Giblin v Department of Planning and Environment

[2022] NSWCATAD 232

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Giblin v Department of Planning and Environment [2022] NSWCATAD 232

Hearing dates:

2 May 2022

Date of orders:

12 July 2022

Decision date:

12 July 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

E Bishop, Senior Member

Decision:

1.   The decision of the respondent is varied to provide access to Document 11A.

2.   The decision of the respondent to refuse access to Documents 2A, 3A, 4A, 6A, 7A, 10, 11, 13, 13A and 16A is affirmed.

Catchwords:

ADMINISTRATIVE LAW — access to government information — access application — public interest considerations in favour of disclosure — public interest considerations against disclosure — whether overriding public interest against disclosure

Legislation Cited:

Administrative Decision Review Act 1997 (NSW), ss 9, 63

Civil and Administrative Tribunal Act 2013 (NSW), ss 30, 64, Sch 3, cl 9(4)

Government Information (Public Access) Act 2009 (NSW), ss 5, 9, 12, 13, 14, 80, 100, 104, 105, 107

Cases Cited:

Commissioner of Police v Danis [2017] NSWCATAP 7

Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Hurst v Wagga Wagga City Council [2011] NSWADT 307

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

Transport for NSW v Searle [2018] NSWCATAP 93

University of New South Wales v McGuirk [2006] NSWSC 1362

Wavelength Group Pty Ltd v Upper Hunter Shire Council [2021] NSWCATAD 182

Category:

Principal judgment

Parties:

Warwick Giblin (Applicant)
Department of Planning and Environment (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
Crown Solicitor (Respondent)
Information Commissioner

File Number(s):

2021/00360633

Publication restriction:

Pursuant s 64 of the Civil and Administrative Tribunal Act 2013 (CAT Act) and s 107(2) and s 107(3) of the Government Information (Public Access) Act 2009 (NSW), the publication or disclosure to the applicant of the confidential material filed with the Tribunal or matters contained in the confidential material and the publication of the report of the confidential hearing is prohibited.

Judgment

1. The McPhillamy’s Gold Project is an application to develop an open cut gold mine and water supply pipeline near Blayney, NSW. It is a State Significant Development (SSD). There are rural landholders whose lands and homes adjoin the proposed McPhillamy’s Gold Mine. The applicant (Mr Giblin) on behalf of eight rural landholders requested information from the Department of Planning and Environment (the respondent) under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) about the review and assessment of the Environmental impact Statement (EIS) and Social Impact Assessment (SIA) of the McPhillamy’s Gold Project ,which is still being assessed by the respondent.

2. The application sought access to:

“any and all documents and emails prepared by the DPIE’s specialist social impact assessment personnel that have reviewed the adequacy of the social impact assessment of the proposed McPhillamy’s Gold Project (SSD 9505) at Kings Plains near Blayney NSW.

Information to cover the period from 04/01/2021 to 31/10/2021.”

3. The respondent provided access to 15 documents but refused to provide 11 documents described as Documents 2A, 3A, 4A, 6A, 7A, 10, 11, 13, 13A, 16A (Disputed Information) and 11A on the basis that there is an overriding public interest against disclosure of the information. The Disputed Information has been provided to the Tribunal on a confidential basis and I have made a confidentiality order in relation to the Disputed Information.

4. Mr Giblin now seeks a review in the Tribunal of the respondent’s decision.

5. I note that on this review the respondent has now agreed to disclose the document described as Document 11A such that there are now 10 documents that form part of the Disputed Information.

Applicable law

6. The GIPA Act, s 5 states that there is “a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure”. Section 9 provides that a person who makes an access application has a legally enforceable right to access the information unless there is an overriding public interest in not disclosing.

7. In the GIPA Act, s 12(1) there is recognition of the general public interest in favour of disclosure of government information. Section 12(2) expressly provides that nothing limits the considerations in favour of disclosure that may be taken into account when determining whether there is an overriding public interest in favour of disclosure, and lists examples of the types of considerations that may be taken into account.

8. The public interest test is found in GIPA Act, s 13:

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

9. Section 14(2) provides that only the considerations listed in the Table in s 14 may be taken into account as public interest considerations against disclosure. Relevantly in this case, there is a public interest against disclosure where disclosure could reasonably be expected to:

1. reveal a deliberation or consultation conducted, or any opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (cl 1(e));

2. prejudice the effective exercise by an agency of the agency’s functions (cl 1(f));

3. reveal an individual’s personal information (cl 3(a)).

10. The Appeal Panel in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 set out the approach to be adopted to s 14:

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

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

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

11. Each of the public interest considerations against disclosure includes in its chapeau the phrase “… could reasonably be expected to have one or more of the following effects …”. The principles to be applied in considering whether disclosure of information “could reasonably be expected” to have a particular effect were summarised by an Appeal Panel in Transport for NSW v Searle [2018] NSWCATAP 93 at [68] as follows:

“[68] There was no dispute between the parties that:

(1) The appellant bore the onus of establishing the existence of one or more of the relevant public interest considerations against disclosure in cl 1 of the Table in s 14 of the GIPA Act: see s 105.

(2) The words ‘could reasonably be expected’ are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect: Attorney General’s Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61]:

‘... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, “to place an unwarranted gloss upon the relatively plain words of the Act”.’

(3) In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22].

(4) It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53].

(5) ‘Prejudice’ is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].

(6) The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: Cammilleri at [21], [22] and [26].”

12. Whether disclosure of particular information “could reasonably be expected to” have a particular effect is a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [40]-[42];

13. The evidence required to establish that disclosure of information could reasonably be expected to have a particular effect was discussed in Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254. The Appeal Panel referred to Searle and the authorities discussed in that decision, and stated at [59]:

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

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

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

(3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.”

14. Clauses 1(e) and (f) of the Table in s 14, relied on by the respondent, both use the word “prejudice”. The word bears its ordinary meaning, that is, “to cause detriment or disadvantage” or “to impede or derogate from”: Wavelength Group Pty Ltd v Upper Hunter Shire Council [2021] NSWCATAD 182 at [31]; Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].

Jurisdiction

15. A decision to refuse access to information is a “reviewable decision” under GIPA Act, s 80(d). The Tribunal has jurisdiction to review the respondent’s decision under GIPA Act, s 100 which provides that a person who is aggrieved by a reviewable decision may apply to the Tribunal for administrative review under the Administrative Decision Review Act 1997 (NSW), ss 9 and 63 (ADR Act), Civil and Administrative Tribunal Act 2013 (NSW), s 30 (CAT Act).

16. The role of the Tribunal on this review is to decide what the correct and preferable decision is as to whether the Disputed Information should be provided, having regard to the material before it and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator: ADR Act, s 63: Commissioner of Police v Danis [2017] NSWCATAP 7 at [31].

17. The onus is on the respondent to establish that the decision is justified: GIPA Act, s 105(1).

18. In accordance with of the GPIA Act, s 107 the Tribunal is to ensure that it does not disclose any information for which there is an overriding public interest against disclosure; or in respect of information which the respondent has claimed there is such an overriding interest but for which the Tribunal finds there is not: University of New South Wales v McGuirk [2006] NSWSC 1362 at [91]. To that end, the Tribunal makes an order restricting publication or disclosure of the Disputed Information.

Material before the Tribunal

19. The material before the Tribunal is:

1. Mr Giblin’s submissions; an A4 map of the site; a Statement of Claim prepared by Mr Giblin; correspondence between Mr Giblin and the respondent; character references dated 28 April 2021.

2. The respondent’s submissions and reply submissions; Statement of Stephen O’Donoghue dated 7 March 2022.

3. Confidential bundle of documents including an unredacted Statement of Stephen O’Donoghue dated 7 March 2022, the Disputed Information and confidential submissions of the respondent.

20. The Tribunal also had a confidential hearing during which the respondent made oral submissions to the Tribunal on the confidential evidence.

Evidence

21. Mr Stephen O’Donoghue is the Director, Resource Assessments in the Energy, Resources and Industry branch of the respondent’s Planning and Assessments Group. He provided a statement and was cross-examined at the hearing.

22. Mr O’Donoghue explained the respondent’s process of assessment of a SSD including that as part of the process, there is ongoing engagement with various agencies, stakeholders and the applicant which requires further information to address issues that arise in the assessment process. The respondent’s engagement is, as a general rule, made publicly available by publication on the NSW Planning Portal. The EIS (which includes the SIA) is also published on the portal.

23. The SIA must be prepared in accordance with guidelines issued by the respondent and which are referred to in the Secretary’s Environmental Assessment Requirements (SEARS) for the project (Guidelines).

24. There is a public consultation period once the EIS is lodged. Submissions can be made by members of the public and other stakeholders which are considered by the respondent.

25. The respondent ultimately prepares an assessment report which includes outcomes of the assessment and makes recommendations which are submitted to the consent authority, in this case the Independent Planning Commission (IPC). The assessment report is also made publicly available.

26. There is a further opportunity for community members to be heard regarding the proposed development after the assessment report is provided to the IPC and before the Minister for Planning and Public Spaces requests a public hearing into the development.

27. Mr Donoghue explained that the social impacts of the SSD are assessed as part of the EIS. The SIA must be provided in respect of all State Significant mining, petroleum production and extractive industry projects. The phases of environmental impact assessment and social impact assessment include:

1. Engaging in a scoping exercise to understand the project’s social influence and potential material social impacts;

2. Preparation of the SIA;

3. Publicly exhibiting the EIS including the SIA and receiving public submissions;

4. The applicant for the development to prepare a submissions report explaining how it has addressed the submissions;

5. The Department of Planning assessing the SIA and providing its findings to the consent authority;

6. The consent authority deciding whether to approve or refuse the project including conditions of consent if approved.

28. The respondent has engaged a specialist (Dr Parsons) who is providing advice and direction on the preparation of the SIA. He is an expert in social and economic impacts of development.

29. Mr O’Donoghue states that the drafting of the SIA review report is ongoing and there is not yet a finalised report. Drafts are provided to members of the respondent for the purpose of the team providing feedback and comments, in particular ensuring nothing has been missed or not considered or addressing any apparent mistakes in accordance with the Guidelines.

30. Of the Disputed Information six documents are drafts of the SIA and one is an email attaching the first draft report and which highlights certain elements of the draft to the recipients of the email. Mr O’Donoghue is concerned that if these documents are disclosed prior to finalisation of the respondent’s assessment of the McPhillamy’s Gold Project, it will prejudice the respondent’s assessment as well as consideration by the IPC, particularly as some aspects of the drafts reflect positions that are not consistent with the legal framework for the assessment of SSDs. He is also concerned certain aspects may be seen as pre-empting the outcome of the respondent’s assessment particularly as some aspect of the draft reports go beyond the scope of the task of the SIA team and could give the impression a concluded position has already been reached, which is not the case.

31. Of the Disputed Information, two documents are versions of internal working documents that refer to statements and advice in the draft reports that are inconsistent with requirements of State planning requirements. Similarly to his concerns outlined above, as the assessment and recommendation to IPC process has not yet completed, Mr O’Donoghue is also concerned that it would be premature to release internal advices on potential conditions which may not be reflected in the respondent’s final recommendation on the project. This may have the effect of creating confusion or concerns in the community in respect of statements that do not reflect the respondent’s position or final recommendation.

32. The final document contained within the Disputed Information is an email from Dr Parsons responding to an earlier email forwarding a draft document “RFI Issues to address – McPhillamy’s Gold Project Social Impact Assessment”. Mr O’Donoghue is concerned that certain aspects of this could be taken as reflecting the respondent’s position when no decision has yet been reached and which could therefore be prejudicial to the respondent’s ongoing assessment.

33. Mr O’Donoghue’s unredacted statement provided confidentially to the Tribunal, addressed specific examples by reference to the Disputed Information (also provided confidentially to the Tribunal). I have considered the unredacted evidence including the Disputed Information.

Submissions

34. Mr Giblin’s submissions can be summarised as follows:

1. There is a high level of public interest in the McPhillamy’s gold mine and disclosure of the Disputed Information will better inform the public about the government’s processes of decision-making;

2. Landholders are keen to see evidence in the SIA that Dr Parsons is actively involved in the decisions relating to the impacts of the proposed mine to reassure them that the expert is being listened to; and

3. Release of the Disputed Information will give the landholders the type of granular information that they require regarding how the social impacts of the project have been considered and factored into the respondent assessment of the SSD application. This will help them make informed and targeted submissions to the IPC.

35. In effect, Mr Giblin and the landholders have no confidence that Dr Parson’s expert opinion is being reflected in the SIA; that there is a level playing field in the process; and that based on previous experience, the only way to protect their interests is for full transparency by disclosure of the Disputed Information now.

36. Mr Giblin also contended that the landholders wished to see evidence that the respondent “is being robust and duly diligent in its assessment and determination processes.” It was apparent that underlying Mr Giblin’s argument was an expectation that the McPhillamy’s Gold Project was going to be approved without proper consideration of the social impact it may have on the landholders.

37. The respondent accepted Mr Giblin’s interest in the information requested, and, in particular, the concern of the landholders with properties adjoining the proposed development to ensure the social impacts of the project are being given due consideration as part of the process of the SSD application being determined. However, the respondent submitted that their interests will be substantially met by the release of the SIA review report at the time the respondent completes its assessment, at which time it will be made publicly available.

38. The respondent further submitted that prejudice is reasonably expected to arise from the release of the various iterations of the draft reports while the assessment remains ongoing as:

1. release is likely to raise issues within the community that are not reflective of the respondent’s final position or recommendation to the IPC (which has not yet been determined) nor reflective of the legal framework for assessment; and

2. aspects of the information might be seen to be pre-empting the outcome at a time when the assessment process is still being conducted.

39. The risk of prejudice to the deliberative processes would also impact upon the respondent who would be required to divert its resources to deal with issues of the community and stakeholders which may not ultimately arise once the assessment is concluded. This may, in turn, prejudice the deliberations of the IPC as likely to prompt submissions and feedback to the IPC that are not reflective of the position ultimately reached by the respondent.

40. It was submitted that there is minimal public interest served by disclosure of the Disputed Information which are merely draft deliberative documents relating to internal consideration of the SIA as part of the respondent’s broader assessment process. Against this, disclosure has the potential to prejudice the ongoing assessment such that the public interest against disclosure outweighs the public interests in favour of disclosure. Consequently, it was submitted, there is an overriding public interest against disclosure.

41. The Information Commissioner also provided submissions in her capacity as an independent statutory officer exercising functions under s 104(1) GIPA and cl 9(4)(a) of Sch 3 to the CAT Act which gives her a right to appear and be heard on the review. These submissions effectively set out the law and summarised the matters I am required to be satisfied of on the review.

Consideration

Public interest in favour of disclosure

42. There is no dispute in this review that there is a general public interest in favour of disclosure. As noted above, the respondent accepted that the McPhillamy’s Gold Project is a matter of significant public interest.

Public interest considerations against disclosure

43. Having regard to the evidence of Mr O’Donoghue, the Disputed Information, and the submissions, I am satisfied that clauses 1(e) and 1(f) of the Table in s 14 of the GIPA Act are satisfied.

Clause 1(e)

44. I have reviewed the Disputed Information and I am satisfied that it reveals the respondent’s deliberative processes and opinions.

45. I am also satisfied having considered the Disputed Information and the unredacted evidence of Mr O’Donoghue, that disclosure could reasonably be expected to prejudice that process in circumstances where the process is not yet complete and assessment has not yet been determined. In particular, the drafting of the SIA is ongoing with the final version to reflect additional information; it is not the usual practice to release internal draft assessments prior to an assessment of an SSD application; internal reviews are not usually publicly released as it is the final assessment that reflects the position of the respondent and that final assessment has not yet been made. Further, release now of the respondent’s internal consideration of the SIA might lead the community to consider that a certain position has been reached by the respondent when it has not and may result in issues about aspects in the internal documents (including those inconsistent with the State’s planning regime and/or government policy) which might not even arise once the final assessment is made.

46. As noted above, from the cross-examination and submissions made, it seemed to me that the Mr Giblin’s case was premised on an assumption that the expertise of Dr Parson’s is not being taken into account by the respondent and that important, substantive communications are not always provided on the planning portal. I note there was no evidence before me to support those propositions nor was their evidence about the previous history or experience of Mr Giblin or any of the landholders he represented in respect of their interactions with the respondent.

Clause 1(f)

47. In my view, having regard to the evidence of Mr O’Donoghue, for the same reasons expressed above, disclosure of the Disputed Information is likely to raise issues about matters which have not yet finally been determined and is likely to divert the resources of the respondent to deal with queries and issues that might arise from disclosed at this stage. In particular, aspects of the drafts reports and internal documents which I have reviewed in the Disputed Information, do not reflect positions that are consistent with the legal framework for the assessment of SSDs and would be seen to be pre-empting the outcome of the respondent’s assessment. This could reasonably be expected to prejudice the exercise of the respondent’s functions and deliberations. Similarly, disclosure of the Disputed Information could reasonably be expected to prejudice to the IRC in the exercise of its functions as the IRC would also have to respond to submissions and feedback from the community in respect of matters that are not reflective of a position which has yet been reached by the respondent on assessment.

Clause 3(a)

48. While in its notice of decision, the respondent also relied on cl 3(a) in respect of disclosure of the document described as Document 13, on review it is accepted that cl 3(a) applies only to one part of the email being that part that reveals “nothing more than the fact that the person was engaged in the exercise of public functions” (adopting the wording of the exception in “personal information” in cl 4(3)(b) Sch 4 of the GIPA Act).

49. While redaction of that one discrete part of the email could potentially overcome consideration against disclosure in reliance on cl 3(a), I have already determined that cls 1(e) and 1(f) apply to the Disputed Information which includes Document 13.

Balancing exercise

50. For the reasons set out above, the public interest against disclosure considerations in cl 1(e) and 1(f) relied upon by the respondent have been made out on the evidence. I am satisfied that these are of such substance as to outweigh the public interest in favour of disclosure.

51. In this regard, I agree with the respondent that the public interest in favour of disclosure is substantially met by disclosure of information which is publicly available on the NSW Planning Portal. Mr Donoghue confirmed that the original and amended EIS are available on the portal along with information about submissions, responses from various agents, request for information and responses to these requests. In addition, information about the respondent’s ongoing engagement with stakeholders is generally also made publicly available throughout the assessment process via the planning portal.

52. It follows that there is an overriding public interest against disclosure and I would therefore affirm the decision of the respondent in relation to the Disputed Information.

Orders

53. The decision of the respondent is varied to provide access to Document 11A.

54. The decision of the respondent to refuse access to Documents 2A, 3A, 4A, 6A, 7A, 10, 11, 13, 13A and 16A is affirmed.

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

Registrar

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

Registrar

Decision last updated: 12 July 2022