Eyes v Wyong Shire Council
[1999] NSWADT 139
•20 December 1999
CITATION: Eyes -v- Wyong Shire Council [1999] NSWADT 139 DIVISION: General APPLICANT: Laurie Eyes RESPONDENT: Wyong Shire Council FILE NUMBER: 993055 HEARING DATES: 06/30/1999 SUBMISSIONS CLOSED: 08/02/1999 DATE OF DECISION: 20 December 1999 BEFORE:
N Hennessy - Deputy PresidentPRIMARY LEGISLATION: Freedom of Information Act 1989 APPLICATION: Review of decision to refuse access to documents (or part thereof) - MATTER FOR DECISION: Principal matter REPRESENTATION: Applicant:
Respondent:
In person
J Reilly, solicitor, Abbott ToutORDERS: 1. The decision of the Council not to provide access to the letter from Council to Sly and Weigall, solicitors dated 9 December 1994 is affirmed.
2. The decision of the Council not to provide access to the letter from Council to Sly and Weigall, solicitors dated 31 May 1995 is affirmed.
3. The decision of the Council not to provide access to Report WO29 to the confidential session of Council's General Purposes Committee Meeting dated 26 July 1995 is affirmed.
4. The decision of the Council not to provide access to the remainder of the documents listed in paragraph 8 of this decision is set aside. In substitution for that decision the Tribunal makes the decision that Mr Eyes should be given access to each of those documents.
Background
1 On 30 July 1998 Mr Laurie Eyes applied to the Wyong Shire Council (the Council) for access to certain documents under the Freedom of Information Act 1989 (the FOI Act). The documents related to a proposal by Warnervale Education Pty Ltd (Warnervale) to develop a private university and related facilities. Warnervale was a company formed jointly by Traders Finance Australia Pty Ltd (Traders Finance) and Future Generations Alliance Foundation Ltd (Future Generations). Mr Eyes lives about 7 kms from the proposed site at Warnervale but has no personal interest in the land or the proposed university.
2 Mr Eyes’ application to the Council sought access to the following documents:
“Contracts-details of cost and purchase of land, details of negotiations and proposed development, costs of land, reasons for failure of proposed- Traders Finance, Wyong Shire Council, Future Generations Private University on land owned by Wyong Shire Council at Warnervale- contracts now rescinded.”
3 Council gave Mr Eyes access to the majority of documents falling within this request. Following a request for internal review, Council provided Mr Eyes with several more documents. In all, the Council refused to give access to 21 documents. On 30 March 1999, Mr Eyes lodged an application with the Tribunal for review of the Council’s decision to refuse access to these documents.
Jurisdiction
4 The Tribunal has the power to hear this matter under s 38(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act) and s 53(1) of the FOI Act. Section 53(1) of the FOI Act states that “A person who is aggrieved by a determination made by an agency or Minister under s 24 or 43 may apply to the Tribunal for a review of the determination.” In this case a determination was made under s 24 to refuse access to certain documents.
Powers on Review
5 Under s 63(3) of the ADT Act the Tribunal has power to affirm, vary or set aside the administrator’s decision to refuse access to the documents in question.
Conduct of the proceedings
6 At the conclusion of the proceedings I invited to present further evidence about Council’s intentions in relation to the site in question and the impact, if any, on Traders Finance of the disclosure of certain documents. Mr Eyes filed further evidence and submissions on 7 July 1999. Council filed an affidavit from Kerry Yates, Director of Strategic Planning with the Council, on 23 July 1999. I also made a direction that if Mr Eyes wanted to cross examine any deponent or make further submissions he should notify the Tribunal. The Tribunal did not receive any notification from Mr Eyes.
Scheme of the FOI Act
7 Under s 16 of the FOI Act a person has a legally enforceable right to be given access to an agency’s documents in accordance with the Act. The agency must determine whether access is to be given or refused (s 24). One ground on which an agency may refuse access to a document is if it is an exempt document (s 25(1)(a)). An exempt document is defined in s 6 to include “a document referred to in any one or more of the provisions of Schedule 1”. Section 61 provides that the burden of establishing that the determination is justified lies on the agency.
Documents alleged to be exempt
8 The documents that the Council considers to be exempt and the exemption clauses in Schedule 1 to the FOI Act on which they relied are as follows:
9 At the hearing, it became clear that the following documents were not in issue:
Document 1: the Contract for Sale of Lot A, (proposed university) (Cl 7(1)(c) and Cl 13(a));
Document 2: the contract for Sale of Lot B (residential) and the lease of Lot C (proposed botanical gardens) (Cl 7(1)(c) and Cl 13(a));
Document 3: letter from Traders Finance to council dated 7/11/94; (Cl 7(1)(c) and Cl 13(a));
Document 4: letter from Traders Finance to Council dated 14/11/94; (Cl 7(1)(c) and Cl 13(a));
Document 5: letter from Traders Finance to Council dated 12/12/94; (Cl 7(1)(c) and Cl 13(a));
Document 6: letter from Traders Finance to Council dated 8/4/96; (Cl 7(1)(c) and Cl 13(a));
Document 7: letter from Traders Finance to Council dated 6/11/96; (Cl 7(1)(c) and Cl 13(a));
Document 8: letter from Council to Traders Finance Australia dated 24/8/94; (Cl 7(1)(c) and Cl 13(a));
Document 9: letter from Council to Traders Finance Australia dated 24/7/95; (Cl 7(1)(c) and Cl 13(a));
Document 10: letter from Council to Traders Finance Australia dated16/5/96 (Cl 7(1)(c) and Cl 13(a));
Document 11: letter from Council to Warnervale Education Pty Ltd dated 9/1/97; (Cl 13(a))
Document 12: Cheque Requisition dated 8/1/97 (Cl 13(a))
Document 13: Remittance advice dated 10/1/97 to Blake Dawson Waldron; (Cl 13(a))
Document 14: receipt enquiry; (Cl 13(a))
Document 15: account enquiry; (Cl 13(a))
Document 16: letter from Edwards and Hardy to Council dated 13/12/94; (Cl 13(a) and Cl 7(1)(c))
Document 17: letter from Council to Edwards and Hardy dated 9/12/94; (Cl 13(a) and Cl 7(1)(c))
Document 18: letter from Council to Sly and Weigall, solicitors dated 9/12/94 (Cl 13(a) and Cl 10)
Document 19: letter from Council to Sly and Weigall, solicitors dated 31/5/95 (Cl 13(a) and Cl 10)
Document 20: letter from council to Mellon and Hurley dated 13/8/96; (Cl 7(1)(c) and Cl 13(a));
Document 21: Report WO29 to the confidential session of Council’s General Purposes Committee Meeting dated 26 July 1995 (Cl 12(1) because to disclose its contents would be an offence against Section 664(1A) of the Local Government Act 1993);
· the Airport Development Agreement;
· Letter from CIF Capital Ltd to Traders Finance Australia dated 21 October 1994 discussing business and financial arrangements
· those parts of the Consultancy Proposal from Andrews Neil dated May 1995 which concern the personnel of the consultancy and the financial structure for the proposal
10 The broad issue in this case is whether the Council has discharged its burden of establishing that the above documents are exempt documents under the FOI Act.
Issue
Findings of fact
11 In the early 1990s, Council became interested in developing a site for a private university, an airport and other facilities including some residential accommodation at Warnervale. Expressions of interest were called for early in 1994 but none was accepted. Council then entered into negotiations with Traders Finance, a company which had originally expressed interest in the project. These negotiations led to an agreement that council would sell some land to Traders Finance to develop a university and residential accommodation and lease other areas of land for use as a Botanic Garden.
12 The sale and lease arrangements were to be conditional on the land being re-zoned so that the development could go ahead. Shortly before the contracts and lease arrangements were finalised Traders Finance entered into an arrangement with Future Generations. These two entities formed a separate company - Warnervale.
13 On 6 September 1995 Council entered into a Contract for the Sale of Land (Lot A- the university site) and a Contract for the Sale of land (Lot B - the residential site) and the lease of land (Lot C - the Botanic Gardens site) with Warnervale. The details of the contracts and lease were not disclosed to the public.
14 On 28 July 1995, before the contracts and lease were signed, a Confidentiality Agreement was entered into between the Council and Traders Finance. The Confidentiality Agreement named Traders Finance as the developer (Article 1.1(14).
15 The Confidentiality Agreement obliged each party receiving confidential information to “maintain and take all steps necessary to maintain all Confidential Information and all Notes in the strictest confidence” (Article 3.1(1)). In addition it obliged each party “not to disclose any of the Confidential Information or Notes to any person” with certain exceptions including the party’s employees (Article 3.1(4)).
16 Confidential Information is defined in Article 1.1(10) of the Agreement as
“information of every kind concerning or in any way connected with:
17 The “Transaction Documents” were defined to include “the Botanic Garden Agreement for Lease, the Botanic Garden Lease and the Contract for Sale” (Article 1.1(21). “Contract for Sale” was defined in the Agreement to mean “the Contract for Sale of Land between the Parties to this Agreement whereby the Council sells to the Developer land to be used for higher education facility and for medium density housing” (Article 1.1(11)).
(i) the Transaction Documents;(ii) the subject matter of the Transaction Documents;
(iii) the Party Supplying Information;
(iv) any Related Corporations of the Party Supplying Information; or
(b) which is the property of the Party Supplying Information or any of its Related Corporations;and which
(c) is disclosed in writing, orally or by any other means by the Party Supplying Information or by any person on behalf of the Party Supplying Information to the Receiving party or an employee, officer, contractor, subcontractor or agent of the Receiving Party; or
(d) comes to the knowledge of the Receiving party or an employee, officer, contractor, subcontractor or agent of the Receiving Party by any means.
18 The Agreement went on to provide that each party’s obligations “continue indefinitely and, except to the extent that they are varied by a later agreement made between the Parties, are not diminished or terminated by the making or completion of an agreement concerning the subject matter of the Transaction Documents” (Article 13.1.1)
19 None of the contracts or lease agreements with Warnervale went ahead. The contracts for sale of the land between Council and Warnervale (Document 1) relating to the university site was rescinded on 4 November 1996. One of the reasons for the rescission was that Council had been unable to obtain a re-zoning of the land. According to Council another reason was that the consortium, Warnervale, was dissolved. The deposit for the sale of the land was returned to Warnervale’s solicitors.
20 Council is still planning to develop a higher education facility at Warnervale. The parties agreed that the existing conservation zoning would not permit a university to be built on the site but that the proposed re-zoning, if gazetted, would allow such a facility to be built.
21 Mr Eyes maintained that the current proposal is “totally different” from the original proposal. In support of this proposition he provided a copy of the 1995 and 1998 university site re zoning Local Environmental Studies (LESs). The LESs were prepared by Andrews Neil, architects planners landscape consultants. Section 2.1 in appendix A of the 1998 LES refers to the 1994 proposal in the following way:
A concept plan was prepared by Future Generations Alliance for a university complex as part of a previous proposal in 1994. It had the following components:
22 The 1998 LES goes on to say
University Campus for 5,700 students
Residential colleges
Language centre
Sports institute and facilities
Performing Arts Centre
Hotel
A High School with a residential college
Medium density housing
It is not proposed to proceed with this proposal. However, Council still sees considerable merit in the overall concept and proposes to proceed with a private university concept including other associated educational, recreational and cultural facilities. The final mix of land uses would be determined by a future proponent and assessed in detail when a development application is lodged.
23 The documentation provided by Mr Eyes shows that the 1998 zoning proposal eliminates the botanic garden and reduces the total development area.
24 Mr K Yates, the Director of Strategic Planning with Council, prepared an affidavit dated 23 July 1999. He stated that Council’s current rezoning proposal for the Warnervale airport site and its environs is
“. . . quite similar to the 1995 proposal. The area now proposed to be rezoned 5(a) Special Uses (Education Establishments) is very similar to that proposed in 1995. The area now proposed, is 77 hectares compared with an area of 76.2 hectares in 1995.”
25 Mr Yates went on to say that assuming the proposed rezoning is gazetted, “it is Council’s intention to seek public expressions of interest which will include both the rezoned education site and the adjacent conservation area.”
26 The current proposal involves a slightly smaller area than the original and does not include the botanic gardens. The current proposal could still comprise a private university and other associated educational, recreational and cultural facilities.
27 Council wrote to Traders Finance on 18 August 1998 advising them that an application under the FOI Act had been received. Council requested Traders Finance to advise them of any grounds which might preclude the release of the documents in question. Traders Finance replied on 27 August 1998 stating that:
It is our understanding the council is preparing for the rezoning of the Warnervale Site and will be calling Tenders in the near future. That being the case, any disclosure of our previous arrangements with Council would place us at a disadvantage and this exposure would jeopardise our opportunity to complete the project that we set out to achieve back in 1994.
We ask that all documents and correspondence concerning the Property sale, Airport Development and operation, the Lease of the site for the Botanical Gardens, the University, along with the educational cluster generally, are considered exempt documents as set out in Clause 13, Schedule 1 of the Act.
28 Annexed to Mr Yates’ affidavit is a letter from Traders Finance to the Council dated 21 July 1999, putting on record “our continuing interest in the project and our intention to lodge an expression of interest.” Traders Finance also noted that their previous proposal, with some minor amendments, is still appropriate to the site. They did not point out in their letter what these “minor amendments” would entail. Traders Finance perceives its position being damaged if the contents of that proposal are made public.
Application of the law
29 Each of the documents over which an exemption has been claimed will be discussed in turn. The first group of documents are those associated with the cost and purchase of land, namely the Contract for Sale Lot A (university); and Document 2, the Contract for Sale Lot B (residential); and the Lease of Lot C (Botanical Gardens). Council argued that Clause 13 and/or Clause 7(1)(a) apply to these documents. Clause 13 states that:
13 Documents containing confidential material
A document is an exempt document:
30 The Council’s submission was that the contracts and lease were exempt under Clause 13(a) because they would found an action for breach of confidence either on the basis of a contractual obligation contained in the Confidentiality Agreement or on the basis of an equitable obligation of confidence. In their letter to Mr Eyes dated 9 February 1999, Council mentioned Clause 13(b) as justifying exempting some documents. No evidence or submissions supporting a claim under s 13(b) was made at the hearing and I can only assume that it is not relied on.
(a) if it contains matter the disclosure of which would found an action for breach of confidence, or(b) if it contains matter the disclosure of which:
(i) would otherwise disclose information obtained in confidence, and(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and
(iii) would, on balance, be contrary to the public interest.
31 The first issue in relation to Cl 13(a) is whether the words “an action for breach of confidence” covers the situation where there is merely a contractual right of confidence without any equitable jurisdiction. This point was raised but not resolved by the Commonwealth Administrative Appeals Tribunal (AAT) in Re Kamminga (1992) 15 AAR 297 at 304. Since then the Queensland Information Commissioner has analysed the authorities and the literature on this question in relation to the equivalent provision (s 46(1)(a)) of the Freedom of Information Act 1992 (Qld). I agree with the Commissioner’s analysis and the conclusion that the words “found an action for breach” include:
32 The second issue is whether the disclosure of the documents by Council would found an action for breach of a contractual obligation of confidence by Traders Finance. The relevant provisions of the Confidentially Agreement are set out above in paragraphs 14-18.
a) a cause of action for breach of a contractual obligation of confidence;
b) a cause of action for breach of an equitable duty of confidence; and
c) a cause of action for breach of a fiduciary . . . duty of confidence and fidelity: (Re B (1994) 1 QAR 279 at 296)
33 Mr Eyes submitted that Documents 1 and 2 do not come within the definition of Transaction Documents because they were not made with the parties to the Confidentiality Agreement. The parties to the Transaction Documents were Warnervale and Council, whereas the parties to the Confidentiality Agreement were Traders Finance and Council. Council did not press their initial submission that Traders Finance and Warnervale were “related corporations” within the meaning of that term in the Confidentiality Agreement.
34 I agree with Mr Eyes that Traders Finance could not sue for breach of a contractual obligation of confidence if Council disclosed Documents 1 and 2. These documents are not Transaction Documents within the meaning of that term in the Confidentiality Agreement. The contracts for sale and the Botanic Garden Lease are all defined to mean the agreements and contracts between the parties, that is between Council and Traders Finance. The Documents in question in these proceedings were not contracts or agreements between those parties but between Council and a completely different legal entity, namely Warnervale.
35 Clause 13(a) also relates to a cause of action for breach of an equitable duty of confidence. There was insufficient evidence from Council to establish that Traders Finance could found an action for breach of an equitable duty of confidence. For example, there was no direct evidence that the information contained in the documents was not commonly or publicly known (See Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215 per Lorde Greene MR). Similarly there was no direct evidence of the existence of an implied obligation of confidence between Traders Finance and Council nor of whether disclosure would breach that obligation. Council has not discharged its burden of proving that Documents 1 and 2 are exempt under Clause 13(a).
36 Council’s alternative submission was that Documents 1 and 2 are exempt under Cl 7(1)(c). That clause states that:
(1) A document is an exempt document:
(2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made.
(c) if it contains matter the disclosure of which:
(i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.
37 In relation to Cl 7(1)(c) the Council Documents 1 and 2 contain information concerning the business, professional, commercial or financial affairs of Traders Finance. The second issue is whether disclosure could reasonably be expected to have an unreasonable adverse effect on those affairs. Council did not contend that they would prejudice the future supply of such information to the Government or to an agency.
38 Two phrases within Cl 7(1)(c)(ii) require closer examination. The first is “could reasonably be expected” and the second is “an unreasonable adverse effect on those affairs.” These phrases have been interpreted in cases decided under similar provisions in the Freedom of Information Act 1982 (Cth). According to Bowen CJ and Beaumont J in Re Cockcroft and A-G’s Department ((1986) 64 ALR 97 at 106) the decision maker is required to determine, based on the material available, whether or not the expectation of an unreasonable adverse effect is reasonable, as opposed to irrational, absurd or ridiculous. In Searle v Australia Pty Ltd v PIAC ((1992) 108 ALR 163 at 175) the Full Court of the Federal Court, said that these words are “ordinary words of the English language and are used in the sense in which they would be employed in common parlance.”
39 To determine whether disclosure would have an unreasonable adverse effect, the cases suggest that the decision maker should take into account the competing public interest factors for and against disclosure (Re Actors Equity Association of Australia and Australian Broadcasting Tribunal (No2) (1985) 3 AAR 1; Colakovski v Australian Telecommunications Corp (1991) 100 ALR 111).
40 The only evidence of an adverse effect is the letters written to Council by Traders Finance dated 27 August 1998 and 21 July 1999. The first of these letters states in part that “any disclosure of our previous arrangements with Council would place us at a disadvantage and this exposure would jeopardise our opportunity to complete the project that we set out to achieve back in 1994.” The second letter requests that “confidential documents relevant to our 1995 proposal not be released to the public as this may prejudice the expression of interest process.”
41 Even if the stronger assertion in the first letter is accepted at face value, being “placed at a disadvantage” does not amount to proof of an “unreasonable adverse effect.” Council made no attempt to identify the factors relevant to a consideration of whether any adverse effect was unreasonable. Consequently it is unnecessary to go on to examine whether disclosure “could reasonably be expected” to have an unreasonable adverse effect. Documents 1 and 2 are not exempt documents pursuant to Cl 7(1)(c).
42 The second group of documents (documents 3-10) are letters from Traders Finance dated 7/11/94, 14/11/94, 12/12/94, 8/4/96 and 6/11/96 and Council’s letters to Traders Finance dated 24/8/94, 24/7/95 and 16/5/96. Below I have set out a brief summary of the subject matter of these letters:
7/11/94: letter from Traders Finance to Council advising of involvement of Future Generations, details of planned numbers of students and staff; sporting facilities and an estimate of annual income and expenditure. The letter also includes information about other facilities on the site including accommodation;
43 Council submitted that this correspondence was exempt under Clause 13(a) and/or Clause 7(1)(c). The basis for their claim under Clause 13(a) is that the letters come within the definition of “Confidential Information” in the Confidentiality Agreement (see paragraph 16 above).
14/11/94: letter from Traders Finance to Council setting out an alternative proposal for the development of the site and details of how such a proposal would work;
12/12/94: letter from Traders Finance to Council re student numbers, land requirements etc
8/4/96: letter from Traders Finance to Council pointing out that land had not been re-zoned and requesting discussions;
6/11/96: letter from Traders Finance to Council foreshadowing rescission of the contract and its implications;
24/8/94: letter from Council to Traders Finance covering issues including storing and selling of aviation fuel, hire and charter of aircraft, Council’s plans in relation to the tendering process and requesting further information;
24/7/95: letter from Council to Traders Finance enclosing copies of agreements and other documentation;
16/5/96: letter from Council to Traders Finance advising of Council’s efforts in relation to re-zoning;
44 The first part of this definition relates to information which concerns or is in any way connected with the Transaction Documents or the subject matter of those documents. As outlined above, the letters do not meet this description because no Transaction Documents as defined in the Confidentiality Agreement, were ever entered into. The contracts and lease were with Warnervale and Council not with the parties to the Confidentiality Agreement. Consequently disclosure of Documents 3-10 would not found an action in contract for breach of confidence. Similarly, because of the lack of evidence, there is no basis for a finding that disclosure of these documents would found an action in equity.
45 The second part of the definition of “Confidential Information” on which the Council relies is that the letters are the property of Traders Finance. No evidence was presented to prove this assertion and I do not accept it.
46 In relation to Cl 7(1)(c) the Council submitted, and I accept, that all the letters contain information concerning the business, professional, commercial or financial affairs of Traders Finance. The second issue is whether disclosure could reasonably be expected to have an unreasonable adverse effect on those affairs. As with Documents 1 and 2, Council did not contend that they would prejudice the future supply of such information to the Government or to an agency.
47 Mr Eyes’ general submission in relation to Documents 3-10 was that much of the information apparently contained in those documents has already been released through items in the media and other Council documents. The fact that certain information may already be available from another source does not mean that an administrator or the Tribunal must grant access to it under the FOI Act. However, to merely state that information is available elsewhere is not the end of the matter. In Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163 at 177 the Federal Court held that the mere fact of publication would not mean that the documents should be disclosed. Whether commercial value attaches to information must be considered in the context of each individual case.
48 As to whether disclosure will have an unreasonable adverse effect on Traders Finance affairs, the best evidence of this is a general assertion of “disadvantage” contained in the 27 July 1998 letter to Council. For the reasons mentioned above in relation to Documents 1 and 2, Council has not discharged its onus of establishing that an unreasonable adverse effect exists in relation to Documents 3-10.
49 Documents 11 - 15 all mention the amount of money paid as a deposit in relation to the Contract for Sale (Document 1). For the reasons outlined above, disclosure of these documents would not found an action for breach of confidence and are not exempt under Cl 13(a). Council indicated at the hearing that in the alternative they relied on Cl 7. Apart from the letter citing “disadvantage” referred to above, no evidence of an “unreasonable adverse effect” on the affairs of Traders Finance or Council was provided. Consequently, Documents 11-15 are not exempt documents.
50 Document 16 is a letter from Council to Edwards and Hardy public accountants, dated 9 December 1994. It provides background information on the proposed development and requests advice in relation to negotiations with Traders Finance. Disclosure would not found an action for breach of confidence by Traders Finance so this document is not exempt under Cl 13(a). In relation to clause 7(1)(c) no evidence was put as to how disclosure could be expected to have an unreasonable adverse effect on any person’s affairs.
51 Document 17 is a letter from Edwards and Hardy to Council dated 13 December 1994. The letter provides advice to Council on the expression of interest process. Again, for the reasons outlined above, Clause 13(1)(a) does not apply. Similarly in relation to Cl 7(1)(c) no evidence was put forward as to any unreasonable adverse effect disclosure would have on the affairs of any person.
52 Document 18 and 19 are two letters from Council to Sly and Weigall, solicitors dated 9 December 1994 and 31 May 1995. Council argues that these documents are exempt under Cl 10. That Clause states that:
53 Council did not provide any evidence on this point apart from the letters themselves. The exemption under Cl 10 requires that legal advice is sought or provided in the course of a relationship between solicitor and client. Both letters are from Council to their solicitors, Sly and Weigall seeking legal advice. I am prepared to find that the existence of the correspondence establishes that there is a solicitor/client relationship between Council and Sly and Weigall. There is no evidence that privilege over these documents has been waived or that any exceptions apply in this case. Consequently Documents 18 and 19 are exempt documents.
(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings
on the ground of legal professional privilege.
(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an
agency’s policy document.
54 Document 20 is Council’s letter to Mellon and Hurley of 13 August 1996 which contains deposit refund arrangements following rescission of the contract. For the reasons outlined above, neither Cl 13(1)(a) nor Cl 7(1)(c) apply to this document.
55 Document 21 is Report WO29 to a confidential session of Council’s General Purposes Committee of 26 July 1995. The Council submitted that disclosure of the document would be exempt under Cl 12 and Cl 13(a). Clause 13(a) does not make the document exempt. Clause 12 states that:
12 Documents the subject of secrecy provisions
56 The Council submitted that disclosure of Document 21 would constitute an offence under s 664(1) of the Local Government Act1993. The relevant parts of that section state that:
(1) A document is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act, whether or not the provision that creates the offence is subject to specified qualifications or exceptions.
(2) A document is not an exempt document by virtue of this clause unless disclosure of the matter contained in the document, to the person by or on whose behalf an application for access to the document is being made, would constitute such an offence.
664 Disclosure and misuse of information
57 This section is known as a “secrecy provision” because it makes it an offence to disclose certain information obtained in connection with the administration or execution of the LGA. In particular, it is an offence under s 664(1A) to disclose, other than to the councillors, information with respect to the discussion at or the business of a meeting which has been closed to the public. Report WO29 comes within this definition as it sets out the business with which the confidential meeting was concerned. It will not be an offence if disclosure is made in accordance with a requirement under the FOI Act.
(1) A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made:
(d) in accordance with a requirement imposed under the Ombudsman Act 1974 or the Freedom of Information Act 1989,
(1A) In particular, if part of a meeting of a council or a committee of a council is closed to the public in accordance with section 10A (1), a person must not, without the authority of the council or the committee, disclose (otherwise than to the council or a councillor of the council) information with respect to the discussion at, or the business of, the meeting.
(1B) Subsection (1A) does not apply to:
(b) disclosure made in any of the circumstances referred to in subsection (1) (a)-(e).
Maximum penalty: 50 penalty units.
58 Clause 12 provides that a document will be exempt if it contains matter disclosure of which would constitute an offence, whether or not the provision that creates the offence is subject to specified qualifications or exceptions. The issue is whether the exception in the LGA for disclosure in accordance with a requirement of the FOI Act is a “specified qualification or exception” under Cl 12. The plain meaning of the words suggests that it is an exception. If this is the case, the relevant document would be exempt under Cl 12 even if it would not be an offence to disclose the document.
59 It appears that parliament’s intention in enacting Cl 12 was that all secrecy provisions should continue to operate. In the Second Reading Speech to the FOI Bill (NO2) 1988 the Minister, Mr Moore, said that;
The secrecy exemption has caused consternation in some circles, but the principle behind its inclusion in this bill is sound. Freedom of information legislation is not an appropriate vehicle for striking down specific secrecy provision in other legislation. These provisions should not be rendered void by an across-the-board application of the Freedom of Information Act.” (Parliamentary Debates, Legislative Assembly, 10 November 1988 at 3165)
60 If parliament’s intention in enacting Cl 12 was to allow secrecy provisions to exempt certain documents, it is difficult to understand what their intention was in providing an exception under the LGA for disclosure in accordance with a requirement of the FOI Act. However, without some indication that this exception was intended to negate the effect of the secrecy provision, its literal meaning must be applied. Consequently Document 21 is exempt under Cl 12.
Conclusion and orders
61 Of the 21 documents which Council claims are exempt from disclosure under the FOI Act, they have established that their determination is justified in relation to Documents 18, 19 and 21.
62 The decision of the Council not to provide access to the letter from Council to Sly and Weigall, solicitors dated 9/12/94 is affirmed.
63 The decision of the Council not to provide access to the letter from Council to Sly and Weigall, solicitors dated 31/5/95 is affirmed.
64 The decision of the Council not to provide access to Report WO29 to the confidential session of Council’s General Purposes Committee Meeting dated 26 July 1995 is affirmed.
The decision of the Council not to provide access to the remainder of the documents listed in paragraph 8 of this decision is set aside. In substitution for that decision the Tribunal makes the decision that Mr Eyes should be given access to each of those
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