Gales Holdings Pty Ltd V Tweed Shire Council - [2005] NSWADT 168

No judgment structure available for this case.

CITATION: Gales Holdings Pty Limited v Tweed Shire Council [2005] NSWADT 168

DIVISION: General Division

PARTIES: APPLICANT
Gales Holdings Pty Limited
RESPONDENT
Tweed Shire Council

FILE NUMBER: 043319

HEARING DATES: 05/04/2005
08/04/2005

SUBMISSIONS CLOSED: 05/02/2005

DATE OF DECISION:
07/29/2005

BEFORE: Higgins S - Judicial Member

APPLICATION: access to documents - confidential material - access to documents - internal working documents - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - internal working documents

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Environmental Planning and Assessment Act 1979
Freedom of Information Act 1989
Local Government Act 1993

CASES CITED: Attorney General's Department v Cockcroft (1986) 10 FCR 180 at 190
Australian Doctors' Fund Pty Ltd v Commonwealth of Australia (1994) 49 FCR 478 at 489
Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7 at [82 & 83]
Freeland v. General Manager, Liverpool City Council [1999] NSWADT 95
Law Society of New south Wales v General Manager WorkCover Authority of New South Wales (No2)(GD) [2005] NSWADT 33
Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37
McCabe v Electoral Commission, State Electoral Office [2003] NSWADT 24 at [16]
Preston v Casino Control Authority [2003] NSWADT
Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 338
Re B and Brisbane North Regional Health Authority (1994) 1QAR 279 at 341
Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60
Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626
Re Kamminga and Australian National University (1992) 26 ALD 585 at 588
Re Maher and Attorney General's Department (1985) 7 ALD 731 at 737
Re Toomer v Departmant of Agriculture, Fisheries and Forestry [2003] AATA 1301 at [115 to 119]
Ryder v Booth [1985] VR 870 at 872
Secretary, Department of Employment, Workplace Relations and Small Business v Staff Development and Training Centre Pty Ltd (2001) 323 AAR 531 at 544
Surf Life Saving Australia Ltd v Director General, Department of Education and Training [2001] NSWADT 76 at [27 to 31]
Wiseman v the Commonwealth (unreported, Full Federal Court, 24 October 1989
Wittingslow Amusements Group Pty Ltd v Director-General of Environmental Protection Authority of New South Wales (BC9301697;Unreported, NSWSC, Powell J, 23 April 1993)
Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253 at [52]
Zagami v Waste Service of New South Wales [2005] NSWADT 60
Searle Australia Pty Limited v Public Interest Advocacy Centre (1992) 108 ALR 163

REPRESENTATION: T Robertson, barrister
M R Lawson, barrister

ORDERS: 1. The decision of the Respondent in respect of Documents 1 to 12 referred to in [10] of these reasons for decision is set aside and in substitution thereof a decision that the Applicant be granted access to these documents and that access is to be granted no later than 28 days from the publication of this decision; 2. That unless an application, with supporting submissions, is filed and served within 28 days of the publication of this decision, there will be no order for the costs of the application. If any such application is made, submissions by the opposing party must be filed and served within a further 28 days. The matter will be resolved 'on the papers', unless reasons are advanced for holding a hearing.

Background

1 This an application by Gales Holdings Pty Limited (the Applicant) seeking review of a decision of the Tweed Shire Council (the Respondent) to refuse it access to documents that it had requested pursuant to the Freedom of Information Act 1989 (FOI Act). On 16 July 2004, the Applicant, the largest landowner in the Kingscliff region of the Tweed Shire Council, made an application for access to the following 3 categories of documents:

2. Documents showing or evidencing the cost to Council of the Kingscliff Centre Study, Patrick Partners, September 2001.

3. Documents in relation to retail study or retail investigations or economic investigations or reports by Core Economics for Kingscliff or West Kingscliff or development of land by Gales Holdings Pty Ltd or otherwise for Tweed Shire Council for the period from 1 July 2002 to date”.

2 On 26 July 2004, the Respondent replied to the Applicant’s FOI request and said that it had determined the request in accordance with s.28 of the FOI Act, and advised as follows:

The Draft Study by Core Economics on the Tweed Shire Retail & Centres Strategy has been received by Council, however finalisation of the Study has not been completed. Upon its completion it will be reported to Council and then placed on public exhibition, whereupon a copy of the Study will be available”.

3 On 5 August 2005, the Applicant made a request for an internal review pursuant to s.34 of the FOI Act. In that request for internal review, the Applicant also questioned the adequacy of the Respondent’s response to documents it held that came within the category 3 documents that had been requested. This was questioned because the Respondent had only identified one document, the Study by Core Economics, when the FOI request had been in broader terms than this.

4 On 24 August 2004, the Respondent made its determination on the internal review application. The general manager of the Respondent, Dr John Griffin, made the determination. In his letter to the Applicant’s solicitor, Dr Griffin said:

“My determination is that the information provided by Council’s Manager Administration/Public Officer under the provisions of the Freedom of Information Act 1989 is correct, as outlined in Council’s letter of 24 February 2004 and 26 July 2004.”

5 The matter came before the Tribunal at planning meetings on 30 November 2004, 27 January 2005 and 10 February 2005. When the matter first came before the Tribunal, the Respondent had not identified, other than in a general sense, those documents in its possession which came within the Applicant’s FOI request, and for which access was refused and the specific grounds of refusal for each document. Nor had the Respondent provided the Applicant with copies of documents for which assess was not refused. These were provided to the Applicant on 24 December 2004. On the same day, the Respondent provided the Applicant with a list of documents for which access had not been refused (“list of non-exempt documents”) together with a list of documents for which access was refused (“list of exempt documents”). Attached to the latter list was a statement of reasons that identifying the grounds of exemption relied on for each document.

6 On 18 January 2005, the Respondent filed and served further lists of exempt and non-exempt documents. These lists related to documents in the Respondent’s possession and which came within category 3 of the Applicant’s FOI request (“retail study/ investigation for Kingscliff”). The Respondent also filed a statement of reasons in respect of those documents identified on the list of exempt documents.

7 At the commencement of the hearing, there were 48 documents in dispute. Of these, 17 came within category 1, 12 came within category 2 and 19 came within category 3. In some cases, only part of the document was in dispute. However, the documents coming within category 3 were disputed in their entirety. At the commencement of the second day of hearing the parties advised the Tribunal that following the first day of hearing they had reached an agreement in respect of the exempt documents in category 1 and category 2, which left the exempt documents in category 3 as being the only documents in dispute. As mentioned above, these documents related to the retail study/ investigation for Kingscliff. In respect of this category of documents there remained 12 documents in dispute and of these 4 were disputed in their entirety and 8 were disputed in part (see [10] below). In respect of those documents which were only disputed in part the Respondent had also provided the Applicant access to those parts of the document that were not in dispute (s.25(4) FOI Act).

8 The development of further new retail and commercial centres in the shire of the Respondent has been the subject of discussion since 1998, with the preparation of reports by, on behalf of and for the Respondent. Some of these reports have been made available for public scrutiny and others have not. The Applicant has had an interest in the development of a new retail centre as it owns property at Turnock Street (the Turnock Street site), which has been recommended by consultants engaged by the Respondent as a suitable site for such a development. Despite this recommendation, since July 2003, the Respondent’s position has been that a shire wide strategy should be developed and adopted by the Respondent before it gives its approval for any new development of a new retail centre. Toward this end, in August 2003, the Respondent engaged consultants, Core Economics, to prepare a “Retail Development Strategy for the Tweed”. Core Economics provided the Respondent with their report on three occasions (i.e. 31 October 2003, 7 November 2003 and 12 January 2004). However, the Respondent’s position is that each report was a draft and a final version is still being prepared. The Applicant has argued that the report received in January 2004 is a final report and in light of the background to the preparation of the report together with the Respondent’s obligations of accountability to its constituents under the provisions of the Local Government Act 1993, it was not in the public interest for access to the report to be refused.

9 The documents in dispute span over several years and they relate to various events that occurred during this time. As the circumstances surrounding these events have a bearing on whether the documents in issue are exempt it is necessary to set them out in chronological order. These are as follows:

(b) between July 1998 and March 2001 the Respondent sought some additional advice and commissioned the preparation of several reports on the issue. One of these was a report by Patrick Partners (Exhibit A page 44 to 83). That report was provided to the Respondent on 17 March 2001 and was the subject of discussion at a workshop convened by the Respondent on 5 April 2001. The Applicant was represented at that workshop;

(c) following the workshop, on 16 April 2001, Patrick Partners presented the Respondent with a report entitled “Kingscliff Centres Study.” On 15 August 2001, the Respondent resolved to put this report on public display. The report identified location options for retail and commercial centres, which included the Turnock Street site;

(d) in August 2002, the Respondent published a “Draft Kingscliff District (North Tweed Coast) Strategy 2002” (“August 2002 Strategy”). This strategy included an urban centres hierarchy and integrated design for the area in accordance with the conclusions/recommendations in the abovementioned report of Patrick Partners;

(e) in late 2002/ early 2003, the Applicant lodged a development application that included the development of a retail centre at the Turnock Street site;

(f) in February 2003, the Respondent prepared a “Draft Development Control Plan No. 9 Version 2”. That plan included a proposal for the development of a District Town Centre at the sites recommended in the abovementioned report of Patrick Partners, which included the Turnock Street site;

(g) in February 2003, the Applicant provided to the Respondent a report prepared, on its behalf, by JHD Advisors Pty Ltd. The report was a submission on the Respondent’s August 2002 Strategy for the Kingscliff District;

(h) on 19 February 2003, the Respondent Council resolved that an urgent workshop be convened, with relevant stakeholders, to consider the August 2002 Strategy and the Draft Development Control Plan No 9 (see Exhibit G page 41). Interested stakeholders were stated to include the Applicant and its representatives;

(i) on 4 March 2003, the Respondent convened two workshops. One workshop related to the abovementioned resolution of the Respondent Council, where participants confirmed the Turnock Street site as suitable for development as a retail centre (see Exhibit G page 42 and Appendix 1). The other workshop was an in-house workshop facilitated by Core Economics. The objectives of the in-house workshop included an evaluation of the Respondent’s policy position on retail development and to “brainstorm” issues affecting retail development in the shire. Core Economics prepared a report, dated 7 April 2003, of the in-house workshop (see [10(e)] below – Document 5);

(j) on 18 June 2003, the Respondent refused the Applicant’s development application referred to in (e) above (Exhibit A page 196);

(k) on 2 July 2003, the Respondent resolved that it did not favour locating a district shopping centre at the Turnock Street site as recommended in the Patrick Partners report. The Respondent further resolved to commission the preparation of a shire wide retail strategy for the purpose of:

2. To articulate this future retail floor space in relation to size, scale and inter-relationship with existing retail centres and recommend location to serve future population.” (see Exhibit A page 307)

(m) on 15 October 2003, a meeting was convened to discuss the retail strategy. Present at that meeting were representatives of the Respondent, the Applicant and Core Economics. About one month after the meeting, the Applicant’s consultants, JHD Advisors Pty Ltd, forwarded population and spending data information to the Respondent for Core Economics;

(n) in October 2003, Core Economics presented to the Respondent a report, dated 31 October 2003, entitled “Tweed Shire Retail and Centres Strategy”. It was not disputed that Core Economics rendered an invoice to the Respondent for this report and that it was paid;

(o) in November 2003, Core Economics presented a further copy of the abovementioned report dated 7 November 2003. Again it was not disputed that Core Economics rendered an invoice for the report and it was paid. In fact the final payment under the contract was made on 28 November 2003;

(p) on 12 January 2004, Core Economics presented yet a further copy of the abovementioned report dated 12 January 2004;

(q) on 5 February 2004, Mark Tickle, Economic Planner for the Respondent, sent an inter-divisional memorandum to the Director Engineering Services, the Acting Director Development Services, and the Manager Strategic Planning Unit. Attached to the memorandum was a copy of the Core Economics report dated 12 January 2004. In the memorandum Mark Tickle sought comments in respect of the attached report and pointed out that the report had been modified to reflect a Notice of Motion not to proceed with any retail developments on the Turnock Street site (see Exhibit A page 336);

(r) on 3 March 2004, Mark Tickle proposed placing the Core Economics report, dated 12 January 2004, before the 17 March 2004 meeting of the Respondent Council (see Exhibit A paged 337). The report was not put before the Respondent Council;

(s) on 16 July 2004, the Applicant makes its FOI request;

(t) on 11 August 2004, Core Economics wrote to Mark Tickle in response to his invitation that Core Economics “submit an additional proposal for the expansion of the retail study.” In its letter, Core Economics said the following (see Exhibit 5):

The initial strategy responded to a brief from Tweed Shire Council in relation to the most appropriate location for a Tweed Coast Centre. The report utilised a functional based assessment …

Council now wishes to expand upon its in initial work by producing a detailed demand analysis …

…

This process will build on the work completed to date, with the outcome of a revised (standalone) report. It is considered an addendum report would be potentially confusing. The project team and all general administrative matters will remain as defined in the first proposal.

…”; and

10 The following documents, or parts thereof, remained in dispute:

Document 1

b) letter dated 11 December 2002, from William Owen of Core Economics to the General Manager of the Respondent – whole document – Document 2;

c) memorandum dated 18 December 2002, from Mark Tickle to Douglas Jardine and David Broyd – whole document – Document 3;

d) letter dated 19 February 2003 from Michael Cullen of Patrick Partners to Douglas Jardine of the Respondent – whole document – Document 4;

e) report dated 7 April 2003 of Core Economics confirming the project “Retail Development Workshop” – pages 23 to 28 – Document 5;

f) letter dated 22 May 2003 from William Owen of Core Economics to the General Manager of the Respondent – whole document – Document 6;

g) report dated 9 June 2003 by Core Economics confirming the project “Review of Economic Report and Submissions in relation to proposed supermarket centre in Kingscliff” – second half of paragraph 2 on page 3 – Document 7;

h) submission by Core Economics entitled “Tweed Shire Retail Development Strategy Proposal of Services” received by the Council on 31 July 2003 – last paragraph page 4, pages 5 to 9, page 12 – Document 8;

i) Meeting Tasksheet, dated 20 August 2003, by Mark Tickle concerning “Retail Development strategy”-pages 5 to 7-Document 9;

j) Report dated 31 October 2003, by Core Economics for the project “Tweed Shire Retail and Centres Strategy” – pages 5 to 16, page 21 to 24, the text on page 27, the conclusion on page 29, the text on the left hand side of page 31, the text on page 32, the text on the top right hand corner of page 34, the text at the top of page 36, the notes and conclusion on page 37, the conclusion on page 38 and 39, pages 41 and 42, the conclusions on page 43, paragraphs 1, 2 and 4 of page 45, the text under Specific Issues on page 46, page 49 to 64-Document 10;

k) Report dated 15 November 2003 by Core Economics for the project “Tweed Shire Retail and Centres Strategy”-same deletions as set out in (l) below-Document 11; and

l) Report dated 12 January 2004 by Core Economics for the project “Tweed Shire Retail and Centres Strategy”-pages 5 to 16, conclusion at page 21, paragraphs 3 and 6 at page 22, pages 23 and 24, last paragraph on page 25, text on page 26 with the exception of that contained at the bottom left hand corner, text in relation to notes on page 27, the text on page 28, the notes on page 29, the conclusion on page 30, the text on the left hand side of page 32, the conclusion on page 33, the text at the top right hand corner of page 35, the text at the top of page 37 and the last sentence of the text at the left hand corner of the page, the notes and conclusion at page 38, the conclusion at page 39 and 40, the text against notes at page 41, the text at page 42, the conclusion at page 43 and 44, the last sentence in paragraph 2 at page 45, paragraphs 1,2 and 4 at page 46, the text under Specific Issues at page 47, pages 51 to 56, paragraphs 1 and 2 on page 57, pages 59 to 70, the last paragraph at page 83 – Document 12.

11 As noted in [7] above, it was not until after the first day of the hearing of this application that the Respondent determined that portions of Document 1, 5 and 7 to 12 were not exempt and provided the Applicant with access to these. This determination, the Respondent advised was based on the fact that the information was factual in nature and therefore not exempt (see [30] below).

Issues

12 The issue in this application are whether the Respondent, who bears the onus of proof (see s.61 of the FOI Act), has established that the abovementioned documents, or parts thereof, for which access has been refused are exempt under one or more of the following clauses of Schedule 1 of the FOI Act:

Clause 8 – Documents affecting the conduct of research.

Clause 9 – Internal working documents.

Clause 13 – Documents containing confidential material.

Clause 16 – Documents concerning the operations of agencies

13 Because of the wide ranging nature of exemptions claimed by the Respondent an its misapplication of these to the circumstances in question, I have first set out in some detail the relevant legislative provisions and the applicable law in relation to these exemptions.

14 In considering the exemptions, regard must also be had to the following:

(b) s 59A of the FOI Act, which provides that it is irrelevant that the disclosure may cause embarrassment to the Government, loss of confidence in the Government, or that the FOI applicant may misinterpret or misunderstand the information in the document to which access is sought.

15 The rationale for the business affairs exemption in cl.7 of schedule 1 of the FOI Act was to protect from disclosure business information of a government agency and business information received by government agencies. Of particular concern was business information received from business organizations who were required to disclose information of that kind as well as business information that was supplied for the purposes of tendering for government projects: see Cossins Annotated Freedom of Information Act NSW at [107.1].

16 Where an FOI applicant seeks access to documents containing business information of another agency or business organization, s.32 of the FOI Act requires the requested agency to consult the other agency or business organization to obtain its view “as to whether or not the document is an exempt document”. Notwithstanding the view of the other agency or business organization, the requested agency remains responsible for determining whether to grant or refuse the FOI applicant access to the document in question. However, if the requested agency determines to grant access to the document and this determination is contrary to the view of the other agency or business organization, the other agency or business organization has a right to bring an application to the Tribunal seeking review of the agency’s decision to grant access: see s.53 (3) FOI Act. In this application, there is no evidence of any consultation having taken place even though the Applicant’s FOI request related to documents created by independent consultants.

17 Clause 7 of schedule 1 of the FOI Act contains several grounds of exemption on the basis that the document contains business information. The two grounds relied on in this application are as follows:

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

(ii) could reasonably be expected to destroy or diminish the commercial value of the information;

18 In respect of the first ground (i.e. cl.7 (1)(a)), the term “trade secret” is not defined in the FOI Act. It has been held that it should be given its ordinary meaning and not a technical legal meaning: see Zagami v Waste Service of New South Wales [2005] NSWADT 60 and Searle Australia Pty Limited v Public Interest Advocacy Centre (1992) 108 ALR 163. In Searle the full Federal Court stated at [28 & 29]:

29. The term may have been used more frequently in judicial decisions than in common parlance to describe secrets the confidentiality of which courts of law will protect.”

19 It has been argued that the ordinary meaning of the term “trade secret” involves the notion of information possessed by one trader which, while generally unknown to others, gives that trade an advantage over its competitors: see Secretary, Department of Employment, Workplace Relations and Small Business v Staff Development and Training Centre Pty Ltd (2001) 323 AAR 531 at 544. That is, the trade secret is an asset of the trade, which is used in or usable in trade: see Searle at [121].

20 In any event the question as to whether a document contains material that is a “trade secret” is a question of fact: see Zagami.

21 The second ground (i.e. cl.7(1)(b)) has two limbs. The first is that contained in cl.7(1)(b)(i). In Surf Life Saving Australia Ltd v Director General, Department of Education and Training [2001] NSWADT 76 at [27 to 31] the President held that creative work of another business, provided to the respondent agency in confidence for the purpose of assessing that business’s application for accreditation of its courses had a commercial value and that the business may face competition from others in respect of its offerings. In that case, the respondent had consulted with the business to whom the creative work related and obtained evidence from the principal of that business to the effect that he claimed copyright for the material. The President also took into account the circumstances in which the document was provided to the respondent (at [29]).

22 Whether the information for which exemption has been claimed has a commercial value must be determined as at the date of making a determination under the FOI Act. In Wittingslow Amusements Group Pty Ltd v Director-General of Environmental Protection Authority of New South Wales (BC9301697; Unreported, NSWSC, Powell J, 23 April 1993) at (BC9301697 at 30) the Court held that a report relating to likely acoustic impact that was part of a tender for an amusement park no longer had a commercial value as the tender had been successful in its tender and the author of the report had been paid. This means that business information may at some time have had a commercial value, however subject to the circumstances, once that information is to be used in a commercial enterprise and it has been paid for, it ceases to have a commercial value.

23 In regard to the second limb of the exemption contained in cl.7(1)(b)(ii) of the FOI Act, it is accepted that the phrase “could reasonably be expected” should be given its ordinary meaning, namely, something reasonable as distinct from something irrational, absurd or ridiculous: see Attorney General’s Department v Cockcroft (1986) 10 FCR 180 at 190; McCabe v Electoral Commission, State Electoral Office [2003] NSWADT 24 at [16] and Preston v Casino Control Authority [2003] NSWADT . In Freeland v. General Manager, Liverpool City Council [1999] NSWADT 95 the test adopted by the Tribunal was whether there was a “risk” that the commercial value in question would be destroyed or diminished. The Tribunal went on to say that the risk must be more than minimal or nominal and that a mere concern about, or worry of a possibility of diminished commercial value is not sufficient.

24 Again the question of whether the material for which an exemption is claimed has a commercial value and that disclosure of it could reasonably be expected to destroy or diminish its commercial value is a question of fact. And in order to make such a determination, the Respondent must produce evidence on which such a finding can be made. In Surf Life Saving Australia Pty Ltd (at [32 to 34]) the President upheld the applicant’s argument that the respondent had failed to discharge its onus under s. 61 of the FOI Act as it had failed to place material before the Tribunal as to whether disclosure of the material could reasonably be expected to destroy or diminish the commercial value of the information.

Clause 8 – Documents affecting the conduct of research

25 The rational for the exemption in cl.8 of Schedule 1 of the FOI Act is to prevent the premature disclosure of research plans, proposals and results: see Cossins Annotated Freedom of Information Act NSW at [107.1]. The clause, so far as is relevant, provides as follows:

(b) could reasonably be expected to have an unreasonable adverse effect on the agency or other person by or on whose behalf the research is being, or is intended to be, carried out.

26 The term “research” is not defined in the FOI Act and must be given its ordinary meaning. The Australian Concise Oxford Dictionary defines it to mean:

1a

b

27 As mentioned in [23] above, the phrase “could reasonably be expected” should be given its ordinary meaning.

28 Again the question of whether the document in issue contains material relating to the “purpose or results of research” and whether disclosure of that material “could reasonably be expected to have an adverse effect” on the agency or the person by or on whose behalf the research is being carried out is a question of fact, which must be determined from the material before the Tribunal.

Clause 9 - Internal working documents

29 The object of cl.9 of schedule 1 of the FOI Act is to protect the processes involved in government decision making, by preventing disclosure of information which relates to all stages of decision making before an actual decision is made: see Anne Cossins Annotated Freedom of Information Act New South Wales at [109.1]. The clause provides as follows:

(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

(b) factual or statistical material.

30 During the course of the hearing of this application, the Respondent determined that Document 1, 5 and 7 to 12 contained both opinion, advice and factual material, the latter coming within cl.9 (2) and not being exempt. Accordingly, it determined to give the Applicant access to the factual material by providing it with a copy of the documents with the exempt material deleted (see s.25 (4)(a) of the FOI Act).

31 For the exemption in cl.9(1) to apply to the deleted material, the Tribunal is required to make findings of fact on the following matters having regard to the evidence before it:

b) that disclosure of the deleted material would on balance be contrary to public interest.

32 That is, it is a two-step process. The first step being the determination of whether the deleted material is in fact an opinion etc. as set out in [31(a)] above. If it does come with this paragraph the next step for determination is whether disclosure would be contrary to the public interest. It is the latter which is the primary issue in this application.

33 It is well established that the concept of “public interest” is not a static or circumscribed notion and requires an examination of the circumstances of each case”: see Beazley J in Australian Doctors’ Fund Pty Ltd v Commonwealth of Australia (1994) 49 FCR 478 at 489. In Law Society of New South Wales v the General Manager, LawCover Cover Authority of New South Wales (No 2)(GD) [2005] NSWADT 33, the Appeal Panel considered the issue of the public interest in the context of cl.9 of schedule 1 of the FOI Act (see [60 to 63]). After referring to the decision of the Deputy President in Simpson v Director General, Department of Education and Training [2000] NSWADT 134 and the decision of Dean and Toohey JJ in Nationwide News Pty Ltd v Willis (1992) 177 CLR 1 the Appeal Panel said that “the public interest in disclosure of government documents, then, is great. Nevertheless, it may be outweighed by other public interest considerations in favour of withholding the documents from general release, at least for a time”: see [63]. Accordingly, notwithstanding the overall objective of the FOI Act to promote “openness, accountability and responsibility of government” (i.e. disclosure) there is, in certain circumstances, as recognised in cl.9 of schedule 1 of the FOI Act, where the public interest does not lie in disclosure.

34 However, as was pointed out in Re Kamminga and Australian National University (1992) 26 ALD 585 at 588 in respect of the equivalent section in the Freedom of Information Act 1974 (Cth) (the Commonwealth Act):

It is not the case that the tribunal has to be satisfied that disclosure is in the public interest

Re Burns and Australian National University

requires a balancing of competing interests including the public interest in the applicant's right to know

Re Peters and Department of Prime Minister and Cabinet

Re Burns and Australian National University

tribunal must balance this against any adverse effect disclosure might have on the proper working of Government or its agencies

Harris v Australian Broadcasting Tribunal

35 These comments, as set out by Forgie DP in Re Toomer v Departmant of Agriculture, Fisheries and Forestry [2003] AATA 1301 at [115 to 119], were cited with approval by the President in Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7 at [82 & 83].

36 In Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626 at 634-35. Davies J set out factors to be taken into account when determining whether it would, on balance, be contrary to the public interest to disclose material, which comes within the equivalent provision in the Commonwealth Act to cl.9 (1)(a) of schedule 1 of the FOI Act. These factors are as follows:

(b) disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest;

(c) disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest;

(d) disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest;

(e) disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process.’

37 At [67 & 68] the Appeal Panel in Law Society of New South Wales v the General Manager, LawCover Cover Authority of New South Wales (No 2) agreed with comments made by the Queensland Information Commissioner in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 that these factors were merely an “indicator to alert one to the possibility that these documents may require more careful scrutiny for factors that may point to tangible harm” if the documents were disclosed. That is the emphasis should be on the question of what “tangible harm” would result from the release of the document in question. That is, even if one of the Howard (supra) factors can be established there must also be evidence of some “tangible harm” to the agency in the performance of its functions if the information is disclosed. This means, for example, that even if there is evidence that disclosure may lead to confusion and unnecessary public debate or criticism, there must also be evidence to show that this debate or criticism may have an adverse affect on the respondent agency in the performance of one or more of its functions. The Appeal Panel also confirmed that the determination of whether it would, on balance, be contrary to the public interest to disclose the information in question is to be made at the time the FOI request is made or the application for review is heard and not at the date the information was created.

Clause 13 – Documents containing confidential material

38 The rationale for the exemptions in cl 13 of Schedule 1 of the FOI Act was to preserve and protect the flow of confidential information to Government and its agencies. In this application, the Respondent relied on the exemption contained in cl 13(b) which provides as follows:

(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”.

39 In respect of the exemption contained in cl.13(a) a respondent agency must show that the information for which the exemption is claimed was provided to the respondent agency under an express or implied duty of confidence which prevented the respondent agency from disclosing or otherwise dealing with the information to the detriment of the confider (see Law Society of New South Wales v General Manager, WorkCover Authority of new South Wales (supra at [100 & 101]) and Smith Kline (1990) 22 FCR 73 and (1991) 28 FCR 291).

40 In respect of the exemption contained in cl.13 (b), this exemption requires a two-step process similar to that required under cl.9. The first step being a determination as to whether the material in the document in question comes within paragraphs 13(b)(i) and (ii) and if the answer is yes, a determination then needs to be made as to whether it would be contrary to the public interest to disclose the information.

41 It is well established that in determining whether information in a document was “obtained in confidence” it is not necessary for the agency to establish that there was an express understanding or stipulation of confidentiality between the supplier and recipient at the time the information was communicated (see Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253 at [52], Re Maher and Attorney General's Department (1985) 7 ALD 731 at 737 and Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 338). This particular requirement will generally be satisfied where there is evidence of a common express or mutual understanding that information of a particular kind, which includes the information in question, would be or should be treated as confidential. That is, confidentiality may be inferred from the circumstances in which the information was obtained (see Wiseman v the Commonwealth (unreported, Full Federal Court, 24 October 1989)).

42 In determining whether disclosure of information obtained in confidence could “reasonably be expected to prejudice future supply of such information”, the question is not whether the confider of the information in question would in future refuse to supply such information to the agency. It is question as to whether disclosure of the information could reasonably prejudice future supply of this type of information from those sources that are available or likely to be available to the agency (see Ryder v Booth [1985] VR 870 at 872 and Re B and Brisbane North Regional Health Authority (1994) 1QAR 279 at 341).

43 In respect of the consideration of where the “public interest” lies, the principles referred to at [32 to 34] above equally apply to this exemption.

Clause 16 – Documents concerning operations of agencies

44 The rationale of cl.16 of schedule 1 of the FOI Act was to prevent damage to agency operations that relate to the conduct of public service examinations, tests, audits, the management and assessment of personnel, industrial relations and the overall performance of the agency’s functions: see Anne Cossins Annotated Freedom of Information Act New South Wales at [116.1]. In this application the Respondent has relied on the following grounds of exemption contained in cl.16:

(iv) to have a substantial adverse effect on the effective performance by an agency of the agency’s functions; and

45 Clause 16(a)(iii) and (iv) create two separate exemptions. One relates to the management of the agency’s personnel and the other relates to the effective performance of the agency’s functions. As with the exemption contained in cl.9 and 13(b) of schedule 1 of the FOI Act, each of these exemptions requires the adoption of a two-step process. The first step being a determination whether the material in the document in question comes within cl.16(a)(iii) or (iv) and if the answer is yes, a determination then needs to be made as to whether it would be contrary to the public interest to disclose the information.

46 The first step also requires a finding that disclosure would have a “substantial adverse effect” on the management of the agency’s personnel or the effective performance of the agency’s functions. In this context the word “substantial” has been held to mean “serious” or significant” and involving a “degree of gravity”: see Re Heaney and public service Board (1984) 6 ALD 310 at 321 and Harris v ABC (1983) 50 ALR 551 at 554. Accordingly, it involves a value judgment depending on the circumstances.

47 In respect of where the “public interest” lies the same principles referred to in [34 to 36] above apply to this exemption.

Assessment

Document 1, 2 & 3

48 It is convenient to deal with Document 1, 2 and 3 together as they relate to the same subject matter, namely proposals for conducting a workshop. In his affidavit of 9 February 2005, Douglas Ian Jardine (“Douglas Jardine”), Executive Manager, Strategic Town Planning of the Respondent said that the documents sought “to set the perimeters for the workshop and discussing the issues to be raised at the workshop and the comments and feedback, so far obtained in regard to draft proposals prepared by consultants.” It is noted that from the material before the Tribunal that the Respondent Council resolved to convene such a workshop on 19 February 2003 (see [9(h)] above) and that it was held on that day.

49 The Respondent, in its submissions, has claimed that Document 1 pages 4 and 5 (letter of 8 December 2002 from Patrick Partners), Document 2 (letter of 11 December 2002 from Core Economics) and Document 3 (memorandum of 18 December 2002) are exempt under cls.16, 7 and 13 of schedule 1 of the FOI Act. In his affidavit of 9 February 2005, Douglas Jardine has claimed that they are exempt under cls.8 and 9 of schedule 1 of the FOI Act. I have only referred to the exemptions as set out in the Respondent’s written submissions, however for completeness and for the reasons set out in this decision generally in respect of documents or deletions in documents being exempt under cls.8 and 9, I find that deleted material in Document 1, 2 and 3 are not exempt under these latter clauses.

50 Clause 16 In respect of Document 3 and Document 2, the Respondent in its submissions gave the following reasons as to why the document was exempt under cl 16 of schedule 1 of the FOI Act:

“These documents were submitted as proposals for service and were considered by the Tweed Shire Council. The release of same could potentially affect the management or assessment of the Council or have a substantial adverse affect on its performance, because the determination of Council was not based solely on the contents of the proposal for service and consequently any determination by Council based on assessment of those documents may create or fan ill-formed or captious public criticism.”

51 In my opinion, the Respondent has not only failed to adduce any evidence, which supports the abovementioned contention, it has also misapplied the relevant provisions of the FOI Act. First, the fact that the Respondent was of the view (of which there was no evidence) that disclosure of the “documents may create or fan ill-formed or captious public criticism” is not a relevant consideration for the purpose of this or any of the other exemptions in schedule 1 of the FOI Act: see s59 of the FOI Act and [14(b)] above.

52 As mentioned in [42 & 43] above the exemption in cl.16(a)(iii) of schedule 1 of the FOI Act relates to the management of the agency’s personnel. However, in my opinion, the contents of the documents in question do not relate to the management of the Respondent’s personnel. I accept that they relate to the performance of a function(s) of the Respondent and on this basis come within cl.16(a)(iv). But this is not sufficient for the exemption to apply. What must be shown is that the disclosure of the alleged exempt material would have a “substantial adverse effect on the effective performance” by the Respondent of its functions. I have assumed that the Respondent’s contention that disclosure may create or fan ill-formed or captious public criticism is the requisite “substantial adverse effect” if the information is disclosed. In my opinion there are two difficulties with this particular contention. The first being that there is no evidence to show that disclosure would create or fan ill-formed or captious public criticism. The second difficulty is that even if there was evidence of this, there is no evidence that it would have an adverse effect of the Respondent, let alone a “substantial” adverse effect. What the evidence does establish is that the Respondent made a decision in respect of the workshop to which these documents relate and that workshop actually took place on 19 February 2003 (see 9[h] above). Furthermore, as a result of the workshop a report was written (Document 5) and it was used as part of the decision making process to commission a shire wide retail centre strategy. On this basis it is difficult to see how release of the deleted material or document could have an adverse effect on the current or future effective performance of the exercise of the Respondents functions.

53 Clause 7 In its submissions the Respondent said that Documents 1, 2 and 3 were exempt under clause 7(1)(a) and (b) of schedule 1 of the FOI Act on the following basis:

“… The document contains information in relation to tender quotes for services including subjective information such as method of assessment, fee proposal, purported expertise and time frame for completion. It is submitted that the release of such information could have commercial advantages to the successful or indeed other unrelated consultants.”

54 There is no evidence before the Tribunal that supports the assertion contained in the second sentence of the Respondent’s submission.

55 In my opinion, having regard to the content of Documents 1, 2 and 3 they do not disclose information that can be described as a “trade secret” or having a commercial value. Even if the information were to have a commercial value that value only applied until such time a decision was made in respect of the successful proposer (see [23] above). As mentioned above, that decision was made on 19 February 2003 (see [48] above).

56 Clause 13 In respect of its claim that Documents 1, 2 and 3 were exempt under cl 13(b) of schedule 1 of the FOI Act, the Respondent made the following submissions:

“… Given the small number of consultants approached for this matter, it would be a reasonable expectation that the release of such information would prejudice the future supply and ability to obtain information from consultants.”

57 Again, there is no evidence before the Tribunal to support the assertion made in the submissions and on this basis alone, the Respondent has failed to satisfy the Tribunal that these documents are exempt under cl 13(b). Although the proposals are not marked ‘Confidential’, in my opinion, having regard to the circumstances in which they were provided to the Respondent, it can be inferred that they were provided in confidence. However, it cannot be said from the evidence before the Tribunal that disclosure of the material could reasonably be expected to prejudice future supply of such information to the Respondent. In addition to the fact that the workshop was held some 2 ½ years ago, there is no evidence that the documents contain confidential information about the business operations of the various consultants or that the Respondent required such information to be provided. On the contrary, on the evidence before the Tribunal, the information appears to have been provided willingly in anticipation of being chosen as the successful contractor to conduct the workshops. That is, there is nothing to suggest that the independent contractors made their proposals other than with the full knowledge that the Respondent was at all times accountable to its constituents in respect of any contractual agreement entered into. On this basis it is difficult to see how disclosure of the information in question would make independent contractors reluctant to provide such information in the future.

58 For the reasons set out above, the Tribunal finds that the Respondent has failed to satisfy it that Documents 1, 2 and 3 are exempt.

Document 4

59 The Respondent has claimed that Document 4 (letter from Patrick Partners dated 19 February 2003) is exempt under cl.9 and 7 of schedule 1 of the FOI Act. On the basis of the content of the document, I agree with the Respondent’s submissions that the letter contains an opinion and/or advice of Patrick Partners. However, it is noted that this opinion/ advice was provided at the request of the Respondent and that it related to a report previously published by the Respondent.

60 Clause 9 In its written submissions, the Respondent asserted that the opinion and/or advice contained in this letter “was obtained as part of the deliberative process of Government”. It is my understanding that the Respondent’s position is that this “deliberative process” of the development of retail centres in the shire has been ongoing since 1998 and continues as at the date of the hearing of the application. Furthermore, it will continue until such time as the Respondent receives the outstanding report from Core Economics. While I accept that the evidence establishes that the Respondent has been considering the question of a retail centre strategy for some time, in my opinion this cannot be described as a single ongoing deliberation. It has been made up of various stages and events, involving many deliberations of the Respondent (see [9] above). For example, a deliberation to release the August 2002 strategy (see [9(d)] above), a deliberation to convene a workshop in February 2003 and who was to be contracted for that purpose (see 9(h)] above) and a deliberation to commission the preparation of a shire wide retail strategy (see [9(k)] above). Accordingly, the documents in issue must be considered in the context of which particular deliberation or deliberations it relates.

61 As I mentioned above, Document 4 relates to a report that had already been made publicly available. In my opinion it also relates to events that were occurring at that time, such as the 19 February 2003 workshops and the Applicant’s development application. Any deliberations of the Respondent in respect of these events have well and truly passed and it is difficult to see how disclosure of this information could cause any harm. Accordingly, on the evidence before the Tribunal I cannot find that disclosure of Document 4 would, on balance, be contrary to the public interest.

62 Clause 7 In its written submissions, the Respondent claimed that Document 4 was exempt under cl.7(1)(b) of schedule 1 of the FOI Act on the following basis … “the document contains matter, the disclosure of which has a commercial value to the Applicant and accordingly the release of same could reasonably be expected to destroy the commercial value of that information in that the document relates to specific issues involving strategic development of various areas of land within and around Kingscliff.”

63 As mentioned above, Document 4 contains information in the form of an opinion/ advice of Patrick Partners in relation to a report previously released by the Respondent. The document was created a few days before the convening of the workshops conducted on 19 February 2003 and it is difficult to imagine that the matters raised in Document 4 were not discussed or considered in some way in one or other of the workshops. Even if this was not the case, how the opinion/ advice of Patrick Partners could have a commercial value has not been explained. The fact that the opinion/advice may be favourable to the Applicant does not give it a commercial value, particularly as the opinion/ advice of Patrick Partners is no way binding on the Respondent, who can either accept or reject that opinion/ advice. It would also appear that the opinion/advice was relevant to the Respondent’s deliberations of 2 July 2003 when it resolved not to support the recommendations of the 2001 Patrick Partner reports and to commission the preparation of a shire wide retail centre strategy (see [9(b), (c) and (k)] above). On the other hand, there is no evidence that Document 4 is relevant to any of the Respondent’s deliberations thereafter. Accordingly, even if Document 4 were to have contained information that was of commercial value, decisions having been made in respect thereto means it no longer has a commercial value.

64 On the basis of the above, the Tribunal finds that the Respondent has failed to satisfy it that Document 4 is exempt under cl.9 or 7(1)(b) of the FOI Act.

Document 5

65 The Respondent has claimed that pages 23 to 28 of Document 5 (Retail Development Workshop Report dated 7 April 2003) are exempt under cl.9 and 8 of schedule 1 of the FOI Act. The report, prepared by Core Economics, is an overview of data prepared and presented by Core Economics at a workshop at the Respondent’s offices and attended by officers of the Respondent. The subject of the workshop was “Strategic Directions of a Retail Development”.

66 Having regard to what has been disclosed, in my opinion, the refusal to disclose pages 23 & 24 cannot be sustained as the information contained on these pages is included in that which has been disclosed: see pages 9 & 10 of Document 5. Furthermore, there is no basis to claim an exemption in respect of page 25 of that Document, which is merely a Title Page and contains no information of any substance.

67 This leaves pages 26, 27 and 28 of Document 5. In his affidavit of 9 February 2005, Douglas Jardine said that the purpose of the workshop was to obtain immediate feedback on the proposals put forward by the consultants. He also said that it provided the officers of the Respondent who attended the workshop with the “opportunity to provide additional information as requested by the consultants to fill in with greater detail certain portions of the consultants assessment.”

68 Clause 8 In my opinion, having regard to the content of pages 26, 27 and 28, the information contained therein cannot be described as coming within the term “research” as contained in cl.8 of schedule 1 of the FOI Act. As disclosed on page 2 of the report, the information contained in these pages relates to issues that were either raised or discussed during the course of the workshop. There is no evidence to show that it is part of a systematic investigation or study into retail centre development. On the contrary, it would appear that the report formed the basis of the Respondent Council’s decision, of 2 July 2003, to commission the preparation of a shire wide retail centre strategy (see [9(k)] above and Exhibit A, page 307). Accordingly, I do not find that the information in the relevant pages of Document 5 relate to the purpose or results of research.

69 Clause 9 In its written submissions, the Respondent claimed that pages 26 to 28 were exempt under cl.9 on the following basis:

“An exemption is made under this clause on the basis that the document is prepared as an overview of the data prepared and presented previously by Core Economics at a Workshop at the Tweed Shire Council Chambers. In this regard, it is maintained that the release of same would be contrary to the public interest as it would constitute a premature release of partially or tentatively obtained information relating to policy considerations. Furthermore, there is no overwhelming public interest factor which would be impeded as a result of the discretion to claim this document as exempt”.

70 In my opinion, having regard to the contents of pages 26 to 28 and the remainder of the report which has been disclosed, the material on pages 26 to 28 are deliberations that have taken place in the course of or for the purpose of the decision making functions of the Respondent (see cl.9(1)(a) & [29] above).

71 The real issue in regard to these pages is whether disclosure would on balance, be contrary to the public interest. As mentioned above, the Respondent’s position is that disclosure would “constitute a premature release of partially or tentatively obtained information relating to policy considerations”. I understand this to mean that the information contained in these pages is relevant to the Respondent’s ongoing deliberations into a retail centre strategy and that these deliberations are of a policy nature. As mentioned in [60] above, in my opinion, the evidence does not support an ongoing single deliberation of the Respondent in respect of this issue. As demonstrated by the events set out in [9] above this has been an evolving process in which the Respondent has made various decisions. The decision to convene the workshop, to which Document 5 relates is merely one of these. Furthermore, the issues discussed at the workshop and as recorded in the pages for which exemption is claimed, was the basis for another decision of the Respondent, namely the decision to commission the preparation of a retail centre strategy. That decision was made two years ago and implemented shortly thereafter by the engagement of Core Economics and for the reasons set out in [97] below, in my opinion, the task to which this latter decision related was completed in January 2004.

72 There is also no evidence to indicate that pages 26 to 28 of Document 5 has any relevance, other than in a historical sense, to any future deliberations of the Respondent which would make disclosure of these pages contrary to the public interest. That is, there is no evidence of what harm, if any, disclosure of the information in these pages would cause.

73 For the reasons set out above, the Tribunal finds that the Respondent has failed to satisfy it that pages 26 to 29 of Document 5 are exempt under cls.8 or 9.

Document 6 and 7

74 Document 6 and 7 are related so it is convenient to deal with these together.

75 Clause 7 In its written submissions, the Respondent has claimed that Document 6 (letter of proposal dated 22 May 2003 from Core Economics to the General Manager of the Respondent) is exempt under cl.7 (1)(b) of schedule 1 of the FOI Act on the following basis:

“This document is claimed as exempt because it clearly outlines quoted price, methodology and strategy proposed. Obviously, there is a real danger that the disclosure of same would commercially advantage opposing consultants.”

76 Again there is no evidence before the Tribunal, which supports this assertion.

77 In my opinion, the document does not, on its face, identify any information, which is of commercial value. The fact that a price is quoted and a particular methodology and strategy is referred to does not make it of commercial value. Even if it were of commercial value, how it could be of commercial advantage to opposing consultants at the time the Applicant made its FOI request is difficult to see as the proposal related to a specific task, which was accepted by the Respondent Council and performed by the proposer (Core Economics) several years ago (see [97] below). As there is no other evidence before the Tribunal as to the commercial value of the information in the Document, I find that the Respondent has failed to satisfy the Tribunal that Document 6 is exempt under cl.7.

78 Clause 9 The Respondent claims that the second half of paragraph 2 on page 3 of Document 7 (report by Core Economics, dated 9 June 2003, entitled “Review of Economic Report and Submissions in relation to proposed supermarket centre in Kingscliff”) is exempt under cl.9 of schedule 1 of the FOI Act on the following basis:

“…the document contains information which discloses opinion, advice or recommendation that has been obtained as part of a decision making function of the local government. In this regard it is maintained that the release of same would be contrary to the public interest as it would constitute a premature release of partially or tentatively obtained information relating to policy issues. …further there is a need to preserve the confidentiality of such reports as the release of same could prejudice the integrity of the decision making process or fan ill-formed public criticism”.

79 In his affidavit of 9 February 2005, Douglas Jardine explained that Document 7 related to a development application (I have assumed the Applicant’s as there is no evidence of any other application at this time) for a supermarket centre in Kingscliff. He goes on to say that the document “discusses the effect that the strategy would have in regards to such a supermarket centre and visa versa and expresses view as to the overall strategy for the shire in terms of retail centres … etcetera.”

80 Having regard to the content of the paragraph for which exemption is claimed, I agree that it contains an opinion, advice or recommendation that has been obtained in the course of or for the purpose of the decision making functions of the Respondent. However, as outlined in the introduction of the report, which has been disclosed, together with the evidence of Douglas Jardine, the report was commissioned by the Respondent to provide an independent opinion in relation to the development application of the Applicant to develop a shopping centre at Turnock Street, in particular, the retail economic reports that were lodged in support of that application. It would appear that the Respondent relied on this Document when making its decision, on 18 June 2003, to refuse the Applicant’s development application. Accordingly, the deliberations to which this document relates were finalised two years ago and on this basis I cannot see how disclosure of the sentences in issue could prejudice the integrity of the Respondent’s future decision-making process.

81 Furthermore, as mentioned in [14(b)] above the fact that the Applicant or any other person may misinterpret or misunderstand the information in the deleted material is, on its own, of no relevance when considering the public interest (see s.59A of the FOI Act). In this case there is no evidence of likely misinterpretation or misunderstanding if the deleted material is released which may result in ill-formed public criticism. Even if there was evidence of this, there is no evidence of actual harm to the Respondent in the performance of its functions if the deleted material is released.

82 For the reasons set out above, the Tribunal finds that the Respondent has failed to it that Document 6 and the second half of paragraph 2 on page 3 of Document 7 are exempt.

Document 8

83 The Respondent has claimed that the last paragraph on page 4, pages 5 to 9 and page 12 of Document 8 (submission by Core Economics entitled “Tweed Shire Retail Development Strategy Proposal of Services” received by the Respondent on 31 July 2003) are exempt under cl.13 of schedule 1 of the FOI Act. Although it is not clear I have assumed that the Respondent has claimed that the deletions are exempt under cl.13 (b) as well as 13(a).

84 Clause 13(a) As mentioned in [36 and 37] above, cl.13 (a) exempts a document where it contains matter, the disclosure of which would found an action for breach of confidence. In this regard, in its written submissions the Respondent has stated that the exemption is claimed because the document contains quotation prices and subjective information obtained in confidence and pursuant to a specific tender. However, there is no evidence to support a finding that in providing this information Core Economics did so with an express or implied duty of confidence being imposed on the Respondent, which prevented the Respondent from disclosing or otherwise dealing with the information to the detriment of Core Economics. Such an express or implied duty cannot be inferred from the terms of the document and on the basis of the material before the Tribunal, this proposal, as with the previous proposals from Core Economics and other independent consultants, was provided willingly with the hope of being chosen as the successful tenderer. Nor does Douglas Ian Jardine, in his affidavit of 25 January 2005, give any evidence in regard to such an express or implied duty. What he does state in his affidavit is that Document 8 was received by the Respondent as result of the 2 July 2003 resolution of the Respondent Council for the preparation of a shire wide retail centre strategy. He said that in all, the Respondent had received proposal (submissions) from “three suitably qualified consultants”. While I accept that the proposals were each provided in confidence and the Respondent treated them as such, this fact alone cannot give rise to the proposers having a right to bring a cause of action in breach of confidence if the Respondent disclosed that information. Accordingly, the Respondent has failed to satisfy the Tribunal that the deletions in Document 8 are exempt by reason of the exemption contained in cl.13 (a).

85 Clause 13(b) In respect to the deletions in Document being exempt under cl.13 (b) of schedule 1 of the FOI Act, in its written submissions, the Respondent said the following:

“An exemption is claimed under this clause based on the inherent nature of a quote for service and the necessary disclosure of commercially sensitive information by the consulting firm. The tendered quote for service contains subjective information in relation to method of assessment, fee proposal, purported expertise, time frame for completion, company profile, previous experience and consultant team. It is submitted that the release of such information would have commercial advantages to other consultants”.

86 As I have already mentioned, I accept that Document 8 was provided to the Respondent in confidence, even though it is not marked as such. However, there is no evidence before the Tribunal on which it can be found that the deleted material is commercially sensitive or that disclosure of this material could reasonably be expected to prejudice future supply of such proposals to the Respondent. This proposal, in my opinion, is no different to the other proposals that are contained in the disputed documents and I make a similar finding that the information contained therein was provided willingly with the anticipation of being selected as the successful tenderer (see [57] above) and knowing that the Respondent was accountable to its constituents of any decision it made in this regard. Furthermore, in light of the 20 August 2003 decision of the Respondent Council to accept the proposal contained in Document 8 it is difficult to see how the information in the deleted material, which was specific to that proposal, could provide a commercial advantage to the other proposers or proposers generally and could be expected to prejudice the future supply of such information in contractual proposal to the Respondent. In any event, the fact that the Respondent Council has acted on the report in making its determination on the Applicant’s development application it is difficult to see how disclosure of the deletions would be contrary to the public interest.

87 For the reasons set out above, the Tribunal finds that the Respondent has failed to satisfy it that the deletions in Document 8 are exempt under cl.13 (b) of schedule 1 of the FOI Ac are exempt under cl.13 (a) or (b).

Document 9

88 Document 9 is an internal memorandum prepared by Mark Tickle, on 20 August 2003, which summarizes the proposal contained in Document 8 above and two other proposals that were received following the Respondent Council’s resolution of 2 July 2003 to commission the preparation of a shire wide retail centre strategy. The Respondent has claimed that pages 5 to 7 of Document 9 are exempt under cl.7 and cl.13 (a) of schedule 1 of the FOI Act.

89 Clause 7 In respect of its claim for an exemption under cl.7, the Respondent, in its written submissions, said the following:

“This document contains information from the proposal submitted by Core Economics and includes subjective information in relation to proposed terms of reference, the process and consultation strategy, expertise and fee structure of the Consultant. It is submitted that the disclosure of this information could be potentially commercially advantageous to either the unsuccessful consultants or indeed any future consultants as they directly benefit from such information”.

90 I understand that part of the Respondent’s contention is that the alleged subjective information contained on pages 5 to 7 of Document 9 is the information provided by the respective authors of the proposals and that this information has a commercial value, which if disclosed could reasonably be expected to destroy or diminish the commercial value of the information. Once again I accept that this subjective information was provided to the Respondent in confidence and that at the time it was provided it may have had a commercial value. However, even if it did have a commercial value, as I have said in [55] above, without any evidence to the contrary, where the Respondent has made its decision to accept one of the proposals the inference to be drawn is that upon that decision being made this information ceases to have any commercial value. In this application as mentioned in [9(l)] and [84] above, on 20 August 2003 the Respondent Council resolved to accept the proposal. Accordingly, from the material before the Tribunal, there is insufficient evidence for me to find that at the date of the hearing the information on pages 5 to 7 of Document 9, if disclosed would disclose information that had a commercial value. Even if I am wrong there is no evidence before the Tribunal that the disclosure of this information could reasonably be expected to be destroy or diminish that value.

91 Clause 13(a) For the same reasons as set out in [82] above, there is no evidence before the Tribunal to indicate that Core Economics or the other consultants provided the information contained in the deleted pages with an express or implied duty of confidence being imposed on the Respondent, which prevented the Respondent from disclosing or otherwise dealing with the information to the detriment of Core Economics or the other consultants.

92 For the reasons set out above the Tribunal finds that the Respondent has failed to satisfy the Tribunal that pages 5 to 7 of Document 9 is exempt under cl.7 or cl.13 (a) of schedule 1 of the FOI Act.

Documents 10, 11 and 12

93 It is convenient to deal with these documents together as many of the deleted pages are common to each of them and the Respondent has claimed the same exemptions in respect of these. These exemptions are those contained in cl.8, 9 and 7 of schedule 1 of the FOI Act.

94 These documents are reports by Core Economics, provided to the Respondent on 31 October and 15 November 2003 and 12 January 2004, following the Respondent’s decision of 20 August 2003 to accept the 31 July 2003 (Document 8) proposal of Core Economics for the preparation of a shire wide retail centre strategy.

95 In his evidence Douglas Jardine described these reports as “draft” reports, with a final report yet to be provided. He said that the first “draft” of the report (Document 10) was provided to Mark Tickle and himself for perusal and assessment. They determined that it was not detailed enough and requested Core Economics to consider two additional issues, namely the threshold for the timing of retail development within specific locations in the Tweed Shire and the specific environmental requirements for subregional shopping centre within the Tweed Shire. As a result Core Economics provided a second “draft” report (Document 11). After considering this second “draft” of the report Mark Tickle and Douglas Jardine requested Core Economics to make some further clarifications. The nature of that clarification was not explained, however it is noted that Mark Tickle had advised in his internal memorandum of 5 February 2004 that there had been an amendment of the report to reflect the Respondent Council’s motion not to proceed with any retail developments on the Turnock Street site (see [9(q)] above). On the material before the Tribunal that amendment can only have been made to the second “draft” report. I note that the oral evidence of Douglas Jardine is consistent with this conclusion.

96 In his evidence Douglas Jardine went on to state that on receiving the third “draft” report (Document 12) he decided that it required further work. He also said that this third “draft” was provided to the Respondent just before Noel Hodges was appointed as Director of Planning and Environment of the Respondent. He said that Noel Hodges consideration of the “draft” reports was delayed until he fully understood the issues and in August 2004 he recommended “Core Economics provide further material by way of empirical analysis on future retail locations.” As mentioned in [9(t) and (u)] above, on 11 August 2004, Core Economics submitted a further proposal, which was accepted by the Respondent Council on 6 October 2004. The additional work, as described by Core Economics in its proposal, was to produce a “detailed demand analysis” as opposed to the “functional based assessment”, which had been the basis of the earlier report.

97 In my opinion, on the basis of the material before the Tribunal Douglas Jardine’s description of Documents 10, 11 and 12 as being “drafts” of the yet awaited final report is not entirely correct. It is a term that appears to have been adopted subsequent to these documents having been received by the Respondent. Although the term may be a convenient way of explaining, from the Respondent’s point of view, that the reports are “drafts” until such time they are endorsed by the Respondent Council, this is not a correct description. The terms on which Core Economics was commissioned to prepare the report was not described as preparing a “draft” report. I also note that not one of the reports was marked or identified as a “draft”. Nor did Mark Tickle describe it as such in his email of 5 February 2004. The changes that were made to the first and second “draft” of the report were clearly made within the terms of the original proposal that had been accepted by the Respondent Council. Core Economics was paid in full for the work that it had contracted to do and in my opinion the third “draft” report is in fact a final report on the matters that Core Economics was contracted to prepare, in August 2003. This appears to have been the view of Mark Tickle when proposing to put the report before the Respondent Council in March 2004 (see [9(r)] above).

98 The fact that the Respondent Council has subsequently contracted Core Economics to undertake further work, which will build on that contained in Document 12 does not necessarily mean that this changed the nature of the report and made it a “draft” report. It is interesting that Mark Tickle’s request to Core Economics that it provide a further proposal was made five months after Mr Tickle had recommended that Document 12 be put before the Respondent Council, yet within weeks after the Applicant had lodged its FOI request. The Tribunal did not have the benefit of hearing from Mark Tickle, Noel Hodges or Core Economics. Nor is there any document, dated between 5 February and 23 September 2004, which explains why the Core Economics report was not put before the Respondent Council in March 2004 and what if any discussions took place in respect of the report during this time. The only evidence was that of Douglas Jardine. On the whole, his evidence left me with a strong impression of there being further unexplained reasons for the withdrawal of Document 12 from the Respondent Council in March 2004 and the subsequent request that Core Economics undertake additional work. I am also left with the impression that considerable care may have been taken when describing the additional work that Core Economics was to undertake so that it appeared to be part of the original task. In making this observation I am not suggesting that Douglas Jardine has misled the Tribunal. He may on all accounts not be aware of all the facts.

99 I also note that in its proposal of 11 August 2004, Core Economics had suggested a timing for the further work of “3 to 4 weeks to prepare from date of commissioning, this will include meetings with team members at appropriate stages of the process.” The Respondent Council gave its approval for the further work in October 2004, yet there was no evidence before the Tribunal of any work having been undertaken by Core Economics in respect of what had been approved or when it was expected to be received.

100 Clause 8 In its submissions the Respondent has stated that the deleted material in Document 10, 11 and 12 would disclose the “purpose or results of research” and that the disclosure “could reasonably be expected to have an unreasonable adverse effect on the Council as release of same would curtail or jeopardise its decision making process.” In his affidavit of 25 January 2005, Douglas Jardine said that the “… Retail Development Strategy is intended to be a visionary document to guide the evolution of centres within the Tweed Shire” and “the strategies key objection is to match the expectations and expenditure capacity of communities in Tweed Shire with the retail trends.” In his affidavit of 9 February 2005, Douglas Jardine emphasised that the strategy was for the whole of the shire and that the final report adopted by the Respondent Council may significantly differ from that which is contained in Document 10, 11 and 12. In this regard he said that there had been substantial changes in circumstances with the lodging of additional applications for supermarkets and shopping centres, which if consented to by the Land and Environment Court would require additional matters to be considered by the Respondent Council when adopting a shire wide retail centre strategy.

101 On the assumption that the deletions, in whole or in part, in Document 10, 11 and 12 relate to the purpose or results of research, the evidence before the Tribunal does not in my opinion support a finding that, in the relevant sense, the release of that information could reasonably be expected to have an unreasonable adverse effect on the Respondent or Core Economics. There is no evidence in this regard so far as Core Economics is concerned. And the evidence of Douglas Jardine does not in any way indicate that the research (if any) conducted by Core Economics under its proposal of 31 July 2003 is incomplete or flawed and needs to be revised. The effect of what he is saying is that there were new developments, subsequent to and independent of the Core Economics report of 12 January 2004, which were relevant to development of retail centres in the shire. Accordingly, as I have found that the report is a final report the question remains, what adverse effect would there be if the deletions in Document 10, 11 and 12 were to be disclosed. In my opinion, the Respondent has failed to produce evidence of any such adverse effects. Accordingly, on this basis alone, the Respondent has failed to satisfy the Tribunal that the deletions in Document 10, 11 and 12 are exempt under cl.8 of schedule 1 of the FOI Act.

102 Clause 9 In respect to the deletions being exempt under cl.9 of schedule 1 of the FOI Act the Respondent made the following submissions:

Furthermore, release at this stage, prior to adjudication by the Council upon issues raised in the reports, may give rise to a reaction on the part of some members of the public which would be potentially destructive and place undue pressure on the Council thereby the public interest ultimately suffers as the Council is hampered in its ability to perform due process of administration.”

103 I accept that many of the deletions in Document 10, 11 and 12 may fall within the description of being an opinion, advice or recommendation and that these have been recorded for the purpose of the decision making functions of the Respondent. However, they are opinions, advice and recommendations of Core Economics and for the reasons set out in [96 & 97] above they cannot be described as “interim” because they reflect the concluded views of Core Economics in the context of what they had been contracted to do on 20 August 2003 (see [9(l)] above).

104 In my opinion it is not necessary to make a finding in respect of each of the deletions as to whether they come within the terms of cl.9 (1)(a), as the real issue is whether the Respondent has satisfied the Tribunal that disclosure would on balance, be contrary to the public interest. As mentioned above the relevant time for making this determination is the time of the hearing of this application and the fact that the Applicant or any other person may misinterpret or misunderstand the information in the deleted material (of which there is no evidence) is, on its own, not a relevant consideration when considering the public interest (see s.59A FOI Act and [14(b)] above).

105 I have already found that the report of 12 January 2004 (Document 12) is a final report (see [97] above), indicating the public interest does not lie in the refusal to disclose the information. The fact that the Respondent Council has not considered the report is a factor to be taken into account as the report was commissioned on its behalf. However, the report was provided almost 1-½ years ago and there is no evidence before the Tribunal of any ongoing deliberation in regard to these reports. On one view of the evidence, the fact that the Respondent has contracted Core Economics to undertake a different approach is an indication that the Respondent has rejected these reports that are Document 10, 11 and 12. There was some support of this in the oral evidence of Douglas Jardine. If that is the case there can be no harm in the release of the deleted material. The Respondent’s concern that release of the deleted material may place undue pressure on its ability to perform its due process of administration was not raised or otherwise explained by Douglas Jardine in his evidence. His main concern was that the information would be misunderstood or misapplied if disclosed and it would lead persons to make “wrong” investment decisions. In my opinion there is no basis for such a concern. Those persons with any interest in retail centre development in the shire appear to be fully aware that the contents of the reports do not form policy or views of the Respondent Council. Nor is there any evidence that these persons would base an investment decision on such information. It is also difficult to imagine how release of the information in the deleted material could enable these persons or others to bring undue pressure on the Respondent Council in its decision making function.

106 Clause 7 In respect of the deletions in Document 10, 11 and 12 being exempt under cl.7 of schedule 1 of the FOI Act, the Respondent said the following in its written submissions:

For example, on page 53 of the report there are specific comments in relation to the ability of the Tweed Coast to support specific retail and shopping products and placements. Furthermore, on page 60 of the report there is a concise summary in relation to three alternative sites and a determination that two of these sites are essentially unsuitable. Furthermore, pages 63 and 64 also repeat commercially sensitive information.

The importance of this is that the majority of the subject land is owned by the Applicant to these proceedings and consequently any release relating to the retail development of same would, if release, create a massive commercial advantage and potential lever against the Council”.

107 As with the exemption claimed for Documents 1 to 4 the essence of the Respondent’s submission is that the deleted material in Documents 10, 11 and 12 is of commercial value because it outlines those sites suitable and not suitable for development as a retail centre. The location of the sites is no mystery. These have been disclosed and discussed on several occasions (see [9(b), (c), (d) and (f)] above). What is not known is which of those site(s) Core Economics determined as being suitable and those that were unsuitable and the basis on which such a determination was made. It goes without saying that, if considered in isolation, those sites determined as being suitable for the development of a retail centre will be of greater commercial value than those determined as not being suitable. Both have a commercial value but the greater commercial value of one or more sites over other sites can only exist when the Respondent Council has determined that a particular site(s) is suitable for development as a retail centre. No such determination has been made and on this basis it is difficult to see how the information contained in the deleted material has a commercial value in the relevant sense. Even if I am wrong, the Respondent’s position is not that the release of that information is reasonably expected to destroy or diminish the commercial value of the information. Its position is that it will provide a commercial advantage and potential lever against the Council. There is no evidence to support this contention and even if there were this is not the test in cl.7 (1)(b)(ii) of schedule 1 of the FOI Act (see [23] above).

108 For the reasons set out above the Tribunal finds that the Respondent has failed to satisfy it that the deletions in Documents 10, 11 and 12 are exempt under cls.8, 9 or 7 of schedule 1 of the FOI Act.

Conclusions

109 For the reasons set out above, in my opinion the decision of the Respondent in respect of Documents 1 to 12 referred to in [10] of these reasons for decision is not the correct and preferred decision.

110 The Tribunal orders that the decision of the Respondent in respect of Documents 1 to 12 referred to in [10] of these reasons for decision is set aside and in substitution thereof a decision that the applicant be granted access to these documents and that access is to be granted no later than 28 days from the publication of this decision.

111 In this application the parties have at all time preserved their rights to make an application for an order for costs. If such an application is to be pressed it is also appropriate to order that unless an application, with supporting submissions, is filed and served within 28 days of the publication of this decision, there will be no order for the costs of the application. If any such application is made, submissions by the opposing party must be filed and served within a further 28 days. The matter will be resolved ‘on the papers’, unless reasons are advanced for holding a hearing.

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Citations

Gales Holdings Pty Ltd V Tweed Shire Council [2005] NSWADT 168

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CITATION:	Gales Holdings Pty Limited v Tweed Shire Council [2005] NSWADT 168
DIVISION:	General Division
PARTIES:	APPLICANT Gales Holdings Pty Limited RESPONDENT Tweed Shire Council
FILE NUMBER:	043319
HEARING DATES:	05/04/2005 08/04/2005
SUBMISSIONS CLOSED:	05/02/2005
DATE OF DECISION:	07/29/2005
BEFORE:	Higgins S - Judicial Member
APPLICATION:	access to documents - confidential material - access to documents - internal working documents - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - internal working documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Environmental Planning and Assessment Act 1979 Freedom of Information Act 1989 Local Government Act 1993
CASES CITED:	Attorney General's Department v Cockcroft (1986) 10 FCR 180 at 190 Australian Doctors' Fund Pty Ltd v Commonwealth of Australia (1994) 49 FCR 478 at 489 Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7 at [82 & 83] Freeland v. General Manager, Liverpool City Council [1999] NSWADT 95 Law Society of New south Wales v General Manager WorkCover Authority of New South Wales (No2)(GD) [2005] NSWADT 33 Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37 McCabe v Electoral Commission, State Electoral Office [2003] NSWADT 24 at [16] Preston v Casino Control Authority [2003] NSWADT Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 338 Re B and Brisbane North Regional Health Authority (1994) 1QAR 279 at 341 Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626 Re Kamminga and Australian National University (1992) 26 ALD 585 at 588 Re Maher and Attorney General's Department (1985) 7 ALD 731 at 737 Re Toomer v Departmant of Agriculture, Fisheries and Forestry [2003] AATA 1301 at [115 to 119] Ryder v Booth [1985] VR 870 at 872 Secretary, Department of Employment, Workplace Relations and Small Business v Staff Development and Training Centre Pty Ltd (2001) 323 AAR 531 at 544 Surf Life Saving Australia Ltd v Director General, Department of Education and Training [2001] NSWADT 76 at [27 to 31] Wiseman v the Commonwealth (unreported, Full Federal Court, 24 October 1989 Wittingslow Amusements Group Pty Ltd v Director-General of Environmental Protection Authority of New South Wales (BC9301697;Unreported, NSWSC, Powell J, 23 April 1993) Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253 at [52] Zagami v Waste Service of New South Wales [2005] NSWADT 60 Searle Australia Pty Limited v Public Interest Advocacy Centre (1992) 108 ALR 163
REPRESENTATION:	T Robertson, barrister M R Lawson, barrister
ORDERS:	1. The decision of the Respondent in respect of Documents 1 to 12 referred to in [10] of these reasons for decision is set aside and in substitution thereof a decision that the Applicant be granted access to these documents and that access is to be granted no later than 28 days from the publication of this decision; 2. That unless an application, with supporting submissions, is filed and served within 28 days of the publication of this decision, there will be no order for the costs of the application. If any such application is made, submissions by the opposing party must be filed and served within a further 28 days. The matter will be resolved 'on the papers', unless reasons are advanced for holding a hearing.