Freeland v General Manager, Liverpool City Council
[1999] NSWADT 95
•8 October 1999
CITATION: Freeland -v- General Manager, Liverpool City Council [1999] NSWADT 95 DIVISION: General APPLICANT: John Freeland RESPONDENT: General Manager, Liverpool City Council FILE NUMBER: 993113 HEARING DATES: 08/12/1999 SUBMISSIONS CLOSED: 08/12/1999 DATE OF DECISION: 8 October 1999 BEFORE:
P Goode - Judicial MemberPRIMARY LEGISLATION: Freedom of Information Act 1989 APPLICATION: Review of decision to refuse to grant access to documents - MATTER FOR DECISION: Principal matter REPRESENTATION: Applicant:
Respondent:
In person
J Maston of counsel instructed by MarsdensORDERS: 1. The decision of the Council is affirmed.
1 The Applicant, Mr Freeland, is President of the East Liverpool Progress Association (“the Association”). By letter dated 8 April 1999, he wrote to the Respondent’s Public Officer, Ms Dundas, seeking access to certain documentation under the provisions of the Freedom of Information Act 1989 (NSW) (“the FOI Act”).
2 The documents sought fall into 2 categories. They were described by the Applicant in the following terms:
(1) “[A]ll documents relating to City Council’s engagement of licensed land valuers, to value the Memorial Pool site being purchased by Canterbury Bankstown Leagues Club (“the Club”) or their agent.”
3 By letter dated 13 April 1999, the Respondent declined the application. The Applicant was advised by Ms Dundas that in January 1998 the Council had resolved to sell the site for $4.5 million to the Club and that this price was higher than the Club’s offer and higher than the average of the 3 valuations the Council had obtained from “independent reputable valuation firms”. The firms were not named in the letter.
(2) “[T]he actual valuation documents for the pool site submitted by the successful valuers to Council.”
4 Significantly, the Applicant was also advised in Ms Dundas’ letter that under the provisions of the Local Government Act 1993 (“the LGA”), there was no requirement to sell through a process of public tender.
5 The Applicant was further advised by Ms Dundas that the report which had led to the Council’s resolution to sell the land to the Club was a confidential document and that in accordance with s.10A(2)(c) of the LGA, it was not available for public access. Given that the settlement of the property was still pending, the Applicant was also advised that disclosure of any information regarding the basis for the valuation may have an adverse financial or property interest for the Council.
6 In declining the application, the Respondent concluded that the information sought was exempt within the meaning of clause 15 of Schedule 1 of the FOI Act.
Internal FOI Review
7 On 7 May 1999, the Applicant applied to the Respondent for an internal review of its decision of 13 April 1999. This request was made under ss.34 & 47 of the FOI Act. In seeking a review, the Applicant stated that the Association considered that the request was reasonable and that the Council’s residents and ratepayers needed assurance that the sale price for the pool site was the best possible.
8 By letter dated 27 May 1999, the Respondent’s General Manager, Mr Carr, informed the Applicant that the Council was unable to release the requested information on the basis that access to the valuations in question fell within the categories of exempt documents prescribed in clauses 7 & 15 of Schedule 1 of the FOI Act.
9 On 3 June 1999, pursuant to the provisions of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”), the Applicant applied to this Tribunal for a review of the Respondent’s decision.
The Hearing
10 When the matter came on for hearing before the Tribunal on 12 August 1999, the Applicant was unrepresented. Mr Maston of counsel appeared for the Respondent.
11 Initially, the Applicant pressed his request for access to all the documents which fell within categories (1) & (2) (see paragraph 2 above).
12 Mr Maston submitted that in addition to clauses 7 & 15 of Schedule 1 of the FOI Act, the Respondent also relied on clauses 9 & 13 of the same Schedule. It was common ground that the Complainant had not been notified of the Respondent’s intention to rely on clauses 9 & 13 until 11 August 1999, that is the day before the hearing. Despite the late notification, the Applicant did not seek an adjournment.
13 Relying on the decision of the Commonwealth Appeals Tribunal in Re Public Interest Advocacy Centre and Department of Community Services and Health (1991) 14 AAR 180, Mr Maston submitted that in reviewing the Council’s decision, the Tribunal was not constrained by the reasons given by the Council when declining the Applicant’s request for access and, therefore, that it was not limited to the legal bases initially relied on. Clearly that is the correct position. Indeed the Applicant made no submission to the contrary.
14 After hearing Mr Maston’s submissions, the Applicant conceded that the valuation documents were exempt within the meaning of both clauses 9 & 13. Accordingly, he withdrew that part of his application which specifically related to these documents (i.e category (2) in paragraph 2 above). For reasons which are discussed below in paragraphs 27 - 37, and 43 - 47, I am of the opinion that this concession was properly made. Accordingly, I propose to dismiss that part of the application.
15 I turn now to discuss the remaining limb of the application. In essence, the Applicant seeks access to all documents relating to the Council’s engagement of the licensed land valuers in question.
The engagement of licensed land valuers
16 The Applicant submitted that he wished, on the Association’s behalf, to have access to these documents in order to ascertain whether the valuers had sufficient experience to be able to undertake what he described as a complex valuation. In particular, he sought access to all the material the Council held concerning the qualifications, experience and proposed methodologies of each of the valuers.
17 The names of the valuers recommended to Mr Carr by the Respondent’s Property Manager, Mr Harvey, are set out in Mr Harvey’s memorandum dated 19 March 1997 (see Annexure F to Mr Carr’s affidavit of 9 August 1999). It is the Respondent’s case that the selection was made solely by Mr Harvey and accepted without reservation by Mr Carr.
18 It is also the Respondent’s case that all the documentation relating to the engagement of the 3 land valuers is set out in Mr Carr’s affidavit and is therefore before the Tribunal. The Applicant disputes this.
19 When inviting me to infer that not all of the relevant documents relating to the engagement of the 3 valuers had been placed before the Tribunal, the Applicant relied primarily on the following submissions:
(1) Given the wide variation in the fees which were accepted by the Respondent in respect of each valuation report, viz, $10,000, $4,500 and $3,500, one or more of the valuers may have used subcontractors who could have had a direct conflict of interest with the Council or been on the Council’s preferred list of contractors (for works with a value of less than $100,000), which list was currently the subject of investigation by the Independent Commission Against Corruption (“ICAC”).
(2) In respect of the valuation report for $10,000, the name of the valuer was included in the list of preferred contractors mentioned in (1) above.
20 Mr Maston submitted that, suspicion aside, there was no evidence to suggest that the Council had withheld any documentation relating to the engagement of the 3 valuers in question. Accordingly, he submitted that the Tribunal should dismiss the first limb of the application as well as the second.
21 In relation to the specific matters addressed by the Applicant (see paragraph 19 above), Mr Maston submitted that the preferred list of contractors which was the subject of investigation by ICAC had no relevance to the present application because the list had only been compiled in early 1999, which was well after the valuation reports had been submitted and contracts had been exchanged between the Council and the Club.
22 Notwithstanding the matters raised by the Applicant, there is no evidence before me which is capable of suggesting any irregularity or impropriety in the selection and engagement of the 3 independent valuers. Nor is there any reliable evidence before me to suggest that the Respondent has withheld any documentation in relation to the engagement of the valuers.
23 Given that I am satisfied that all the relevant documentation has now been made available to the Applicant, there is no need for me to consider whether the documents are exempt within the meaning of the FOI Act. Accordingly, I propose to dismiss the first limb of the application.
24 I now turn to discuss my reasons for finding that the actual valuation documents themselves are exempt within the relevant provisions of the FOI Act.
25 Section 5(2)(b) provides that an object of the FOI Act is to give:
“…. each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government….”
26 Section 6(1)(a) of the FOI Act defines an exempt document as a document referred to in Schedule 1. In the present case, the Respondent relies on clauses 7, 9, 13 and 15 of the Schedule. In order to be classified as exempt, the valuation documents need only fall within one of the relevant clauses. However for completeness, I discuss each of the clauses below. It is convenient to discuss clause 9 first.
Clause 9 : Internal working documents
27 Clause 9(1) provides:
“A document is an exempt document if it contains matter the disclosure of which:
(ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and would, on balance, be contrary to the public interest.”
(a) would disclose:
(i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or
28 I am satisfied that disclosure of the valuation documents in question would necessarily disclose the individual opinions of the 3 valuers. It is clear that the valuations were obtained by the Respondent to enable it to determine an acceptable range of sale prices for the purpose of conducting negotiations with the prospective purchaser.
29 In these circumstances, I find that both the sale of the site (while not yet complete) and the decision to fix the sale price at $4.5 million were made in the course of the decision making functions of the Council.
30 Section 21 of the LGA specifies the functions conferred or imposed on a council under the Act. Chapter 6 of the Act specifies the “service” or “non-regulatory” functions of a council. These include entering into contracts, including contracts for the sale of land (s. 53(3) item 3).
31 I further find that disclosure of the valuation documents would on balance, be contrary to the public interest. My reasons are set out in paragraphs 32 - 36 below.
32 In circumstances where the valuations were obtained in confidence and withheld from the Club, disclosure could interfere with the completion of the contract for sale.
33 Given that the contract for sale is conditional and there are rights of rescission available to the purchaser, the Council could lose the sale if, after viewing the valuations, the Club considers that it has paid too high a price for the site.
34 If the sale collapses as a consequence of the documents being disclosed, the Council would incur a significant financial loss because fresh valuations would be required at a future date for sale to another purchaser.
35 The Applicant has no personal interest in the documents sought as they do not relate to his personal affairs.
36 The valuations led to a commercially sensitive decision being made at the highest level of the Council: see Re Howard v Treasurer (Cth) (1985) 3 AAR 169 at pp.176 - 178.
37 Accordingly, I am satisfied that the valuations are exempt within the meaning of clause 9.
Clause 7 : Documents affecting business affairs
38 Clause 7(1)(b) provides that a document is an exempt document:
“if it contains matter the disclosure of which:
39 For the reasons set out in paragraphs 32 - 34 above, I am satisfied that if disclosure of the valuations resulted in the collapse of the sale to the Club, fresh valuations would be required in order for the Council to be able to fix a new price for a future sale. The commercial value of the current valuations would thereby be reduced.
(i) would disclose information (other than trade secrets) that has a commercial value to any agency or any other person, and
(ii) could reasonably be expected to destroy or diminish the commercial value of the information.”
40 There is also a risk with any subsequent sale that the price of $4.5 million, agreed to by the existing purchaser, may not be achievable again.
41 Accordingly, I am satisfied that disclosure of the valuation documents would necessarily disclose information that has a commercial value to the Council and could reasonably be expected to destroy or diminish the commercial value of the documents.
42 I therefore find that the valuation documents are also exempt within the meaning of clause 7.
Clause 13 : Documents containing confidential material
43 Clause 13(b) provides that a document is an exempt document:
“if it contains matter the disclosure of which:
44 The evidence relied on by the Respondent shows that the valuations were obtained in confidence for the benefit of the Council and that they were covered by confidentiality agreements.
(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.”
45 I am satisfied that disclosure of the valuations could reasonably be expected to prejudice the supply of expert valuations to the Council in the future. This is because the Council would be less inclined to obtain written valuations if it knew they could be disclosed to the prejudice of pending negotiations. As a consequence, it may have to rely on oral valuations instead which would not be in a form which is reasonably capable of detailed analysis and review.
46 For the reasons given in relation to clause 9 in paragraphs 32 - 36 above, I am also satisfied that disclosure would, on balance, be contrary to the public interest.
47 Accordingly, I find that the valuations are exempt documents within the meaning of clause 13.
Clause 15 : Documents affecting financial or property interests
48 Clause 15 provides:
“A document is an exempt document if it contains matter the disclosure of which:
49 I find that the valuation reports contain matter the disclosure of which could reasonably be expected to have a substantial adverse effect on the financial or property interests of the Council. The substantial adverse effect is the risk of losing the benefit of the contract for sale of the site for $4.5 million.
(a) could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency, and
(b) would, on balance, be contrary to the public interest.”
50 I also find that disclosure would, on balance, be contrary to the public interest (see paragraphs 32 - 36 above).
51 Accordingly, I find that the valuations are exempt documents within the meaning of clause 15.
52 This finding is consistent with the decision made by Smyth DCJ in Wilson v Department of Education, Unreported Decision of the District Court, 21 December 1989. In that case, the valuations of school properties to be disposed of by the Department of Education were sought under the FOI Act. Smyth DJC refused disclosure on the ground that it would be contrary to the public interest and that the valuations were exempt documents within the meaning of clause 15.
53 For the reasons I have given, I dismiss both limbs of the present application.
Orders
54 The decision of the Council is affirmed.
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