Larsen v The Cabinet Office

[2023] NSWCATAD 322

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Larsen v The Cabinet Office [2023] NSWCATAD 322

Hearing dates:

13 November 2023

Date of orders:

14 December 2023

Decision date:

14 December 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J D Little, Senior Member

Decision:

1. The Respondent’s decision of 3 July 2023 is set aside.

2. Within 7 days the Respondent is to provide the Applicant with a copy of the information sought, re-redacted consistent with this decision.

3. Pursuant to s 44 of the Civil and Administrative Tribunal Act 2013 (CAT Act), the Department and Cabinet is removed as a party and The Cabinet Office is named as the Respondent to the proceedings.

4. With the exception of document at tab 1, pursuant to s 64(d) of the CAT Act, the disclosure to the Applicants of the Respondent’s bundle of confidential evidentiary material (third party consultation) filed 12 September 2023 is prohibited.

5. Except pursuant to order (6) below, the contents of all paragraphs in these reasons marked “[NOT FOR PUBLICATION]” are not to be published or released pursuant to s64(1)(c) of the CAT Act.

6. A copy of these reasons, without redaction, shall be released to the Respondent.

Catchwords:

ADMINISTRATIVE LAW – access to government information – access applications

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Privacy and Personal Information Protection Act 1998

Cases Cited:

Applicants v Commissioner of Police [2015] NSWCATAD 22

Battin v University of New England [2013] NSWADT 73

Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80

Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601

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

Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47]

Leech v Sydney Water Corporation [2010] NSWADT 298

Nakhl Nasr v State of New South Wales; George Nasr v State Of New South Wales [2007] NSWCA 101

Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98

Selby v Commissioner of Police (NSW) [2013] NSWADT 61

Taylor v Destination NSW [2017] NSWCATAD 272

Transport for NSW v Searle [2018] NSWCATAP 93

Veall v Department of Planning and Environment [2018] NSWCATAD 47

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Derek Larsen (First Applicant)
Floyd Larsen (Second Applicant)
Department of Premier and Cabinet (Respondent)

Representation:

First Applicant (Self-Represented)
Second Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2023/00220583

Publication restriction:

1. Except pursuant to (2) below, the contents of all paragraphs in these reasons marked “[NOT FOR PUBLICATION]” are not to be published or released pursuant to s64(1)(c) of the CAT Act.
2. A copy of these reasons, without redaction, shall be released to the Respondent.

REASONS FOR DECISION

Background

The access application

1. On 13 December 2022, the Applicants made application under the Government Information (Public Access) Act 2009 (the GIPA Act) to the Office of the Premier of NSW (as it was then known) seeking access to the following information:

Correspondence/communications to/from the Office of the Premier regarding Katoomba Airfield (sometimes referred to as: Katoomba Airstrip or Airport or YKAT) & correspondence/communications to/from the Office of the Premier regarding the Penrith Lakes Heliport, Sydney Helicopters, Mr [Mark] Harrold, & any reference to SEPP amendments to accommodate Heliport.

All correspondence/communications being: reports, letters, briefs, emails etc. Date range: between 27 November 2017 to 13 December 2022.

2. Mr Mark Harrold is the Director and governing mind of Sydney Helicopters Pty Ltd. Mr Harrold gave oral evidence at the Parliamentary Inquiry into the Acquisition of land in relation to major transport projects (Portfolio Committee No 6 – Transport and the Arts) in his capacity as the Director of those corporate entities.

3. Additionally, in the Final Report of Portfolio Committee No 6 – Transport and the Arts (Report 17, August 2022) under the hearing “Concerns about Valuer General determinations” and the subheading “Issues related to compensation amounts”, the experience of Sydney Helicopters Pty Ltd, as provided by Mr Harrold, is set out as a case study (at [3.118]). The report states that the property at Clyde held by Sydney Helicopters Pty Ltd pursuant to a leasehold interest was compulsorily acquired in March 2021.

The Applicants’ interest in Penrith Lakes Heliport, Sydney Helicopters and Mr Harrold

4. The Applicants operated a business called FlyBlue Aviation. In September 2017, an associated company to FlyBlue Aviation and to the Applicants called FlyBlue Management Pty Ltd, participated in an expression of interest process in respect of a proposed lease of Crown land at Medlow Bath (also known as Katoomba Airfield), around 10 kilometres from the township of Katoomba.

5. The Applicant’s interest in documents responding to the access application arose because of the Respondent’s decision to prohibit helicopters and then ultimately close Katoomba Airfield in November 2021 whilst, at the same time, approving changes to the Penrith Lakes planning instrument to allow heliports supporting the operation of helicopter ‘joy flights’ and emergency services, located a distance of just ten minutes direct flight from Katoomba Airfield.

6. The Applicant described the factual background as follows:

In September 2014 the respondent held an expression of interest process for the upgrade of Katoomba Airfield to Civil Aviation Safety Authority (CASA) certification standard.

The site operated as an aerodrome since June 1968, at which time a DA had been approved for unrestricted fixed-wing and helicopter flights. The aerodrome was specifically operated for “General Aviation, Tourism and Emergency Services”.

No EOl 2014 submissions were received. The incumbent lease holder remained, continuing to operate his fixed-wing flying school from Katoomba Airfield until his death in 2016.

In September 2017 the applicant participated in the respondent's second EOI. [That EOI stated:]

Situated in the Blue Mountains at the western extremity of metropolitan Sydney. Katoomba Airfield is an Aeroplane Landing Area (ALA).

Sections of the aviation community, including emergency services, have expressed support for retention of the land as an Airfield. "

In November 2017 the applicant was awarded the tender on merit based on the 'continued use' of the site as an airfield/aerodrome.

The applicant's successful tender [wa]s based on a heli-tourism, hub-and-spoke model servicing the NSW Central West, operating solely from Katoomba Airfield and delivering a new heli-tourism offering to the Region.

In February 2018 the respondent awarded the applicant a Licence RI 592134 for "Aerodrome (including 3 airplane hangars) and Land Management" as an interim measure whilst a promised long-term lease for the site was negotiated.

The only lawfully permitted use' of the site under the interim licence is an aerodrome.

Under direction from the respondent, the applicant waited until January 2019 to submit its long-term lease application, waiting for the gazetting of the new Crown Land Management Act 2016.

Whilst the respondent administered the lease process the applicant did not commence its FlyBlue heli-tourism business. Instead it facilitated the continued use of the airfield by:

1.   General Aviation from Sydney and Bankstown Airports and other heliport sites commercial and tourism helicopter operators, including Sydney Helicopters;

2.   Logistics and facilities helicopter operations such as powerline checking pre bushfire seasons;

3.   Emergency Services training and real-life emergency operations

4.   NSW RFS aerial firefighting including Sydney Helicopters;

5.   ongoing use by Australian Defence Forces for military training purposes and annual army cadet bivouacs.

Under the new CLMA 2016 a community consultation process was administered and following community opposition to helicopter 'joy flights', in January 2020 the respondent refused the applicant's lease application as submitted, stating helicopters were to become prohibited, and the applicant's lease application required review.

The respondent's decision overlooked its selection of the applicant's winning tender in November 2017.

The applicant documented its concerns:

○ prohibiting helicopters at the airfield after 50 years of lawful and unrestricted use along with selecting the applicant as winning tenderer in 2017 based on a heli-tourism proposal;

○ the fear and misinformation campaign from the airfield opponents along with the respondent's misadministration of the lease process, specifically community consultation and resulting unsubstantiated

…

Following a successful appeal by the applicant to the Secretary of DPIE, the Crown Lands Commissioner undertook a review of the process administered under the new CLMA 2016.

In May 2020 the Commissioner's review and recommendations validated the applicant's documented concerns, specifically the lack of verification and validation of the opposition submissions, quantitative not qualitative method of analysis and conclusions, and to make a lease determination ".....based on the largely negative response received from the community DPIE - Crown Lands are not able to progress your application to lease in its current form" ... did not meet the requirements under the legislation CLMA 2016. The Commissioner resigned in March 2022 without his recommendations being implemented.

In November 2020, exactly three years into the lease process and following the applicant’s submission of a revised lease application, the respondent introduced a new condition to the 2017 EOI, requiring the applicant to now demonstrate a viable planning pathway, stating:

… the available planning pathway appears to be demonstration of unbroken existing use rights over the Airfield.

Concurrently, in November 2020 the respondent and third-party objector Mr Harrold of Sydney Helicopters commenced determination of a planning pathway for an amendment to the Penrith Lakes SEPP to make Heliports a permissible use.

In December 2020 the respondent approved progressing an amendment of Penrith Lakes SEPP to include heliports as a permitted use, noting Sydney Helicopters amendment request and acquisition of its new Penrith Lakes site is reported to be independent of its negotiations with Sydney Metro over relocation.

In November 2021, the respondent evicted the applicant from Katoomba Airfield determining the applicant had not satisfied the respondent that the airfield is lawful, benefiting from existing use rights, and therefore does not have a planning pathway. [Emphasis added]

7. It is in this context that the Applicants are seeking information related to the Respondent’s decision-making around aviation facilities. Specifically, the closure of Katoomba Airfield after in excess of fifty years, determining it unlawful while concurrently approving changes to the planning instrument (SEPP amendments) to accommodate heliports at Penrith Lakes and endorsement(s) from other NSW Government agencies. Penrith Lakes being only a ten-minute flight away from Katoomba Airfield.

Results of the access application and consultation with Mr Harrold

8. On 1 February 2023 and 6 February 2023, the Office of the Premier of NSW wrote to Sydney Helicopters Pty Ltd care of Mr Harrold asking whether there was any objection to the release of the letters and attachments.

9. On 6 February 2023, the Premier's Office was informed of an objection. Another third party was consulted in relation to the release of the information and did not object.

10. On 8 February 2023, the Office of the Premier of NSW (the Premier Perrottet) decided to provide partial and full access to the Applicants to certain documents (numbered 1 to 8) and to refuse access to other documents (numbered 9 to 12). Documents 10 and 11 included attachments (numbered 10a-10c and 11a) to which access was also refused. The refusal was stated to be on the following basis:

From the outset, it is clear that both FlyBlue and Sydney Helicopters are businesses that currently operate in the NSW aviation industry and compete, for business, in the same market. I am concerned that the release of this information could potentially dimmish the competitive commercial value of Sydney Helicopters’ information contained in the documents and prejudice their business’ legitimate business, commercial, professional or financial interests.

11. On 17 February 2023, the Applicants applied for external review by the Information Commissioner of the decision.

12. On 15 April 2023, the Second Applicant received a text message from Mr Harrold which states:

Hi Derek hope you and Floyd are well. I am aware that you have been submitting GIPA requests in relation to my business relocation to Penrith LGA. I’m also aware of the issues you had with BMCC. Rather than submitting GIPA requests why don’t you just call me and arrange a time to catch up and discuss. I’m more than happy to put you in the picture. Regards Mark.

13. On 16 April 2023, the Applicants replied:

Hi Mark. Thank you for your message. I can confirm that Floyd and I have no interest in obtaining confidential information about your business. We are however determined to explore and expose the truth about Katoomba Airfield. Regards Derek and Floyd

14. On 5 May 2023, the Information Commissioner recommended that the Office of the Premier of NSW reconsider its decision by way of internal review. This recommendation was on the basis that the agency’s reasons had not met the requirements of s 61(b) of the GIPA Act because the agency had not outlined to the required standard each of the elements of the public interest considerations against disclosure at clause 4(c) and 4(d) of the Table at s 14 of the GIPA Act.

15. On 13 June 2023, following the review by the Privacy Commissioner, the Department of Premier and Cabinet again wrote to Mr Harrold. On 14 June 2023, the Privacy Commissioner was informed that the objection was maintained.

16. On 1 July 2023, government changes took effect, and The Cabinet Office became the relevant decision-maker for decisions under the GIPA Act. For this reason, the proper Respondent with respect to these proceedings is the Respondent and I make orders accordingly.

17. On 3 July 2023, the Respondent finalised the internal review. The Respondent decided to provide partial and full access to certain documents (numbered 10b, 10c, 11 and 11a) and to refuse access to documents numbered 9, 10, 10a and 12. The Cabinet Office did not rely on the public interest considerations against disclosure at clause 4(c) and 4(d) of the Table to s 14. The documents to which access was refused are contained in the confidential bundle of material and may be identified as follows:

1. Document 9: Letter from Sydney Helicopters to former Premier Berejiklian dated 23 December 2023

2. Document 10: Letter from Sydney Helicopters to former Premier Berejiklian dated 3 January 2023

3. Document 10a: Letter from Ashurst (acted for Sydney Metro) to Slater and Gordon (acted for Sydney Helicopters and Heliport Developers Pty Ltd) – Compulsory acquisition of heliport leasehold interest in 25 Wentworth St, Clyde – Sydney Metro West dated 23 December 2020

4. Document 12: Letter from Sydney Helicopters to former Premier Berejiklian dated 9 December 2020.

18. By application filed 11 July 2023, the Applicants seek administrative review pursuant to s. 100 of the GIPA Act of a decision by The Cabinet Office, dated 3 July 2023. Specifically, the Applicants seek review of the decision to refuse access to the four documents listed above.

19. On 22 August 2023, and in the course of these proceedings, the Respondent's legal representatives wrote to Mr Harrold informing him of the proceedings.

20. On 8 September 2023, Mr Harrold, informed the respondent that the objection to the release of the information was maintained, and that he was content for the respondent to provide copies of his objections to the Tribunal on a confidential basis.

21. On 26 September 2023, the solicitors for the Respondent received a letter from Sydney Helicopter Pty Ltd describing its objection.

22. By way of their written submissions, the Applicants’ clarified that they did not seek access to Document 10a (being letter from Ashurst (acted for Sydney Metro) to Slater and Gordon (acted for Sydney Helicopters and Heliport Developers Pty Ltd) – Compulsory acquisition of heliport leasehold interest in 25 Wentworth St, Clyde – Sydney Metro West dated 23 December 2020). I have therefore treated the question before me as being limited to Documents 9, 10 and 12.

Legislation and jurisdiction

23. Pursuant to s. 100(1) of the GIPA Act, a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review of the decision under the Administrative Decisions Review Act 1997 (the ADR Act). The respondent's decision of 3 July 2023 to refuse access to documents 9, 10, 10a and 12 is a reviewable decision: s. 80(d).

24. The Tribunal's task in determining an application for administrative review of a review, decision under the GIPA Act is to decide what the correct and preferable decision is having regard to the material then before it” and any written or unwritten law, as though it were the primary decision-maker. The Tribunal is not restricted to a consideration of the material was before the primary decision-maker. The onus is on the respondent to establish that re decision is justified: s. 105(1).

25. Section 66(3) of the CAT Act enables the Respondent to disclose to the Tribunal information that is subject to an overriding public interest against disclosure under the GIPA Act and requires the Tribunal to "do all things necessary to ensure that the information is not disclosed to any person other than a member of the Tribunal ... unless the person or body disclosing the information ... consents to the further disclosure". The information in respect of which there is an overriding public interest against disclosure has been lodged with the Tribunal as the "Confidential bundle of information subject to overriding public interest against disclosure." Section 107 of the GIPA Act prescribes the approach to be taken by the Tribunal in dealing with information that may be subject to an overriding public interest against disclosure.

Principles for determining whether there is an overriding public interest against disclosure in respect of the information sought

26. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: GIPA Act, s. 5. A person who makes an access application for government information has a legally enforceable right to be provided access that information in accordance with Pt 4 of the GIPA Act, unless there is an overriding public interest against its disclosure: s. 9(1).

27. Information will be subject to an overriding public interest against disclosure if, relevantly, upon application of the public interest test in s. 13, "there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure". Considerations in favour of and against disclosure must be identified and weighed to determine whether the balance of the public interest lies in favour of or against the disclosure of the government information.

28. The public interest considerations in favour of disclosure are addressed in s. 12 of the GIPA Act. There is a general public interest in favour of the disclosure of government information: s. 12(1). An agency is not limited in what other public interest considerations in favour of disclosure of government information may be considered for the purpose of determining whether there is an overriding public interest against disclosure: s. 12(2).

26. The public interest considerations against disclosure are set out exhaustively in the Table to s. 14 of the GIPA Act. No other considerations against disclosure may be considered when applying the public interest test under s 13: see s14(2). According to the Respondent, the following public interest considerations against disclosure in the Table to s. 14 are relevant for present purposes:

1. Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally

…

(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,

…

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects—

(a) reveal an individual's personal information

(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,

…

30. Additionally, s 55 of the GIPA Act permits an agency to consider the personal factors of the applicant in applying the public interest test, including:

(a)   the applicant’s identity and relationship with any other person,

(b)   the applicant’s motives for making the access application,

(c)   any other factors particular to the applicant.

31. The applicants’ personal factors may be taken into account as factors in favour of disclosure (s 55(2)) or against disclosure, but only (in the latter case) to the extent that those factors are relevant to whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in cl. 2 to 5 of the Table to s 14 of the GIPA Act.

Submissions and evidence

32. The Respondent contends that:

1. With respect to the public interest consideration in favour of disclosure as compared with the public interest considerations against disclosure, the latter outweighs the former.

2. In this respect, the Respondent acknowledged that there is a general public interest in favour of disclosing government information which must be taken into account, however the Respondent draw the Tribunal’s attention to the fact that that the disputed information had already been the subject of considerable public scrutiny, having been the subject of a Parliamentary Inquiry. It was submitted that its release in these circumstances would do little to further these objectives.

3. The Respondent further contended that none of the examples in favour of disclosure a paragraphs (c)-(e) of the note to s 12(2) of the GIPA Act arise. In particular, the information is not personal to the applicants but is highly personal to Mr Harrold and Sydney Helicopters Pty Ltd which appear to have no bearing on the events surrounding the Katoomba Airfield; and

4. Additionally, the Respondent submitted that the Tribunal ought not to take the applicant’s motives for making the application into account despite that “personal factors of the application” may be taken into account under s55(2) because it was not clear what connection the disputed information has to the genuine sense of grievance with respect to their company in the context where it appears possible they are competitors with Mr Harrold or his business.

33. In respect of the public interest against the disclosure, the Respondent drew the Tribunal’s attention to the importance of the provision to Ministers and the Premier of information by members of the public in relation to their interactions with NSW Government agencies and the fact that the Department treats such information confidentially. The Respondent further submitted that members of the public would reasonably expect that correspondence, particularly detailed and considered correspondence, raising hardships or concerns in relation to their dealings with NSW Government agencies would be treated confidentially. If such information was released, its disclosure could reasonably be expected to prejudice the supply of such information in the future and the effective exercise of ministerial and Departmental functions, within the meaning in cl 1(d) and (f) of the Table to s 14 of the GIPA Act.

34. Based upon those contentions, the Respondent submitted that the public interest considerations against disclosure was that disclosure would:

1. Prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions: cl 1(d) of the Table to s 14 of the GIPA Act;

2. Prejudice the effective exercise by an agency of the agency’s function: cl 1(f) of the Table to s 14 of the GIPA Act;

3. Reveal an individual’s personal information: cl 3(a) of the Table to s 14 of the GIPA Act; and/or

4. Contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (PPIP Act): cl 3(b) of the Table to s 14 of the GIPA Act; s 18 of the PPIP Act.

35. In support of the Respondent’s position, reliance was placed on the following in addition to the Respondent’s representative’s oral submissions:

1. Letter from the Crown Solicitor’s Office to the Registrar of the Tribunal dated 27 September 2023 attaching a letter from Mr Harrold of Sydney Helicopters Pty Ltd dated 26 September 2023 marked “R1”. The letter was on Sydney Helicopters letterhead and signed in Mr Harrold capacity of Director of that company. The letter states, inter alia:

I believe that the release of the subject correspondence would amount to a breach of confidence and confidentiality given the circumstances and background as to why the correspondence was submitted in the first place.

2. Affidavit of Ms Isabelle Gebicki affirmed 12 September 2023 marked “R2”. Ms Gebicki gives an overview of the correspondence management process and attaches a copy of the Ministers’ correspondence policy. Her evidence that “Generally, it is [her] understanding and experience that correspondence to Ministers is dealt with confidentially… Correspondence would not be published or otherwise disclosed without the consent of the author”. The attached policy states:

Your correspondence, once received, will become a formal departmental record. We will treat this with the appropriate level of confidentiality consistent with the Privacy and Personal Information Act 1988 …. And the Health Records and Information Privacy Act

3. Written submissions of the Respondent filed 12 September 2023 marked “R3”;

4. Respondent’s bundle of evidentiary material filed 12 September 2023 marked “R4” comprising:

1. Report on proceedings before Portfolio Committee No 6 – Transport and Customer Service: Inquiry into acquisition of land in relation to major transport projects dated 6 October 2021. The transcript of the hearing included the examination of Mr Harrold with respect to his experiences with the Valuer General’s department and the compulsory acquisition of his property.

2. Letter from Slater and Gordon dated 2 July 2021 which identifies that Slater and Gordon acted for Sydney Helicopters and Heliport Developers Pty Ltd in relation to the compulsory acquisition of their interests in the Clyde property. The letter included a submission on behalf of Sydney Helicopters and Heliport Developers Pty Ltd to the Chair of the Projects Inquiry and specifically the “Inquiry into Acquisition of land in relation to major transport projects”. The documents enclosed included but were not limited to a Statement of Mr Harrold. The enclosures have not been included in the bundle provided to this Tribunal.

3. NSW Department of Planning, Industry and Environment, “Proposed leasing of Crown land at Medlow Bath (Katoomba Airfield): Summary of consultation outcomes” dated January 2020 which summarises the consultation methodology and the feedback received;

4. NSW Department of Planning, Industry and Environment, “Proposed leasing of Katoomba Airfield” (website accessed 7 September 2023) stating that the FlyBlue Management Pty Ltd’s licence to access Katoomba Airfield would be revoked and it was required to vacate the airfield within 28 days; and

5. D Larsen and F Larsen, “Home” and “Our Story“ (website, accessed 7 September 2023) that describes, in the words of the Applicants, their experiences in respect of the revocation of its licence to access Katoomba Airfield.

36. With respect to the confidential documents, the Respondent relied upon two bundles. The first being the documents responding to the access application which have not been disclosed on the alleged basis that they there is an overriding public interest against disclosure. The second is third party consultation documents in the context of these proceedings.

37. The Applicants challenge the decision on the basis that the information, or related information, is in the public domain. The Applicants state in their application:

The refusal to release, based on the reasons provided, competes & conflicts with the third party's own information freely shared during a NSW Gov Parliamentary inquiry conducted 06/10/21.

This information is available in the public domain & brings into question justification for DPC's continued refusal to release the documents, (redacted where necessary).

38. The Applicants refer to a recording of the Parliamentary Inquiry into the Acquisition of land in relation to major transport projects (Portfolio Committee No. 6 - Transport and the Arts).

39. The Applicants also submit that disclosure is in the public interest because:

1. their interest in this information is legitimate and consistent with ensuring transparency of decision making and specifically transparency with respect to NSW RFS’ support for a second/ new strategic aviation site at Penrith Lakes for aerial firefighting over the Greater Blue Mountains region;

2. disclosure would

1. promote open discussion of public affairs, enhance Government accountability, or contribute to positive and informed debate on issues of public importance; and

2. inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

40. In addition to its written submissions, the applicants rely upon the following documents in support of their contentions and the attached documents marked “A” to “W”:

1. Application for administrative review filed 11 July 2023 marked “A1”.

2. Report by the Legislative Council titled “Acquisition of land in relation to major transport projects” dated August 2022 marked “A2”

Consideration

41. The finding of an “overriding public interest against disclosure” requires a balancing between considerations in favour and against disclosure: GIPA Act, s 13; Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [19]; Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47].

42. The operation of the GIPA Act, s 5 and s 12 recognises the significance of the presumption in favour of disclosure which applies without limitation. Such consideration should be accorded, therefore, “significant weight” when determining whether access to information should be granted: Selby v Commissioner of Police (NSW) [2013] NSWADT 61 at [89]; Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 at [48].

43. The balancing of those considerations should favour disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. Yet the process is not a matter of mere mechanistic tabulation; rather the balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council at [94]; Battin v University of New England [2013] NSWADT 73 at [74]. That process requires a broad value judgment to be made, having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in the GIPA Act, s 15: Transport for NSW v Searle [2018] NSWCATAP 93 at [104].

Public Interest Factors in Favour of Disclosure

44. There is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)). There are also more specific public interest considerations in favour of disclosure, being:

1. There is a public interest in obtaining information concerning the workings of government agencies;

2. Disclosure of the information could reasonably be expected to inform the public about the operation of agencies and, in particular, their policies and practice in performing their functions;

3. Disclosure is consistent with ensuring transparency of decision making; and

4. Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

45. I accept that the public interest considerations advanced by the Applicants in favour of disclosure tend to favour such disclosure.

46. With respect to the Respondent’s contention that the public interest in disclosure was limited because the disputed information had already been the subject of considerable public scrutiny, I do not accept that public scrutiny of an issue diminishes or eradicates the public interest considerations that favour the release of information as described above. Additionally, as noted below, such a contention sits uneasily with the Respondent’s submission that the information is confidential and should be treated as such.

47. I also reject the Respondent’s contention that it was not clear what connection the disputed information has to the genuine grievance with respect to the Applicants’ company. The evidence along with the Applicant’s detailed submissions satisfy me that the Applicant’s interest in the documents arises because of the Respondent’s decision to prohibit helicopters and then ultimately close Katoomba Airfield in November 2021 whilst, at the same time, approving changes to the Penrith Lakes planning instrument to allow heliports supporting the operation of helicopter ‘joy flights’ and emergency services, located a distance of just ten minutes direct flight from Katoomba Airfield. The information is requested in that context.

Public interest considerations against disclosure

48. The public interest considerations against disclosure relied upon by the Commissioner apply where “disclosure of the information could reasonably be expected to have” certain effects (GIPA Act, s 14, Table). As the ADT said in Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]:

The term ‘could reasonably be expected’ has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.

Prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions (cl 1(d)).

49. For cl 1(d) of the Table to s 14 of the GIPA Act to apply, the Tribunal must be satisfied that:

1. The information is question is confidential information.

2. Disclosure of the information could reasonably be expected to prejudice the supply of confidential information of that nature in the future, and

3. Information of that nature facilitates the effective exercise of the agency’s functions.

50. Dealing first with whether the information is of the nature that facilitates the effective exercise of the agency’s functions, I accept the submissions of the Respondent. Specifically, I accept that it is a function of the Premier’s Department to receive and appropriately action correspondence from the public to the Premier and other Ministers. Frank, honest, and detailed communications from the public to the Premier and other ministers in relation to concerns about interactions with NSW Government agencies facilitate the effective exercise of the Department’s functions in supporting ministerial oversight of those agencies’ conduct.

51. However, apart from the identification of certain individuals that were employed or represented Metro Sydney (which I deal with below), I do not accept that the information is confidential or that Mr Harrold or, more accurately, Sydney Helicopters Pty Ltd had a basis to assume that the information would be treated confidentially.

52. The evidence relied upon by the Respondent to support the contention that the information is treated as confidential by The Cabinet Order was two-fold being (1) the statement of Ms Gebicki and (2) the “Minister’s correspondence policy”.

53. While Ms Gebicki’s evidence is helpful to this Tribunal, her evidence with respect to the treatment of information as confidential is broad and vague and is qualified by what happens “generally” and by virtue of “her understanding”. Her evidence is:

Generally, it is my understanding and experience that correspondence to Ministers is dealt with confidentiality.

54. As such, I put greater weight on the “Minister’s correspondence policy” which qualifies any expectation of confidentiality to “an appropriate level” and with that level being consistent with the PPIP Act and the Health Records and Information Privacy Act (HRIP Act). It states:

Your correspondence, once received, will become a formal departmental record. We will treat with the appropriate level of confidentiality consistent with the Privacy and Personal Information Protection Act 1988 … and the Health Records and Information Privacy Act

55. The definition of “personal information” in the PPIP Act, the HRIP Act (and the GIPA Act for that matter) is limited information pertaining to “individuals”.

56. In the PPIP Act and the HRIP Act, “personal information” is defined to be, in part:

(1) In this Act,

"personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following--

(a) information about an individual who has been dead for more than 30 years,

….

57. In the GIPA Act:

In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual’s fingerprints, retina prints, body samples or genetic characteristics.

…

58. The information provided by Mr Harrold in Documents 9, 10 and 12 describing events and experiences related to the process of Metro Sydney compulsorily acquiring the property at Clyde was in his capacity of director of Sydney Helicopters Pty Ltd, that is, it was information about a corporate entity. This is reflected by the fact that each is on Sydney Helicopters letterhead. There is no evidence before me that Mr Harrold had a personal proprietary interest in the property. Rather, the leasehold interests over the Clyde property which were compulsorily acquired were held by Sydney Helicopters Pty Ltd and Heliport Developers Pty Ltd. It is for this reason why the “Inquiry into Acquisition of Land in relation to Major Transport Projects” submitted by Slater & Gordon was submitted on behalf of Sydney Helicopters Pty Ltd and Heliport Developers Pty Ltd for whom Slater & Gordon acted. While the letters are authored by Mr Harrold and are written in the first person, the events and representations described therein are made on behalf of Sydney Helicopters Pty Ltd and Heliport Developers Pty Ltd.

58. The capacity that Mr Harrold was providing this information was on behalf of those entities as a director. Providing information in that capacity does not change the information to “information about an individual”. This is because the only way that a corporate entity can “speak” is through their authorised representatives. It is for this reason why privilege is not lost when advice obtained on behalf of a company is shared with its directors. As stated in Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601 at 608-9:

The privilege attached to legal advice obtained by a company is not lost when the advice is disclosed to its directors but this is not because of their common interest. The company can only manifest its acts and intentions by the actions and declarations of human beings: Black v Smallwood (1966) 117 CLR 52 at 61, Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 171. The directors' knowledge of the decision to obtain advice and the contents of that advice cannot be treated as a disclosure to a party separate from the company itself. The directors receive and act upon this information as the mind and directing will of the company. Accordingly, the disclosure involves no waiver of the company's privilege.

60. Accordingly, as a matter of principle, at the time of disclosing the information to the, then, Premier of New South Wales, Mr Harrold could not have had a reasonable expectation that such information would be treated consistently with the PPIP Act in circumstances where the information was not “personal information” of Mr Harrold and was not otherwise “information about an individual” at least as far as Mr Harrold was concerned. Nor was the Respondent compelled to treat it as confidential in order to act consistently with the ”Ministers’ correspondence policy”. There cannot therefore be a public interest to treat it as such now.

61. Secondly, as a matter of fact, it is clear on the documentary evidence that Mr Harrold did not have an expectation that the information disclosed in Documents 9, 10 and 12 would be kept confidential. In each letter he expressly represents that he intends to launch a media campaign with respect to the events and experiences therein described. In each document Mr Harrold threatens that the matters described in those letters,

…is heading for a very public media coverage.

62. As recently as 15 April 2023, Mr Harrold again acted inconsistently with a claim of confidentiality. On 15 April 2023, Mr Harrold text messaged the Applicants writing:

Hi Derek hope you and Floyd are well.

I am aware that you have been submitting GIPA requests in relation to my business relocation to Penrith LGA. I am also aware of the issues you had with BMCC. Rather than submitting GIPA requests why don’t you just call me and arrange a time to catch up and discuss. I’m more than happy to put you in the picture. Regards, Mark.

63. The threat of media coverage and the text message are both inconsistent with the subsequent claim of confidentiality by Mr Harrold and inconsistent with the submission of the Respondent that there was an expectation that the information would be kept confidential. The threat stands in stark contrast to Sydney Helicopters Pty Ltd letter relied upon by the Respondent (marked “R1”) which contends:

It was not contemplated that the information contained in the correspondence would be made public, be made available to a potential competitor or to an industry member.

64. I have put little weight on that letter given that Mr Harrold was contacted so that he may appear and make submissions but chose not to. The information in that letter has not been tested and is inconsistent with the documentary evidence in any case.

65. Lastly, even if the reasoning above is incorrect and the information was confidential when provided or there was an expectation of such confidentially – that confidentially has been waived on behalf of Sydney Helicopters Pty Ltd and Heliport Developers Pty Ltd. I have had regard to the examination of Mr Harrold at the Inquiry into the Acquisition of Land in relation to Major Transport Projects. I have carefully considered the transcript of Mr Harrold’s examination and the other open evidence contained in “R4” as well as the Legislative Council’s report at “A2”. The material substance contained in Documents 9, 10 and 12 has been disclosed.

66. In Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 at [40], Molony JM referred to s 105(1) of the GIPA Act and commented that, “[w]here there is material indicating that the information has already been publicly disclosed, that burden requires the agency to establish that it was not.” The Respondent has failed to satisfy me that the information has not been disclosed. Alternatively, the Respondent appears to accept this disclosure, at least in part, given her submission that the disputed information had already been the subject of considerable public scrutiny, having been the subject of a Parliamentary Inquiry.

67. Based on these findings, I do not accept that the disclosure of the Documents 9, 10 and 12 would prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions.

Prejudice the effective exercise by an agency of the agency’s functions (cl 1(f))

68. In respect of this ground, the Respondent relied upon her submissions with respect of clause 1(d) and did not otherwise raise any alternate arguments. Likewise, for the reasons above, I do not accept that the disclosure of Documents 9, 10 and 12 would prejudice the effective exercise by an agency of the agency’s functions.

Reveal an individual’s personal information (cl 3(a))

69. The Respondent contends that Documents 9, 10 and 12 reveal personal information of Mr Harrold’s on the basis that “personal information” is defined to include “an opinion… about an individual … whose identity is apparent.” The Respondent’s written submissions state, in part:

… the letters by Mr Harrold clearly contain expressions of his opinions regarding his dealings with Sydney Metro and the compulsory acquisition of his property…. Redacting commercial in confidence and personal contact information as the applicants suggest does not address concerns that release of the information would reveal Mr Harrold’s opinions, particularly noting that the applicants are aware of his identity.

70. The Information Commissioner may issue guidelines about public interest considerations against disclosure, to assist agencies, but may not add to the list of considerations (GIPA Act, s 14(3)). The Information Commissioner has issued Guideline 4 – Personal information as a public interest consideration under the GIPA Act (“Guideline 4”). Section 15(b) of the GIPA Act requires that decision makers have regard to the guidelines when determining whether there is an overriding public interest against disclosure of government information. I have had regard to those guidelines.

71. GIPA Guideline 4: Personal Information as a public interest consideration under the GIPA Act dated 5 November 2018 issued by the Information Commissioner relevantly provides:

Personal information includes opinions

1.3 The definition of personal information specifically includes opinions about individuals. Opinions would be considered “personal information” under the GIPA Act where that opinion is about an individual whose identity is apparent or can “reasonably be ascertained” from that opinion or from other accompanying information. Examples of where an opinion could amount to personal information include:

* the report of a referee about an applicant for public sector employment;

* comments recorded by a supervisor about an employee during achievement planning;

* notes made by staff of a public hospital about a patient or an employee;

* views expressed about a member of the public during a local council meeting;

* witness statements taken during the course of a disciplinary investigation; or

* a file note made by a public servant expressing views about a colleague or a member of the public (see Bannister v Department of Finance, Services and Innovation [2018] NSWCATAD 33).

1.4 The definition refers to opinions being “about” individuals. This suggests that the personal information conveyed by the opinion is that of the subject rather than the person who gives the opinion. For example, an opinion given in a referee report, the personal information is that of the person being refereed, rather than of the referee. However, in offering an opinion about someone else, personal information about the giver of the opinion may also be revealed. To take the example of a witness making a statement during a disciplinary investigation, the following personal information about the witness may be included:

* name, address, and contact details;

* employment information such as where the witness works, how long they have been employed, and any qualifications that may be relevant to the context of the statement; and

* information about the relationship between the witness and the person being investigated. [Emphasis added]

72. As is made clear in GIPA Guideline 4, it is not the giving of an opinion that makes the opinion “personal information” nor the fact that the giver of that opinion may be identifiable by the opinion, rather, in circumstances where the opinion given by Party A about Party B would allow Party B to be identified, that is “personal information” of Party B. The record may still disclose the “personal information” of Party A which may require redaction if it, for example, discloses Party A’s name, address, contact details etc but, as observed by the Information Commissioner “the personal information conveyed by the opinion is that of the subject rather than the person who gives the opinion”. The drafting of the provision in this manner protects the person about whom the opinion is about in circumstances where that person has not provided the information and it is based on the opinion of another.

73. In this respect, reliance on Applicants v Commissioner of Police [2015] NSWCATAD 22 at [62] for an interpretation which would result in the opinion expressed by Party A being considered “personal information” of Party A misinterprets that decision. As explained in Veall v Department of Planning and Environment [2018] NSWCATAD 47:

The guidelines demonstrate the distinction to be drawn between the principle expressed in Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22 at [62], and these circumstances. There, the opinion of police officers was held to be “personal information” because the opinion identified or could identify an individual the police officer was talking about. Here, the opinion of the informant could only be “personal information” if the opinion the informant was giving, was about an individual. In these circumstances, I find that the informant’s opinion is not “personal information”.

74. After considering Documents 9, 10 and 12, I have identified that opinions are expressed about certain individuals employed by or representing Metro Sydney which allows identification of those individuals as they are named. On balance, the public interest considerations against disclosure outweigh those in favour of disclosure in relation to the identification of those individuals. The opinion in each case need not be redacted. I find that the protection of the personal information can be achieved by redacting their names from the Documents which are:

1. [NOT FOR PUBLICATION]

75. I have not included in that list references to individuals that reveal nothing more than the fact that the person was engaged in the exercise of public functions. I have not included the name of Mr Harrold given that the Respondent has disclosed in open Court by way of their written submissions that the author of Documents 9, 10 and 12 is Mr Harrold.

Contravene an information protection principle under the PPIP Act (cl 3(b))

76. Section 18 of the PPIP Act sets out the IPP governing the disclosure of personal information by agencies. Relevantly, s 18 provides:

Limits on disclosure of personal information

(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless—

(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

77. Section 18 is concerned with an agency's disclosure of an individual's personal information to a person or body outside the agency. The essence of disclosure of information is making known to a person information that the person to whom the disclosure is made did not previously know: Nakhl Nasr v State of New South Wales; George Nasr v State Of New South Wales [2007] NSWCA 101 at [127].

78. However, for the reasons given above at paragraphs 55 to 60, I do not accept that Documents 9, 10 and 12 contain “personal information” of Mr Harrold. The information in Documents 9, 10 and 12 describe events and experiences related to the process of Metro Sydney compulsorily acquiring the property at Clyde was in his capacity of director of Sydney Helicopters Pty Ltd, that is, it was information about a corporate entity. This does not fall within the meaning of “personal information” for the purposes of PPIP Act as it is not information “about an individual”.

79. The exception is the naming of employees and representative of Metro Sydney. As noted above, the public interest considerations against disclosure outweigh those in favour of disclosure in relation to the identification of those individuals. Otherwise, I find that s 18 of the PPIP Act has no application to the corporate information provided to the Respondent.

Conclusion

80. On balance, the public interest considerations against disclosure outweigh those in favour of disclosure in relation to the identification and contact details of the individuals identified at paragraph 74. The public interest considerations in favour of disclosure outweigh those against disclosure in relation to the other information in Documents 9, 10 and 12.

81. The correct and preferable decision is for the Tribunal to set aside the reviewable decision and substitute its reasons above in its place. The following orders are made:

1. The Respondent’s decision of 3 July 2023 is set aside.

2. Within 7 days the Respondent is to provide the Applicant with a copy of the information sought, re-redacted consistent with this decision.

3. Pursuant to s 44 of the Civil and Administrative Tribunal Act 2013 (CAT Act), the Department and Cabinet is removed as a party and The Cabinet Office is named as the Respondent to the proceedings.

4. With the exception of document at tab 1, pursuant to s 64(d) of the CAT Act, the disclosure to the Applicants of the Respondent’s bundle of confidential evidentiary material (third party consultation) filed 12 September 2023 is prohibited.

5. Except pursuant to order (6) below, the contents of all paragraphs in these reasons marked “[NOT FOR PUBLICATION]” are not to be published or released pursuant to s64(1)(c) of the CAT Act.

6. A copy of these reasons, without redaction, shall be released to the Respondent.

**********

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

Amendments

14 December 2023 - Coversheet - Name of Respondent changed, as per order 3.

Decision last updated: 14 December 2023