Kinsley and Associates Pty Ltd v Wyong Shire Council

[2007] NSWADT 279

CITATION:	Kinsley and Associates Pty Ltd v Wyong Shire Council [2007] NSWADT 279
DIVISION:	General Division
PARTIES:	APPLICANT Kinsley & Associates Pty Ltd RESPONDENT Wyong Shire Council
FILE NUMBER:	063386
HEARING DATES:	3 July 2007, 28 August 2007
SUBMISSIONS CLOSED:	28 August 2007
DATE OF DECISION:	30 November 2007
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	access to documents - confidential material
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	McGuirk v UNSW [2007] NSWADT 204 P v Greater Western Area Health Service [2007] NSWADT 87 Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55 UNSW v McGuirk [2006] NSWSC 1362 Watt v Forests NSW [2007] NSWADT 197
REPRESENTATION:	J Dowd, barrister J Lazarus, barrister
ORDERS:	1. Respondent’s decision under review affirmed; 2. Leave granted to the parties to apply within 14 days of receipt of these reasons for decision to argue whether other orders, consistent with these reasons, should be made and to list the proceedings for this purpose should they wish to do so.

1 These proceedings are brought by way of application under the Tribunal’s enabling act wherein the Applicant seeks review of a determination made by the Respondent under the Freedom of Information Act 1989 (NSW) (‘FOI Act’). They have been prepared and heard without any jurisdictional or other preliminary issue being raised, the hearing taking place on 28 August 2007. Oral evidence was received at that hearing together with the affidavits filed and the documents tendered that day.

2 Following the Applicant’s initial application under the FOI Act the Respondent released certain documents falling within that request. However parts of a particular document were not so released, this document being described as a “Tender/Evaluation Report”. The Respondent filed and tendered, upon a confidential basis, a copy of the entire report so as to disclose to the Tribunal the parts of the document that had not been released. This became confidential exhibit R1 in the proceedings. During the course of the hearing the parties narrowed the issues for consideration by the Tribunal down to whether two parts of page 12 of that Report should be released to the Applicant. The first part in issue is the paragraph following the words “Cessnock City Council” on page 12 and the second part is the paragraph following the words “Holroyd Council”, also on page 12 of the Report. The Respondent claims exemption from release of these two parts on several grounds under the Act, although the primary, but not the only, issue litigated concerned whether certain information was, or was not, obtained in confidence (compare with clause 13(b) of Schedule 1 to the FOI Act). This narrowing of the issues has greatly assisted the Tribunal and the parties should be commended for the approach that they have taken in this regard.

3 The Respondent is a Shire Council which called for tenders for certain works (design consultancy) that it wished to implement. fThe Applicant tendered for this consultancy work on 21 July 2005. As part of that tender the Applicant nominated two referees that the Respondent could contact and seek information from, about the Applicant, should it wish to do so. The two referees so provided were Cessnock City Council and Holroyd City Council. One of the respondent’s officers, one Michael David Long, in fact contacted officers of these two Councils and obtained information from each of them in relation to works that the Applicant had done in the past for the two referee Councils. Mr. Long recorded the information so provided. This information, in due course, made its way onto page 12 of the Report referred to above and it is the record of this information, from each of the two referees, which forms the two parts of page 12 over which exemption from release is claimed.

4 By reason of the grounds of exemption relied upon, the initial matter for consideration concerns the circumstances under which the information was sought by Mr. Long and was supplied by the officers of each of the referee Councils. There was considerable evidence on this question.

5 The evidence adduced by the Applicant is contained in the several statements and documents in exhibits A1 and A2. These include an affidavit and statement by Mr Roger Kinsley, who is the managing director of the Applicant. Mr Kinsley agrees that the Applicant submitted a tender for the subject works on 21 July 2005 (exhibit A1). Although his affidavit (exhibit A2) refers to a date in September 2005 it is clear on the evidence that the Applicant and the Respondent are referring to the same tender submission for the same works. By that tender the Applicant nominated Cessnock City Council and Holroyd City Council as referees. Whilst Mr Kinsley does not expressly say this in his evidence it is quite clear from the other evidence adduced that this was the case. The Applicant’s tender was not successful and Mr Kinsley had discussions about this with officers of the Respondent after being so advised. Mr Kinsley was given a copy of the Report (exhibit R1) but a copy from which certain parts had been deleted, particularly those parts of page 12 that are under review in these proceedings. Mr Kinsley however noted the recording on page 7 thereof that “Cessnock Council said Council had to take over road and carpark works for Baddeley park Oval project”, there being no deletions from page 7 of the Report. This statement, Mr Kinsley says, is factually incorrect. The Applicant in fact did the design work for the Cessnock City Council, the Council having decided to do the road and carpark works itself before issuing the actual construction tenders (exhibit A1, letter dated 26.02.07, page 1). This recorded statement on page 7 prompted the initial FOI application seeking a full copy of the Report. Mr Kinsley notes at paragraph 7 of his affidavit (exhibit A2) that the Applicant has not sought the release to it of information provided by referees other than Cessnock City Council, the purpose of the FOI application being to correct this factual error, however both parts of page 12 are being sought in these proceedings.

6 The correctness of this statement on page 7 of the Report was the subject of further evidence which is considered later in these reasons. However, one point should be made here. This statement uses the words “Council had to take over road and carpark works”. These words are clearly capable of suggesting to a reader that the Applicant had some type of responsibility for the road and carpark works which they did not perform to the Council’s satisfaction and therefore the Council did the works itself. The words “had to take over” clearly import this inference. This is the most likely way in which this statement would be read by even a casual observer. If this was not the case, and the Council in fact did not have to “take over” the works involved, then the recorded statement on page 7 could clearly be misleading. Consequently it would be in need of correction as a matter of fairness to the Applicant and to ensure that the Respondent does not mislead itself in any future dealings with the Applicant by its own “incorrect” recording.

7 The remaining evidence adduced by the Applicant reveals the steps that the Applicant has taken to obtain all relevant information so that the alleged error may be corrected (see exhibit A1). It is obvious, of course, that the Applicant’s witness was not in a position to offer any evidence touching upon the communications between the Respondent and the referees that the Applicant had proffered. Mr Kinsley was not privy to these communications.

8 The Applicant’s evidence does not suggest that it placed in any qualification or restriction, in the tender document or otherwise, upon the steps that the Respondent could take to obtain information from the referees whose names had been provided. Also, there is no direct evidence as to what thoughts, if any, passed through the Applicant’s corporate mind concerning the use to which the Respondent could put any information it obtained from the referees and the extent to which such information should have been kept confidential. One inference that is available is that the Applicant’s view was that any information so obtained would have been used by the Respondent for the purposes of the tender at hand only, and thereafter be discarded; another inference open is that the Applicant realised that such information would be used for the purposes of the tender at hand as well as for any subsequent tenders the Applicant might make, provided the information be kept by the Respondent in some accessible fashion. However, it is equally likely that the Applicant in fact did not consider this aspect all. Consequently, to draw any inferences of fact on this point would be to simply speculate rather than to determine by proper inference what fact was the more likely of the competing inferences available. The Tribunal is not persuaded that it should draw any inferences on this aspect in the circumstances.

9 Mr Long’s evidence is contained in exhibit R3. He has had considerable experience over the years with the tendering process used by the Respondent. One of the usual steps is to contact referees nominated by a tenderer to obtain relevant information about previous experiences that the referees have had with the entity or person making the tender. His approach, and the type of information he seeks, is set forth in paragraph 5 of exhibit R3 in a rational and credible exposition. He then deposes as to the use to which he puts information so obtained. One of the checks he does is to compare a tenderer’s description of their performance on past works with the way in which the referee assesses the tenderer’s performance of those same works (paragraph 8 exhibit R3). He states that he has always regarded information provided by referees as being given in confidence, even though he has never expressly stated to any provider of information that he would treat the information as being confidential (exhibit R3 paragraph 11). He further states that, as part of this confidence, he has not released such information to any tenderer (paragraph 11). It is a proper inference that he would not have done so if a tenderer had in fact requested the provision of such information. It was Mr Long who obtained the information, appearing on page 12 of the Report, which is under consideration here. He obtained this information directly from officers employed by the nominated referee Councils. His attitude to the information provided by these two referees was that it was confidential, even though no express reference to this was made by either party during the course of the relevant conversations (paragraph 14 exhibit R3). His belief was that the provider of the information would expect that it be kept confidential.

10 In his affidavit Mr Long gives his reasons for keeping referee information confidential. His essential reason is that it ensures the frankness of the information that he is provided with, this being an important aspect of the tender process. If information lacks fullness and candour then the tender process will suffer, this evidence being given upon the basis of what Mr Long believes to be the possible consequences should information of this type be routinely released. He further states that this attitude is commonplace amongst other officers working in this area. Mr Long’s evidence is clearly rational and credible, even if his predictions should eventually be shown to be incorrect.

11 In his oral evidence Mr Long accepted that he had never been instructed or requested by others to keep this type of information confidential and that to his knowledge there was no policy promulgated by the Respondent to this effect. He also agreed that negative comments would not appear in the final Report to Council concerning the tenderers for any project, although they could well appear in the Evaluation Report. The Report under consideration here, and page 12 thereof, is an evaluation report.

12 The evidence of Mr Paul Wise is contained in exhibit R4. He is a senior officer with the respondent having had many years experience in the tender process. Whilst in his affidavit he speaks of Council policy to keep this type of referee information confidential, he conceded in oral evidence that this was a more a long standing procedure that he was aware of which was not detailed in any policy or procedural document. His affidavit goes on to provide his opinion as to the consequences of releasing this type of information and his reasons for forming such an opinion. This is much the same as the evidence given by Mr Long on this point. Mr. Wise’s evidence is equally rational and credible.

13 The evidence of Robert James Poulter is contained in exhibit R2. He also gave oral evidence at the hearing. Mr. Poulter is an employee of Holroyd City Council whose duties include handling tenders for construction works that his Council may undertake. He was the person who, on or about 6 October 2005, spoke with Mr. Wise when he sought information concerning the Applicant. He states that he provide the information openly and accurately (paragraph 16) and he confirms that there was no discussion at the time to the effect that the information he provided would be kept confidential, but his understanding was that the information he provided to Mr Wise about the Applicant would be treated as confidential information (paragraph18). Had he not had this expectation he would have considered refusing to assist Mr Wise or would have been more circumspect in the information which he provided about the Applicant. Mr Poulter said that he habitually treats this type of information as being confidential (paragraphs 8 and 11). He also expresses in his affidavit the same views as Mr Wise as to the possible adverse consequences of disclosing this type of information. Mr Poulter’s oral evidence confirmed that his affidavit evidence was credible and reliable.

14 The evidence of Ms Renae Leayr is contained in exhibit R5. She also gave oral evidence. Ms Leayr is an employee of Cessnock City Council whose duties include the evaluation of tenders that her Council may call for. She is the person who spoke with Mr Wise about the Applicant around 6 October 2005, her Council being the other referee provided by the Applicant in its tender to the Respondent. There was no statement at the time that the information provided by Ms Leayr was to be kept confidential but her assumption was that it would be treated as such (paragraph 14). Referees statements are kept confidential during the evaluation and decision making process (paragraph 6). Ms Leayr expresses the same views as the other Council employees who gave evidence as to the adverse consequences that could ensue should information obtained under these circumstances be treated otherwise than as confidential.

15 In her oral evidence Ms Leayr stated that only part of the tender for the Baddeley Park works was put out to the Applicant. Her Council in fact did the carpark and road works. She explained that the Council had always intended to construct the carpark and roads itself, but it initially requested the Applicant to design the whole project. When the preliminary designs were in, the Council then decided to remove the design of the carpark and roads from its design contract with the Applicant and to prepare the design for these two items itself. Ms Leayr gave the reasons why this decision was taken, none of which reflected adversely upon the Applicant. When shown the statement on page 7 of the Report to she said that this statement referred to the fact that Council did in fact take over the design of the carpark and roads, and read in this way the statement is factually correct (see informal transcript of evidence filed 29 August 2007).

16 However, the import of Ms Leayr’s evidence on this point is that this statement on page 7 is clearly misleading as it should not be read as meaning that Cessnock City Council was obliged to take over these works because of any defective performance of them by the Applicant. It is capable of being read in this misleading way. In light of this evidence the Respondent may decide to note its records accordingly, both as a matter of fairness to the Applicant and to ensure that the records which it has in relation to the Applicant correctly reflect the true position. This would of course be of assistance to the Respondent in its future dealings with the Applicant, particularly given the favourable comments about the Applicant that the Respondent already has on record. This circumstance, whilst relevant to discretionary matters, has no direct relevance in determining whether the communication between Ms Leayr and Mr Long involved providing information upon a confidential basis.

17 As the Respondent’s submissions point out, the Respondent’s tender process for specified works is governed in part by the provisions of the Local Government Act 1993 (section 55(1)) and the local Government (General) regulation 2005 (clause 163(2) and applicable Parts thereof). These provisions however leave the Respondent free to determine whether they will require the submission of referees. Also, as Ms Leayr states in her evidence, the requirements of the NSW Code of Practice for Procurement are ideally met by obtaining comments from referees (paragraph 17). Whilst these several provisions are of assistance they do not determine one way or the other the particular question at issue. They do of course provide the relevant framework.

18 It is clear on the evidence adduced that the information provided by the referees in question to the Respondent about the Applicant was given in circumstances where both the giver of the information and the receiver of it regarded the information to have been given in confidence. Both parties to each of the communications were of the mind that the information would not be recorded in any document that could become publicly available in the normal course and that it would not be passed on to the Applicant, for comment or otherwise. The parties in fact believed that they were of the one mind with respect to this. It is equally clear that the parties to each communication did not expressly state, in the course of the communications, that the information that was provided would be so treated. It is appropriate to make these findings of fact on the evidence before the Tribunal. These findings are sufficient to satisfy the element prescribed in clause 13(b)(i) of schedule 1 to the FOI Act, namely that to disclose the information in question (on page 12 of the Report) would be to disclose information that was obtained in confidence. The fact that there was no express statement to this effect during the relevant conversations does not affect this conclusion. In the circumstances there was no need for such express communication as both parties subjectively believed, correctly as it turns out, that the receiver of the information would treat it as confidential to the extent noted above. The findings of fact made by the Tribunal above necessarily falls within the meaning of the element set forth in clause 13(b)(i).

19 The Applicant’s submissions on this point note that there was no actual confidentially offered or requested when the subject information was provided and that there are no legislative or formal policy requirements to this effect applicable to this type of situation (paragraph 12 submissions filed 21 may 2007). These submissions are correct, as the Respondent in essence concedes. However, the Applicant’s further submission that there are no circumstances which would necessarily import a situation of confidentiality is not correct. The findings of fact made by the Tribunal do establish circumstances which, on the proper construction of clause 13(b)(i), satisfy the element specified therein. This element does not require that there must be an express statement at, the time the information is obtained, that it is being provided on a confidential basis and do not require that the receiver of the information should expressly acknowledge any such confidence.

20 The second element required for the clause 13 exemption is set forth in clause 13(b)(ii). This element poses a question of fact which involves a prediction: an assessment of the evidence is required to determine whether the document in question involves “matter” which, if disclosed, could reasonably be expected to prejudice the future supply of similar information. Any evidence that is probative of the consequences that may ensue should this “matter” be disclosed is relevant to the question at hand. The test is not what in fact would happen, on the balance of probabilities, but what could reasonably be expected to happen. The test also requires that any expected consequence should be based on reasonable grounds.

21 The evidence adduced by the Respondent included statements of opinion and belief by the various deponents and witnesses that the disclosure of information obtained from referees could adversely affect the tendering process, the reasons why the witnesses formed such opinions being clearly stated. On the basis of these opinions the Respondent invites the Tribunal to find that this element has been made out, namely that release of the subject material could reasonably be expected to prejudice the future supply of such information. These opinions which have been given in evidence are of course not conclusive of the issue, as the Tribunal has to reach its own decision on the point. Opinion evidence is admissible in these proceedings but the weight to be attributed to it will depend upon its cogency. This will in part depend upon whether the basis of the opinion is adequately set forth and the reasons thereby shown, together with material factual matters, are capable of persuading the Tribunal that there are good grounds for holding the opinion. Without such support, an opinion expressed by a witness may only have very little weight and the Tribunal may not be confident in relying upon it, especially when the opinion speculates as to likely consequences of an event which has not yet happened.

22 The opinions that have been expressed in these proceedings as to the consequences that might ensue should the type of information under consideration be released are indeed speculative in that future predictions are necessarily involved. However, they are all opinions expressed by persons who have had considerable experience with obtaining statements from referees and with giving such statements at the request of others. Their experience is both historical and current and they are able to speak as both givers and receivers of this type of information. The demeanour of the witnesses did not suggest that they were simply rendering their opinions so as to assist the party that called them. Rather, they all appeared to be motivated by the difficulties that they in fact believed they would experience in the performance of their duties should information of this type be treated as otherwise than confidential. In these circumstances the evidence they have given on this point is sensible and reliable and deserves considerable weight. It should not be simply put to one side. It is certainly capable of persuading the Tribunal that the foreshadowed consequences may well occur and that there are reasonable grounds for such an expectation.

23 Despite this, opinion evidence must be considered carefully because of its very nature. For example, the deponents of these several opinions have engaged an implicit assumption that is perhaps questionable. When forming these opinions the deponents have, to some extent at least, assumed that a consequence of release would be that it would become widely known amongst relevant entities that the provision of statements by referees nominated by a tenderer are not confidential communications, and from this the deponents predict that candid and reliable information would no longer be forthcoming (see for example exhibit R2 paragraph 8 and exhibit R4 paragraph 11). This assumption detracts, to some extent, from the usefulness of the opinions expressed in this general way. Communications will always be confidential if they are made so at the time. This will depend entirely upon the circumstances and how the parties actually treat the communication on hand at the time. So to the extent that these several opinions speak in terms of what would be the case should referees statements be no longer confidential, then the opinions only have weight should the implicit assumption be true. Whilst this evidence should be accepted its usefulness in these proceedings is limited as it only demonstrates what could ensue if it became widely known and accepted that information from referees would be generally be made available to all who should seek it. On the evidence before it the Tribunal is not persuaded either way as to whether this assumption is likely to become fact. An equally likely possibility is that in the future the seeking and giving of referee comments will be put on a confidential basis by express statement at the time.

24 Consequently, the opinions that have been proffered by the witnesses are really making the point that if referee statements are routinely disclosed to tenderers then the frankness of the information provided may well suffer. There is certainly much sense in such a proposition. Despite this, the Tribunal is not persuaded that the release of the document in question would be likely to bring about this general outcome, namely that referee statements would be routinely provided to tenderers.

25 However, two of the opinions proffered also speak at a more specific level. Two witnesses testify that, when providing the subject information to the Respondent, had they thought that the information may have been passed on to the tenderer they would have considered whether they should not provide the information at all or whether they should be circumspect with the information that they would provide (see exhibit R5 paragraph 15 and exhibit R2 paragraph 18). This evidence should be accepted. Its true import is that these witnesses would be reluctant to provide information, even if it should be given in confidence by express statement at the time, if they believed that it would in any event be made available to the person the subject of the reference. This evidence is sufficient to establish that disclosure of the subject information could reasonably be expected to prejudice the future supply of similar information to the Respondent as clause 3(b)(ii) requires. There is no doubt that the supply of this type of information is important to the Respondent’s activities and that any curtailment would be prejudicial. On the basis of the evidence from these two witnesses alone it is more probable than not that they would both curtail the supply of information to the Respondent to a significant degree in the future should the subject information be disclosed. Therefore the nature of the exempt material in question is that if released it could well prejudice future supply.

26 The Applicant’s submissions on this point included the argument that Councils seeking information would only request advice whether a tenderer had satisfactorily completed previous works and therefore would not expressly request any adverse comment. From this it was said that the provision of information dealing with satisfactory performance, even if disclosed to the tendering party, would not be inhibitive in anyway. Even if this be accepted, the premise that only satisfactory past performance information was being sought, and would be the only type of information provided, is not correct. This submission cannot be accepted.

27 The second argument put by the Applicant on this point was that the submission put by the Respondent, namely that disclosing adverse comment by a referee to a tenderer could cause the tender to refrain from tendering again in the future, should not be accepted. The gist of the Applicant’s argument was that this submission by the Respondent, as to what might occur following disclosure, was too speculative. The Tribunal agrees with this argument and therefore declines to make any finding on whether a tenderer would or would not refrain from tendering again in the future. This would depend very much upon whether a tenderer formed the view that in light of what a Council thought about its past performance there was no point at all in submitting a tender. If there were evidence along these lines then the Respondent’s submission would have greater force. However, accepting the Applicant’s argument on this point does not alter the Tribunal’s views expressed above.

28 The Respondent’s submissions on this point do not require specific consideration by reason of the conclusion that the Tribunal has come to.

29 Clause 13(b)(iii) provides for a further element to be established in that it must be shown that disclosure of the subject information would be contrary to the public interest. The Respondent argued that disclosure would have wide reaching ramifications for tendering processes adopted by Local Councils throughout New South Wales, essentially because the information supply to them would become restricted and the tendering process thereby less effective. The public interest here relied upon is that of good public administration. The Applicant disagreed with this proposition, primary reliance being placed upon the objects of the legislation under consideration (to make documents accessible) and the public interest in ensuring that the activities of governing authorities with wide powers are open to public scrutiny (the so called “right to know” that the authorities in this area often refer to as being vested in an Applicant).

30 It is clear from the legislation that the mere fact that information was provided in confidence together with the fact that its disclosure might reasonably be expected to prejudice future supply is not sufficient to engage the exemption under consideration. It must be shown positively that disclosure would, on balance, be contrary to the public interest. What must be noted here is that Councils who require the provision of referees in relation to past works are not simply seeking referees who are able to speak highly of tenderers: they are also seeking referees who are able to alert them as to what difficulties they may encounter with a tenderer. They are looking for information which will permit them to differentiate between tenderers: who can they place their confidence in from those who they can anticipate having difficulties with for the task on hand. Most critical to their considerations is the reliability they can place on the information provided. If those providing information can speak frankly, the reliability of information provided is clearly enhanced. Tenderers may well have different strengths which make them more suitable for one kind of job rather than another. Those who use these tenderers will get to know the relative strengths of each. These considerations are the mainstay of the tendering process. The public interest in the due administration of public authorities is well served by ensuring the flow of reliable information and this will necessarily require frankness occasioned by keeping communications confidential.

31 The public interest test in clause 13(b)(iii) is a balancing exercise as the clause expressly states. It will not be satisfied simply where a Respondent is able to point to a consequence that is detrimental to the public interest. All relevant public interest considerations must be taken into account and a determination must be made as to where the balance lies. Given the type of information involved and the usefulness that it has for the Respondent’s due exercise of its statutory and public powers, the Tribunal is of the view that, on balance, disclosure of the information would be contrary to the public interest. Efficient use of public funds to construct works for the benefit of the public, and the important role that the referee process plays, persuades the Tribunal that this is the correct conclusion to come to in these particular circumstances.

32 Given this conclusion there is no need for the Tribunal to consider the other grounds of exemption relied upon as the Tribunal’s findings and conclusion establish that the document in question is an exempt document. The Tribunal notes that the document itself has been released in part, the subject information having been deleted.

THE SECTION 25(1)(a) ISSUE

33 There remains the question however as to whether the Tribunal should exercise its discretion to wholly release this document even though it be an exempt document under the Act (University of NSW v McGuirk [2006] NSWSC 1362, Nicholas J. 08.12.06, unreported). The Applicant submitted that this discretion, which arises under section 25(1) of the Tribunal’s enabling Act, should be exercised in its favour. Since the decision of the Supreme Court this issue has been the subject of a number of decision by the Tribunal (see Retain Beacon High School Committee Inc. v NSW Treasury [2007] NSWADT 55; P v Greater Western Area health Service [2007] NSWADT 87; Watt v Forests NSW [2007] NSWADT 197; McGuirk v UNSW [2007] NSWADT 204). The principles that may be involved however are still undergoing further consideration and development as decisions under the Freedom of Information Act 1989 are handed down.

34 Nicholas J. held that “section 63 of the Administrative Decisions Tribunal Act 1997 (NSW) provides the Tribunal with the discretion to order access to be given to documents which are exempt documents under the Freedom of Information Act 1989 (NSW) if it decides that to do so is the correct and preferable decision with regard to the material then before it” (paragraph 102) and that “the Tribunal has a discretion to order access be given to documents which are exempt documents under the Freedom of Information Act 1989 (NSW) if it decides that to do so is the correct and preferable decision with regard to the material then before it” (paragraph 104). There is no difference between these two formulations of any significance. His Honour’s reasons for decision acknowledge the role of section 25(1) of the FOI Act 1989 in coming to this conclusion (paragraph 103).

35 His Honour’s decision clearly established that when considering an application before it under the FOI Act 1989 the Tribunal, by reason of section 63 of the Tribunal’s enabling Act, must consider for itself the question that arises by virtue of section 25(1) of the FOI Act 1989. Section 25(1) of the FOI Act provides that an Agency may refuse access to a document where certain conditions are satisfied. The relevant condition in that case was where the document is an exempt document (section 25(1)(a)). His Honour then held that section 63 of the ADT Act 1997 required the Tribunal to apply the provisions of section 25(1) when considering a matter before it and to come to a determination that this section requires.

36 Section 25(1) of the FOI Act 1989 is not literally expressed as a discretion to release documents even though they be exempt. In form it is expressed as a power subject to a condition precedent. The power conferred by the section is to refuse access to a document: the condition precedent to the exercise of this power, or one of the conditions precedent, is that the document in question be an exempt document. If this condition precedent be satisfied then the power to refuse access is enlivened. This power may, but not must, be exercised if this be so. Consequently, the precise question that section 25 requires to be answered, given that a document is an exempt one, is whether access should be refused to that document. It is important to formulate the nature of the power precisely so that determinations can be properly made as to the considerations that are relevant to the exercise of this power, where that becomes an issue. If this power is not exercised then it will necessarily follow that the document will be released, as the FOI Act creates obligations or duties in this regard. There will be no need for any decision to be made to release the document where the power to refuse is not exercised (for example by a decision to decline to exercise the (refusal of access) power, or by a decision to not refuse access, which is probably the same thing). This appears to be consistent with the objects of the FOI Act 1989 and the way in which it is structured: documents of Agencies are to be released unless there be a basis for refusal provided by the Act. This structure requires access to be given unless there is a lawful decision refusing access.

37 In other proceedings determined, or re-determined, after the decision of Nicholas J. this Tribunal has considered the application of section 25(1) of the FOI Act. Some of these decisions have expressed the view that, in the circumstances of the case then before the Tribunal, this “residual discretion” should only be exercised where there are strong grounds for justifying the overriding of an exemption. As decisions relating to this issue are handed down this view may eventually come to be good law, but it is perhaps a little too early to tell at this stage. The section does not expressly fetter the discretion in any way, apart from providing for conditions precedent for the exercise of the power.

38 What is clear from the way in which section 25(1) is drawn however, is that the exercise of the power thereby conferred is discretionary. His Honour’s judgment does not permit reading the word “may” as meaning “must”. This means that consideration must be given to the question whether access to the exempt document should be refused. Any evidence or other material relevant to this question must be taken into account: evidence and other materials will be relevant where they are probative of whether the power should, or should not, be exercised.

39 The Respondent’s supplemental submissions argue that there are no grounds, let alone strong grounds, for exercising the discretion to override any of the exemptions for which it contended, including of course the clause 13 exemption which the Tribunal has found to apply. This is particularly so, it is further submitted, if there has been a finding that it would be contrary to the public interest to release the document, as has been the case here. The Respondent’s earlier submissions set forth detailed reasons why access should be refused (paragraphs 7.1 and following). The reasons there set forth are based upon the evidence adduced to show that the clause 13 exemption was satisfied and essentially reflect the arguments put by the Respondent on this point; namely that the information was given in confidence, that its disclosure may reasonably prejudice the future supply of similar information and that it would be contrary to the public interest to disclose the information. The Tribunal has of course already held in accordance with these submissions, having held that the necessary facts were made out on the evidence adduced. These matters are clearly relevant to the present issue and therefore must be taken into account. Collectively they provide a firm basis for refusing access pursuant to section 25(1) of the FOI Act 1989.

40 The Applicant’s submissions are of course hampered by ignorance of (part of) the material contained in the document over which exemption is claimed. This difficulty is unavoidable in these proceedings. The applicant points to the evidence that has been adduced in relation to whether any of the exemptions have been made out and argues that parts of this provide good reason for not refusing access. In addition the Applicant submits that it is only seeking information concerning itself, rather than any other tenderers, and that it has good reason, arising from its knowledge of page 7 of the Report, for suspecting that page 12 may well contain information touching upon its reputation and abilities that is incorrect. Here, the Applicant points to the evidence of Ms. Leayr. This latter point in particular could provide good reason for declining to refuse access pursuant to section 25(1) of the Act. However, the Applicant is fully aware of the misleading nature of the statement on page 7 as this page has been released in full and, in addition, now has the advantage of hearing Ms Leayr’s evidence. Thus the Applicant is clearly in a position to take whatever steps are available to correct the respondent’s records in this regard. It does not require the release of page 12 to do this.

41 As noted earlier in these reasons, the Tribunal is not persuaded that release of the document in question would give rise to a general destruction of the tender process. Officers may well provide information in the future expressly on a confidential basis. However, it is more likely than not that some reservations may eventuate so that information provided in the future may not have the detail and candour that is ideally required. In these circumstances the Tribunal has come to the view that the correct decision to make is to refuse access to the document in question. This decision is preferable to one which has the effect of releasing the document.

42 Given this conclusion there is no need for the Tribunal to consider the other grounds of exemption that have been argued in these proceedings. Whether any of them apply would have no bearing on the outcome of these proceedings.

43 The parties have litigated these proceedings at hearing only in relation to one document. There is no information before the Tribunal showing whether this was simply a concession for the purposes of the hearing or has involved the Respondent varying its original decision of its own motion and releasing documents accordingly. It may not have done this. Consequently the appropriate order to make is to simply affirm the Respondent’s decision. The Tribunal so orders.

44 However, should either party wish to put submissions in relation to whether other orders, consistent with these reasons, should be made they have liberty to apply to the Tribunal Registry within 14 days of receipt of these reasons to re-list the proceedings for this purpose.