and planning for freight, public transport and roads networks and for managing safety and standards across [the Respondent]. Transport Planning is a branch within the FSP Division, of which Matthew McKibbin is a Director. The Transport Planning branch is responsible for leading integrated long-term strategy and planning and provides strategic transport and land use advice to other areas. I considered the FSP Division likely to hold information responsive to the application because it was responsible for the development of key documents and analyses relating to the CSELR Project up to 2014.

SLR is a branch within the Infrastructure & Services Division, which is responsible for providing integrated end-to-end planning, development, delivery and operations of transport services. SLR is responsible for the delivery of the Sydney CBD and South East Light Rail ("CSELR") Project. It was on this basis that I considered it likely this area may hold relevant information.

The Transport Coordination Division is responsible for overseeing traffic and transport during the transformation of the Sydney CBD by various major transport projects and property developments. The Coordinator General of the Transport Coordination Division, Marg Prendergast, is responsible for, among other things, ensuring urgent and coordinated responses to traffic incidents by the Sydney Coordination Office (formerly the CBD Coordination Office), Transport Management Centre and RMS.

9. Mr Whitbourn also stated his reasons for narrowing the scope of the searches further:

Given Transport Coordination's overarching coordination role, I considered it possible that it may also hold information relevant to the application. However, on my review of the file for this application, I saw that Transport Coordination was asked in May 2017 to confirm whether it would hold any information responsive to this application for the purposes of conducting a search. At that time, Leanne Grant, the relevant coordinator for Transport Coordination asked Marg Prendergast, as head of the Division, who may hold information responsive to the application. Ms Prendergast responded that Matthew McKibbin (in FSP) and the light rail team (referring to SLR) would hold this information. On the basis of this advice from the Head of the Division, there was no basis for Transport Coordination to conduct a search.

10. Mr Whitbourn observed:

I am not surprised that Transport Coordination does not hold the information that has been requested in this case. The requested information related to the planning and development of Sydney Light Rail whereas Transport Coordination is concerned with the day-to-day operational management of transport matters and would not have any need to hold the requested information.

11. Ms Lindsay Smith (Document Controller, Sydney Light Rail) conducted the search of the documents held by Sydney Light Rail. She conducted a keyword search of the DeskSite document management system for relevant documents. The following keywords were used in the search: forecast average; operational loading; peak hours; buses to be replaced by light rail; capacity for buses; electric buses; Kingsford to the city; Randwick to the city; Average light rail journey; Cost/benefit; and Cost/benefit analysis. It is not apparent what resulted from these searches, however Mr Whitbourn stated that he reviewed the documents identified as potentially responsive to the Applicant's access application.

12. A keyword search on email inboxes was considered, but not undertaken due to the fact that none of the current officers of Sydney Light Rail were present during the relevant timeframe for the search. No search was undertaken of archived email of those officers who were present during the relevant timeframe. He anticipated that the number of documents returned from a keyword search of former officers would be significant, and very time consuming to collate and review.

13. Mr McKibbin conducted searches for information held by FSP.

14. Mr McKibbin gave evidence that he conducted a targeted search for relevant documents instead of performing a keyword search. He initially undertook searches of the Respondent’s document management system called Objective, as well as local drives. He stated that he decided to adopt this approach on the basis of his personal involvement in the CSELR Project and his familiarity with the documents.

15. He subsequently conducted a keyword search in each of Objective, Outlook and local drives using the key terms: light rail loading; bus capacity; buses replaced; traffic modelling; light rail journey time; and cost benefit analysis. These searches identified a total of 80,348 documents.

16. The Respondent contends that it was reasonable for Mr McKibbin to not review each of those results. The Respondent further contends that to do so would have been an unreasonable and substantial diversion of resources under section 53(5) of the GIPA Act.

17. Mr Whitbourn estimated that the Respondent has spent in excess of 50 hours in processing the access application.

18. The Respondent contends that its efforts to locate the requested information have been reasonable in the circumstances.

19. The Respondent denied that the searches were limited in time. It points to Mr Whitbourn’s evidence that he “requested the Business Manager of Sydney Light Rail and the Business Coordinator of the FSP Division to locate documents responsive to the applicant's access application that were created on or before 16 December 2016, which was the date of the applicant's access application”. That evidence has not been challenged.

20. The Applicant submitted that it is unreasonable for the Respondent to suggest an extensive amount of time has already been spent on the application when the need for that time has arisen from the Respondent not dealing adequately with the application from the time it was lodged.

21. He also noted that Mr McKibbin did not undertake the keyword searches at the time of, or for the purpose of, processing the supplementary determination. The searches were undertaken in the process of preparing his affidavit.

22. The Applicant submitted that it would have been reasonable to expect the Respondent to undertake searches of the emails of those former officers who were present during the relevant timeframe. He argues that a search for journey time from Kingsford to the City and Randwick to the City among the project emails would produce more information.

23. He also contends that it is reasonable to expect that the Transport Coordination Division may hold information. This is because officers from that Division regularly appear in budget estimates hearings and parliamentary inquiries; produce marketing material; and undertake regular media appearances in relation to the CSELR project. He says that it is reasonable to expect that they would hold information relevant to the information that is being provided to the media.

24. The Applicant submits that the Tribunal should reject the Respondent’s claims that adequate searches have been conducted and should require the Respondent to undertake additional searches.

The Reasonableness of the Searches

1. I am in general agreement with the Respondent in relation to the reasonableness of the searches that it has undertaken. As has been noted, section 53 of the GIPA Act requires the Respondent to undertake reasonable searches for any of the information applied for, using the most efficient means reasonably available. I am satisfied that both Mr Whitbourn and Mr McKibbin had personal knowledge that would have allowed them to determine the most efficient means of locating the requested information. It was reasonable for targeted searches to be undertaken.

2. It is apparent from the key word search that Mr McKibbin ultimately undertook that it is likely that the Respondent holds further information that would fall within the scope of the access application. However, it is equally apparent that had the Respondent adopted that approach, the work that would have been involved in considering over 80,000 documents would have been an unreasonable diversion of the available resources. It is probable that the Respondent would have declined to undertake that work pursuant to section 60(1)(a) of the GIPA Act. The approach that the Respondent in fact took was not thorough but it was far more efficient that the approach that the Applicant has suggested should have been undertaken.

3. The single area on which I disagree with the approach that the Respondent undertook is in relation to its failure to undertake a search of the Transport Coordination Division. Notwithstanding that Mr Whitbourn considered it possible that it may also hold information relevant to the application, this area was not searched. I agree with the Applicant that it is reasonable to expect that the Transport Coordination Division may hold information that would fall within the scope of the access application. It is plausible to think that officers who appear in budget estimates hearings and parliamentary inquiries, produce marketing material and undertake regular media appearances in relation to the CSELR project would have been briefed in relation to the issues that they were discussing. It is reasonable to expect that at least some of this information would be held by those officers or by the Transport Coordination Division.

4. I note the Respondent’s evidence in relation to the amount of time that has already been spent in processing the access application. However, I also agree with the Applicant that a significant amount of that time would not have been necessary if the Respondent had dealt with the application differently.

5. In my view, the Respondent should undertake a keyword search of the Transport Coordination Division. The following keywords should be used in the search: forecast average; operational loading; peak hours; buses to be replaced by light rail; capacity for buses; electric buses; Kingsford to the city; Randwick to the city; Average light rail journey; Cost/benefit; and Cost/benefit analysis.

6. That search should be completed within 21 days of these reasons.

7. I note the Applicant’s argument that the most cost effective way that the Respondent could deal with this application is to create a new document that provides the information that he seeks. It is a matter for the Respondent whether it reconsiders its position in this regard.

8. The application is remitted to allow the Respondent to undertake further searches. The decision is otherwise affirmed. That is, the decision to not release the information that has been redacted from Document 1 is affirmed. The decision that there are reasonable grounds for the Respondent’s claims that Documents 3, 4, 6, 7, 8 and 9 and Documents SD4, SD5, SD6, SD7, SD8, SD9 and SD12 are cabinet information and therefore attract a conclusive presumption against disclosure is also affirmed.

Orders

1. Pursuant to section 63(3)(d) of the Administrative Decisions Review Act 1997, the decision under review is set aside. The matter is remitted for reconsideration in relation to the issue of whether further information falling within the scope of the access application is held by the Respondent’s Transport Coordination Division.

2. The redetermination is to be completed by 23 April 2019

3. The decision under review is otherwise affirmed.

4. The matter is listed for a further case conference at 9:30 am on 7 May 2019

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 05 April 2019