Cleverley v Harness Racing New South Wales

[2021] NSWCATAD 281

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Cleverley v Harness Racing New South Wales [2021] NSWCATAD 281

Hearing dates:

10 March 2021

Date of orders:

28 September 2021

Decision date:

28 September 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW –access to government information –whether prejudice to the effective exercise of an agency’s functions –whether prejudice to the conduct, effectiveness or integrity of any test or investigation - public interest in transparency and accountability - balancing public interest considerations

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Cases Cited:

Director of Public Prosecutions v Smith [1991] 1 VR 63

Flack v Commissioner of Police, NSW Police [2011] NSWADT 286

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Johnson v Secretary, Department of Communities and Justice [2020] NSWCATAD 23

McDonald v Commissioner of Police, NSW Police [2019] NSWCATAD 66

McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53

Meacham v Commissioner of Police [2020] NSWCATAP 107

Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254

Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278

Sheehy v Commissioner of Police; Rapisarda v Commissioner of Police; McDonald v Commissioner of Police; Housego v Commissioner of Police [2018] NSWCATAD 73

Taylor v Destination NSW [2017] NSWCATAD 272

Transport for NSW v Searle [2018] NSWCATAP 93

Category:

Principal judgment

Parties:

David Cleverley (Applicant)
Harness Racing New South Wales (Respondent)

Representation:

Solicitors:
Hammond Nguyen Turnbull (Applicant)
Cockburn & Co Lawyers (Respondent)

File Number(s):

2020/281715

Publication restriction:

Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material that was filed in these proceedings on a confidential basis and to those paragraphs of these reasons identified as [Not for publication]. That material is not to be published or released to the Applicant, without further order of the Tribunal.

Reasons for Decision

Introduction

1. This is an application by Mr David Cleverley (“the Applicant”) for review of decisions by Harness Racing New South Wales (“HRNSW” or “the Respondent”) under the Government Information (Public Access) Act 2009 (“the GIPA Act”). The Applicant lodged four access applications in which he sought access to information held by HRNSW. HRNSW determined to refuse the applications.

2. The Applicant’s access applications are:

1. GIPA Application dated 9 July 2020 (“GIPA Application 1”);

2. GIPA Application dated 17 August 2020 (“GIPA Application 2”);

3. GIPA Application dated 25 August 2020 (“GIPA Application 3”); and

4. GIPA Application dated 26 August 2020 (“GIPA Application 4”).

3. The Applicant sought review of HRNSW's decisions and also seeks review of HRNSW's request for processing charges in relation to the access application.

GIPA Application 1

4. GIPA Application 1 requested access to:

A copy of all documents in hard copy and in digital form (to be produced to us by way of hard copy) and/or all additional information relating to the drug testing of the horse Aztec Bromac NZ that relates to the horses participation in a race of 30 June 2020 at Menangle.

Such documentation and/or information in relation to the drug testing as is referred to above that is -

(i) held by HRNSW and any employee of HRNSW and

(ii) is situate at any laboratory, clinic or other establishment that is a service provider, agent or client of HRNSW and/or from whom HRNSW can obtain such information, and

(ii) Identifies any security company or other person or entity that is a service provider, agent or client of HRNSW and/or from whom HRNSW can obtain such information.

Such documents and information above including but not limited to, sample document identification, details in relation to the chain of custody and/or pathway of the sample from point of collection to conclusion of any testing at any laboratory, all evidence of any testing of the sample for prohibited substances and the date of such testing, all results of any sample testing and the notification of the sample test result to HRNSW and/or any other related information known to HRNSW.

Further included but not limited to details as to security and transport of the sample throughout the process, names, employer and contact details of each individual who had custody of any related sample at all times and the timeframe of the custody of each person having such custody in chronological order and names, and contact details of persons who were responsible for the transport of such samples

5. GIPA Application 1 was subsequently clarified as a request for information that answers the following questions:

1. "After the "Aztec Bromac NZ" swab samples (the "sample") were taken from the horse at Menangle Park ('Menangle’), who are the people who had custody of the sample whilst the sample was located at Menangle?

2. Where was the sample stored whilst located at Menangle?

3. How and when was the sample transferred from Menangle?

4. Where in any vehicle was the sample located when it was transferred from Menangle?

5. In whose custody was the sample in, when it was transferred from Menangle?

6. Was the persons(s) in paragraph 5 above, the driver the vehicle? If not, who was the driver of the vehicle?

7. Who else was in the vehicle when the sample was transferred from Menangle Park?

8. Was the sample transferred directly from Menangle to HRNSW offices at Banks/own?

9. Was the sample transferred directly from Menangle to an authorised testing laboratory?

10. If the sample after leaving Menangle travelled to anywhere else other than directly to HRNSW Bankstown offices prior to being sent to an authorised testing laboratory:

a. Where did it so travel at all times?

b. When did it travel?

c. Who is the occupier of the locations to which the sample travelled?

d. Who had custody of the sample during this time(s)?

e. Was the sample kepi in a vehicle at any time whilst al this destination(s)?

f. If the sample was kept in a vehicle at any time at this destination(s), where in the vehicle was it kept?

g. Where and how was the sample stored at other times, including overnight?

11. What is the date and time that the sample was delivered to HRNSW offices?

12. By whom was the sample delivered to HRNSW offices?

13. Who accepted the sample at HRNSW offices?

14. Who had custody of the sample whilst at HRNSW offices?

15. Where was the sample located at HRNSW offices?

16. From what location and when was the sample sent to an approved drug testing laboratory?

17. Who sent the sample to an approved drug testing laboratory?

18. Where in any vehicle was the sample located when it was transferred to an approved drug testing laboratory?

19. In whose custody was the sample when it was transferred to an approved drug testing laboratory?

20. Was the persons(s) in paragraph 19 above, the driver of the vehicle? If not, who was?

21. Who else was in the vehicle when the sample was transferred to an approved drug testing laboratory?

22. When were HRNSW first notified of the laboratory findings in relation to the sample?

23. Who at HRNSW received the laboratory findings in relation to the sample?

24. Are there any HRSNW published results of the laboratory findings in relation to the sample?

25. If not, then may we ask why not?"

GIPA Application 2

6. GIPA Application 2 requested access to the following information in relation to a race meeting conducted at Menangle Park on 11 August 2020:

i. a list of all of the horses swabbed but not limited to prerace and post race testing;

ii. a copy of the sample identity cards for all horses swabbed (the names and signatures of individual persons contained thereon can be redacted);

iii. copies of all testing results of any laboratory in relation to the above samples.

GIPA Application 3

7. GIPA Application 3 requested access to the following information in relation to a race meeting conducted at Menangle Park on 18 August 2020:

i. a list of all of the horses swabbed but not limited to prerace and post race testing;

ii. a copy of the sample identity cards for all horses swabbed (the names and signatures of individual persons contained thereon can be redacted);

iii. copies of all testing results of any laboratory in relation to the above samples.

GIPA Application 4

8. GIPA Application 4 requested access to the following information in relation to a race meeting conducted at Menangle Park on 25 August 2020:

i. a list of all of the horses swabbed but not limited to prerace and post-race testing;

ii. a copy of the sample identity cards for all horses swabbed (the names and signatures of individual persons contained thereon can be redacted);

iii. copies of all testing results of any laboratory in relation to the above samples.

The Issues before the Tribunal

9. When the matter came before the Tribunal several issues in dispute were identified.

Validity of the applications

10. The Respondent raised the validity of the access applications as a preliminary issue. This issue arose in the context that Mr Cleverley is a solicitor who brought the access applications on behalf of his client(s). The Respondent submitted that the clients were the true applicants and that section 41(1)(d) of the GIPA Act operates to render an application invalid where one or more of the applicants fails to identify themselves.

11. Section 41 of the GIPA Act provides:

41 How to make an access application

1. An application or other request for government information is not a valid access application unless it complies with the following requirements (the formal requirements) for access applications—

   (a) it must be in writing sent by post to or lodged at an office of the agency concerned or made in the manner approved by the agency under subsection (2),

   (b) it must clearly indicate that it is an access application made under this Act,

   (c) it must be accompanied by a fee of $30,

   (d) it must state the name of the applicant and a postal or email address as the address for correspondence in connection with the application,

   (e) it must include such information as is reasonably necessary to enable the government information applied for to be identified.

   12. I do not agree with that submission. In my view, access applications can be made by solicitors on behalf of their clients. The GIPA Act does not require that an access application identifies all individuals who have an interest in the application. It is necessary that contact details are included with the access application to allow the agency to communicate with the access applicant.

   13. I am satisfied that the access applications that are the subject of this matter have complied with section 41(1)(d) in providing the name and address for Mr Cleverley as the applicant.

   14. As such, the applications are valid as they comply with the requirements of section 41(1) of the GIPA Act.

   15. In any event, I am satisfied that Mr Cleverley has his own interest in the application, beyond the instructions of his client. He was therefore entitled to make the access applications. As a person who is aggrieved by the Respondent’s decisions he is able to make an application to the Tribunal under section 100 of the GIPA Act.

   16. Mr Cleverley relationship with his client could potentially be a relevant consideration. I note that section 55 of the GIPA Act provides:

2. Consideration of personal factors of application

(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section -

(a) the applicant’s identity and relationship with any other person,

(b) the applicant’s motives for making the access application,

(c) any other factors particular to the applicant.

(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.

Processing Charges

17. HRNSW agreed to grant access to some of the requested information on the proviso that the Applicant paid processing charges:

1. HRNSW granted access to the Sample Identity Card for Aztec Bromac NZ on 30 June 2020. It requested payment of a processing charge of $210.00 calculated as 8 hours processing time at $30.00 per hour;

2. HRNSW granted access to the Sample Identity Cards of horses swabbed at the meetings referred to in GIPA Applications 2, 3 and 4). It requested payment of a processing charge of $225.00 calculated as 8.5 hours processing time at $30.00 per hour.

18. The Applicant sought the review of the requested processing charges. The issue for determination is whether the processing charges imposed are fair and reasonable.

Access to the withheld information

19. HRNSW accepts that there is a broad need for accountability in all government matters. However, it contends that in the circumstances of this matter there are strong public interest considerations against disclosure of some of the requested information.

20. In regard to GIPA Application 1 the Respondent determined that some information would be released, subject to the payment of a processing charge while other information was withheld on the basis of overriding public interests against disclosure.

21. In regard to GIPA Applications 2, 3 and 4 the Respondent determined that some of the information was already available as it was published on the agency’s website, some information was to be released and some of the information would not be released as there basis of overriding public interests against disclosure.

22. In relation to the issue of whether there is an overriding public interest against disclosure of the withheld information the Respondent initially relied on several clauses of the table to section 14 of the GIPA Act. These were subsequently limited in light of the narrowing of the issues in dispute to reliance on clauses 1(f), 1(h) and 2(b). It appears that the Respondent no longer relies on clause 2(b). However, if I am wrong on that it is unnecessary that I consider clause 2(b) because of my findings in regard to clauses 1(f) and 1(h).

The remaining Issues

23. The issues in dispute were narrowed throughout the proceedings. Following the hearing of the matter each of the parties made closing submissions in which they have set out the remaining issues.

24. GIPA Applications 1 has been settled. GIPA Applications 2, 3 and 4 have been narrowed. In relation to GIPA Applications 2, 3 and 4 the narrowed request is for redacted copies of the testing results which disclose information about:

1. the date of the receipt of samples;

2. the date of the completion of testing of samples;

3. whether or not the testing results were positive or negative for prohibited substances.

25. The Applicant seeks the redacted sample IDs and testing results of all horses swabbed at Menangle during race meetings held on 11, 18 and 25 August 2020. The Respondent has agreed to disclose the redacted sample IDs, and refused to disclose the testing results (“the withheld information”).

26. The Applicant seeks the Tribunal make the following orders:

1. That the processing charges be dismissed.

2. Further and in the alternative, that the processing charges be reduced.

3. Allowing the Applicant access to the documents requested under GIPA Applications 2, 3 and 4.

4. Further and in the alternative, allowing the Applicant access to some of the documents or redacted versions of the documents requested under GIPA Applications 2, 3 and 4.

5. Further and in the alternative, reversal of HRNSW’s decision to deny access to the documents requested under GIPA Applications 2, 3 and 4.

6. Further and in the alternative, ordering HRNSW to reconsider its decision.

7. No order as to costs.

8. Any other orders the Tribunal sees fit.

27. The Respondent seeks the Tribunal make the following orders:

1. the Respondent 's decision in relation to the Second, Third and Fourth GIPA Applications be affirmed;

2. pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 the publication of confidential evidence given to the Tribunal and other matters contained in confidential documents received in evidence by the Tribunal be prohibited;

3. a timetable for evidence and submissions on the issue of costs be agreed by the parties within seven (7) days;

4. the issue of costs be reserved.

Applicable legislation

28. The Applicable legislation is not in dispute.

29. The object stated under section 3(1) of the GIPA Act is to open government information to the public. The GIPA Act is to be interpreted and applied so as to further its object. The meaning of "government information" is broad. Section 4 provides that government information means information contained in a record held by an agency. Access is only restricted when there is an overriding public interest against disclosure.

30. Part 2 of the GIPA Act provides the mechanism by which a member of the public can make an access application for government information to an agency. Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 9(1) gives a person who makes a valid access application a legally enforceable right of access to government information unless there is an overriding public interest against disclosure of the information.

31. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information and, further, that nothing in the GIPA Act limits any other public interest considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Individual interests in seeking information may coincide with the public interest.

32. The term ‘public interest’ is not a defined or fixed concept. In Director of Public Prosecutions v Smith [1991] 1 VR 63 the Supreme Court of Victoria Appeal Division found:

"The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals".

33. Section 13 of the GIPA Act sets out the "public interest test" for determining whether there is an overriding public interest against disclosure of information in the following terms:

13 Public interest test

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.

34. The test in section 13 requires the Tribunal as decision-maker to attribute weight to each consideration for and against disclosure, and determine whether the balance of the public interest lies in favour of, or against, disclosure of government information: Hurst v Wagga Wagga City Council [2011] NSWADT 307; Flack v Commissioner of Police, NSW Police [2011] NSWADT 286. The GIPA Act provides no set formula for calculating the weight of considerations for determining whether one set of considerations outweighs the other, and the Tribunal has stated that "any reasonable approach that follows section 15 principles seems to be acceptable ... it is really a matter of placing identified considerations in order of priority or importance": Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278 at paragraph [96]. The balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at paragraph [17].

34. Section 14(2) of the GIPA Act relevantly provides that the public interest considerations listed in the Table to section 14 are the only considerations that may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

35. Section 55 of the GIPA Act provides for the consideration of personal factors of application. Section 55 is referred to above.

36. Where an application for review of a reviewable decision is made to the Tribunal, subsection 105(1) of the GIPA Act provides that 'the burden of establishing that the decision is justified lies on the agency'. That is, the Respondent bears the onus to establish that the information to which the Applicant has sought access should not be released.

37. As noted above, the Respondent relies on clauses 1(f) and 1(h) of the table to section 14 of the GIPA Act.

38. Clause 1(f) of the table to section 14 of the GIPA Act provides:

1. 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 (whether in a particular case or generally)—

…

(f) prejudice the effective exercise by an agency of the agency’s functions,

40. Clause 1(h) of the table to section 14 of the GIPA Act provides:

1. 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 (whether in a particular case or generally) —

…

(h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

41. Whilst a very broad value judgment is required to be made it is not one to be made in a vacuum. It is a judgment to be made having regard to the objects of the legislation, the general presumption in favour of disclosure of government information and the principles set out in section 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104]. Subsections 15(a) - (d) operate to promote disclosure of information and promotion of the object of the GIPA Act notwithstanding any embarrassment to Government or potential misinterpretation. Only section 15(e) identifies a principle that mitigates the pro-disclosure ambition of the GIPA Act.

Costs

42. Section 60 of the Civil and Administrative Tribunal Act 2013 provides for costs in proceedings before the Tribunal. Section 60 relevantly provides:

(1) Each party to proceedings in the Tribunal is to pay the party's own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs

43. Neither party has identified any issues that would suggest that an order for costs should be made. It is open to the parties to resolve the issue between themselves or to bring an application to the Tribunal. I do not propose to deal with this issue in the absence of an application. If an application for costs is lodged, the matter can be listed for directions and a timetable can be set.

Material before the Tribunal

44. Each of the parties has provided several written submissions. The Applicant relies on his own evidence and statements provided by Mr Colin McDowell and Mr Emilio Rosati. The Respondent relies on the evidence of Mr John Dumesny, Chief Executive Officer of Harness Racing New South Wales; Mr Michael Prentice, Integrity Manager with Harness Racing New South Wales; and Mr Adam Cawley, Science Manager of the Australian Racing Forensic Laboratory (“ARFL”). Only Mr Dumesny was required for cross-examination.

The Respondent’s evidence

Mr John Dumesny

45. Mr Dumesny is the Chief Executive Officer of Harness Racing New South Wales. He provided two statements, appeared at the hearing and was cross-examined.

46. Mr Dumesny gave evidence in regard to the role of HRNSW in regulating harness racing in NSW. He provided information regarding issues relating to corruption in the harness racing industry. He referred to an issue identified as "the Green Light Scandal" which concerned Harness Racing Stewards who had engaged in a scheme with a number of licensed persons in the Harness Racing industry, to ensure that certain racing horses would not be drug tested on race days, in exchange for payment of bribes. He explained the steps taken by HRNSW to address the issues raised by the Green Light Scandal and how it responded to the integrity crisis in an effort to rebuild confidence in the integrity of the sport.

47. For example, Mr Dumesny gave evidence regarding HRNSW’s increased budget for equine drug control. Focus was placed on drug testing, security and surveillance. He stated that a large number of trainers and licensed people have been suspended or disqualified by HRNSW in relation to prohibited substance offences.

48. Mr Dumesny also stated that Stewards have been the subject of threats and violence for their role in enforcing necessary penalties for prohibited substance offences.

49. In regard to the access applications, Mr Dumesny stated:

Prohibited Substances in Harness Racing

The ongoing, effective regulation of the use of prohibited substances in harness racing is essential to the survival of the industry for a number of reasons:

a) it promotes confidence for the wagering public, which in turns generates the income which allows the industry to survive;

b) it warrants a level playing field for industry participants, by ensuring that horses in particular races are not obtaining physical advantages from the use of prohibited substances ;

c) it reduces risk to animal welfare, particularly in relation to the potential harm to horses when prohibited substances and unregistered products are administered to them;

d) it strengthens the integrity of the industry, by reason of all of the factors referred to above.

It is my genuine belief that the disclosure of the information sought by the applicants will have the effect of prejudicing the effective control and regulation of prohibited substance use in the sport

[T]he need for secrecy over confidential aspects of HRNSW's methodologies for regulating prohibited substance use in the industry is essential, and acute; and resistance to disclosure of the kind of information sought by the applicants is for the benefit of the entire industry.

50. Mr Dumesny also provided evidence in regard to a long association with Mr McDowell and responded to concerns that Mr McDowell had expressed regarding corruption and drug cheats in Harness Racing. He referred to numerous prosecutions for drug offences, including that of Mr McDowell’s son, and concluded:

[N]othing raised by Mr Cleverley, Mr McDowell or Mr Rosatti causes me to doubt the integrity of the HRNSW Integrity Department, or changes my view that the information sought should not be disclosed. I am unaware of any corruption in HRNSW, and I am confident with respect to the work that HRNSW does to prosecute cheating in the sport.

Mr Michael Prentice

51. Mr Prentice is the Integrity Manager with Harness Racing New South Wales. He provided both open and confidential statements. His duties include developing and implementing policies and procedures for HRNSW and clubs including compliance; developing and implementing race-day intelligence strategies such as surveillance, race day operations and drug testing and conducting investigations and functioning as a member of the Stewards panel on major inquiries.

52. His evidence concerns the Applicant’s request for testing results of all horses swabbed at Menangle. He provided detailed evidence about the use of prohibited substances in harness racing and the processes that HRNSW has adopted to combat that use, including drug testing.

53. He explained that there are two broad approaches to the drug testing regime. The first and most common is race day drug testing. The other is non-race day or 'out of competition' testing. Mr Prentice explained the procedures involved in each of the tests. He also explained that there are a number of ways that even 'negative' test results are useful to drug cheats.

54. In relation to the withheld practice in regard to the release of testing information he explained:

When a person (typically a trainer) is notified of a sample irregularity, that is, when a sample has returned a positive test result for a prohibited substance, HRNSW Stewards routinely provide the following evidence to the trainer of the horse:

a) Sample identity card;

b) Certificates of Analysis;

c) ARFL Chain of Custody Statement (where appropriate).

HRNSW agrees to providing the above information in relation to a sample on the basis that they are for use as evidence in those proceedings, where a person charged with a serious offence is entitled to be heard and make a case in their defence.

Further documents may also be produced in the course of Stewards Inquiries or appeals proceedings before the RAT [the Racing Appeals Tribunal]. Of course, if any of the documents produced in the course of proceedings were to be located in the hands of any third parties, it would be possible to attempt to trace how that person gained possession of those sensitive documents. Not only would that assist in ascertaining the source of the disclosure, it also logically deters persons from making the disclosure in the first place.

In discrete circumstances, typically only if an argument that there has been a material flaw in the testing process of a sample is raised by a trainer, the racing laboratory may provide additional information about the testing of a sample to the trainer by way of a 'datapack'. This is not information that is otherwise held by HRNSW, nor is it information that is ever made public.

55. [Not for Publication]

56. [Not for Publication]

Mr Adam Cawley

57. Mr Cawley is the Science Manager of the Australian Racing Forensic Laboratory (“ARFL”). Mr Cawley stated that ARFL is an accredited laboratory that provides independent analytical testing services to racing codes in NSW. ARFL is responsible for the testing of prohibited and therapeutic substances in licensed racing. It provides information about the results of the testing of a sample to HRNSW in the form of a certificate. The certificate contains information about the testing that was conducted on the sample and the results of that testing.

58. In relation to the withheld information Mr Cawley stated that the documents contain information which:

a. If made public, may be able to be used to compromise the integrity of, or circumvent, doping control. That is because the totality of the information would make public which testing methodologies and equipment are used by the ARFL on racing samples, and in what circumstances.

b. Would disclose internal methods for the movement, tracking and storage of samples. Preservation of confidentiality of how and where samples are moved, tracked and stored is central to the integrity of drug testing in the racing industry as a whole.

59. He further stated that:

If HRNSW were to begin making public the details of ARFL's testing, storage and transfer procedures, then the ARFL would need to consider whether it may need to cease providing services to HRNSW. That is because all clients of the ARFL, including in other codes of racing, rely on the confidentiality of that information for the effective regulation of prohibited substance use in their respective industries, including Racing NSW which is the owner and operator of the ARFL.

The Applicant’s evidence

60. The Applicant relies on his own evidence and statements provided by Mr Colin McDowell and Mr Emilio Rosati. Each of these witnesses set out their involvement in the harness racing industry and expressed their concerns about corruption in the racing industry.

61. The Applicant is a solicitor in a firm that represents many clients who are involved in the industry. He also has a private interest in the industry. Mr McDowell and Mr Emilio Rosati are both heavily involved in the industry as owners, trainers and drivers and have a passion for the sport of harness racing. They both referred to a long history of corruption and drug cheats in Harness Racing and are concerned that the situation of corruption and cheating still continues.

62. Mr McDowell stated that he is concerned that either:

1. HRNSW is not actually testing all of the swab samples that they take from horses, or

2. there is a potential break somewhere in the chain of custody that could avail itself to a Green Light Scandal situation occurring.

63. In relation to the GIPA access applications he stated:

I cannot understand why Harness Racing New South Wales cannot be transparent about their swabbing and testing process, particularly with their dubious past.

I believe that this is information that the public and the people in the industry have a right to know.

I have tried to speak to the CEO of Harness Racing New South Wales, Mr Dumesny about my concerns and in the end nothing has changed.

The absurd and unnatural horse improvements are still occurring.

I felt that this GIPA application was the only way I could try to get to the bottom of the issues for the sake of my community and my sport.

64. Mr Rosati stated that he is the largest owner of horses in the Australian Harness Racing industry, a sport that he loves. He stated that he is against drugs in harness racing but clearly suspects that this remains an issue in NSW harness racing. As a result of his concerns he has moved the horses that he races, along with his trainer, to Victoria.

Consideration

The processing charges

65. The Applicant has submitted:

HRNSW granted access to the Sample Identity Cards of horses swabbed at the Meetings. Before releasing the documents HRNSW requested a sum of $255.00 for their costs and expenses of dealing with the request based on 8.5 hours at $30.00 per hour.

The Applicant seeks the review of the processing charges requested by HRNSW on the following bases:

(a) All GIPA Applications sought similar types of information;

(b) The reasoning provided for all GIPA Applications were the same;

(c) The time provided (8.5 hours in total) is not an efficient use of time;

(d) The time must be based on the lowest reasonable estimate of time that will need to be spent in providing the access;3 and/or

(e) The processing charges are unreasonable, unfair and unjust.

The Sample Identity Card is a one page document for each horse.

The Tribunal should dismiss the processing charge.

Further and in the alternative, the Tribunal should reduce the processing charge.

66. In regard to the processing charges, Mr Dumesny stated that HRNSW had been required to undertake consultation in regard to the Applicant’s requests. In the notice of decision annexed to his statement of 1 February 2021 he wrote:

In this case 8.5 hours were undertaken to deal with your request, resulting in a total charge of $255 at $30 per hour, in accordance with section 64 of the GIPA. Your access to Category Two Documents is conditional on payment of this charge, by cheque made payable to Harness Racing NSW. Please note that your $30 application fee counts towards this payment, so the relevant cheque should be for the amount of $225.

67. In relations to the charges HRNSW submitted:

8.5 hours was not an inefficient use of time in dealing with the Second, Third and Fourth GIPA Applications in circumstances where it involved:

a. considering the requests in conjunction against the First GIPA Request;

b. consider three separate applications which were filed on three separate dates;

c. reconsidering each application in light of the context of further continuing applications being made, and the content of those applications;

d. searching for records in relation to all horses swabbed across each of the three dates;

e. searching for records from racing forensic laboratories in relation to the status of the testing of each of the multiple samples taken across the three dates. This was particularly complicated in circumstances where the requests were made just days after the races took place and therefore samples were each at various stages of the processing timeline;

f. consultations with the integrity department in relation to each of the samples;

g. consultations with the ARFL who had custody and were in various stages of processing the samples;

h. obtaining legal advice in relation to the requests;

i. responding to a further email of Mr Cleverley dated 31 August 2020, by letter of 2 September 2020 (1 page plus annexures); and

j. providing a decision and reasons for the decision by letter of 14 September 2020 (3 pages).

It is further noted that:

a. The fact that the applications related to similar types of information is of no consequence in circumstances where locating the information required researching and locating numerous swabs, from multiple races, for which each had differing chain of custody, transfer and testing records.

b. The applicants contend that the "reasoning provided for all the 3 GIPA Applications were the same". The difficulty with that ground is that no reasoning was provided for the applications at all. The respondent was required to guess at what potential use any applicant might have for the highly sensitive information sought, and that required guess-work in consultation with other departments.

c. The nature and sensitivity of the information sought significantly impacted the time that it took to access and consider the information. Particularly in circumstances where the information sought relates to the methodologies used to detect prohibited substance abuse in racing, its sensitivity required multiple consultations and

68. On the material before me I am satisfied that the steps outlined by HRNSW would have been necessary for the determination of the access applications. In my view, the processing charge is reasonable.

69. I understand that as GIPA application 1 has been the subject of an agreement between the parties the issue of processing charges in relation to GIPA application 1 has also been resolved. If I am wrong on that point, I would reach the same conclusion in regard to the reasonableness of the charges for GIPA application 1.

Access to the withheld information

Public interest considerations in favour of disclosure

70. The GIPA Act provides that there is a general public interest in favour of disclosure and there is no limit to the matters that may be regarded as public interests in favour of disclosure.

71. The Applicant has submitted that a number of considerations in favour of disclosure apply. I generally agree with most of that submission. I am satisfied that disclosure of the withheld information could reasonably be expected to:

1. promote open discussion in relation to the custody and testing procedures of samples to ensure that it is fair and not subject to corruption;

2. assist with the oversight of the expenditure of public funds;

3. promote open discussion in relation to whether or not HRNSW has engaged in misconduct or negligent, improper or unlawful conduct; and

4. enhance HRNSW's accountability.

72. I agree that these are strong considerations in favour of disclosure and should be given reasonable weight.

Public interest considerations against disclosure

73. Clauses 1(f) and 1(h) of the table to section 14 of the GIPA Act both refer to the reasonable expectation of a particular effect. The decision in relation to whether it can be reasonably expected is one which must be made upon logically probative material, and a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient.

74. Whether disclosure of particular information “could reasonably be expected to” have a particular effect is a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police at paragraph [42]; McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 at paragraph [66].

73. The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at paragraphs [54] and [83]:

“[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on “logically probative material”, and not on “mere suspicion or speculation”, as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 (“Pochi”) at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 (“Sullivan”) at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.

[83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on “logically probative material”: Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].”

76. In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 an Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to Searle and the authorities discussed in that decision, the Appeal Panel said at paragraph [59]:

“Based on these authorities when considering the evidence on which it is asserted that disclosure “could reasonably be expected” to have a particular effect, the following principles should be kept in mind:

(1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

(2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

(3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.” The expression “reasonably be expected to have the effect” has been discussed above.

77. In that regard, HRNSW has provided evidence from Mr Prentice, Integrity Manager with Harness Racing New South Wales; and Mr Cawley, Science Manager of ARFL.

Clause 1(f) of the table to section 14

78. Clause 1(f) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of prejudicing the effective exercise by an agency of the agency’s functions.

79. Clause 1(f) also uses the word “prejudicing”. “Prejudice” bears its ordinary meaning, that is, “to cause detriment or disadvantage” or “to impede or derogate from”: Hurst v Wagga Wagga City Council at paragraph [60].

80. I am satisfied on the basis of the evidence given by Mr Prentice and Mr Cawley that the disclosure of the withheld information could prejudice the effective exercise by HRNSW of its functions. It has the potential to impact on the effectiveness of the procedures that HRNSW has adopted to combat corruption and drug use, including drug testing and it also has the potential outcome that the ARFL would cease providing services to HRNSW.

81. Both of these potential consequences would clearly prejudice the effective exercise by HRNSW of its functions.

82. In my view, the public interest consideration against disclosure in clause 1(f) of the Table to section 14 of the GIPA Act is applicable to the withheld information and should be given significant weight.

Clause 1(h) of the table to section 14

83. Clause 1(h) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of prejudicing the conduct, effectiveness or integrity of any audit, test, investigation, or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

84. It operates to protect the ongoing effectiveness of the methods adopted by an agency such as HRNSW in preventing, detecting, investigating or dealing with crime. This is to ensure that the agency is able to maintain the integrity of its investigatory methods by protecting the identity of its methodology: see the discussion in Sheehy v Commissioner of Police; Rapisarda v Commissioner of Police; McDonald v Commissioner of Police; Housego v Commissioner of Police [2018] NSWCATAD 73.

85. The investigation which could be expected to be prejudiced must be the investigation whose purpose, conduct, or results would be revealed. In the present matter the investigation is complete. However, clause 1(h) operates to protect the ongoing effectiveness of the methods adopted by the agency. This then ensures that the Respondent is able to maintain the integrity of its investigatory methods by protecting its methods.

86. In McDonald v Commissioner of Police, NSW Police [2019] NSWCATAD 66 the evidence was that disclosure of complaint information generally would have a tendency of revealing the purpose of the investigation that is being conducted and the manner in which it is being conducted; and that it is critical that persons are not given the opportunity to understand covert police methodology. The Tribunal found that there is a real public interest in not revealing information about the conduct of internal investigations to the world at large, so that any person can scrutinise the manner in which an investigation is conducted. In my view, a similar public interest applies in relation to HRNSW investigations.

87. The clause refers to revealing the investigation’s purpose, conduct or results. There is a question of whether revealing the results of the investigation will prejudice the conduct, effectiveness or integrity of future investigations – not merely the investigation or review in issue.

88. In Johnson v Secretary, Department of Communities and Justice [2020] NSWCATAD 23 the Tribunal noted that the opening words of clause 1(h) refer to “in a particular case or generally”. The application of clause 1(h) is not limited to the investigations which are the subject of the withheld information. Disclosing the withheld information could prejudice future HRNSW investigations.

89. In my view the confidentiality of the investigation process is fundamental to the proper conduct of that process. The disclosure of the specific information that has been requested could prejudice the conduct or effectiveness of future investigations as it could disclose the methodology that HRNSW has adopted.

90. In my view, the public interest consideration against disclosure in clause 1(h) of the Table to section 14 of the GIPA Act is applicable to the withheld information and should be given significant weight.

Where does the balance lie?

91. It is necessary to balance these considerations against those in favour of the release of the information. As I have indicated, the public interest considerations in favour of disclosure are to be given reasonable weight. However, in my view greater weight should be given to the public interest considerations against disclosure. That being the case, the correct and preferable decision is to affirm the HRNSW decision to refuse to release the withheld information.

Order

The decision under review is affirmed.

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

Registrar

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: 28 September 2021