Bissett v Director General, NSW Department of Gaming and Racing

[2004] NSWADT 160

CITATION:	Bissett v Director General, NSW Department of Gaming and Racing [2004] NSWADT 160
DIVISION:	General Division
PARTIES:	APPLICANT Kelvin Bissett RESPONDENT Director General, NSW Department of Gaming and Racing
FILE NUMBER:	033333
HEARING DATES:	05/03/2004
SUBMISSIONS CLOSED:	03/05/2004
DATE OF DECISION:	08/05/2004
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	access to documents - business affairs - access to documents - document available from agency - access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - access to documents - document available from agency - Freedom of Information Act - access to documents - law enforcement & public safety
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Interpretation Act 1987 Liquor Act 1982 Registered Clubs Act 1976
CASES CITED:	BY v Director General, Attorney General's Department [2002] NSWADT 79 Cerminara-v-Commissioner of Police, New South Wales Police Service and Minister Administering the Freedom of information Act [200I] NSWADT 95 Chapman v Commissioner of Police, New South Wales [2004] NSWADT 35 Electoral Commissioner, State Electoral Office v McCabe (GD) [2003] NSW ADTAP 28 Kennedy v Commissioner of Police [2001] NSWADT 39 Neary v State Rail Authority [1999] NSWADT 107 Re Dykstra and Centrelink [2002] FCA 1442 Re Saxon and Australian Maritime Authority (unreported, AAT, 19 June 1995) Rittau v Commissioner of Police [2000] NSWADT 186 Watkins v Roads and Traffic Authority [2000] NSWADT 11 Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17
REPRESENTATION:	APPLICANT K Richardson, barrister RESPONDENT N Sharp, barrister
ORDERS:	The Agency’s decision to refuse access to the requested document is set aside.

Background

1 The Applicant is the Freedom of Information Editor with the Daily Telegraph newspaper. On 1 September 2003, the Applicant sought access to documents from the Department of Gaming and Racing (“the Agency”) pursuant to the Freedom of Information Act 1989 ("the FOI Act"). His application (“the FOI Request") was in the following terms:

“1. The latest quarterly report on hotel and club gaming, as was publicly released quarterly by the Department of Gaming and Racing until 2001.

2. Please supply it in the same format with the same statistical and geographic divisions as was released by the Department of Gaming and Racing until 2001.

3. Please ensure that this includes turnover, duty and profit information for the top 200 named individual clubs and hotels, as was released by the Department of Gaming and Racing for clubs in its quarterly reports until 2001, and until 1999 for named individual hotels.

4. Please take into consideration that when these quarterly reports were publicly available the cost was $35.

5. Note that when the political decision was made not to release publicly the quarterly reports in 2001, public assurances were made that such statistical information would continue to be made available through the Freedom of Information Act.”

2 By letter dated 25 September the Agency responded to the FOI Request in the following terms:

“Recently you applied under the Freedom of Information Act 1989 for:

1. the latest quarterly report on hotel and club gaming.18s was publicly released quarterly by the Department of Gaming and Racing until 2001.

2. the report to be supplied in the same format with the same statistical and geographic divisions as was released by the Department until 2001.

3. the report to include turnover, duty and profit information for the top 200 named individual clubs and hotels, as was released by the Department for clubs in its quarterly reports until 20011 and until 1999 for named individual hotels.

You have asked that the cost of the quarterly reports be made available for $35 each, and you state that "public assurances were made that such statistical information would continue to be made available through the Freedom of Information Act.”

In response to your application, the following information is provided in respect of each request. Please note that the Freedom of Information Act does not apply as the information is made available commercially.

1. The Department of Gaming and Racing publishes on request and for a fee the quarterly gaming machine statistics for registered Clubs and hotels. The cost for each quarter is $1,100 and to meet your request the cost will be $2,200 (i.e. February 2003 for clubs and March 2003 for hotels).

2. See (1) above.

3. See (1) above for registered clubs. However, your request for the listing of hotels is refused on the ground that the work in dealing with the application for access to the documentation would, if carried out, substantially and unreasonably divert the Department's resources away from their use by the Department in the exercise of its functions (section 25(1)(a1).

In making this decision, you are referred to Schedule 1 of the Act, Exempt documents and the following clauses:

Documents affecting personal affairs - clause 6(1); and

Documents affecting business affairs - clause 7(1)(b)(1) and clause 7(1)(c)(1).

Documents affecting personal affairs (sections 31 and 32) require written notice to be given to the "person concerned" that an application has been made for documents affecting their personal affairs or business affairs. The level of consultation required is unreasonable and would substantially divert the Department's resources to undertake this task.

It would require the Department contacting all persons who are financially interested in each hotel on which the information is sought. It is estimated that up to 2,000 persons could have to be contacted about the release of the information.

Persons requiring to be contacted include the licensees, business owners, directors, partners, major shareholders and any person who has a financial interest in the business of the hotel.

Once contacted, the Department has to obtain a response and then make a determination in relation to each of the 200 hotels.

The reason for the refusal and the need to undertake consultation results from hoteliers whose rankings details were published in the media complained that the release of that information prejudiced the safety of their staff, their families and themselves. The Department determined that it would no longer publish those lists.

Prior to the Government making the decision to release the gaming machine statistics on demand, the statistics were published as part of an annual subscription service and not for $35 each as you claim. I am not aware of The Daily Telegraph being a subscriber to that service when it was available.

I am not aware of any assurances that commercially available gaming machine statistics would be released under the Freedom of Information Act.”

3 The Applicant sought an internal review of the Agency’s decision by letter dated 9 October 2003. The Applicant’s request was in the following terms:

“My request is for a review of the following two related issues:

1.) The $2200 cost of compiling the figures. These figure were available by subscription for $35 prior to 1999, and when The Daily Telegraph last submitted a request in 2001, the figure was $1100.

2.) The exclusion of the names of the top 200 hotels. The department's agreement with the hotel industry to keep the names of hotels confidential -supposedly to protect them from criminal activity -shows extraordinary favouritism toward the private interests that benefit from gaming. This favouritism is at the expense of the public's right to full disclosure in a sensitive area of government policy with huge social implications.

The Daily Telegraph is prepared to pursue this matter of a secret deal with the hotel industry with vigour elsewhere.”

4 The internal review was undertaken by Ms Jill Hennessy, the Agency’s Director of Policy and Development. The review was finalised on 3 November 2003 and the original decision was affirmed. The Applicant was advised of the outcome of the review and the reasons for the decision. Ms Hennessy’s reasons were as follows:

“In relation to the first matter, I can advise that the Department has been charging $1,100 for each separate set of quarterly gaming machine data for clubs and hotels since June 2001. This figure was established based on estimates of the total cost of compiling the data, and adjusting for the expected number of requests for that data.

In a letter to your newspaper dated 29 June 2001, I advised that the Department estimated that it would cost a total of $6,000 to compile the two sets of data (clubs and hotels), and, based on an expected number of 6 requests per annum, the individual cost of supplying each set of data was estimated at $1,000 (ex GST). That letter also advised that the fee for supplying the two sets of data for clubs and hotels would be $1,100 each (GST inclusive). A copy of my letter of 29 June 2001 is attached.

There has been no change in the fee structure since that time. Accordingly, the charge quoted to you of $2,200 was consistent with the fees that that were set in 2001.

However, in view of the passage of time since then, a review of the fees for the different sets of gaming machine data is currently underway to determine whether the fee structure is still appropriate. I will advise you further if there are any changes in the fees that are to be charged in future for the provision of gaming machine data.

In relation to the second matter, I have reviewed the Department's files regarding the decision to cease the publication of the Top 200 list for hotels, in order to determine whether the reasons behind that decision are still current.

The decision came about as the result of representations made in 1999 by various hoteliers who were concerned about the security of their premises.

Several letters reported that armed robberies had taken place at hotels within days of a Daily Telegraph article that listed those hotels as being among the top 10 in terms of gaming machine profits.

One hotelier reported having experienced 4 armed hold-ups, one of which resulted in an employee being hospitalised with a gun shot wound. Another hotelier indicated that he had experienced 5 armed robberies at his premises, and he felt that publishing the rank order of hotels provided criminals with information about the best venues to attack.

Hoteliers expressed concern not just about the physical safety of their staff but also of their family members, who could be targeted as a result of being linked to a top earning hotel.

Once these concerns had been raised, the Department took the view that it would be irresponsible to continue to provide the Top 200 lists of hotels.

While the Department is not aware of any change in circumstances since then that would warrant a change in the policy in this regard, we are prepared to review the matter again.

Because of the need to consult with parties such as the hotel industry and NSW Police, it is likely that this review will take up to two months.

In the meantime, the policy in relation to not releasing the names of the Top 200 hotels remains in place.

Accordingly, I have determined that your request for access to the Top 200 list of hotels should be refused.

In relation to your statement that there had been a 'secret deal' with the hotel industry in relation to this matter, I would note that the decision to cease publication of the Top 200 lists was published in the Department's October 1999 Liquor and Gaming Bulletin, a fact that was reported in the Daily Telegraph on4 November 1999 in an article written by you.”

5 On 21 November 2003 the Applicant applied to this Tribunal for a review of the Agency’s decision. The reason that the Applicant gave for the application were:

There are two parts of the decision we wish to have reviewed by the Administrative Decisions Tribunal: a.) the exemption of the Top 200 list of hotels by gaming revenue and b.) the cost of processing statistical data sought by the FOI.

Decision to exempt Top 200 hotel list

1.) There is no documentary evidence that the publication of the Top 200 list of hotels has led to an increase in crime, merely assertions from a small number of unnamed publicans.

2.) Any increase in crime may be related to other factors. These factors include: general community lawlessness, poor security practices by hotel owners, and an increase in the illegal gun trade. To sheet home the blame for robberies to a newspaper is ridiculous.

3.) If such an argument was to be followed elsewhere, the Australian Stock Exchange, for example, would be required to ban publication of annual reports, which include figures on how much company directors are paid, for fear that thieves may target the wealthy businesspeople identified by those reports.

4.) Exemptions quoted by the department in the NSW Freedom of Information Act include "personal affairs" and "business affairs" information. We submit that the information sought under FOI does not come within these categories, as defined by parliament and the case law. Further, the views of the decision-maker in this FOI application are irrelevant to the application of the FOI Act; viz the suggestion that a newspaper article may be responsible for a hotel employee being hospitalised with a gun shot wound, among other crimes.

5.) We submit that the reasons put forward by the department for its refusal to release this Top 200 list are spurious and designed to protect the State Government from political embarrassment over the impact of its reforms to the hotel and club industry, including the 1997 decision to grant the hotel industry access to poker machines. The NSW Freedom of Information Act was never intended to protect governments from political embarrassment.

6.) In 1999, the year the unnamed hoteliers complained about the Telegraph's article, there was a drop in the number of robberies with firearms at hotels, according to figures supplied by the NSW Bureau of Crime Statistics and Research. In the following year - when no such list was published - there was an increase. The statistics contradict the assertions made by Jill Hennessy in her review of the original decision. These statistics are attached to this submission

Cost

l.) Prior to 1999, the Department of Gaming and Racing issued quarterly in booklet form statistical information for gaming in hotels and clubs. The cost was $35 per copy over the counter or via subscription.

2.) For identical information now, the department charges $1100 processing costs, or $2200 for both hotels and clubs. Despite the Daily Telegraph requesting the data through Freedom of Information, the department instead opted to handle the request on a "commercial basis".

3.) This is an unreasonable charge that either intentionally or unintentionally deters access and public debate a sensitive issue. Given that the cost for original information was $35, this $1100 charged now is demonstratively excessive.

6 The matter was listed for hearing on 5 March 2004 and proceeded on that day. Each party presented oral argument and also provided a written outline of their submissions.

Applicable legislation

7 Section 53 of the FOI Act provides that a person who is aggrieved by a determination made by an agency may apply to the Tribunal for a review of the determination. Section 63 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) sets out the approach to be taken by the Tribunal in relation to an application for a review of a reviewable decision. Section 63 states: provides:

“63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”

8 Section 61 of the FOI Act provides that the burden of establishing that the determination is justified lies on the Agency. The Agency relies on several provisions in the FOI Act. Section 25 of the FOI Act provides:

“25 Refusal of access

(1) An agency may refuse access to a document:

(a) if it is an exempt document, or

(a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions, or

(b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge, or

(b1) if it is a document that is available from, or available for inspection at, that agency, free of charge, in accordance with that agency's policies and practices, or

(c) if it is a document that is usually available for purchase, or

(d) if it is a document that genuinely forms part of the library material held by the agency.

(e)

(2) (Repealed)

(3) An agency shall refuse access to a restricted document that is the subject of a Ministerial certificate.

(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.

(5) Subsection (1) (a1) does not permit an agency to refuse access to a document without first endeavouring to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions.”

9 Section 6(l) of the FOI Act provides that:

“ exempt document means:

(a) a document referred to in any one or more of the provisions of Schedule 1, or

(b) a document that contains matter relating to functions in relation to which a body or office is, by virtue of section 9, exempt from the operation of this Act.

exempt matter means matter by virtue of which a document is an exempt document.”

10 Insofar as is relevant to these proceedings, clause 4 of schedule 1 to the FOI Act provides:

“4 Documents affecting law enforcement and public safety

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

…

(c) to endanger the life or physical safety of any person”.

11 Insofar as is relevant to these proceedings, clause 7 of Schedule 1 to the FOI Act provides:

“7 Documents affecting business affairs

(1) A document is an exempt document:

…

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

(i) would disclose information (other than trade secrets 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”.

12 Section 32 of the FOI Act provides:

“32 Documents affecting business affairs

(1) This section applies to a document that contains:

(a) information concerning the trade secrets of any person, or

(b) information (other than trade secrets) that has a commercial value to any person, or

(c) information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any person.

(2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 7 of Schedule 1.

(3) If:

(a) an agency determines, after having sought the views of the person concerned, that access to a document to which this section applies is to be given, and

(b) the views of the person concerned are that the document is an exempt document by virtue of clause 7 of Schedule 1,

the agency shall:

(c) forthwith cause written notice to be given to the person concerned:

(i) that the agency has determined that access to the document is to be given, and

(ii) of the rights of review and appeal, and the rights of complaint to the Ombudsman, conferred by this Act and the Ombudsman Act 1974 in relation to the determination, and

(iii) of the procedures to be followed for the purpose of exercising those rights, and

(d) defer giving access to the document until after the expiration of the period within which an application for a review or appeal under this Act may be made or, if such an application is made, until after the application has been finally disposed of.”

13 Section 40 of the ADT Act provides:

“40 When enactment taken to make contrary provision to this Act

(1) The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly).

(2) However, a provision of a relevant enactment is not to be interpreted as amending or repealing, or otherwise altering or affecting the effect or operation of, any of the provisions of this Chapter unless the provision of the relevant enactment provides expressly for it to have effect despite a specified provision, or despite any provision, of this Chapter.

(3) This section applies to a provision of a relevant enactment whether enacted before or after the commencement of this section.

(4) In this section:

relevant enactment means an enactment under which the Tribunal has jurisdiction:

(a) to make an original decision, or

(b) to review a reviewable decision,

or that otherwise deals with the jurisdiction of the Tribunal.”

14 The Agency asserts that section 57 of the FOI Act is a "contrary provision" within the meaning of section 40(1) of the ADT Act with the result that it overrides section 63 of the ADT Act. Section 57 of the FOI Act provides:

“57 Consideration of restricted documents

(1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate.

(2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of:

(a) the public, and

(b) the review applicant, and

(c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant's representative.

(3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it.

(4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application.

(5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter.

(6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings.”

15 The Agency relies on an affidavit of Ms Hennessy, which sets out the background to the application, and annexes a number of documents that the Agency asserts are relevant to the matter. At the commencement of the hearing the Applicant indicated that he no longer presses the application insofar as it relates to the cost of compiling the figures sought. Consequently the matter is limited to the issue of the document, which is sought in paragraph 3 of the FOI Request (“the Top 200 hotels list”).

16 Ms Hennessy’s affidavit makes it clear that documents meeting the Applicant's request can be generated from a computer database. They would resemble the Hotel Quarterly Gaming Analysis Report and the Registered Club Quarterly Gaming Analysis Reports that used to be published by the Agency. These documents contain a copy of the "Top 200 Registered Clubs List", a document that was also sought in paragraph 3 of the FOI Request.

17 Ms Hennessy says in her affidavit that the Agency still collects the information that was once published in the Top 200 Hotels List. However, the Agency no longer sells or makes available this information to consumers or anyone else, having ceased doing so in late 1999.

18 The Agency submits that the Hotel and Club Quarterly Report Documents are exempt from disclosure pursuant to section 25(l)(c) of the FOI Act because they are "documents that are usually available for purchase."

19 The Agency further submits that the Top 200 Hotel List is exempt from disclosure pursuant to section 25(l)(a) of the FOI Act because it is an "exempt document" on the two following grounds:

(a) first, the disclosure of the Top 200 Hotel List could reasonably be expected to endanger the life or physical safety of any person, and so is exempt within clause 4(l)(c) of Schedule l to the FOI Act; and

(b) secondly, the Top 200 Hotel List contains information relating to the business, commercial and financial affairs of hotel owners' and persons having financial interests in them and could reasonably be expected to have an unreasonable adverse effect on those affairs and so is exempt within clause 7(1)(c) of Schedule 1 to the FOI Act.

20 Ms Hennessy's evidence demonstrates that the "Hotel and Club Quarterly Report Documents" can be purchased from the Agency. Accordingly, they are "documents that are usually available for purchase" with the result that under section 25(l)(c) of the FOI Act the Agency is under no obligation to disclose them. The Applicant should pay for access to these documents in the same manner that other people do.

21 Ms Sharp submitted that clause 4(l)(c) of Schedule 1 to the FOI Act posits an objective test. She referred to the decision of Mansfield J. in Re Dykstra and Centrelink [2002] FCA 1442 at [25] as authority for the proposition that it is necessary for the Tribunal to determine objectively whether there was a "possibility" that disclosure could endanger life or physical safety of any person and whether the "possibility was one which was a reasonable one as distinct from one which was irrational, absurd or ridiculous." It is submitted that clause 4(l)(c) does not impose a high threshold of satisfaction. Rather, it requires that the endangerment of safety be a possibility, rather than far-fetched or fanciful.

22 Ms Sharp submitted that the Top 200 Hotels List is a "restricted document" for the purposes of the FOI Act because, as a clause 4 exemption has been claimed, it is a document referred to in Part I of Schedule I to the FOI Act. Further, because the document is a "restricted document", section 57 of the FOI Act applies.

23 It is submitted that section 57 of the FOI Act is an express exception to the usual process of review engaged in by this Tribunal when it exercises powers pursuant to section 63 of the ADT Act and has the net result that once the Tribunal has considered whether it was reasonable of the relevant agency to claim that a document was an exempt document, that is the end of the Tribunal's powers of review. In advancing this submission, Ms Sharp conceded that it is contrary to the Tribunal's decision in BY v Director General, Attorney General's Department [2002] NSWADT 79 at [76], which was recently followed in Chapman v Commissioner of Police, New South Wales [2004] NSWADT 35 at [76]. It is submitted that the decision in BY is clearly wrong with the result that principles of comity do not require the Tribunal to follow it.

24 Ms Sharp submitted that section 57(1) of the FOI Act directs the Tribunal to consider the grounds upon which it has been claimed that a document is a "restricted document" (but only where that document is not subject to a Ministerial Certificate, which, in the present case, it is not). Section 57(3) of the FOI Act directs the Tribunal to consider whether there are reasonable grounds for the claim that the document is a "restricted document". It is submitted that where the Tribunal finds that there are "reasonable grounds" for the claim, then that is the end of the Tribunal's powers on review - it is not able to go on to conduct a "merits review" pursuant to section 63 of the ADT Act.

25 Pursuant to section 40 of the ADT Act section 63 of the ADT Act is subject to provision of Acts that confer jurisdiction on the Tribunal. It is submitted that that section 57 of the FOI Act is a "contrary provision" within the meaning of section 40(1) of the ADT Act in respect of section 63 with the result that it overrides section 63 of the ADT Act.

26 In support of this submission Ms Sharp referred to the decision of Judicial Member Smith in Watkins v Roads and Traffic Authority [2000] NSWADT 11 where the Judicial Member expressed the view that his function was restricted to determining whether there were reasonable grounds for the claim. So long as it was possible to say that the view was reasonably open, that is, not irrational or capricious, the Tribunal was bound to uphold the exemption claim.

27 Ms Sharp submitted that BY was incorrectly decided because:

(a) First, O'Connor DCJ ignored the express words of section 40(1) of the ADT Act, which provides that a provision could be "impliedly" contrary to a provision of the ADT Act , in saying:

"It is not clear that s 57 constitutes a `contrary provision'. One would expect that a provision ousting or limiting the jurisdiction of the Tribunal would be expressed in clear terms, not found by implication." (emphasis added)

(b) Secondly, if BY was correct, section 57 would be otiose. It only has work to do if it functions as a limitation on the powers of review by the Tribunal.

(c) Thirdly, it fails to give effect to the rule of statutory construction that specific provisions should prevail over more general ones - section 57 of the FOI Act being the specific provision, and section 63 being the general one. In support of this submission Ms Sharp referred to the decision of Stein JA in Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17 at [249].

(d) Fourthly, by expressing the special or specific mode for considering the release of "restricted documents", section 57 has a negative corollary: "restricted documents" may not be released by order of the Tribunal except in accordance with section 57.

(e) Finally, section 57 is headed, "Consideration of Restricted Documents" and, although the heading is not part of the Act (section 35(2)(a), Interpretation Act 1987), it is extrinsic material to which the Tribunal may have regard in interpreting the provision (section 34(2)(a), Interpretation Act 1987). The heading of section 57 correctly states its purpose, that is, a provision which applies specifically to the consideration of one class of documents.

28 It is therefore submitted that the Tribunal has no power to conduct a merits review of a claim that a document is restricted. In the present case, the Tribunal may only consider whether there are reasonable grounds for the claim that the Top 200 Hotels List is exempt pursuant to section 4(1)(c) of Schedule 1 to the FOI Act.

29 Ms Sharp argues that the evidence demonstrates that there are reasonable grounds for the claim that release of the Top 200 Hotels List could reasonably be expected to endanger the life or physical safety of any person. In this regard, there is evidence that:

(a) three separate hoteliers or licensees independently wrote to the Agency or the Minister expressing concerns over the safety of themselves (or their families and employees) in the event that the Agency continued to make public the Top 200 Hotels List;

(b) the police have written a letter to the Agency confirming that the continued publication of the Top 200 Hotels List would lead to increased risks to the safety of hoteliers, their staff and families;

(c) the Australian Hotels Association (NSW) has written to the Agency confirming its view, as the peak representative body of hotels in New South Wales, that continued publication of the Top 200 Hotels List would lead to increased risks to the safety of hoteliers, their staff and families; and

(d) Dr Don Weatherburn, the Director of the NSW Bureau of Crime Statistics and Research stated that, "it is a plausible concern that publishing a list of top hotels will lead some hotels to being targeted by crims."

30 Detective Acting Superintendent Graham Maranda of the State Crime Command wrote the police letter referred to above. The letter is dated 8 January 2004 and states:

“Late 2003 your Department received an approach from the Daily Telegraph requesting a list of the Top 200 hotels by gaming machine revenue. That request was declined based on the previous decision in 1999 by Gaming & Racing not to release such details to the general public. The reason being, following representations by the Australian Hotels Association (NSW) that the release of such statistics increases the likelihood of armed robbery.

We note in your correspondence to Commissioner Moroney that Gaming & Racing has undertaken to reconsider its position. Further, that you seek the views of New South Wales Police on the proposal recommence publishing a list of Top 200 hotels by gaming revenue.

Commissioner Moroney has requested State Crime, Command to respond on his behalf. Accordingly, the Robbery & Serious Crime Squad including Firearms & Regulated Industries Crime Squad have made separate appropriate considerations and fundamentally agree that the publishing of such a list would provide 'quality' intelligence to organised crime groups and individual criminals entertaining the thoughts of armed robbery. Any list simply increases the likelihood of armed robbery upon premises that have been identified as having significant cash holdings. Moreover, it clearly informs the criminal which is the more lucrative target. Additionally, it provides other criminals a series of venues where it can be expected large crowds will be gathered enabling better opportunity to commit crimes such as poker machine manipulation, handbag theft, pick pocketing and the like.

In essence, from a public safety aspect, our views are that the publication of the Top 200 hotels places an increased direct risk of criminal acts, particularly armed robbery, occurring at premises identified in any publicised list.”

31 On 10 December 2003 Brian Ross Chief Executive of the Australian Hotels Association wrote:

“I refer to your letter of 10 November 2003, with regards to the Daily Telegraph's request to publish an up-dated list of the top 200 Hotels by gaming machine revenue.

Given the security issues and media speculation that this will engender, we as an Association are against the publication of these figures and under the Freedom of Information Act, there are a number of categories of documents which are exempt from disclosure, including those which may endanger the life or physical safety of a person or endanger the security of a building.

While the hotels are now more vulnerable than any other time we stand by our initial letter in 1999 that given the speculation of machines turnover there would certainly be increased targeting of our members by armed hold-ups and the subsequent potential loss of life.

The Association's concerns are reflected, in part, in Section 103 of the (now) Gaming-machines Regulation 2002 which limits the persons to whom CMS Information may be divulged. The privacy provisions in the CMS Agreement, make it clear that the circumstances in which gaming machine operations and tax information is made available to the licensee are such that the Department is not obliged not to disclose the information.

We urge you therefore, to leave the status quo.”

32 If, contrary to the Agency's submissions, it is found that the Tribunal has the power to consider the restricted documents claim on the merits, it is submitted that the evidence referred to above would also demonstrate that the correct and preferable decision is that the Top 200 Hotel List is an exempt document. In other words, there is evidence sufficient to reach the objective conclusion that there is a possibility that danger may come to a person's life or safety if the Top 200 Hotel List is released.

33 Ms Sharp further submitted that as the Top 200 Hotel List discloses where the 200 hotels on the list rank as against other hotels in terms of the profits they derive from gaming machines, and also provides a figure of the average profit derived from gaming machines, it permits inferences to be drawn as to what quantum of profits particular hotels on the list derive each year. Profits made in the course of business are part of that business's business, commercial and financial affairs within the meaning of clause 7(1)(c)(i) of Schedule 1 to the FOI Act.

34 Ms Sharp referred to the views of Senior Member Barbour in the Administrative Appeals Tribunal matter of Re Saxon and Australian Maritime Authority (unreported, AAT, 19 June 1995 who stated at paragraph 99 of the decision:

“99. As regards the term 'business, commercial or financial affairs', it would appear that they are words of very wide application, and cover all the aspects, both fiscal and administrative, of an organisation or undertaking; I do not think that they should be narrowly construed.”

35 In Nearyv State Rail Authority [1999] NSWADT 107 it was held that expenditure relates to financial affairs of persons. By parity of reasoning, it must follow that profits made relate to the financial affairs of persons.

36 It is submitted that it could reasonably be expected that release of the Top 200 Hotel List would have an unreasonable adverse effect of those affairs within the meaning of clause 7(1)(c)(ii) because it would give competitors and other interested persons particular insights as to how the hotels' profit margins overall are composed.

37 The Agency seeks the order that the decision under review be affirmed.

Applicant's Submissions

38 With respect to the scope of Tribunal's power to review decision the Applicant relies on the decisions of BY and Chapman. It is argued that the Agency’s submission that the Tribunal has no power to conduct merits review of a decision involving a "restricted document" is contrary to those decisions. In BY the Agency asked the Tribunal to revisit the Tribunal's "prior considered rulings" in:

Rittau v Commissioner of Police [2000] NSWADT 186 per Robinson M at [42];

Kennedy v Commissioner of Police [2001] NSWADT 39 at 1461 per Hennessy M; and

Cerminara -v- Commissioner of Police, New South Wales Police Service and Minister Administering the Freedom of Information Act [2001] NSWADT 95 per Robinson M at [23].

39 It is further submitted that all of the submission made by the Agency on this question were argued before the Tribunal in BY and Chapman and squarely rejected by the Tribunal after extensive. The five decisions of BY Chapman, Rittau, Kennedy and Cerminara form an established body of jurisprudence in this Tribunal and should not be re-visited. The only decision put forward by the Agency in support of its proposition that those five decisions should not be followed is some comments in Watkins v Roads and Traffic Authority [2000] NSW ADT 11 where Smith JM expressly did not form any concluded view of any of the section 57 issues.

40 The Applicant argues that the Top 200 List discloses only the following information in relation to individual hotels:

(a) the numbers of actual machines held by the top 200 hotels; and

(b) the ranking of hotels in terms of total profit and profit per gaming machine.

41 It does not disclose actual figures of profits those hotels earn (either total profits or profits from gaming).

Clause 4(1)(c) - Endangering life or physical safety

42 With respect to the application of clause 4(1)(c) of schedule 1 of the FOI Act the Applicant argues that a Tribunal should closely scrutinise an agency's opinion that life or physical safety would be endangered. Ms Richardson referred to the views expressed by the Appeal Panel in Electoral Commissioner, State Electoral Office v McCabe (GD) [2003] NSW ADTAP 28 that it is a very serious matter for an agency to invoke an exemption based on endangerment and that such a grave assessment must be closely scrutinised and not easily accepted. She argues that the evidence proffered by the Agency falls well short of this exacting standard:

(a) Out of 200 hotels that appear on the list, the Agency can produce only three letters sent 5 years ago by unnamed apparent hoteliers or licensees:
(i) one of those letters refers primarily to the fact that the publication of the figures "tends to drive the press into a feeding frenzy” and then states "we are concerned that [the hotel] may become the target of criminal elements

(ii) the views expressed in the second of the letters is based on a mistake of fact that the List is "accompanied by the net machine takings”. Further, the writer - acknowledging that his name must by law appear on a sign outside the hotel - then states "it is not incumbent on me not to have my name listed in the telephone directory”.

(iii) The third one-paragraph letter refers to "5" armed robberies (with the 5 in inverted commas) with no information about when they occurred or whether the hotel was on the Top 200 List at the time (or ever).

None of these letters reveal any correlation between the publication of the List and actual security breaches at hotels.

(b) one letter from the police stating a conclusory opinion of a police officer – with no reference to basis of the opinion (let alone data or even experiences) - about his view of the effect of publishing the list;

(c) letters from a hotel lobby group stating a conclusory opinion - again with no reference to any data or basis of the opinion - about the effect of publishing the list. The lobby group acknowledges that the lack of appropriate video surveillance is an issue at hotels and suggests it will take someone being "seriously hurt or killed" for hotels to act to ensure better security;

(d) an unreferenced statement of Mr Don Weatherburn.

43 Ms Richardson submitted that Re Dykstra and Centrelink is distinguishable on its facts. She argues that the facts of that matter are the type to be addressed by this ground of exemption. In that matter named individuals gave evidence of their fear and there was a psychological assessment of the applicant that suggested that the fear was justified. The views expressed in the decision to which the Agency refers should be read in that context.

44 Ms Richardson submitted that the Agency's position regarding the open publication of financial information regarding registered clubs demonstrates that its reasons for seeking to withhold the Top 200 Hotel List are, in reality, without merit. The Agency has lead no evidence that the publication of rankings of registered clubs has endangered anyone connected with a registered club. Also, the Agency until March 2000 openly published this information.

45 It is further submitted that the reasons for robberies at a hotel are obvious - they are large cash businesses. Any would-be robber can walk into a pub and see from the number of people at the bar and on gaming machines that there is a lot of money passing hands at the venue. The hotel lobby group acknowledges that there are issues with proper security at hotels.

46 The Agency bears the onus of proof in this matter. The evidence listed above is of marginal weight and even when taken together falls well short of satisfying a "sceptical" tribunal that must "closely scrutinise" the evidence and "not easily accept" it. Indeed, the Agency had produced no evidence that the publication of rankings of hotels has endangered anyone connected with a hotel.

Clause 7(l)(c)(ii) - Documents affecting business affairs

47 With respect to the application of clause 7(l)(c)(ii) of Schedule 1 to the FOI Act Ms Richardson submitted that the Top 200 hotels list does not disclose actual figures of profits those hotels earn (either total profits or profits from gaming). The only submission made by the Agency as to why this information falls within clause 7(1)(c)(ii) is that it might "give competitors and other interested persons particular insights as to how the hotels' profit margins overall are composed." Ms Richardson asserts that this submission is different to the suggestion made by Ms Hennessy as to the basis of her decision that there would be an "unreasonable adverse impact".

48 In response, the Applicant says firstly that as a factual matter the information disclosed does not allow a hotel to determine the composition of another hotel's profit margins. Secondly, if there was an adverse effect on the business affairs of a business owner - which has not been identified by the Agency - the adverse effect could not be said to be unreasonable given the significant adverse effect of gaming on society.

49 Ms Richardson submitted that hotels were granted a unique concession by Government in 1997 to have gaming machines in hotels. That concession carries with it an opportunity to earn huge profits from an activity that can cause significant negative social side effects. It is argued that the profits earned by hotels from gaming raise the following issues of serious public importance:

(a) the social impact of the Government's introduction of poker machines into hotels;

(b) the social problem of gambling and the ongoing debate about harm-minimisation reforms necessary to ameliorate the problems;

(c) the correlation between social disadvantage and levels of gaming;

(d) the profits earned by hotels in socially-disadvantaged areas - that is, who is benefiting from gaming and where are they located;

(e) transparency as to whether hotels that earn profits from gaming are taking an appropriate approach to problem gamblers (and are not exploiting problem gamblers);

(f) the question as to whether hotels are treated preferentially by the Government as compared to registered clubs;

(g) under the Gaming Machines Act 2001, the primary focus of a hotelier's licence must be the retail sale of liquor - there should be transparency as to the profitability of hotels from gaming.

50 The concession given to hotels by the Government in 1997 carries with it a need for social responsibility by the hotels and transparency so that the public can assess the effect of the policy change. The suppression of information about hotels and the profits they make from gambling means that there can be no informed and vigorous debate about the impact of the Government's policy regarding poker machines in hotels. As such, given the "public interest considerations" at play here, "what is reasonable in the circumstances" is that the Top 200 hotels list be available to the public. Neary v State Rail Authority [1999 NSWADT 107 at [35].

Findings

51 The Agency has exercised the power given by the FOI Act to refuse access to the Top 200 hotels list on the basis that it is an ‘exempt document’. The bases upon which an agency can claim that a document is exempt are set out in Schedule 1 of the FOI Act. Schedule 1 divides exempt documents into three broad categories: (1) restricted documents; (2) documents requiring consultation; and (3) other documents.

52 The Agency claims that the Top 200 hotels list is not only an exempt document, but also a restricted document. There are three categories of exempt documents which are also restricted documents: Cabinet documents; Executive Council documents; and documents concerning law enforcement and public safety (see clause 4 of Part 1 of Schedule 1). The Agency relies on the ground for exemption set out in clause 4(1)(c) of Schedule 1 i.e. that the disclosure of the document could reasonably be expected to endanger the life or physical safety of any person.

53 The Agency claims that the Top 200 hotels list is an exempt document under Part 2 of Schedule 1 of the FOI Act as it is a document requiring consultation being a document affecting business affairs (see clause 7 of Part 2 of Schedule 1).

54 The FOI Act has five provisions dealing with restricted documents: section 57, section 58A, section 58B, section 58C and section 59. In this case no Ministerial certificate has been issued under section 59. Accordingly the special provisions contained in sections 58A, B and C are not applicable. The claims to exemption fall to be determined by the Tribunal.

55 Section 53 of the FOI Act gives a right to apply for review by the Tribunal. Pursuant to section 40 of in the ADT Act, the powers of the Tribunal as set out in the ADT Act apply subject to any ‘contrary provision’ in the FOI Act, whether express or implied. The main provision relating to the powers of the Tribunal in dealing with a review application are contained in section 63 of the ADT Act. The Agency argues that where it is claimed that a document is a restricted document, the claim must be dealt with in accordance with section 57 of the FOI Act. If the Tribunal determines that there are reasonable grounds for the claim, its jurisdiction is exhausted, and it may not go on to exercise its ordinary powers of merits review of the determination.

56 The Tribunal, differently constituted, has already considered this issue in detail. In BY the Tribunal’s President reviewed a number of earlier decisions that had dealt with the issue. His Honour also considered the history of the provision, academic opinions on the issue and decisions from other jurisdictions on comparable issues. In Chapman the Tribunal’s Deputy President expressly adopted the President’s reasoning in BY. She stated at paragraph 76 of her decision:

“76 I intend to adopt the reasoning in BY v Director General, Attorney General’s Department [2002] NSWADT 79 that if there are reasonable grounds for the claim for exemption, the Tribunal’s jurisdiction remains unaffected and it may go on to ascertain whether the decision to claim the exemption is the correct and preferable one.”

57 The Agency’s arguments with respect to section 57 of the FOI Act are dependent upon the view that two earlier decisions of the Tribunal, BY and Chapman, should not be followed. While I agree that there is no obligation to follow earlier decisions, the Tribunal should be slow to reopen rulings of an earlier Tribunal. This is particularly so where earlier rulings were made following detailed submissions, as was the case in both BY and Chapman.

58 In BY President O'Connor dealt with the question of precedent in the Tribunal as follows:

"Threshold Issue: Reopening Prior, Considered Tribunal Rulings

21 The threshold question that arises before considering any further these contentions is whether the present Tribunal should revisit the prior considered rulings. Counsel for the Administering Minister acknowledged the importance of different panels of a Division of the Tribunal being seen to deal consistently with the same or like questions. He acknowledged that the view might be taken that it would not be appropriate to revisit the previous, considered rulings.

22 In my view, a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal. Ordinarily a later Tribunal should adopt the ruling of the earlier Tribunal; and leave these questions to be finally determined within the Tribunal at the Appeal Panel level. Notably in the earlier cases where the Administering Minister’s submissions have been rejected, there was no appeal; but that may have been, as counsel for the Administering Minister suggested at hearing, because ultimately following full substantive consideration the determinations in issue were affirmed.

23 Normally a prior considered Tribunal ruling should only be reopened if a new, significant argument is raised before the later Tribunal. This is not such a case. Nonetheless, I consider that some discretion should be allowed to a Divisional Head sitting at first instance to revisit prior rulings, where the Divisional Head has doubts about the prior rulings or the questions involved are of great significance, such as ones raising important issues of power or jurisdiction. (Such a ruling may itself be appealed to the Appeal Panel. In that event, the Divisional Head, who would customarily preside, is ineligible. Where there is an appeal in relation to such a ruling, the Appeal Panel should, in my view, give consideration, if it regards the ruling as doubtful, to referring the controversial question to the Supreme Court for determination.)”

59 The issue then is whether the present case is one where the questions involved are of such importance that I should not simply adopt the prior rulings but reconsider them. I do not believe that to be the case.

60 Accordingly, I intend to adopt the reasoning of the Tribunal’s President in BY. In that matter the President stated at paragraphs 70 and following:

“70 It is not clear that s 57 constitutes a ‘contrary provision’. One would expect that a provision ousting or limiting the jurisdiction of the Tribunal would be expressed in clear terms, not found by implication. The FOI Act is an Act designed to promote openness in government and enable citizens to understand better the basis for government actions and decisions. It is often described as promoting the democratic objective. The substantial system for review of negative agency determinations reflects the concern that such determinations be sound. There are mechanisms for internal review, review by the Ombudsman and review by the Tribunal. In the case of review by the Ombudsman there is an express limitation on the power of that office to review Ministerial certificate cases. There is no limitation on its power of review in respect of non-Ministerial certificate restricted document cases. These are all reasons for expecting that had the Parliament intended to deprive the Tribunal of its ordinary merits review powers in these cases, it would have said so expressly. …

74 In the instance of cases like the present - where a restricted documents exemption is invoked but no conclusive certificate has been issued (presumably because the Administering Minister was not consulted, or, if consulted, did not think it was a situation of such public or political importance that a certificate should issue) - the Parliament could have, but did not, make any provision as to the evidentiary effect of such a claim.

75 Section 59 does not impose any evidentiary bar on the Tribunal in cases where no certificate has been issued. There is no indirect jurisdictional limitation of this kind. Nor is there a direct jurisdictional limitation in that provision or elsewhere in the Act.

76 Accordingly, I consider that s 57 does not operate as a jurisdictional bar in the way suggested by the Administering Minister. In this important respect I agree with the earlier Tribunal decisions, though my reasons are different.”

61 In adopting this reasoning, I agree with the Applicant’s argument that if there are reasonable grounds for the claim for exemption, the Tribunal may go on to ascertain whether the decision to claim the exemption is the correct and preferable one.

Could disclosure of the Top 200 hotels list reasonably be expected to endanger the life or physical safety of any person?

62 The Agency’s decision to cease publication of the Top 200 hotels list was based on representations from several hotel operators and the industry association made in August and September of 1999. The Agency also points to recent correspondence from the police and the Australian Hotels Association.

63 Having considered the arguments and the authorities to which I have been referred I am in general agreement with the Applicant’s position. Ms Sharp referred to the decision of Mansfield J. in Re Dykstra and Centrelink as authority for the approach to be adopted in considering this ground of exemption. She argues that clause 4(l)(c) does not impose a high threshold and that there need only be a possibility that disclosure could endanger the life or physical safety of any person.

64 In contrast, Ms Richardson submitted that Re Dykstra and Centrelink is distinguishable on its facts. I agree with that submission. Re Dykstra and Centrelink involved named individuals who feared for their safety. That is not the case here. Here there is general concern in the community rather than concern of individuals. Clause 4(l)(c) of the FOI Act does not seem to me to be concerned with what may be mere possibilities, but rather a recognisable potential for endangerment.

65 Ms Richardson also relies on views of the Appeal Panel in Electoral Commissioner, State Electoral Office v McCabe. In that matter the Appeal Panel stated at paragraph 36:

“it as a very serious matter for an agency to invoke an exemption based on ‘endangerment’. In our view, agency opinions making such a grave assessment must be closely scrutinised and not easily accepted. The Tribunal is, we consider, obliged to bring some scepticism to the task of assessing what are necessarily self-serving statements by agencies as to the availability of grounds for exemption which involve matters of judgment. The question is always whether the material, statements of opinion and submissions put forward by the agency justifies reliance on the exemption (see s 61, burden of proof). Often the access applicant will be no position, or a weak position, to produce any evidence in reply to the agency’s opinion. The Tribunal must not simply adopt the agency’s opinion; as seemed in essence to be the point asserted by this ground of appeal. In FOI matters especially, the only ‘evidence’ on a matter of judgment of the present kind may be that provided by the agency. It does not follow that approaches that are found in traditional adversarial litigation (i.e. in the absence of any evidence to the contrary, the trier of fact should ordinarily make findings in terms of the uncontested relevant evidence) should be adopted in the merits review context.”

66 I agree with that view and I also agree that the evidence proffered by the Agency falls well short of this exacting standard. While I accept that the letters on which the Agency relies indicate concern within the industry, I do not accept that these establish any risk to life or physical safety from the release of the document sought. None of the letters reveal any correlation between the publication of the Top 200 hotels list and actual security breaches at hotels. While the Australian Hotels Association has expressed opposition to the release of the Top 200 hotels list it has provided no basis for suggesting that the release “may endanger the life or physical safety of a person or endanger the security of a building”. The police have indicated that they oppose the release and the view “that the publication of the Top 200 hotels places an increased direct risk of criminal acts, particularly armed robbery, occurring at premises identified in any publicised list.” Again, no basis is provided for that opinion.

67 In my opinion, the situation is conveniently summarised in comments attributed to Dr Don Weatherburn, the Director of the NSW Bureau of Crime Statistics and Research in an article written by the Applicant in November 1999 and which is annexed to Ms Hennessy’s affidavit. In that article Dr Weatherburn is quoted as having said:

"It’s a plausible concern that publishing a list of top hotels will lead some hotels to being targeted by crims. My guess is whether the list is published or not crims will work out which ones to knock off. They don’t need a list of top banks do they?"

68 I agree with the submission that any would-be robber can walk into a hotel and see from the number of people at the bar and on gaming machines that there is a lot of money passing hands at the venue. It is probable, in my view, that the extension of gaming machines in hotels has increased the risk of criminal activity occurring at and around the premises that have those machines. However, I am not satisfied that there is a recognisable potential for endangerment as a result of the disclosure. Accordingly, the Agency has not established the exemption under Clause 4(l)(c) of Schedule 1 to the FOI Act.

69 The Agency also relies on the exemption within clause 7(l)(c)(ii) of Schedule 1 to the FOI Act. The basis of this claim is that the Top 200 Hotel List contains information relating to the business, commercial and financial affairs of hotel owners and persons having financial interests in them and could reasonably be expected to have an unreasonable adverse effect on those affairs. Ms Sharp argues that it discloses where the 200 hotels on the list rank as against other hotels in terms of the profits they derive from gaming machines, and also provides a figure of the average profit derived from gaming machines, it permits inferences to be drawn as to what quantum of profits particular hotels on the list derive each year. Profits made in the course of business are part of that business's business, commercial and financial affairs.

70 Ms Richardson argues that there is no disclosure of actual figures of profits the hotels earn. The information disclosed does not allow a hotel to determine the composition of another hotel's profit margins. She further submits that if there was an adverse effect on the business affairs of a business owner, the adverse effect could not be said to be unreasonable given the significant adverse effect of gaming on society.

71 The Applicant seeks the release of the Top 200 Hotel List in the form previously. It is clear from an examination of the previously released figures that there is no identification of the actual figures of profits of a hotel on the list. I do not accept that it is possible to draw the inferences that the Agency asserts as being capable of drawn from those figures. In my opinion the Top 200 Hotel List does not permits inferences to be drawn as to what quantum of profits are derived by particular hotels on the list.

72 Given the limited nature of information contained in the Top 200 Hotel List, I am not satisfied that the disclosure of the document could reasonably be expected to have an unreasonable adverse effect on the business, professional, commercial or financial affairs of those hotels on the list. Accordingly, the Agency has not established the exemption under clause 7(l)(c)(ii) of Schedule 1 to the FOI Act. Further, in the circumstances I am not satisfied that the provisions of section 32 of the FOI Act operate to prevent the disclosure of the document.

73 Having formed these views, I do not need to address the public interest aspect of the Applicant’s case. In my opinion, the Agency has not established the exemptions claimed and the document sought should be released.

Order

The Agency’s decision to refuse access to the requested document is set aside.