Eyes v Wyong Shire Council

[2016] NSWCATAD 120

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Eyes v Wyong Shire Council [2016] NSWCATAD 120
Hearing dates:	20 October 2015
Date of orders:	16 June 2016
Decision date:	16 June 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The application for access to the requested information is refused.
Catchwords:	Government Information – public Interest considerations in favour of disclosure – public interest considerations against disclosure - prejudice to effective exercise of agency functions - information provided in confidence - prejudice to the conduct, effectiveness or integrity of an investigation - diminish the competitive commercial value of the information - prejudice to legitimate business and commercial interests
Legislation Cited:	Government Information (Public Access) Act 2009 Freedom of Information Act 1989
Cases Cited:	"B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 Attorney General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 Battin v University of New England [2013] NSWADT 73 Commissioner of Police v Camilleri [2012] NSWADTAP 19 Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37 McKinnon v Blacktown City Council [2012] NSWADT 44 Media Research Group Pty Ltd v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7 Moran v Shellhabour City Council [2011] NSWADT 241 Nature Conservation Council of NSW v Department of Trade and Investment Regional Infrastructure and Services [2012] NSWADT 195 Seeney and Department of State Development [2004] QlCmr 4
Category:	Principal judgment
Parties:	Laurie Maxwell Eyes (Applicant) Wyong Shire Council (Respondent)
Representation:	Counsel: E Whitby (Respondent)   Solicitors: L Eyes (Applicant in person) Wyong Shire Council (Respondent in person)
File Number(s):	1510393

Reasons for decision

Background

1. This is an application for review of two decisions deemed to have been made by the Respondent, Wyong Shire Council (“the Council”) under section 63 of the Government Information (Public Access) Act 2009 (NSW) (“the GIPA Act”).

2. The Council failed to determine the applications within the statutory time frame of 20 days under section 57(1) of the GIPA Act, or by the extension of time agreed to by the applicant under section 57(4). Accordingly, the Council was deemed to have decided to refuse to deal with the applications: section 63 of the GIPA Act.

3. In his access applications the Applicant sought access to three documents (“the withheld information” or “the Documents”), each of which relates to a proposed Central Coast Regional Airport (“the Project”) within the Wyong local government area:

a.   A forecast and development strategy document, 'Draft Demand Forecasts & Development Strategy Review for Central Coast Regional Airport’ dated 10 December 2014, and prepared by Miller Aviation Partners Pty Ltd t/as CAPA Consulting for the Council (“the CAPA Report”):

b.   A site layout plan for the proposed Central Coast Regional Airport - titled 'Wyong Shire Council Warnervale Regional Airport Investigation Site Layout' dated 27 November 2014 and prepared by GHD Pty Ltd for the Council (“the Site Plan”); and

c.   A one page budget estimate titled 'Central Coast Regional Airport ~ Preliminary Cost Estimate', which comprises confidential data provided by GHD to Council, and in turn, incorporated in the document by Council (“the Cost Estimate”).

4. The Applicant applied to the Tribunal for external review of the deemed refusals and seeks access to the withheld information.

5. When the matter came before the Tribunal for a planning meeting, the Council indicated that it would provide the Applicant with a redacted version of each of the Documents in contention however it subsequently changed its position and informed the applicant that the Documents would not be provided.

Applicable legislation

6. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. An access applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: section 9(1) of the GIPA Act.

7. Section 12 of the GIPA Act sets out the general public interest consideration in favour of access to government information. Section 12(1) of the GIPA Act sets out a general public interest in favour of disclosing government information. Section 12(2) provides that the agency may take into account any other considerations in favour of disclosure which may be relevant.

8. Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure. Before deciding whether to release or withhold information, an agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists in regard to the information sought. Section 13 requires the decision maker to:

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

b.   identify relevant public interest considerations against disclosure,

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

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

9. The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act. This includes considerations set out in schedule 1 to the GIPA Act.

10. Considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the effect outlined in the table to section 14 of the GIPA Act.

11. The Agency must apply the public interest test in accordance with the principles set out in section 15 of the GIPA Act:

a.    agencies must exercise their functions so as to promote the object of this Act.

b.    agencies must have regard to any relevant guidelines issued by the Information Commissioner.

c.    the fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

d.    the fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

e.    In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

12. Pursuant to section 105 of the GIPA Act the burden of establishing that the decision is justified lies on the Council.

13. The Tribunal's task is to make the correct and preferable decision in this matter having regard to all the material before it. It may decide to:

(a)   affirm the deemed refusal decisions; or

(b)   vary the decisions; or

(c)   set aside a decision and substitute a different decision; or

(d)    set aside a decision and remit the matter for reconsideration by the NSLHD in accordance with any directions or recommendations of the Tribunal.

14. The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74].

15. In undertaking this exercise the Tribunal is to be guided by section 15.

16. Under section 55 of the GIPA Act, the Tribunal is entitled to consider the Applicant's motives for making the application to the extent that it is relevant to whether disclosure could reasonably be expected to have any of the effects referred to in clauses 2 - 5 of the Table to section 14. 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.

17. In Commissioner of Police v Camilleri [2012] NSWADTAP 19, the Appeal Panel stated:

24. Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused.

25. The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government.

26. We agree with the agency's submission that the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case.

18. Each of the parties has lodged written submissions in support of their case. In addition the Council relies on open and confidential affidavits of its Property Development Manager, Mr Steven Mann. Mr Mann also attended the hearing and was cross-examined. The Council has also provided the Tribunal with a copy of each of the Documents on a confidential basis. The Applicant has not been given a copy of either the confidential affidavit or the Documents.

19. The Applicant relies on his own written submissions and annexures to those submissions.

Public interest considerations in favour of disclosure

20. Section 12 of the GIPA Act provides some examples of public interest considerations in favour of disclosure of information. The considerations in favour of disclosure of information are not limited and are weighed in an applicant’s favour. On the basis of the Applicant’s submissions it can be inferred that he asserts that the considerations in favour of disclosure of the information in issue include:

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

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

21. The Council accepts that, to a limited extent, the disclosure of the Documents could reasonably be expected to promote the open discussion of public affairs, enhance government accountability or contribute to positive and informed debate on an issue of public importance. It does not accept that the disclosure of the CAPA Report or Cost Estimate could reasonably be expected to ensure effective oversight of the expenditure of public funds. It contends that the Project Budget provides the public with details of the allocated budget for each stage of the Project. The Cost Estimate goes to the Council's margins and profitability, which is of a different nature to expenditure of public funds.

22. The Council submits that the extent to which disclosure of the information sought would promote these interests is minimal. That is because there is already a significant amount of information in the public domain regarding the Project.

Public interest considerations against disclosure

23. Relevantly section 14 of the GIPA Act provides:

14 Public interest considerations against disclosure

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

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

(3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.

(4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).

24. The Table to section 14 provides the various criteria or considerations referred to in section 14 (2). The Table lists seven areas and sets out relevant public interest considerations against disclosure. The council has identified a number of these public interest consideration against disclosure on which it relies as relevant to the withheld information:

a.   clause 1(f): the disclosure of the information could reasonably be expected to prejudice the effective exercise by the Council of its functions;

b.   clause 1(g): the disclosure of the information could reasonably be expected to found an action against the Council for breach of confidence or otherwise result in the disclosure of information provided to the Council in confidence;

c.   clause 1(h): the disclosure of the information could reasonably be expected to prejudice to the conduct, effectiveness or integrity of an investigation and/or review conducted by or on behalf of the Council;

d.   clause 4(c): the disclosure of the information could reasonably be expected to diminish the competitive commercial value of the information to the Council; and

e.   clause 4(d): the disclosure of the information could reasonably be expected to prejudice the Council's legitimate business and commercial interests.

25. These must be weighed against the considerations in favour of release. With respect to each public interest consideration against disclosure upon which it relies, the Council is to show that disclosure of the information could reasonably be expected to have the nominated effect.

The meaning of the phrase "could reasonably be expected to”

26. The phrase ‘could reasonably be expected to’ has been the subject of judicial consideration with respect to its use in the Freedom of Information Act 1989 and the Freedom of Information Act 1982 (Cth). The words in the phrase are to be given their ordinary meaning. In Attorney General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way:

In our opinion, in the present context, the words “could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like...

27. The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at 106.

28. In "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at [154] - [160] the Commissioner analysed the meaning of the phrase "could reasonably be expected to” by reference to relevant Federal Court decisions. The Commissioner said that:

The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist.

29. In my view this is the correct basis for determining whether the disclosure of a document “could reasonably be expected" to have a particular effect.

The Council’s Case

Central Coast Regional Airport

30. The Council relies on Mr Mann’s evidence in regard to the existing circumstances of the Regional Airport Project. In summary, the Council’s evidence is:

• the Council is currently in the preliminary planning stage for a proposed Central Coast Regional Airport;

• the Council received and noted the Central Coast Regional Airport Status Report at a meeting held on 13 November 2013. That Report discussed the economic significance of the project and the estimated project cost of $250,000,000;

• The cost of the current Stage of the project, being the Preliminary Site Assessment / Masterplan / Planning Proposal, is $2,000,000;

• delivery of the project will require a public private partnership between the Council and third parties. It is proposed that private partners will be sought to provide the capital to undertake the construction and operation phases;

• risk management plans, feasibility studies etc will need to be prepared to manage and minimise the Council's risk;

• the project will necessarily give rise to commercial in confidence information in assessing the cost of the Project, measured against level of investment, profitability and economic benefits to the Wyong local government area and broader Central Coast region;

• the Council is currently undertaking several preliminary technical studies in relation to the proposed airport. The preliminary investigation phase is in relation to:

1. passenger demand and aircraft movement forecasts - determining how many people would benefit directly from the travel efficiency stemming from a regional airport;

2. regional economic benefits study - to establish how much the Central Coast economy could benefit from a regional airport;

3. site investigations - including geotechnical studies, bulk earthworks feasibility and constructability analysis and preliminary design of runway / taxi way /earthworks / stormwater;

4. obstacle limitation surfaces study - to assist with determining runway orientation and flight paths;

5. biodiversity and offsets study - to understand the biodiversity of the investigation site, along with a range of responsible options for offsetting any impacts on the land's biodiversity;

• the Documents sought by the Applicant have been prepared as part of this preliminary investigation phase;

• following completion of the studies the Council will prepare a masterplan for the Project, which will be submitted to the Council for adoption;

• if the masterplan were adopted, the Council would then be required to take steps in accordance with the Environmental Planning and Assessment Act 1979 (“the EPA Act”) to commence the planning phase of the Project;

• the Council would be required to prepare a "planning proposal" and to consult the community;

• construction of the airport and commissioning and certifications of the airport operations could not progress without completion of all necessary steps and obtaining all necessary approvals.

CAPA Report

31. In summary Mr Mann’s evidence in regard to the CAPA Report is:

• in around September 2014 CAPA Consulting was contracted by the Council to undertake a demand analysis and strategy review for an airport facility for the Central Coast region. The CAPA Report was the result of this exercise;

• the CAPA Report is divided into two parts: demand forecasts and development strategy review;

• the Demand Forecasts part of the report provides an assessment of the demand for the Project, over a 25 year period, taking into consideration various factors such as, the likely catchment areas for the Project, the types of potential users of the Project, the types of aircraft and aircraft movements that can be expected at the Project, and benchmark analysis of other similar airports to the Project;

• the planning for the Project is structured so as to incorporate stakeholder engagement, and the release of information to the public at appropriate times. This structure enables the Council to release information which has been properly assessed, and represents a quality and informed view of what the Council considers to be the best possible outcome for the community, at any stage of the planning process;

• his view is that releasing the Demand Forecasts part of the CAPA Report outside of this structure, could lead to it, and other information related to the Project, being used improperly, and in turn, detract from the effective planning for the Project;

• the Council requires a certain level of confidentiality in performing its functions, so as to be able to obtain and assess reports, conduct further investigations if necessary, liaise with stakeholders, and generally determine the way in which it performs a function. That confidentiality ensures that sensitive information related to the Project is not used improperly;

• a third party, such as a potential developer, could use such information to exert influence on the Council during the course of any negotiations;

• a third party could use such information to lobby and express support or opposition to the Council, outside of the times and processes afforded to other members of the public, providing that party with a distinct advantage and detracting overall from the purpose and general practice of any public consultation process; and

• the Council operates in a highly political environment and the release of sensitive information would require the Council to dedicate time and other resources to addressing any potential inaccuracies, or misrepresentations regarding any information that have not been adopted by the Council, which could in turn impact the budgeting and timeframes provided for in the planning process for the Project;

• the Council has not made any firm decisions in relation to the Project, and confidentiality and/or controlled release of information related to the Project is vital to ensure Council can effectively plan and deliver the Project;

• his view is that releasing the Demand Forecasts part of the CAPA Report could prejudice the Council's business interests, as it could provide potential competitors to Council, including for example, other airports in the vicinity of the Project, with an insight as to the potential nature and characteristics of the Project, and the potential market share for the Project. Providing potential competitors of the Council with this information, in my view diminishes any competitive edge that the Council has in developing the Project;

• the Development Strategy Review part of the CAPA Report provides a recommendation as to the best way in which to develop the Project;

• this recommendation is based on an analysis of various factors, including, the demand for an airport in the Central Coast region of NSW, the likely commercial airline operators, and other types of airport users/ businesses, to use the Project, the impact of future aircraft types on the Project, competing airports, the competitive strengths and weaknesses of the Project, and the various opportunities and risks associated with the Project;

• his view is that releasing the Development Strategy Review part could prejudice the effective exercise of the Council's functions, for the same reasons that he expressed in regard to release of the Demand Forecasts part of the CAPA Report;

• further, releasing the Development Strategy Review part could provide potential competitors of the Council with an insight as to the business model that Council may implement in order to successfully establish and manage the Project. This would diminish, or at least reduce, any competitive edge that Council has in developing the Project, in that competitors may seek to vary or strengthen their business models, based on the information contained in the CAPA Report, so as to ensure their own competitive advantage;

• releasing the Development Strategy Review part could provide potential users with an insight as to Council's understanding of their need and key attraction factors, and this could significantly undermine any negotiations with these potential users, in that they would have an upper hand in any such negotiations, and use that to leverage an outcome that would not serve the Council's business interests; and

• It would provide potential investors and/or business partners with an insight as to the strengths and weaknesses, opportunities and risks of the Project. This could again, give those potential investors and/or business partners with an upper hand in any negotiations, as they would seek to leverage an outcome, that would not necessarily serve the Council's business interests.

Site Layout Plan

32. Under cross-examination Mr Mann conceded that the proposed location of the airport is as identified on the map at page 141 of the Central Coast Regional Airport - Project Plan dated October 2013 which is provided as an attachment to his affidavit. The preliminary analysis is in regard to that area. It relates to a Central Coast Regional Airport - Warnervale and Kiar. In summary Mr Mann’s evidence in regard to the Site Layout Plan is:

• GHD was contracted by Council in around October 2014 to undertake site layout investigations with respect to the land subject of the Project, and provide cost estimates for civil works, in relation to the Project. The result of that contract was the Site Layout Plan, and the Cost Estimate;

• the Site Layout Plan is a preliminary concept plan, in respect of which the Council has made no firm decisions;

• his view is that releasing the Site Layout Plan could prejudice the Council's ability to exercise its functions effectively, for the same reasons that he expressed in regard to release of the Demand Forecasts part of the CAPA Report;

• further, releasing the Site Layout Plan could provide potential competitors to Council, with an insight as to the type of airport facility the Council is considering. That insight would diminish, or at least reduce any competitive edge that the Council has in developing the Project, as potential competitors may use that insight to their benefit, for example, in the planning they may be undertaking for an airport facility.

Cost Estimate

33. In summary Mr Mann’s evidence in regard to the Cost Estimate is:

• the Cost Estimate relates to the infrastructure and engineering work associated with the Project, including bulk earthworks, airfield pavements, stormwater systems and other supporting infrastructure;

• the Cost Estimate was prepared by Council internally, however it incorporates data provided by GHD, for example, most of the quantities and rates set out in the Cost Estimate per each item of infrastructure and/or engineering work;

• his view is that releasing the Cost Estimate could prejudice any future negotiations with any potential developer in relation to the Project;

• the information could reasonably be expected to provide a developer with an advantage in any commercial negotiations and to adversely impact on Council's ability to obtain the best possible price in any tendering process for any development contract associated with the Project. This could impact on the Council's ability to get the best return on its investment.

Objection from GHD

34. Mr Mann annexed to his affidavit a letter from GHD dated 22 May 2015, setting out its objection to the release of the Site Layout Plan and the Cost Estimate. GHD's objection is for the following reasons:

• GHD owns the intellectual property in the information;

• GHD provided the information to Council on the basis of confidentiality;

• The information is commercially valuable to GHD and releasing the information would diminish that competitive commercial value;

• Release of the information will prejudice GHD's business and commercial interests for a number of reasons, including:

○ The information will no longer be exclusive to GHD, meaning that competitors of GHD, and potential clients, will have access to the information, without having to engage GHD;

○ The information was prepared for the Council at a competitive rate, so as to better GHD's competitive advantage in securing any possible future contracts related to the Project. Competitors of GHD will now have access to the information, meaning that competitive advantage is reduced.

Clause 1(f) and Clause 1(h)

35. The Council contends that, as the name suggests, the Development Strategy of the CAPA Report outlines strategic planning for the Project and the Cost Estimate. The Council submits that the release of preliminary investigations prior to them being analysed or adopted by the Council interferes with the integrity of the Council's review process. In respect of the CAPA Report, it submits that the release of the Demand Forecast could provide potential competitors with insight as to the commerciality of the Project and its potential market share.

36. The Council further contends that the release of this commercially sensitive information and potential Council strategy to competitors will prejudice the effectiveness of the review itself.

37. The Council contends that the release of the Documents would diminish the competitive commercial value of the information to the Council and prejudice the Council's legitimate business and commercial interests.

Clauses 4(c) and (d)

38. The Council submits that the underlying purpose of clauses 4(c) and (d) insofar as they apply to agencies' interests in protecting the competitive commercial value of information and their business and commercial interests generally should be borne in mind when interpreting and applying those clauses. At least in part, the underlying purpose is to ensure that agencies are not discouraged from engaging in business or commercial enterprises which are in the public interest by virtue of them being placed at a significant disadvantage as compared with private enterprise.

39. The Council contends that the CAPA Report contains information of significant commercial and competitive value to the Council, such as:

a.   Comprehensive analysis for demand for the Project; review of demand forecasts, and various markets that will be targeted by the Project;

b.   Analysis of the Project's business model;

c.   Analysis of business development prospects for the Project;

d.   Analysis of competing airports;

e.   Opportunities and risk assessment for the Project.

40. The Council contends that the Cost Estimate contains an estimate of the costs for the development of key works and infrastructure for the Project. The release of this information is of high commercial value to the Council.

41. The Council contends that the Site Plan is entwined with the commercial considerations of the Project. The proposed land for the site of the Project comprises approximately 28 parcels of land, most of which are currently privately owned. The Council has allocated $40,000,000 in the Stage 2 budget for acquisition of land for the Project. The Council has entered into an agreement to purchase some of those parcels of land. In the Council's submission:

a.   the information is valuable to Council for the purposes of developing the Project. It is vital in assisting the Council in determining a development model that achieves sustainable success and to ensure maximum return of profits to the Council and maximum benefit to the community; and

b.   it is also information that an arm's length buyer would pay for. The Documents were commissioned by Council at significant cost and is the product of an investment of time and resources by experts in the field. There is a market for such information in that there are competitors for the provision of aviation facilities in the region.

42. In the Council's submission, the information has "competitive" commercial value because it gives the Council an "edge" over its competitors in the regional area in delivering a Project of this nature. The release of the information could reasonably be expected to diminish that competitive commercial value because it would neutralise the advantage given to the Council from having paid for and received that information by:

a.   making the information available to Council's competitors; and

b.   doing so without those competitors having had to outlay similar time and resources in obtaining the information.

43. The Council relies on a number of authorities dealing with information of a similar type: Moran v Shellhabour City Council [2011] NSWADT 241; Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37

Clause 4(c): the disclosure of the information could reasonably be expected to diminish the competitive commercial value of the information to the Council

44. It submits that the withheld information is relevant to the formulation of prices to be negotiated in contracts with various parties for the delivery of the Project and that, given those contracts are yet to be finalised, disclosure of that information could diminish its competitive commercial value. The Council further submits that it is only required to demonstrate that there is a "real risk" that disclosure of the information would diminish its competitive commercial value. It need not show that the chance of that risk materialising is more probable than not. Having regard to the evidence of Mr Mann, including the likelihood of the applicant publishing or disseminating the information on his website, the Council submits that that threshold has been met.

Clause 4(d) Prejudice legitimate business or commercial interests

45. The Council submits that it should not be in dispute that the information concerns the Council's legitimate business and commercial interests. The Council submits that the disclosure of that information could reasonably be expected to prejudice those legitimate business or commercial interests because:

a.   the disclosure of the information could adversely impact on Council's ability to generate interest in the Project from potential investors/business partners, as it would provide insight into the strengths and weaknesses of the Project. It could also adversely impact on negotiations with such investors/business partners as they may use the information as leverage to negotiate a better deal;

b.   the release of this information could adversely affect future negotiations with any potential developer as it may provide them with an advantage in those negotiations and may also impact upon Council's ability to obtain the best possible price in any tendering process for development contracts. This concern is particularly acute in respect of the Cost Estimate. For example, a potential tenderer who knows the projected costs of the infrastructure required for the Proposed Airport, is likely to frame its offer accordingly, with the result that the tendering process would not be truly competitive and the Council's ability to get the best return on its investment for the community would be frustrated.

46. The Council submits that there is a "real risk" of the Council's business or commercial interests being prejudiced by the disclosure of the Documents.

Clause 1(g) - information provided in confidence

47. The Council submits that its obligation to GHD raises a further ground of objection. A letter from GHD makes plain that the figures were imparted on a confidential basis and outlines GHD’s objections to the disclosure of the Site Plan and Cost Estimate, including on grounds of confidentiality. In particular, the letter addresses the commercial harm that will be suffered by GHD as a result of the disclosure of the information, with potential implications for the Council if the information is released.

48. The Council submits that there is an overriding public interest in competitive tenders being made by third parties to provide services to a local government authority, as well as in subsequent tenders for works in delivering the Project. GHD is likely to suffer significant commercial loss in the event the information is released to the public. The disclosure of GHD's confidential information will mean that:

a.   The information will no longer be exclusive to GHD, meaning that competitors of GHD, and potential clients, will have access to the information, without having to engage GHD;

b.   The information was prepared for the Council at a competitive rate, so as to better GHD's competitive advantage in securing any possible future contracts related to the proposed airport. Competitors of GHD would have the same information on which to be able to tender for future contracts involving the Proposed Airport and GHD's competitive advantage w would be reduced.

Applicant's Motives for Making Application

49. The Council submits that the Tribunal should have regard to the fact that the Applicant is strongly opposed to the Project and is a long-standing objector to aviation developments in the region. The Applicant maintains the website with a dedicated tab to the Project under the tag line, "Central Coast Airport -not viable, desirable or necessary". The applicant regularly posts material on the webpage criticizing the Project and the Council.

50. The Council says that the Applicant seeks to obtain the information in an attempt to show that the Central Coast Airport is not viable, desirable or necessary, thereby pre-empting the statutory consultation period provided under section 57 of the EPA Act.

51. Contrary to the Applicant’s contention, the Council says that it has engaged in community consultation and points to a timeline to show what consultation has already taken place and identified that the EPA Act requirement for further consultation.

52. The Council further submits that the Tribunal should have regard to the fact that the Applicant has a history of publishing on his website material disclosed to him by the Council under the GIPA Act. It could reasonably be expected that he will publish the Documents if they are disclosed. This makes it more likely that the Documents will be made available to Council's competitors and that its competitive commercial value will be diminished; and that the prejudice to the Council's business interests is increased.

53. The Council submits that the public interest in receiving information about and debating the merits of the Project has and will be satisfied by the disclosure of the information associated with the various opportunities for the public to make submissions on the Project. The Council further submits that there is little to be gained from releasing the details of the Documents. However, there is much to lose in terms of the potential benefits of the Project to the local community.

54. The Council submits that, when regard is had to the serious risks associated with the disclosure of the information, and the questionable benefit from its release, there is a clear overriding public interest against disclosure of the Documents.

55. The Council submits that the correct and preferable decision is to refuse to provide the Applicant with access to the Documents. However, in the event that the Tribunal requires the Council to provide the Applicant with access to any part of the Documents, the Council submits that access should be limited to providing the Applicant with a reasonable opportunity to inspect a file record only.

The Applicant's Case

56. The Applicant has filed detailed submissions in support of his submission that the withheld information should be released. Most of his material is in relation to the central coast airport and his view that it is not viable, desirable or necessary. He is critical of both the Project and the Council.

57. With limited exceptions, the material does not address the considerations against disclosure of the information that have been raised by the Council. I note that the burden of establishing that a decision to refuse access to the information is justified lies on the Council. There is therefore no obligation on the Applicant address the considerations against disclosure of the information.

58. As I have noted above, it can be inferred from the Applicant’s material that he contends that the considerations in favour of disclosure of the information identified in section 12(2)(a) and (b) of the GIPA Act are applicable.

59. The Applicant submitted that if a proposed regional airport at Kiar is not proceeding, then most of Council's reasons for refusing access to the documents are void. He argued that Kiar Airport is not proceeding and this has been the case since the Economic and Development Committee ceased reporting on it in February 2015. He submits that it is therefore conceivable that the Masterplan and costs that he has requested are in fact for the Warnervale Regional Airport and not Kiar Regional Airport.

60. In relation to the Council’s contention that there are public interest considerations against disclosure of information as referred to in Clause 1 of the schedule to section 14 of the GIPA Act, under the heading “Responsible and effective government”, the Applicant submitted that “what is happening here is irresponsible and ineffective government”. Therefore, he submits, there can be no objection under that clause.

61. Further, he disputes the Council’s contention that release of the information will "prejudice the effective exercise by Council of the Council's functions" on the basis that the Council is “swapping between airports without regard to their own functions”.

62. He also disputes the Council’s contention that release of the information will cause "prejudice to the conduct, effectiveness or integrity of an investigation" on the basis that the investigations into the airport have no integrity and are simply studies to refute existing studies.

63. He also disputes the Council’s contention that the release of the information would "diminish the competitive commercial value of the information" on the basis that there is no commercial value to the development; there are no competitors; and the development is not proceeding.

64. Further, he disputes the Council’s contention that release of the information may "prejudice any person's legitimate business, commercial, professional or financial interests " on the basis that the consultants in question have already carried out studies and made submissions on this airport and those submissions have been released into the public domain.

65. The Applicant submitted that saving face and embarrassment for the Council is not a valid reason to withhold documents. He believes that the real reason why the studies are not being released is that they do not support the proposal for a Central Coast Regional Airport. He expressed the view that if the CAPA and GHD studies supported the airport, the Council would have no hesitation in releasing them. He also argued that the cost of the airport is critical and that if the cost was close to that projected by the Council, the cost study would be released without any difficulty, indeed probably announced with great fanfare. He submitted that the fact that Council will not release the costing simply indicates it does not support their cost estimate.

66. The Applicant stated that his motivation for applying for the information is

“to get to the bottom of what is clearly an airport that is not viable, desirable or necessary and a financial drain on the people of the Wyong Shire. Stopping the incredible waste of public money is the reason for applying. Protecting future jobs and properly zoned industrial land is the reason for applying”

67. In addition to publishing information on the website, he said that he has also submitted information to other news media, for example the Newcastle Herald, Wyong Regional Chronicle and Central Coast Express Advocate.

68. In conclusion he submitted that it is in the public interest to have the information released.

Discussion

69. As noted above, the Council asserts that there are several public interest considerations against disclosure of the information and in particular it relies on Clauses 1(f), 1(g), 1(h), 4(c) and 4(d) of the schedule to section 14 of the GIPA Act.

70. In regard to each of the documents the Council has presented a detailed argument as to why the document should not be released. Mr Mann provided evidence in support of the arguments and his evidence has not been challenged in any material sense. In the circumstances, I accept that evidence.

71. The Applicant submitted that there is no commercial value to the development, there are no competitors and the development is not proceeding.

72. The question therefore arises as to whether the withheld information has "commercial value".

"Competitive commercial value"

73. The Council relies on the decision of the Administrative Decisions Tribunal Appeal Panel in Media Research Group Pty Ltd v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7 at paragraph [44] as support for its submission that the question whether an item of information has "commercial value" is "to be determined by the Tribunal in an objective way taking account of the subjective view of the business party".

74. In Media Research Group the Appeal Panel considered comparable provisions in clauses 7(1)(b) and 7(1)(c) in Schedule 1 to the Freedom of Information Act 1989 (“the FOI Act”). From paragraph [40] the Appeal Panel endorsed the discussion of "commercial value" in Seeney and Department of State Development [2004] QlCmr 4 where the Queensland Information Commissioner identified two senses in which information may have "commercial value":

a. "commercial value" in its "primary meaning"' refers to information that is "valuable for the purposes of carrying on the commercial activity in which the ... person is engaged": paragraph [36]. The information "may be valuable because it is important or essential to the profitability or viability of a continuing business operation, or a pending 'one-off commercial transaction": at paragraph [36],

b. In its "second meaning", information has a "commercial value to [a] ... person if a genuine arms-length buyer is prepared to pay to obtain that information from that ... person, such that the market value of the information would be destroyed or diminished if it could be obtained under the FOI Act from a government agency”. at paragraph [37].

75. The Commissioner noted that there needed to be some evidence of a "legitimate market" for information of that character.

76. The Appeal Panel in Media Research Group added that there must be some uniqueness attaching to the information that justifies treating it as exclusive, secret or confidential: Media Research Group at paragraph [48].

77. The mere investment of time and money in producing information is not itself sufficient to demonstrate that it has "commercial value": Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at paragraph [52]. However, "the fact that resources have been expended in producing information, or money has been expended in acquiring it, are factors that may be relevant to take into account in determining whether information has a commercial value": at paragraph [52].

78. Unlike in clause 7(1)(b) in the FOI Act, the expression "commercial value" in clause 4(c) of the table to section 14 of the GIPA Act is modified by the adjective "competitive". In Nature Conservation Council of NSW v Department of Trade and Investment Regional Infrastructure and Services [2012] NSWADT 195 at paragraph [160], I accepted the applicant's submission that the word "competitive" "appears to imply that the information would need to provide the person with a competitive edge". In McKinnon v Blacktown City Council [2012] NSWADT 44 at paragraphs [79] and [80], the Tribunal, after considering the ordinary meaning of the word "competitive", observed that:

"Competitive commercial value" therefore connotes information of commercial value gained in, or relating to, a competitive commercial or business context, including competitive information relating to the competitive purchase and provision of government services.

79. In the Council's submission, this information satisfies both meanings of "commercial value" identified in Seeney. The Applicant disputes that suggestion but does not provide any cogent basis for his position. In the circumstances I agree with the Council's submission. Mr Mann’s evidence contradicts the Applicant’s assertion that the development is not proceeding in that he said that the Council has not made any firm decisions in relation to the Project.

80. On the basis of the material before me, I am satisfied that the withheld information has "commercial value" to the Council. I accept that the Site Layout Plan and the Cost Estimate have "commercial value" to both the Council and GHD.

81. The Applicant relies on detailed submissions which don’t directly respond to the Council’s arguments. He makes assertions in regard to what he refers to as the Council’s “irresponsible and ineffective government” and lack of integrity. He provided no direct evidence to support those assertions but rather provided numerous documents from which he contends that the inferences can be drawn. Regardless of the merits of his argument, those arguments are focused on his view that the proposed central coast airport is not viable, desirable or necessary. It is not focused on the issues that need to be determined. The GIPA Act is concerned with the disclosure of the government information. This is not the appropriate forum to address issues concerning whether or not the Council is exercising responsible and effective government, whether the investigations into the airport have integrity or the feasibility or desirability of a Central Coast Regional Airport.

82. As I have noted above, the approach that must be taken in this matter requires that I identify relevant public interest considerations in favour of disclosure and those against disclosure. I must attribute weight to those considerations and determine whether the balance of the public interest lies in favour of or against disclosure of the withheld information.

83. As I have indicated above, the considerations in favour of disclosure of the information in issue include those identified in section 12(2)(a) and (b) of the GIPA Act. In my view, reasonable weight should be given to each of those considerations. These considerations would warrant more significant weight had the project progressed further in the development stage when greater public consultation is to be anticipated. No other public interest considerations in favour of disclosure are readily identifiable.

84. While the Applicant has been critical of the Council’s activities, it is not suggested that disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct as referred to in section 12(2)(e) of the GIPA Act.

85. In contrast, the Council has presented strong arguments against release of the information at this stage. In the circumstances I accept the Council’s evidence and submissions. In my view, significant weight must be given to each of the identified public interest considerations against disclosure.

86. I am satisfied that releasing the information at this time would diminish its competitive commercial value and would also prejudice the business and commercial interests of both the Council and GHD. The disclosure of the information could result in the disclosure of information that GDH provided to the Council in confidence and could found an action by GDH against the Council.

87. Because of the preliminary stage reached in the Project, I also accept the council’s argument that the disclosure of the information could reasonably be expected to prejudice the effective exercise by the Council of its functions. It could also prejudice to the conduct of the review to be conducted by or on behalf of the Council.

88. As the Council has not made any firm decisions in relation to the Project, I accept that controlled release of information related to the Project is vital to ensure Council can effectively plan and deliver the Project. Release of the information could provide potential investors, tenderers and competitors with insight into aspects of the Project in a way that could impact negatively on the Council’s capacity to control the development of the Project,

89. This situation would change should the Project proceed to a stage where community consultation is required under the EPA Act. The public interest considerations would then shift in favour of release.

90. With the passage of time the weight to be given to each of those considerations will diminish. For example, the commercial value of the information to both the Council and to GHD will lessen with time as will the potential for release of the information to prejudice those interests. Similarly, if the Project were abandoned then several of the public interest considerations against disclosure would warrant little weight.

91. However, on balance, at this time it is my view that the public interest lies against disclosure of the information. The correct and preferable decision is to refuse access to the requested information.

Orders

1. The application for access to the requested information is refused.

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: 16 June 2016