Leichhardt Municipal Council v Roads and Traffic Authority

[2005] NSWADT 37

CITATION:	Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37
DIVISION:	General Division
PARTIES:	APPLICANT Leichhardt Municipal Council RESPONDENT Roads and Traffic Authority
FILE NUMBER:	043283
HEARING DATES:	2/11/2004 - 3/11/2004
SUBMISSIONS CLOSED:	11/03/2004
DATE OF DECISION:	02/24/2005
BEFORE:	Needham J - Judicial Member
APPLICATION:	access to documents - business affairs - access to documents - financial or property interests - access to documents - internal working documents - access to documents - operations of agencies - Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - access to documents - financial or property interests - Freedom of Information Act - access to documents - internal working documents - Freedom of Information Act - access to documents - operations of agencies
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Motor Vehicles Taxation Act 1988 Road Transport (Driver Licensing) Act 1998 Road Transport (General) Act 1999 Road Transport (Heavy Vehicles Registration Charges) Act 1995 Roads Act 1993 Transport Administration Act 1988
CASES CITED:	David Miles Connolly v. Department of Finance No 94/50 AAT Freeland v. General Manager, Liverpool City Council [1999] NSW ADT 95 Hynes v. Hawkesbury City Council [2004] NSWADT 135 Latham v. Director-General, Department of Community Services [2000] NSW ADT 58 Re Kamminga and Australian National University (1992) 26 ALD 585 Re Saxon and Australian Maritime Safety Authority (unreported, AAT, Cth 19 June 1995) Tunchon v. Commissioner of Police, New South Wales [2000] NSWADT 73 Vincent Neary v. State Rail Authority of NSW [1999] NSWADT 107
REPRESENTATION:	APPLICANT C Ronalds SC RESPONDENT R Weber SC
ORDERS:	1.Order that the documents numbered 1,2, 3, 4, 5, 6, 7,8, 9, 10, 11, 12, 13, 66 - 83, and 307-343 in the confidential exhibit R4 in these proceedings be released to the applicant; 2.Order that documents numbered 14, 15, 16, 17, 18, 19, 20, 21-33, 34-65, 84-171, 172-306 are exempt from release.

The Application

1 On 22 March 2004, the applicant, Leichhardt Municipal Council (“the Council” or “LMC”) sought access to documents held by the respondent, the Roads and Traffic Authority (“RTA”) under the Freedom of Information Act 1989 (“FOI Act”). Application no 043156 in the General Division of this Tribunal was then filed by LMC on 20 May 2004 seeking review of the “deemed refusal of Council’s FOI Application received by the RTA on 22 March 2004”. Those proceedings were withdrawn in order to allow the RTA to undertake an internal review, which was sought on 28 May 2004. The internal review was finalised on 21 July 2004, mainly by refusing access to the documents sought by the Council. Proceedings no 042283 were filed on 24 August 2004 and it is these proceedings which were heard on 2 and 3 November, 2004 before me.

2 The current application by the Council seeks access under the Freedom of Information Act 1989 (“FOI Act”) to the following documents which remain outstanding on the original request:-

A. M4 Options Study - Options Development Report (Draft)

B. M4 East Options Study - Road Tunnel Options Paper (Draft)

C Financial assessment of M4 Motorway Extension - Roads and Traffic Authority

D M4 East Corridor Summary of Preliminary Micro Simulation Modelling Results (Briefing Note)

E M4 East Strategy

F M4 East Corridor - Modelling Assessment Rounds 1, 2, 3 and 4 (August 2002) [Draft traffic report]

G M4 East Corridor - Modelling Assessment Rounds 1, 2, 3 and 4 (May 2002) [Draft Traffic Report]

H Introduction - M4 East Traffic Analysis

I Page 22 only of Motorway Options Study Public Transport, Pedestrian and Cyclist Network Background paper 25 March 2003 Connell Wagner

J Part only of M4 East Motorway Options Study Stage 1 Geotechnical Investigation Report Volume 1: Factual Report May 2003, Connell Wagner; and

K Part only of M4 East Summary Data dated 23 May 2002, Masson Wilson Twiney.

(see par 7, Application, dated 23 August 2004).

3 The Tribunal must determine the application in the light of whether the respondent made the “correct and preferable” decision having regard to the facts and to the law – see s 63(1) of the Administrative Decisions Tribunal Act 1997.

The M4 East proposal

4 Mr Cross, the Motorway Development Manager for the RTA, gave evidence as to the history of the M4 Motorway. He noted that the M4 opened in 1971 and now runs from North Strathfield to Emu Plains. Significant alterations were undertaken in the 1980s which included improvements to the connection to Parramatta Road at North Strathfield. Traffic exiting the M4 at North Strathfield for the CBD has, amongst others, the choice of continuing along Parramatta Road all the way to the city or by using the City West Link which runs off Parramatta Road at Haberfield. Mr Cross gives evidence that Parramatta Road is heavily congested with traffic, which is a matter of general public knowledge.

5 In the course of his employment Mr Cross was asked to investigate alternatives to the current road configuration. He gave evidence that:-

the “M4 East’s main objectives are to:-
i) enhance the main road network between Western Sydney and the Central Business District, Sydney Airport, Port Botany and the South Sydney Growth Centre;

ii) reduce traffic congestion along Parramatta Road, adjoining roads and parallel routes in the study area; and

iii) provide a high standard link between the M4 Motorway and the City West Link”. (paragraph 9, first affidavit of Malcolm Cross, 11 October 2004).

6 In order to carry out those objectives, the RTA retained Connell Wagner Pty Ltd as a consultant to develop and assess options for addressing the congestion problem. As part of that process, Connell Wagner was asked to undertake preliminary design concepts, prepare an overview report for public comment, and to manage the geotechnical and environmental processes.

7 By this process, a number of options were developed. Mr Cross would receive draft documents from Connell Wagner, would review them in consultation with his manager and assistant, and would return them to Connell Wagner, who would amend the documents to incorporate the RTA feedback. The documents would be further developed by Connell Wagner, returned to the RTA and so on. Mr Cross gave evidence, upon which he was cross-examined, that there were approximately 40 development options. These permutations were not 40 separate routes, but generally speaking they were variations on 5 core “themes”, with each theme having various permutations, such as variations of entry and exit portals.

8 The RTA then culled the development options to three, shortlisted options. Prior to publicising the options, Mr Cross instructed Connell Wagner to prepare a document which was entitled “M4 East Options Study Overview Report” (annexure B to Mr Cross’ affidavit) (“the Overview Report”). The Overview Report included three “most favoured” options. These were:-

a) the “short tunnel” option, which comprised of twin 3.6 km tunnels running mainly under Parramatta Road from the M4 at North Strathfield to Haberfield.

b) the “long tunnel” option, which was an extension of the “short tunnel” option, and the connection to the City West Link was further east, in Lilyfield near the Rozelle Goods Yard.

c) the “slot option”, which comprised of a lowered motorway immediately south of and parallel to Parramatta Road from the end of the M4 to the east of the Wattle Street/Frederick Street intersection at Haberfield. A current example of a “slot” roadway is the lowered section of the Eastern Distributor at Moore Park.

9 The favoured option, as set out in the Overview Report, was the “short tunnel” option. The Overview Report noted that the “long tunnel” option was favoured by members of the Haberfield community. Haberfield falls within the Leichhardt Municipal Council local government area. The Overview Report was released in December 2003.

10 The proposal in the Overview Report was that the preferred option be constructed under what was referred to as a “BOOT” contract - that is, that the private operator Build (at its own cost), Own (for a limited time), Operate (for that time and at its own cost) and Transfer (to the government at the end of the period) the tunnel. Once an option was decided upon, the government intended to approach appropriate corporations to invite tenders for the work, rather than to construct and operate the tunnel itself.

The Council’s request for access under the FOI

11 The original Request for Access under s 17 of the FOI was dated 15 March 2004 and lodged by Mr Marcus Rowan of the LMC. It sought “documents concerning the option feasibility assessment for the M4 East Options Study - Overview Report Dec 2003. These include: Analysis of issues; justification of proposal; development of surface and tunnel options; transport and traffic studies; economic and financial analysis”. Mr Rowan required “a copy of any reports prepared internally or externally on behalf of the RTA”.

12 The RTA replied on 28 May 2004 to the effect that a document which met the terms of the application is a draft report entitled “M4 East Options Study, Options Development Report Volume 1”. Mr Youngman, who determined the request for access (exhibit R1), considered that the study was exempt under cl 9(1)(a)(i) of Schedule 1 of the FOI Act - that is, that it would be contrary to the public interest to do so. Mr Youngman wrote that, as a decision had not been made on the recommendations and strategies dealt with in the study, it would be misleading to the public to release it.

13 The application for internal review was dated 29 June 2004 and was made by Ms Lyons, the Council’s Legal Services Manager, to Mr Paul Forward, the Chief Executive of the RTA (exhibit R2). The Internal Review Determination, dated 21 July 204 (exhibit R3) was sought pursuant to s 34 of the FOI Act. Mr Najem, who undertook the internal review, listed the underlying documents which were used to produce the “community consultation document” entitled “M4 East Community Update - October 2004” which became exhibit A1 in these proceedings, some of which became the documents the subject of the application to this Tribunal.

14 Mr Najem’s internal review granted access to some of the documents, being:-

a) Motorway Options Study Public Transport, Pedestrian and Cyclist Network Background Paper 25 March 2003;

b) M4 East Motorway Options Study Stage 1 Geotechnical Investigation Report Volume 1; Factual Report May 2003 (save only for a small part recording certain advice and recommendations); and

c) M4 East - Summary Data dated 23 May 2003 (save only for a two page summary of certain advice and opinions at the end of that document).

15 Copies of the released documents were provided to the LMC. The balance of the documents were designated “exempt documents” – perhaps, as the applicant points out, somewhat prematurely - and they form the basis of this application to the Tribunal.

The Legislative Background

16 Section 5 of the FOI Act sets out the Objects of the Act. That section provides:-

‘(1) The objects of this Act are to extend, as far as possible, the rights of the public:
(a) to obtain access to information held by the Government, and

(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.

(2) The means by which it is intended that these objects are to be achieved are:
(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and

(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and

(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.

(3) It is the intention of Parliament:
(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and

(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.

(4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.”

17 It is common ground that the applicant has standing to apply for access to documents under the Act. Sub-section 16(1) of the Act provides that “a person has a legally enforceable right to be given access to an agency’s documents in accordance with this Act.” This legally enforceable right is also enshrined in s 5 of the Act, which sets out the Objects of the FOI Act.

18 Section 24 deals with determination of requests for access. The section imposes a duty on the agency to determine whether access will be granted or refused. Section 25 deals with reasons for refusal. Sub-section 25(1) provides (relevantly):-

“(1) An agency may refuse access to a document:
(a) if it is an exempt document, or

(a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions.”

19 The RTA has determined that each document is an exempt document, either within the meaning of cl 7(1)(b) or (c), 9, or 15 of Schedule 1 of the FOI Act. Those clauses provide:-

7. Documents affecting business affairs

(1) A document is an exempt document:

…

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

(i) would disclose information (other than trade secrets) that has a commercial value to any agency or any other person, and

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

(c) of it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and

(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.

9 Internal working documents

(1) A document is an exempt document if it contains matter the disclosure of which:

(a) would disclose:

(i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or

(ii) any consultation or deliberation that has taken place in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and

(b) would, on balance, be contrary to the public interest.

(2) A document is not an exempt document by virtue of this clause if it merely consists of:
(a) matter that appears in an agency’s policy document, or

(b) factual or statistical material.

15 Documents affecting financial or property interests

A document is an exempt document if it contains matter the disclosure of which:

(a) could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency, and

(b) would, on balance, be contrary to the public interest.

20 In hearing and determining this application, the Tribunal must pay heed to the provisions of s 55, which provides:-

(1) In determining a review application, the Tribunal:
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and

(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative.

21 Section 61 provides that the burden of proof lies on the respondent, being the government agency, to show that the “determination is justified”. Accordingly, I shall deal first with the respondent’s case.

The respondent’s case

22 The respondent characterised the documents at the heart of the LMC request as being documents which were exempt as being internal working documents within clause 9 of the Schedule 1 of the FOI. The documents were provided to me as exhibit R4 and various categories of documents set out behind numbered tabs. In the absence of the applicant, senior counsel for the respondent took me through the documents and made submissions on the manner in which each of those documents is said to constitute an exempt document.

23 Mr Cross dealt with each document listed in the application to this Tribunal and set out reasons for that characterisation. Those reasons are summarised below. In the documents, and during the hearing, the term “options” was used to refer to the variations in route and structure of the M4 East, and the term “scenarios” to refer to variations in toll pricing.

a) Introduction - M4 East Traffic Analysis (document H in the application, tab 1 of exhibit R4). Mr Cross identified this document as a PowerPoint presentation of a comparison of vehicles passing through the M4 Toll Plaza in 2001 and 2002 and measuring various traffic statistics. The document includes statistics, percentage analysis and raw data.

b) Briefing Note - M4 East Corridor, Summary of Preliminary Micro Simulation Modelling Results (document D, tab 2). Mr Cross said that these documents were created by Masson, Wilson & Twiney in September 2003 and described the “operational characteristics of the scenarios assessed to extend the M4 Motorway easterly towards the City West Link”

c) Draft report - Financial Assessment of M4 Motorway Extension (Document C, Tab 3). These documents provide opinions and recommendations on the financing options for the M4 East development.

d) M4 East Options Study - Road Tunnel Options Paper (document B, tab 4). These documents analyse the requirements of tunnel options and provides an assessment of, and recommendations in regard to, two specific tunnel options.

e) M4 East Options Study - Options Development Report (document A, tab 4). Mr Cross gave evidence that these documents were created by Connell Wagner on 3 September 2003 and as at December 003 was still at a draft stage. IT documents the options development process “to date” (presumably, until its last edit).

f) M4 East Corridor - Modelling Assessment - Rounds 1, 2, 3 and 4 (documents F and G, tab 6). These documents include a report on investigations of traffic patterns within the Inner West of Sydney and contains advice and recommendations on the various options.

g) M4 East Strategy (document E) - investigation of factors affecting transport needs associated with the M4 East report.

(the above analysis is taken from Mr Cross’ first affidavit).

24 The RTA claims that each of the above documents are “exempt documents” by virtue of clause 9 of Schedule 1 of the FOI Act, being “internal working documents”, and by virtue of clause 16, relating to the operation of agencies.

25 In submitting that the documents should remain exempt, senior counsel for the respondent relied upon the RTA’s statutory functions, which are contained in the Transport Administration Act 1988 (TAA). Pursuant to sub-s 46(2) of that Act, the RTA has “the functions conferred or imposed on it by or under this Act, the Roads Act 1993, the Road Transport (General) Act 1999, the Motor Vehicles Taxation Act 1988, the Road Transport (Heavy Vehicles Registration Charges) Act 1995, the Road Transport (Driver Licensing) Act 1998 or any other Act.”

26 The respondent relied on s 52A of the TAA, which provides:-

“52A(1) The functions of the Authority include the following:

(a) to review the traffic arrangements in the State (including arrangements in connection with the movement, regulation and control of traffic and the parking of vehicles),

(b) to formulate or adopt plans and proposals for the improvement of those arrangements,

(c) to establish general standards and principles in connection with:

(i) the design, construction, erection, affixing, marking, maintenance, repair, alteration, operation or removal of traffic control facilities, and

(ii) the design of intersections and the approaches to them or the approaches to railway level crossings,

for purposes connected with traffic safety and the movement, regulation and control of traffic

….”

27 Section 64 and 71 of the Roads Act 1993 provide:-

“64 RTA may exercise functions of roads authority with respect to certain roads

(1) The RTA may exercise the functions of a roads authority with respect to any classified road, whether or not it is the roads authority for that road and, in the case of a classified road, whether or not that road is a public road.

(2) The roads authority for a classified road with respect to which the RTA is exercising a particular function may not exercise its functions with respect to the road in any manner that is inconsistent with that in which the function is being exercised by the RTA.”

“71 Powers of roads authority with respect to road work

A roads authority may carry out road work on any public road for which it is the roads authority and on any other land under its control.”

28 A “classified road” has the meaning assigned to it in the Dictionary of the Roads Act and includes a road such as the M4 East Motorway.

29 The respondent relied upon the decision of this Tribunal in Tunchon v. Commissioner of Police, New South Wales [2000] NSWADT 73 as authority for the proposition that there is no general presumption that the public interest favours the disclosure of “internal working documents” which fall within clause 9 of schedule 1. Tunchon requires that an assessment be made of the relevant public interest in relation to the particular decision-making in question. It is a particular test of public interest, not a general test.

30 The respondent submitted that I should find that the public interest was against release of the documents on the following grounds:-

a) they are working draft documents, and currently in use to assist the RTA in choosing one of the development options. Release of these documents would not show the public the whole process of option development and would therefore be misleading.

b) they include discarded options, as part of the exploration process carried out in exercise of the RTA’s functions. Release of the discarded options could lead to misinformation and confusion in the mind of the public, which would create considerable increases in labour time for officers working on the M4 East project;

c) the RTA has entered into a process for public debate of feasible options to take place (that process being, partly, the release of the Options Development Report and the proposed Environmental Impact Statement process once an option has been chosen). That process gives the public, including the applicant, adequate opportunity to comment on the project.

31 A number of documents contain financial modelling information on the various options. The release of this information should remain confidential in the light of the envisaged public tender process. Further, the costing models are expected to lead to a commercially sensitive decision being made by the Government - ie, the toll cost for use of the M4 East.

32 Further, the respondent claims that the provisions of clause 7(1)(b) of Schedule 1 of the FOI Act applies. It says that a number of the documents (numbered 14, 15, 17-18, 22-23, 29-30, 33-65, 105-120, 132-137, 174, 195, 200-292 and 302-306 in exhibit R4) are documents which have commercial value and the release of those documents could be expected to reduce the commercial value of the information. Again, this submission relates to the tolling and tendering processes. In relation to these documents, the RTA also relies on cl 7(1)(c) of Schedule 1, which relates to “documents affecting business affairs”. It submits that this term should not be narrowly construed and relies on Re Saxon and Australian Maritime Safety Authority (unreported, AAT, Cth 19 June 1995) to say that the phrase “business affairs” means “all aspects, both fiscal and administrative, of an organisation or undertaking”. The disclosure of the documents would have an “unreasonable adverse affect” on its business, commercial and financial affairs, both by prejudicing the development of the M4 and by an impact on current and future assets of the RTA (such as future road developments, and Parramatta Road).

33 The RTA claims that documents numbers 14, 15, 17-18, 22-23, 29-30, 33-65, 105-120, 132-137, 174, 195, 200-292 and 302-306 in exhibit R4 are exempt by reason of cl 15 of Schedule 1 of the RTA Act, in that they are documents which could “reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency” and which would, on balance, be contrary to the public interest. This submission relies on similar grounds as those put in support of the above submissions. Additionally, the RTA relies on the tender process retaining its integrity. Mr Cross gave evidence in his affidavit and in cross-examination that there are only a limited number of companies who would have the resources to tender for the M4 East road construction, and that in his opinion releasing the exempt documents would lessen the competition in the tendering process. By releasing to the public (and a release to the LMC would enable any member of the public, similarly, to seek access to these documents) the RTA would be releasing the base information which tendering companies would need to ascertain for themselves in order to put in a competitive tender. Senior counsel for the respondent characterised the information relating to traffic flow as “extremely commercially sensitive”, and submitted that the release of that information would prejudice the government’s position in the tender process by giving tenderers an insight into the government’s thinking. Access to the hypothetical figures and financial modelling would allow a tenderer to work out the RTA’s hypothetical tolling scenarios, and thus would remove any commercial advantage which the RTA had in the tender process. Results may range from adverse tenders, to no tenders at all.

34 Senior counsel for the respondent argued that there was a positive public interest in processes of deliberations leading to levels of public consideration being permitted to be undertaken in confidence, so that advice can be taken and decisions can be made. The Environmental Impact Statement and consultative nature of the process thus far undertaken provides the public with the ability to comment and have input into the process; there has been no attempt, so it was submitted, to keep the public in general and the Council in particular in the dark.

The Applicant’s Case

35 The Council and its legal advisors have not had access to the exempt documents and thus the submissions were made without specific comment on the documents themselves. Senior counsel for the applicant concentrated on the “rights of the public” to transparency in public decision making enshrined in s 5 of the Act and the public interest in a fully informed debate on the issues. The Council is approaching the M4 East proposal on the basis that there is no evidence that it is needed in the first place, and submitted that the process undergone by the RTA assumed that “tunnel=good”. It is concerned that the question of whether an M4 East was needed at all, or whether other alternatives, such as public transport options or cycle paths, will not be properly addressed.

36 It was submitted that the overview report was inadequate to enable the public to fully comment on the proposals. The promise, by the RTA, that “a summary of discarded options” would be included in the EIS was insufficient to allow public comment on the discarded options.

37 As to the exempt documents, senior counsel made a number of observations on how I should approach the various exemptions. She submitted:-

a) When a summary of a document is made public, an exemption cannot apply to an internal working document of which the summary was made. The document exists at the point that the summary is published and loses its status as an exempt document.

b) Rather than treating documents which contain financial material as fully exempt, an examination should be made of them to ascertain whether financial material could be excised.

38 The evidence revealed three kinds of materials in the exempt documents:-

a) Raw numbers of traffic counts - it was submitted that there should be no exemption for this material;

b) Projections – for example, of what might happen to the ANZAC Bridge traffic if various options were in place. It was submitted that this was very different to a “tolling scenario” which may have financial and tendering implications;

c) Tunnel options - these should be released to enable public comment on them, even if tolling scenarios should not.

39 The Council submitted that the approach to be taken by the RTA in assessing whether a document is exempt should be, firstly, to establish whether a document falls within an exemption, and then to consider whether or not to release it (see the word “may” in s 25(1) of the Act). This approach reflects the “legally enforceable right” which a person has to be given access to an agency’s documents.

40 In relation to the documents themselves, the Council examined the affidavit evidence and the claimed reasons for exemption and made assumptions as to the contents of the documents, which it invited me to test against the actual contents of the document.

41 It was submitted that in relation to documents which contain statistical information, access should be granted pursuant to cl 9(2)(b), even if access requires that other parts of documents be obscured. Council submitted that, from the evidence available to it, a large part of the material consisted of “factual or statistical material” and as such as not exempt. Senior counsel pointed to the Traffic Analysis Outline, in particular, and to traffic flow analyses, the modelling results document and the modelling assessment report. Latham v. Director-General, Department of Community Services [2000] NSW ADT 58 at par 35 was cited as authority for this proposition.

42 It was submitted that the reasons given by Mr Cross for an exemption under clause 9 were insufficient to ground an exemption.

43 As to Mr Cross’ concern that the documents may “mislead the public into thinking that the RTA have given too much weight to certain considerations, and vice versa”, the Council relied upon s 59A of the Act, which deals with factors which are irrelevant to the assessment of the “public interest”. Sub-par (b) specifies that “it is irrelevant that the disclosure may … (b) cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason”. In order to redress any possible misunderstanding, senior counsel for the applicant invited the respondent to indicate which documents were superseded, not relied upon, or no longer relied upon, if such an indication would assist in clearing up any confusion or misunderstanding likely to occur on the release of the documents.

44 In answer to Mr Cross contention that release of the documents would cause a diversion of his, and other employee’s, time from the project to respond to public enquiries about various discarded options, the Council submitted that answering enquiries was part of the relevant officers’ jobs, and that such an influx was not likely, in any event, to occur. It was further submitted that a fear of public enquiry was “entirely contrary to the intention of the FOI Act and should be disregarded”. Any such diversion can only be taken into account by this Tribunal if the diversion is substantial and unreasonable – see s 25(1)(a1) of the Act.

45 The Council submitted, in response to Mr Cross’ assertion that the EIS process will satisfy the need for public comment and that options discarded as “not worthy of consideration” should not be the subject of public debate, that the process by which such options were discarded was the focus of the Council’s request. The need for transparency in decision-making should allow documents which show the reasons for discarding options to be made public.

46 As to whether documents are “working draft documents”, the Council says that there is no evidence that this is the case. While a document may be a draft at some point in time, once the function of the document has been fulfilled and the issue it addressed has been considered, the document is no longer a draft and calling a document a “draft” should not be a shield against release.

47 The respondent, in its written submissions, seeks to be able to explore all options by creating working draft documents and to release such drafts while the process of decision-making is ongoing would hamper the process. The applicant submits, and Mr Cross was cross-examined on this point, that the RTA has already decided on a preferred option (see press release, attachment 21 to Mr Rowan’s statement).

48 As to the clause 7(1)(b) or (c) exemptions, the Council accepted that documents containing costing models and issues related to costing would be created and that the release of those documents may hinder the tendering process. It concedes the public interest in continuing to refuse access to such documents at least until the EIS is released. If they do not fall within the exception, they should be released.

49 The clause 16 exemption claim, the Council submitted, was not made out by any evidence and “appears to rely upon rhetoric rather than substance”. The Council submitted that any claim under clause 16 should be a specific, rather than general, one, and that any impact on the operations of the agency must be identified.

Meaning of “internal working documents” – clause 9

50 The term “internal working documents” comes from the heading to clause 9 of Schedule 1, rather than the body of the clause itself. The key to finding whether a document is an exempt “internal working document” is whether it discloses an opinion, advice or recommendation that has been obtained, prepared or recorded, or any consultation or deliberation that has taken place. Additionally, disclosure must be contrary to the public interest. A document which “merely consists of” factual or statistical material is not exempt as an internal working document. So, even if a document does disclose such opinion, etc, it is not exempt unless the disclosure is against the public interest. However, cl 9(1)(b) should not be applied as if there was a presumption that “internal working documents” should generally be disclosed – see Tunchon, par 18.

51 The question of whether an internal working document is exempt must be viewed against the statutory functions of the RTA. Each document must be examined and a conclusion reached as to whether it falls within the general descriptor of “internal working documents” and if so, whether it is contrary to the public interest to disclose its contents.

Business Affairs exemption – clauses 7(1)(b) and 7(1)(c)(ii)

52 The “business affairs” exemption relates to the diminution or destruction of the commercial value of information (7(1)(b)) or damage to the business or financial affairs of the agency (7(1)(c)). The likelihood of reducing the value of an asset (or the price at which it could be sold) was held to fall within cl 7(1)(b) in Freeland v. General Manager, Liverpool City Council [1999] NSW ADT 95. The test in that case was that there be a “risk” that the commercial value in question be destroyed or diminished.

53 Similarly, in relation to financial or business affairs (cl 7(1)(c)), the test is whether there could “reasonably be expected to have an unreasonable adverse affect” on the commercial value of the relevant information (see Vincent Neary v. State Rail Authority of NSW [1999] NSWADT 107; Hynes v. Hawkesbury City Council [2004] NSWADT 135

54 The risk or expectation required for exemption of documents must not be minimal or nominal; it must be a risk which is able to be identified and of which some evidence can be given. A mere concern about, or worry of a possibility of damage to business affairs is not sufficient. While the “value” of the information in the document need not be able to be quantified, it must be substantive.

Financial or property interests – clause 15

55 The exemption under clause 15 requires a “significant adverse dollar effect” – see David Miles Connolly v. Department of Finance No 94/50 AAT no 9571. The financial interests which can be affected include income streams. The effect of release must be “serious” or “significant.

56 Again, there must be some evidence, rather than merely an expressed concern, to satisfy the Tribunal of the necessity to refuse to disclose documents under this clause.

Operations of agencies – clause 16

57 The thrust of this provision is that the release must prejudice the way in which the agency is able to undertake its functions, and the release must be contrary to the public interest. The effect must be a “substantial adverse” one. Again, one must look objectively at the effect of disclosure in order to hold the reasonable expectation. The effect on the “function of the agency” is the important factor – see Robinson v. Director General, Department of Health [2002] NSWADT 222 at 63-66.

The Public Interest

58 There needs to be, in consideration of each of the above grounds, a balancing between the interests of the agency in retaining the documents and the public interest in disclosure of the documents. There is a balance to be struck in the process. In Re Kamminga and Australian National University (1992) 26 ALD 585, the Commonwealth Administrative Appeals Tribunal said:-

“Deciding whether disclosure is contrary to the public interest requires a balancing of competing interest including the public interest in the applicant’s right to know, which is a different thing from the applicant’s personal interest in knowing”.

59 The use that the applicant intends to make of any documents released, or the reasons for which it wishes to have documents released, are not relevant to the “public interest”.

60 The balancing exercise to be undertaken is, first, to assess the principles of transparency in s 5 of the Act; then to decide whether the document falls within any of the exemptions claimed, then, finally, to determine whether the public interest favours its disclosure or release.

General findings as to claims for exemptions

61 I am satisfied that the respondent has justified, in relation to the business affairs, and financial or property interests exemptions, that there is a real and substantial risk of financial harm to the respondent if particular information relating to costings and tolling scenarios were to be disclosed. I note that the applicant does not contest that this is so. In the consideration which follows, I will make determinations as to whether each document for which a business affairs or financial interests exemption is claimed falls within the claimed category.

62 I am not so satisfied that the documents are automatically subject to the internal working document exemption, merely because they are documents which are internal to the agency which were used for a working purpose. The provisions of clause 9 are much broader than that. The respondent has sought to show the way in which the documents were used as working documents, and in some cases has used the fact that a document may be considered a “draft” to base its claim for an exemption. Each of the documents must be individually examined to see whether they disclose the relevant opinion, advice or determination necessary to qualify the document as an “internal working document” within the meaning of clause 9.

63 I am not satisfied that the documents will all affect the agency’s functions in the manner set out by Mr Cross in his affidavits and in his oral evidence. I agree with the submission of the applicant that mere concerns about members of the public being confused and seeking information from the RTA is insufficient to ground the requirement of cl 16 that there be “a substantial adverse effect on the effective performance of the agency’s functions”. While Mr Cross expressed a fear that this would happen, I am not convinced that his fear is justified. The RTA is a large organisation and the need to employ more information officers than are currently working on the project cannot amount to a “substantial adverse effect” on the functions on the agency. I am of the view that the documents cannot, on the evidence before me, be classified as exempt documents on the grounds of clause 16. Accordingly, I will not deal with this claimed exemption when assessing each of the documents.

Consideration of the Exempt Documents

64 Tab number 1 – Introduction, M4 East Traffic Analysis (documents 1-20). The documents are a printout of a PowerPoint presentation which was created on 7 April 2003, revised on 14 and 30 April 2003 and 10 June 2003, and presented on 8 July 2003. Mr Cross gave evidence that the document was “not actively being worked on”. Mr Cross also gave evidence that documents 14, 15, 17 and 18 contain information relating to “costing and financial options”. The documents measure traffic statistics, analyse percentages and give raw data for vehicle occupancy and traffic peak variability.

65 All 20 pages are claimed to be exempt as internal working documents. Pages 14, 15, 17 and 18 are claimed to be exempt on the business affairs and financial interests grounds.

66 Documents 1-2 are introductory material. I do not see that they are “internal working documents” in the sense used in cl 9, nor would they have a substantial adverse effect on the RTA’s functions if they were to be released. Given that this is so, I do not need to consider whether the public interest favours their exemption.

67 Documents 3-6 and 9-13 are traffic counts of east and west bound vehicles for periods in 2001 and 2002. These documents appear to “merely consist of factual or statistical material” and therefore within the exception in clause 9(2)(b). They should be released.

68 Documents 7 and 8 are percentage analyses of destinations of both east and west bound vehicles in 2001 and 2002. Again, these are factual or statistical material, and within the exception in clause 9(2). They should be released.

69 Documents 16, 19 and 20 are lists of dot-points relating to various options for the proposed roadway. These record recommendations as set out in cl 9(1)(a)(i) and I take the view, on the submissions of the respondent, that it is in the public interest not to release them. They appear to be part of the same sequence as documents 14, 16, 17 and 18 and therefore may have some impact on the tender process. They are exempt.

70 Documents 14, 15, 17, 18 are documents which contain the kind of information referred to by Mr Cross as being the kind of information which would affect the tendering process. I find that the information in these documents is exempt under cll 7 and 15.

71 Tab number 2 – M4 East Corridor Summary of Preliminary Micro Simulation Modelling Results. This tab comprises documents 21 to 33 and is dated September 2003. The documents behind tab 2 comprise descriptions of operation characteristics of the tolling scenarios and illustrates a number of areas where other traffic measures or improvements are required. Exemption is sought on the internal working documents and operation of agency grounds, as well as a business affairs and financial interests exemption for documents numbers 22-23, 29-30 and 33.

72 I am of the view that the exceptions on the business affairs and financial interests grounds are reasonable. The document deals with tunnel options and with tolling scenarios which would affect the integrity of the tender process were they to be released. As for the balance of the document, it appears to me that it falls within the internal working documents exemption, and not within the exception of cl 9(2). Given that the opinions and recommendations recorded in that document form the basis of the tolling scenarios dealt with on the specifically exempted pages, I am of the opinion that it would be contrary to the public interest to release the document behind tab 2, and that is, in total, an exempt document.

73 Tab no 3 – Financial Assessment of M4 Motorway Extension – documents 34-65. This document provides opinions and recommendations on the financing options for the M4 East. It was prepared by a consultant, Booz, Alan and Hamilton on 16 June 2003.

74 The entire document is said to be subject to each of the claimed exemptions. On reading the document, as is obvious by its title, it deals with various tolling scenarios which would affect the integrity of the tender process if released.

75 The entirety of the documents 34-65 are exempt documents.

76 Tab no 4 - M4 East Options Study - Road Tunnel Options Paper (documents 68-83). The internal working documents exemption is claimed. The documents analyse the requirements of tunnel options in general and provides an assessment of, and recommendations in regard to, two specific tunnel options. It was prepared by Connell Wagner and is dated 17 November 2003, and marked “Revision 1”. While this document is a draft, Mr Cross said that he was not aware of any work being done on it at the moment. He also gave evidence that the Connell Wagner would be asked to finalise the document before the release of the EIS. The respondent submitted that to release this document prior to the EIS (when it would probably lose its status as an exempt document) would be to trigger premature debate on the issues in the paper.

77 The document details tunnel options, including practical, traffic and safety concerns, and does not delve into any matters which would impact on tolling scenarios. It examines the short and long tunnel option, and the connections to surrounding roads that would be necessary for each option.

78 It does not appear to me that the release of the documents behind tab 4, while they would disclose opinions, advice and recommendations would be contrary to the public interest. This is because the published information available appears to be summaries of some of the information in this document, and the main reason for the claimed exemption would appear to be the fears of Mr Cross of disruption to his work should the examination of the various options become public, which I have already dealt with as being insufficient to form the basis of an exemption under cl 16.

79 Accordingly, I am of the view that the documents under tab 4, being documents 66 to 83 inclusive, should be released.

80 Tab no 5 – M4 East Options Study – Options Development Report (documents 84-171). Mr Cross gave evidence that this document was created by Connell Wagner on 3 September 2003, although the document is dated 10 October 2003 on the front page and November 2003 – Revision 1 on the document footnote. It documents the option development process to that point. Mr Cross gave evidence that it was at a draft stage in December 2003 and that more work has been done on the document since. It is to be finalised “following community consultation and selection of a preferred option”.

81 Pages 105 to 120, 132-137 are sought to be exempted on the business affairs and/or financial interests grounds, as well as the entirety of the document on the internal working document ground. There are a number of indications that the document is a draft, and to be finalised once further information was available. The pages for which specific exemptions are sought do, in my opinion, fall within the exemptions of clauses 7(1) and 16, and I exempt them from release.

82 The balance of the document is to some extent intertwined with the financial or business affairs information contained in it. The document gives results of preliminary investigations which could have some impact on the tendering process, by providing information to tenderers about investigations carried out which would impact costings for the roads. While some of the information (for example, the introductory portions) would seem not to fall within this category, it is difficult to be precise about where the information which would impact the tender process starts and finishes. On balance, I hold that it is in the public interest to exempt the entirety of the document as an internal working document as well as the specific portions already exempted on business affairs and/or financial interests grounds.

83 Tab no 6 – M4 East Corridor – Modelling Assessment: Rounds 1, 2, 3 and 4 (documents nos 172-306). This document was created by Masson, Wilson & Twiney in March 2002 and investigates traffic patterns within the Inner West and provides recommendations on various options.

84 Documents nos 174, 195, 202-292 and 302-306 are claimed to be exempt documents on the grounds of business affairs and/or financial interests. Each of the pages for which the exemption is claimed does indeed contain then kind of information which I have accepted would impact adversely on the tendering process if released, and these documents should be exempted from release.

85 As to the balance of the documents, they provide analysis of modelling of various options applied to road traffic in the inner west. The modelling appears to be quite sophisticated and the kind of investigation which a tenderer might undertake in its own investigations into whether building a road such as the M4 would be worth tendering for. The factors which go into setting the various toll scenarios are interwoven throughout the document, even if the actual toll figures are not mentioned. It is clear that the results of the modelling fall within the categories of clause 9(1)(a)(i) and (ii). The question then is whether it is in the public interest to order their release. In my view it is not in the public interest to do so, and the document should be exempted from release.

86 Tab no 7 – M4 East Strategy (documents 307-343). The respondent did not press its claims for exemption to this document, and accordingly I order that it be released.

Orders

87 I order that the documents numbered 1,2, 3, 4, 5, 6, 7,8, 9, 10, 11, 12, 13, 66-83, and 307-343 in the confidential exhibit R4 in these proceedings be released to the applicant.

88 I order that documents numbered 14, 15, 16, 17, 18, 19, 20, 21-33, 34-65, 84-171, 172-306 are exempt from release.