MacTiernan and Secretary, Department of Infrastructure and Regional Development (Freedom of Information)
[2016] AATA 506
•19 July 2016
MacTiernan and Secretary, Department of Infrastructure and Regional Development (Freedom of Information) [2016] AATA 506 (19 July 2016)
Division
FREEDOM OF INFORMATION DIVISION
File Number
2016/0221
Re
Alannah MacTiernan
APPLICANT
And
Secretary, Department of Infrastructure and Regional Development
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 19 July 2016 Place Perth The Tribunal sets aside the decision under review and, in substitution therefor, decides that the Applicant’s freedom of information request, dated 25 July 2014, is allowed in full and that access be granted to all of the Contested Documents listed in Annexure A to the following Reasons for Decision.
.............[Sgd]...........................................................
Senior Member CR Walsh
CATCHWORDS
FREEDOM OF INFORMATION – whether the contested documents are conditionally exempt because their disclosure: (i) would, or could reasonably be expected to, cause “damage” to relations between the Commonwealth and the State of Western Australia; (ii) would divulge information or matter communicated “in confidence” by the State of Western Australia or Main Roads WA to the Commonwealth or the Department; (iii) would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the “deliberative processes” involved in the functions of the Commonwealth (the Department); and (iv) would, or could reasonably be expected to, have a “substantial adverse effect” on the proper and efficient conduct of the operations of an agency (the Department) – if any of the contested documents are conditionally exempt, whether it would be contrary to the “public interest” for access to be given to those documents – decision under review set aside and substituted
LEGISLATION
Freedom of Information Act 1982 – s 8A – s 11A – s 11B – s 15 – s 36(1)(a) – s 47B(a) – s 47B(b) – s 47C(1) – s 47C(2) – s 47E(d) – s 61(1)(b)
CASES
Arnold (on behalf of Australians for Animals) v Queensland [1987] FCA; (1987) 73 ALR 607; 13 ALD 195
Australian Broadcasting Corporation and Commonwealth Ombudsman [2012] AlCmr 11
Carver and Fair Work Ombudsman [2015] Alcmr 5
Diamond and Chief Executive Officer of the Australian Curriculum, Assessment and Reporting Authority [2014] AATA 707
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126
Parnell & Dreyfus and Attorney-General’s Department [2014] AlCmr 71
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re James and Australian National University (1984) 6 ALD 687; (1984) 2 AAR 327
Save Beeliar Wetlands (Inc) v Jacob [2015] WASC 482
Save Beeliar Wetlands (Inc) v The Hon Greg Hunt, Minister for the Environment WAD 10/2016
Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111; (1992) 108 ALR 163; (1992) 16 AAR 28; BC92035020
Secretary, Department of Prime Minister and Cabinet and Secretary, Department of Infrastructure and Regional Development and Sanderson [2015] AATA 361
Smith and Aboriginal and Torrs Strait Islander Commission [2000] AATA 512Q and Department of Human Services [2012] Alcmr 30
SECONDARY MATERIALS
Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 – 5.13 – 5.14 – 6.8 – 6.9 – 6.25 – 6.29 - 6.39 – 6.40 – 6.41 – 6.44 – 6.46 – 6.62 - 6.70 – 6.71
The Macquarie Dictionary (rev 6th ed, Macquarie Dictionary Publishers Pty Ltd, 2013)
REASONS FOR DECISION
Senior Member CR Walsh
19 July 2016
INTRODUCTION
By letter to the Department of Infrastructure and Regional Development (Department), dated 25 July 2014, Ms Alannah MacTiernan (Ms MacTiernan) made the following request for access to documents under s 15 of the Freedom of Information Act 1982 (FOI Act):
RE: PERTH FREIGHT LINK
Pursuant to the Freedom of Information Act 1982, I apply for the release of documents relating to submissions from and correspondence with WA Minister and WA Government departments and agencies concerning Roe Highway State 8 and the Perth Freight Link.
The documents requested include any record or part record of emails, diary notes, correspondence, file notes, transcripts, reports, computer printouts or any reproduction or photocopy of any of these. To minimize the burden on the Department, I am happy to limit this request to records from 1 September 2013 and exclude records of purely administrative nature. [FOI Request]
The scope of the FOI Request was subsequently revised by Ms MacTiernan, on 13 August 2014, to exclude raw data.
On 19 May 2015, the Department wrote to Main Roads Western Australia (Main Roads WA) (consistent with s 26A of the FOI Act) offering Main Roads WA the opportunity to contend that certain documents falling within the scope of the FOI Request were exempt from disclosure under s 47B of the FOI Act.
On 27 May 2015, Main Roads WA responded to the Department’s letter of 19 May 2015 and submitted that the information within those documents was exempt from disclosure under s 47B of the FOI Act for reasons provided in that letter.
On 10 June 2015, the a delegate of the Secretary of the Department (Secretary) decided to release documents the subject of the FOI Request in part (FOI Decision). The FOI Decision states:
15.The Department has undertaken a search of its records and has identified 89 documents that fall within the scope of your request…...
…….
17.I have made a decision to release the documents relevant to your request in part. The documents relevant to your request are set out in Schedule 1, together with applicable exemption provisions.
Schedule 1 to the FOI Decision records that of the 89 documents identified by the Secretary as being within the scope of the FOI Request, the Secretary decided that:
(i)access should be granted to five documents (being documents 3, 61, 63, 73 and 74)[1];
(iii)three documents (being documents 20, 72 and 78) are outside the scope of the FOI Request under s 22 of the FOI Act;
(iv)five documents (being documents 50, 66, 71, 79 and 80) are “Exempt in full” under s 47 of the FOI Act (commercially valuable information) and s 47B of the FOI Act; and
(v)76 documents (being documents 1-2, 4-19, 21-49, 51-60, 62, 64, 65, 67-70, 75-77 and 81-89) are “Exempt in full” under s 47B of the FOI Act (Schedule).
[1] Documents 3, 61, 63, 73 and 74 have been released (with certain irrelevant material having being redacted under s 22 of the FOI Act).
Each of the 89 documents found by the Secretary to be within the scope of the FOI Request relate to the extension of the Roe Highway, known as “Roe 8” (Roe 8), and the “Perth Freight Link Project” (Perth Freight Link Project) (together, the Project). The Project is described in further detail below: see paragraphs 20 to 32.
More specifically, the 89 documents which are the subject of the FOI Request comprise consultation between Main Roads WA and the Department and include:
· project specific information about the Project;
· policy information concerning the Project;
· information relating to the proposed funding of the Project, including analysis on funding options and correspondence between Main Roads WA and the Department in relation to proposed Commonwealth funding; and
· information from external consultants in relation to the Project.
On 22 July 2015, Ms MacTiernan applied to the Office of the Australian Information Commissioner (OAIC) for Information Commissioner (IC) review of the FOI Decision.
On 12 August 2015, Ms MacTiernan requested that the IC exercise his discretionary power to finalise the matter under s 54W(b) of the FOI Act. This request was withdrawn by Ms MacTiernan on 14 August 2015 and again requested on 17 December 2015.
On 22 December 2015, a delegate of the IC decided to exercise the discretion in s 54W(b) of the FOI Act not to undertake an IC review in order to allow Ms MacTiernan to apply directly to the Tribunal for review of the FOI Decision.
On 14 January 2016, Ms MacTiernan applied to the Tribunal for review of the FOI Decision. Ms MacTiernan’s “Reasons for the Application” state:
9.The respondent erred in deciding that any of the documents in question were conditionally exempt under s 47B.
At the hearing, the Secretary’s representative handed up a document titled “Respondent’s Amended Schedule of Documents” (Amended Schedule) stating:
The Applicant only contests the Respondent’s delegate’s decision to apply subsections 47B(a) and (b) of the FOI Act to Documents 1-2, 4-19, 21-60, 62, 64-71, 75-77 and 79-89 [deleted words omitted] but does not contest that documents 50, 66, 71, 79 and 80 are exempt under section 47 of the FOI Act (which is not a conditional exemption).
[Deleted words omitted] The Respondent contends that documents 1-2, 5-10, 12, 14, 16-19, 21-35, 37-59, 62, 64-71, 75-77 and 79-89 (the contested documents) are exempt from disclosure in full under sections 47B(a) and (b), 47C and 47E(d) of the FOI Act. The Respondent submits that documents 4, 11, 13, 15, 36 and 60 are not exempt on the basis that their release would not, at this time, be contrary to the public interest. [Emphasis added]
As a result, the total number of documents at issue in these proceedings is 75, being documents 1-2, 5-10, 12, 14, 16-19, 21-35, 37-59, 62, 64-71, 75-77 and 79-89 (Contested Documents). The Amended Schedule, containing a description of the Contested Documents, is reproduced as “Annexure A” to these Reasons for Decision (Annexure A).
In short, the Secretary’s position is that all of the Contested Documents are exempt from release in full under s 47B(a) and (b), a s 47C and s 47E(d) of the FOI Act. In support of this position, the Secretary submits that various public interest factors weigh against disclosure of the Contested Documents, including that disclosure of the Contested Documents:
· would divulge information communicated in confidence by Main Roads WA to the Department;
· could reasonably be expected to cause damage to the highly collaborative working relations between the Department and Main Roads WA;
· would adversely affect the planning and development of future Commonwealth-Western Australia infrastructure projects;
· could reasonably be expected to impede the flow of information from Main Roads WA to the Department in relation to this Project and future infrastructure projects;
· could reasonably be expected to prejudice the Department’s ability to obtain all relevant information in order to properly assess, scope and decide whether (and to what extent) to fund Commonwealth-State/Territory infrastructure projects;
· would damage working relations between the Department and Main Roads because matter in the nature of, or relating to, consultation that has taken place, in the course and for the purposes of, the deliberative processes involved in the functions of the Department would be divulged;
· would, or could reasonably be expected to, have a substantial adverse effect on the ability of the Department to administer the Infrastructure Investment Programme; and
· could reasonably be expected to prejudice the competitive commercial process currently engaged in by Main Roads WA as it would undermined the ongoing procurement process (and any future procurement process) for the Project[2].
[2] Exhibit 6.
In contrast, in summary, Ms MacTiernan’s position is that none of the Contested Documents are conditionally exempt under the FOI Act but that even if some or all of the Contested Documents are conditionally exempt under s 47B(a) and (b), s 47C(1) and/or s 47E(d) of the FOI Act, the “public interest” overwhelming favours disclosure of the Contested Documents.
EVIDENCE
The evidence before the Tribunal comprised the following:
· the Section 37 ‘T’ Documents, received on 10 May 2016 (Exhibit 5);
· the “Applicant’s Amended Statement of Facts, Issues and Contentions”, dated 16 May 2016 (Exhibit 3);
· the “Respondent’s Statement of Facts, Issues and Contentions”, dated 15 April 2016 (Exhibit 4);
· the Witness Statement of Ms MacTiernan, dated 13 May 2016 (Exhibit 8) and Ms MacTiernan’s oral evidence at hearing;
· the Witness Statement of Mr Roland Pittar (General Manager of the North West Roads Branch in the Department) (Mr Pittar), dated 14 April 2016 (Exhibit 9), and Mr Pittar’s oral evidence at the hearing;
· the Witness Statement of Mr Peter Woronzow (Executive Director, Finance and Commercial Services at Main Roads WA) (Mr Woronzow), dated 15 April 2016 (Exhibit 11), and Mr Woronzow’s oral evidence at the hearing;
· a Joint Media Release, dated 12 April 2016, of The Hon. Malcom Turnbull MP, Prime Minister, Senator The Hon Mathias Cormann, Minister for Finance, and The Hon Darren Chester MP, Minister for Infrastructure and Transport, titled “Perth Freight Link to improve road safety and ease port access” (Exhibit 1);
· the “Perth Freight Link Business Case Executive Summary”, produced by the Commonwealth Government and Main Roads WA, dated December 2014 (Exhibit 2);
· the Draft submissions to Infrastructure Australia for Federal funding August 2012, titled “Leach Highway (High Street) Fremantle upgrade (Carrington Street to Stirling Highway)”, prepared by Department of Transport WA, Main Roads WA and the Public Transit Authority WA (Exhibit 10);
· the Strategic Asset Management Framework “Alliance Contracting Policy”, produced by the Government of Western Australia, Department of Treasury (Exhibit 12);
· documents 4, 11, 13, 15, 36 and 60 which have been released by the Secretary to Ms MacTiernan under the FOI Request (Exhibit 7); and
· the Amended Schedule (Exhibit 6).
BACKGROUND
The responsibilities of Main Roads WA in relation to infrastructure projects[3]
[3] Mr Woronzow’s Witness Statement, dated 15 April 2016, at [6] and [7].
Main Roads WA is a key transport agency within the Government of Western Australia's Transport Portfolio. Main Roads WA is responsible for, among other things, building Western Australia's major government road infrastructure projects and managing and maintaining highways and main roads throughout Western Australia.
Within the Financial and Commercial Services directorate at Main Roads WA, the Budget and Programming Function is responsible for securing Main Roads WA's annual funding for key capital works projects.
The functions of the Department in relation to infrastructure projects[4]
[4] Mr Pittar’s Witness Statement, dated 14 April 2016, at [4] and [8].
One of the Department's functions is to administer the Infrastructure Investment Programme which provides funding for infrastructure projects in States and Territories.
The North West Roads Branch of the Department is responsible for assessing proposals for Commonwealth funding and investment for road infrastructure projects in the Northern Territory, Queensland, Western Australia and South Australia. This involves assessing measures which impact on the Federal Budget and analysing projects against the Commonwealth's broader infrastructure objectives and consulting with State and Territory agencies for the purpose of determining possible funding pursuant to the Infrastructure Investment Programme.
The Project
The Project is described in the “Applicant’s Amended Statement of Facts, Issues and Contentions”, dated 16 May 2016 (at [6]-[11]), “Respondent’s Statement of Facts, Issues and Contentions”, dated 15 April 2016, in the Witness Statement of Ms MacTiernan, dated 13 May 2016 (at [9]-[34]) and in the Witness Statement of Mr Pittar, dated 14 April 2016 (at [8]-[20]). A summary of the relevant parts of that evidence is as follows.
If implemented, the Project will provide an east-west freight corridor between Perth's main industrial areas, interstate gateways and the Fremantle port. Its purpose is said to provide improved linkages to Fremantle port.
The Project comprises two components: (i) the Perth Freight Link “road works”, which includes an extension to Roe 8, Stock Road and Leach Highway; and (ii) the introduction of a Heavy Vehicle User Charge to be applied between Muchea and Fremantle.
Over the course of several months in early 2014, Main Roads WA consulted with the Department about the scope, planning, cost and funding of Roe 8 and the related High Street upgrade project. As a result of this consultation process, the value and benefit of a consolidated project (the Perth Freight Link Project) was identified, and it was agreed that the Commonwealth would commit funding to the Project.
The Project was officially announced, in May 2014, as part of the 2014 Federal Budget. The Commonwealth initially committed $925 million in funding to the Project, with Western Australia committing to provide $650 million, comprising $275.5 million contribution under the National Partnership Agreement on Land Transport Infrastructure Projects and $374.5 million as the amount to be recovered from the implementation of a Heavy Vehicle User Charge.
The initial Commonwealth funding commitment has allowed further project development and planning (including undertaking analysis and traffic modelling) to progress the Project. Further consultation to refine the Project has been undertaken to reflect subsequent amendments in scope, cost and timing of the Project.
The WA Government has commenced the process of obtaining the necessary environmental approvals at both the State and Commonwealth level for the Perth Freight Link Project.
On 2 July 2015, The Hon Albert Jacob MLA, Western Australian Minister for Environment, conditionally approved Roe 8.
On 10 September 2015, a public interest group, called “Save Beeliar Wetlands (Inc)”, commenced proceedings in the Supreme Court of Western Australia seeking review of, among other things, the Western Australian Minister for Environment’s decision to conditionally approve Roe 8.
In October 2015, the Project was put out to tender.
On 21 October 2015, the Commonwealth provided conditional environmental approval for Roe 8.
On 27 October 2015, Leighton Contractors was announced as the preferred proponent in an alliance arrangement for Stage 1 of the Project (i.e. Roe 8).
On 16 December 2015, the Supreme Court of Western Australia found the conditional environmental approval for Roe 8 to be invalid: Save Beelier Wetlands (Inc) v Jacob [2015] WASC 482 per Martin CJ. This decision was appealed and while that appeal was ongoing, construction of the Project was suspended: refer to paragraph 37 below.
On 6 January 2016, Save Beeliar Wetlands (Inc) commenced proceedings in the Federal Court of Australia against The Hon Greg Hunt, Federal Minister for the Environment, challenging validity of the Commonwealth environmental approval of Roe 8: Save Beeliar Wetlands (Inc) v The Hon Greg Hunt, Minister for the Environment WAD 10/2016. This case is listed for a case management hearing on 20 July 2016 (before McKerracher J) and has not yet been heard.
On 12 April 2016, The Hon Malcom Turnbull MP, Prime Minister, Senator the Hon Mathias Cormann, Minister for Finance, and The Hon Darren Chester MP, Minister for Infrastructure and Transport issued a Joint Media Release, titled “Perth Freight Link to improve road safety and ease port access” 2016, of, in which the Commonwealth announced that it agreed to provide Western Australia with an additional $260.8 million in funding towards the Project (Joint Media Release). The Joint Media Release states:
A tunnel from the Stock/Winterfold Road intersection to the junction of Stirling Highway and High Street Fremantle will now be incorporated into the Perth Freight Link project design….
The Government has agreed to provide an extra $260.8 million for the cost of the tunnel, bringing its total commitment to $1.2 billion for the $1.9 billion Perth freight Link.
On 15 July 2016, the Court of Appeal of the Supreme Court of Western Australia allowed the appeal from Martin CJ’s decision in Save Beeliar Wetlands (Inc) v Jacob [2015] WASC 482: see Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126.
Controversy surrounding the Project
The announcement by the Federal Government in the May 2014 Federal Budget of its decision to commit to the Project has not been without controversy.
Ms MacTiernan’s view on the reasons for that controversy are summarised in her “Statement of Facts Issues and Contentions”, dated 16 May 2016, (at [10]) as follows:
(a)The Project will be of limited benefit in view of the future need for a new container port;
(b)The Project will destroy or diminish a considerable area of the Beeliar wetlands, an environmentally sensitive and unique area;
(c)The Project will only be efficacious if it is complete through to Fremantle Port. However, the Project stops on the south side of the Swan River 2.5k south of the harbour. There is, as yet, no plan or funding to take the road under or across the river to the area of the Port where the freight is required to be delivered to collected. For this reason the Project has been dubbed “a road to nowhere”;
(d)The complete lack of public consultation contrary to long accepted norms of the planning process.
Further, in in her Witness Statement, dated 13 May 2016, Ms MacTiernan states:
35. ……in my opinion, the Perth Freight Link is very problematic. In summary:
a.It has not been planned as part of an integrated port, road and rail plan for Perth, and is not a sensible investment given the likely need for new port facilities within the next decade;
b.There was no detailed scoping prior to the decision to fund the project and hence the scope of the project changed on a number of occasions, and there has, at all times, been different positions on the project as between the State and Federal governments;
c.The project stops more that 2.5 kilometres from the existing contained terminal, and therefore will only move congestions, not solve it;
d.The Roe Highway Stage 8 component is highly inferior as an eventual link to the Outer Harbour;
e.It will delay the development of the outer harbour resulting in port congestion and increased cost of trade;
f.It involves building a road through a Ramsar wetland – that is, a wetland designated under Article 2 of the Ramsar Convention on Wetlands on International Importance, included as one of two “the best remaining examples of wetlands of their type on the Swan Coastal Plain”.
As stated by Ms MacTiernan, in her Witness Statement, dated 13 May 2016, (at [40]), since the FOI Request:
……, a campaign known as ‘Rethink the Link’ has formed, comprising local community groups and residents. They have a very active membership and have a high profile in the media and across the affected communities. The rethink the link Alliance supported an action against the Environment Minister’s decision to grant environmental approval of the Roe 8 project, a decision which was ruled in the Supreme Court as invalid. Rethink the Link is supported by the Cities of Fremantle, Cottesloe, Kwinana and the Kwinana Industries Council.
In her “Witness Statement”, dated 13 May 2016, Ms MacTiernan states (at [36]):
Based on my detailed knowledge of the history and planning processes that underpinned the approaches of the successive governments, I was surprised when the Federal and State Governments announced their decision to plan, fund and build the Perth Freight Link. I believe that any semblance of thorough and reliable planning processes and principles have been disregarded. In the absence of the application of these principles, I consider it likely that the [P]roject is being pursued for political reasons at the expense of providing modern, efficient facilities for our export-oriented economy. In any event, as the Project has not followed the processes and principled referred to above, its abrupt emergence as a funded priority requires explanation.
In his opening submissions, counsel for Ms MacTiernan said[5]:
…………the announcement of the project in May 2014 resulted in substantial and ongoing public controversy in relation to various aspects of the project. Some of those aspects are the environmental impact on the Beeliar Wetlands, the resumption and definition of residences and businesses, although that may be overcome to some extent by the tunnel option. The failure of the link to connect to the port. The link stops about 2.8 kilometres short of the port, as I’ve indicated on the map. There are in that 2.8 kilometres substantial traffic hurdles to be overcome from the trucks that have got to get to and from the port. So there’s a planning controversy about, well, why build this road to nowhere?
A further aspect of the controversy is the anticipated limited like of the port itself, which is expected to reach capacity by 2023 in which case a new port will be required to handle further containers. There is therefore the, what is referred to as the outer harbour option which is a new harbour in Cockburn Sound with an enlarged capacity. If that project is undertaken, as many believe it should be, then spending 1.9 billion on a road to connect to a port that has a limited life is an exercise of waste.
………
Another aspect that has caused controversy in this project is the proposed heavy vehicle toll. This would be the first toll road in Western Australia, and the transport industry, who will have to bear such a toll, of course are up in arms about that. So we have a very major project which has provoked controversy, if I can put it in neutral terms, across a number of different quite diverse matters.
[5] Transcript at pp 7-8.
It is not the role of the Tribunal to undertake a review of the merits of, or the politics behind, the Project itself. The Tribunal is limited in its jurisdiction to conducting a merits review of the FOI Decision and deciding whether that decision is the correct and preferable decision within the legal framework of the FOI Act and the associated guidelines[6].
[6] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 78 per Smithers J.
ISSUES
The issues for determination by the Tribunal in this application are:
(a)whether the Contested Documents are conditionally exempt from disclosure under the FOI Act because their disclosure would:
(i)or, could reasonably be expected to, cause damage to relations between the Commonwealth and the State of Western Australia: s 47B(a) of the FOI Act;
(ii)divulge information or matter communicated in confidence by or on behalf of the State of Western Australia or Main Roads WA to the Commonwealth or the Department: s 47B(b) of the FOI Act;
(iii)disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of the Department: s 47C of the FOI Act; and
(iv)or, could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of the Department: s 47E(d) of the FOI Act; and
(b)if yes to (a) above, whether access to the Contested Documents would, on balance, be contrary to the public interest: s 11A(5) of the FOI Act.
Each of these issues is considered, in turn, below.
Onus
Section 61(1)(b) of the FOI Act provides:
Onus
(1)In proceedings under this Part for review of a decision in relation to a request, or in relation to an application under section 48 (a personal records application):
………
(b)if the applicant in relation to the request or the personal records application applied for the review -- the agency to which, or the Minister to whom, the request or personal records application was made has the onus of establishing that the decision is justified, or that the Tribunal should give a decision adverse to the applicant. [Emphasis added]
Consequently, in this application the Department has the onus of establishing that the FOI Decision is justified or is the correct and preferable decision.
CONSIDERATION
(i) Whether any of the Contested Documents are conditionally exempt under s 47B(a) of the FOI Act
Section 47B(a) of the FOI Act provides:
Public interest conditional exemptions – Commonwealth-State relations etc.
A document is conditionally exempt if disclosure of the document under this Act:
(a)would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or
The “Guidelines issued by the Australian Information Commissioner under s 93A of the [FOI Act]” (FOI Guidelines) summarise the key provisions of the FOI Act and contain guidance on the performance of functions and the exercise of powers under the FOI Act[7].
[7] The Tribunal should apply lawful Ministerial policy unless there are cogent reasons to the contrary, for example if the application of the policy would work an injustice in a particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 644-645 per Brennan J.
The FOI Guidelines provide the following guidance on what is meant by the expression “would, or could reasonably be expected to” as it is used in s 43B(a) of the FOI Act:
5.13The test requires the decision maker to assess the likelihood of the predicted or forecast event, effect or damage occurring after disclosure of a document.
5.14The use of the word ‘could’ in this qualification is less stringent than ‘would’, and requires analysis of the reasonable expectation rather than certainty of an event, effect or damage occurring. It may be a reasonable expectation that an effect has occurred, is presently occurring, or could occur in the future."
In Diamond and Chief Executive Officer of the Australian Curriculum, Assessment and Reporting Authority [2014] AATA 707 (Diamond), this Tribunal considered the scope of the expression “would, or could reasonably be expected”, for the purpose of s 47B(a) of the FOI Act, stating:
100.The expression "would, or could reasonably be expected” is used as a measure of the outcome that is described in s 47B(a) i.e. that disclosure under the FOI Act would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State. In its ordinary usage, the word "would” suggests that, as a matter of probability, disclosure under the FOI Act would lead to that outcome as a logical or necessary consequence. In its ordinary usage, the word “could” is "used to express a possibility” that would be the outcome but the word is qualified by the words “reasonably be expected to” and all the words must be understood as they stand together rather than individually. [Emphasis added]
The Tribunal in Diamond also considered the expression “cause damage to relations between the Commonwealth and a State” as it is used in s 47B(a) of the FOI Act. In referencing Wilcox J in Arnold (on behalf of Australians for Animals) v Queensland [1987] FCA 148; (1987) 73 ALR 607; 13 ALD 195, the Tribunal noted:
102.…...It would not normally be correct to describe a falling out between particular individuals on each side as constituting damage to 'relations’ between the two governments, even if there was some loss of co-operation between those individuals. But a dispute may have ramifications sufficiently extensive for it to affect ‘relations’ between the governments as such. Questions of degree arise. They can only be considered in the light of the facts of each case. [Emphasis added]
The FOI Guidelines set out the types of “damage” contemplated by subsection 47B(a) of the FOI Act. The following specific, non-exhaustive, examples of “damage” are given in paragraph 6.39:
·interrupting or creating difficulty in negotiations or discussions that are underway, including in the development of joint or parallel policy;
·adversely affecting the administration of a continuing Commonwealth-State project;
·substantially impairing (but not merely modifying) Commonwealth-State programs;
·adversely affecting the continued level of trust or cooperation in existing inter office relationships; and
·impairing or prejudicing the flow of information to and from the Commonwealth.
Paragraph 6.40 of the FOI Guidelines provides that decision makers may also need to consider future working relationships where disclosure may, for example:
·impair or prejudice the future flow of information
·adversely affect Commonwealth-State police operations or investigations
·adversely affect the development of future Commonwealth-State projects
The potential damage need not be quantified, but the effect on relations arising from the disclosure must be adverse: paragraph 6.41 of the FOI Guidelines.
In his Witness Statement, dated 14 April 2016, Mr Pittar, General Manager of the North West Roads Branch of the Department, states the following in relation to the damage to relations between the Commonwealth and Western Australia that would, or could reasonably be expected to, be caused if the Contested Documents are disclosed:
Damage if documents released
22.The relationship between Main Roads WA and the Department is highly collaborative; information shared during the consultation process is provided frankly and early on in the development and planning of infrastructure projects, including this Project.
23.I am of the view that the consultation and collaboration between Main Roads WA and the Department to extend the initial scope of the Project and to refine and improve it would have been significantly limited and stifled if relevant officers within Main Roads WA and the Department knew that their communications would not be kept confidential.
24.If the Department did not interact with States and Territories on an in-confidence basis in relation to infrastructure projects, I consider that the Department would receive proposals and business cases for infrastructure projects for Commonwealth funding at a much later stage of the project planning and development process than it does at present. I believe that Main Roads WA would undertake the initial planning and development work for any future infrastructure projects in isolation, rather than in consultation, in order to limit the risk of dissemination and publication of preliminary information and scoping work which may impact Commonwealth and private sector funding considerations. This would mean that the Department would have less time to undertake meaningful consultation and negotiation with States and Territories in relation to the scope, development and planning of projects. It would also reduce the timeframe for thoroughly assessing proposals and business cases submitted by States and Territories.
25.If the Department was unable to consult with States and Territories in relation to infrastructure projects on an confidence basis I am of the view that this would significantly stifle the flow of information between the Commonwealth and States and Territories and undermine the effectiveness of that consultation. I consider that the States and Territories would be less forthcoming with relevant information about infrastructure projects if States and Territories knew that any information they provided to the Commonwealth, for the purposes of seeking Commonwealth funding, could be disclosed to the world at large under FOI processes. The continued flow of information in relation to current and proposed infrastructure projects is crucial to ensuring that the Department is well-informed in assessing infrastructure projects for funding approval.
26.Further, if there was no guarantee that information in relation to infrastructure projects would be treated in-confidence, I consider that there would be less frank and open consultation and collaboration between the Department and States and Territories during project planning and development. As outlined above, I believe States and Territories would undertake the initial planning and development work in isolation in order to limit disclosure of preliminary information that may impact Commonwealth and private sector funding considerations. This would inhibit the Department's ability to ensure that Commonwealth interests are met and to work collaboratively with States and Territories to allow the Commonwealth to be an informed investor and get the best value for money for road infrastructure projects.
27.Overall, I consider that the stifling effect that that (sic.) I have described above (if confidentiality in the consultative processes were not maintained) would substantially impair the Department’s ability to perform its function of deciding whether to fund certain projects (including impairing its ability to properly and efficiently assess the benefits of such projects and make recommendations as to the level of funding which ought to be provided).
In his Witness Statement, dated 15 April 2016, Mr Woronzow, Executive Director, Finance and Commercial Services, Main Roads WA, states the following in relation to the damage to relations between the Commonwealth and Western Australia that would, or could reasonably be expected to, be caused if the Contested Documents are disclosed:
Damage if documents released
17.Some of the documents within the scope of the FOI request (in particular, documents 2, 21, 23, 24, 25, 26, 28, 48, 49, 50, 65, 66, 70, 71, 81, 82, 83, 84 and 86) contain information that, if releases, may impact the ongoing procurement process for the Project. Although the WA Government has announced a preferred contractor for the construction of Roe 8 (which is Stage 1 of the Project), final negotiations with this preferred contractor have not been finalised and the contract for services has not been awarded as the Project has been suspended. This suspension has occurred as a consequence of an appeal filed in the Supreme Court of Western Australia in relation to the WA environmental approval for the Project. Any contract for services for construction of Stage 1 of the Project will be considered once this appeal proceeding is finalised. It is possible that the procurement process may need to be revisited (and renegotiated) as a result of the delay.
18. If the documents set out in the paragraph above were disclosed, I believe that this would significantly impact the ongoing procurement process (and any future procurement process) as it would disclose sensitive information to the current tendered and any future tenderers. In my view, release of that type of information would jeopardise the ongoing negotiations with Main Roads WA’s preferred contractors for the construction of Roe 8 as those entities would essentially be aware of (or be able to ascertain) the WA Government’s bargaining position. I am also of the view that, should the procurement process need to be revisited, the release of the information in these documents may very likely give future tenderers an unfair commercial advantage for the same reason. I consider that this would result in the preferred contractor any future tenderers offering bids based on the WA Government and Commonwealth’s value of the Project, rather than their own commercial assessment, which may be a higher value. This, in turn, would very likely compromise the WA Government’s ability to achieve value for money and may result in a decreased return on investment for both the WA Government and the Commonwealth. If these types of documents were to be disclosed, I consider that the WA Government and Commonwealth’s position as vendors would be compromised.
19.Some of the documents (in particular, documents 10, 11, 13, 15, 17, 30, 31, 32, 33, 34, 36, 38, 40, 41, 44, 45, 46, 48, 71 and 80) contain information on estimated productivity savings and vehicle traffic. The budget for the Project includes $374.50 million in funding from the WA Government in the short term in lieu of a private sector contribution. It is anticipated that when the Project has been established for a number of years, the WA Government may sell off the income stream produced by the Heavy Vehicle User Charge to recover this funding. To maximise the sale value, and ensure a genuinely competitive process, it is important that potential private sector tenderers determine and use their own assumptions about vehicle volume, productivity savings, and charges able to be levied per kilo meter. If these documents were to be disclosed, I consider that tenderers for the Heavy Vehicle Income Stream could rely on information in the documents to make assumptions.
20.As outlined above, a highly collaborative relationship exists between Main Roads WA and the Department. If the documents within the scope of the FOI request were to be disclosed, I consider that this relationship would be significantly less collaborative going forward and may create difficulty in future working relations between Main Roads WA and the Department,. I can say with no hesitation that Main Roads WA would adopt a more cautious approach in relation to the sharing of project information with the Department, especially in the beginning of the project planning and during that development phase. I believe that Main Roads WA would be cautious about undertaking consultation with the Department and sharing preliminary project information out of concern that any information communicated to the Department may be widely disseminated and may compromise the thorough planning and development of a project.
21.The consultative, confidential, process between Main Roads WA and the Department is highly beneficial to the Commonwealth and the WA Government as it provides a candid forum for both the Commonwealth and the WA Government from the outset of a project to optimise project outcomes. This forum provides confidence to Main Roads WA that projects will be delivered in a manner that maximise efficiencies and productivity benefits for both the WA Government and the Commonwealth. For example, as a result of the consultation undertaken by Main Roads WA and the Department in relation to this Project, the initial scope of the Project was extended.
22.If Main Roads WA was unable to interact with the Department on an in-confidence basis, I believe the future flow of information between Main Roads WA and the Department in relation to this Project and any prospective projects would be stifled. I consider that Main Roads WA would be less inclined to engage in the extensive consultation it currently undertakes with the Department in order to shape the assumptions that underlie projects. I am of the view that this would adversely affect the development of future Commonwealth-WA infrastructure projects. [emphasis added]
Having regard to the FOI Guidelines, the Secretary contends that all of the Contested Documents are conditionally exempt from disclosure under s 47B(a) of the FOI Act because disclosure of the Contested Documents:
(i)would adversely affect the administration of a continuing Commonwealth-Western Australia infrastructure project;
(ii)would adversely affect the planning and development of future Commonwealth- Western Australia infrastructure projects;
(iii)could reasonably be expected to impede the flow of information from Main Roads WA to the Department in relation to both this Project and future infrastructure projects; and
(iv)could reasonably be expected to prejudice the Department's ability to obtain all relevant information in order to properly assess, scope, and decide whether (and to what extent) to fund Commonwealth-State/Territory infrastructure project.
For the above reasons and in light of the evidence of both Mr Pittar and Mr Woronzow, the Secretary submits that disclosure of the Contested Documents “could reasonably be expected to, cause damage to relations” between the Commonwealth and Western Australia and, accordingly, the Contested Documents are conditionally exempt from disclosure under s 47B(a) of the FOI Act.
In her “Amended Statement of Facts, Issues and Contentions”, dated 16 May 2016, Ms MacTiernan makes the following submissions in relation to the application of s 42B(a) of the FOI Act (and s 47E(d) of the FOI Act) to the Contested Documents:
Damage to relations - s42B(a)
Adverse effect - s47E(d)
16.These two grounds for claimed conditional immunity each require the Department to establish that some damage or adverse effect would flow from disclosure. They are closely related in that they are each based largely on the same evidence viz; in the absence of secrecy the interaction and flow of information between the two agencies will be impeded and therefore relations between the agencies will be damaged and the Department will be adversely affected in carrying out its work.
17.The grounds referred to at subparagraphs 83(b), (d), (e), (f), (h) of the Department’s Contentions are at large complaints about the general effect that disclosure of these documents would have on the proper and timely flow of information, as well as the relationship, between the Department and Main Roads WA in future. These are “class claims” rather than claims based on the particular information contained in the documents.
18.The Tribunal should exercise very considerable caution in attaching any weight to these types of class claims for the following reasons:
a.It is trite that the Objects of the Act in s3 inform and govern the interpretation and application of the Act. The starting point is that there is right of access to Government documents. By s3(2) express purposes are to increase public participation in Government processes and to improve representative democracy by exposing Government information to consideration and discussion by the public.
b.A heavy burden rests on parties making ‘class claims’ about the disclosure of documents. In Sankey v Whitlam & Ors (1978) 21 ALR 505, the High Court considered whether Crown privilege attached to particular documents and how the public interest was to be assessed. Stephens J noted at 545:
The affidavits sworn by members of the present ministry and by senior public servants make it dear that all the claims to Crown privilege are class claims, not contents claims; it is not suggested that to disclose the contents of any of the documents, the Loan Council documents apart, will of itself result in detriment to the public interest flowing directly from the nature of what is disclosed. The detriment perceived is, rather, that generalized form of apprehended harm which, it is said, will flow from a realisation by cabinet ministers and by public servants that what they conceived to be confidential communications can, in the event of appropriate curial proceedings being instituted, become public knowledge.
Those who urge Crown privilege for classes of documents, regardless of particular contents, carry a heavy burden...
Recent authorities have disposed of this ground as a tenable basis for privilege. Lord Radcliffe in the Glasgow Corporation case remarked, at 20, that he would have supposed Crown servants to be ‘made of sterner stuff’…..
19.It is submitted that the release of the information, as sought by the Applicant, would or ought not damage relations between the respondent and Main Roads WA nor adversely affect the work of the Department. The Department, which carries the onus of proof, has failed to prove otherwise.
20.The mutual interests of the Department and Main Roads WA that projects be successfully planned and implemented will necessarily compel continuing close collaboration.
21.In making submissions for Federal funding, the public servants by which State agencies operate have an obligation to be frank and open and to disclose all relevant information and matters in connection with proposals that are made. This obligation arises out of the requirement for simple honesty in such matters and in order to maximise the prospects of Federal funding being granted. In addition, section 9 of the Public Sector Management Act 1994 (WA) requires Main Roads WA employees to act with integrity. It is also an implied duty in every contract of employment that employees act honestly in the discharge of their duties.
22.These mutual interests and duties, if properly pursued and complied with, will ensure that the Main Roads WA dealings with the Department are frank and honest and that there is full and timely disclosure in relation to projects for which funding is sought.
23.There is no tenable basis for thinking that these matters would be affected by the confidentiality or otherwise of the information communicated in the course of making submissions.
24.As the Department can be confident that State agencies will be frank and open in their dealings there could be no adverse effect on its work.
25.If the Department felt it was, for any reason, being insufficiently informed about a project it could readily require the production of further information before progressing the question of funding.
26.In any event, as the applicant has stated, being open and frank with the public in the early stages of developing infrastructure projects facilitates their ultimate acceptance by the public.
…………
28.This makes it clear that openness is to occur before, as well as after, decisions on projects such as Perth Freight Link are made.
In her Witness Statement, dated 13 May 2016, Ms MacTiernan states:
43.I refer to paragraphs 17 and 18 of Mr Woronzow’s statement. I do not accept that release of this information would compromise the procurement process for the Project. The Federal and State Governments have each published the amount of money they each have available for the Project. This means that the funding envelope is known to tenderers and contractors. Further, the target contract price for Roe 8 has been determined in the selection of a preferred proponent.
44.I refer to paragraph 19 of Mr Woronzow’s statement. In the event, years in the future, of the sale of the income stream constituted by tolls (themselves the subject of considerable controversy from the transport industry) collected, I believe that the requirements of due diligence and good faith negotiation would compel the disclosure of information as to productivity savings and vehicle traffic projections to prospective tenderers. In any event, a suitable disclaimer and the notion of caveat emptor would meet Mr Woronzow’s concerns.
45.I refer to paragraphs 20, 21 and 22 of Mr Woronzow’s statement. In collaborating with and making funding submissions to the federal Department I believe there is a moral, if not a legal obligation for there to be full and frank disclosure. The notion that Main Roads would stifle the flow of information to the Department so as to shape assumptions underlying projects in order to, presumably, thereby obtain a result that might not otherwise be obtained is unacceptable. Further, in my experience and for the reasons given earlier in my statement, openness in relation to proposed projects enhances rather than compromises the planning and development of infrastructure projects. Conversely, secrecy potentially compromises that process.
46.I refer to the statement of Mr Roland Pittar and repeat paragraphs 40-45 of this my statement.
Conclusion - s 47B(a) of the FOI Act
The Secretary’s submission that all the Contested Documents are conditionally exempt under s 47B(a) of the FOI Act is, with respect, simply too broad. What s 47B(a) of the FOI Act requires, and indeed what each of the other sections of the FOI Act which are at issue in this application (namely s 47B(b), s 47C(1) and s 47E(d) of the FOI Act) require, is a closer analysis of the nature of the information contained in each of the Contested Documents to determine whether a particular Contested Document is conditionally exempt under the section. In this regard the Tribunal agrees with the submission put by Ms MacTiernan that the Secretary’s claims are “class claims” rather than claims based on the particular information contained in the documents: refer to paragraph 61 above.
The Amended Schedule provided by the Secretary, and produced as Annexure A to these reasons for Decision, provides limited information in relation to the nature of the information contained in Contested Documents. The Amended Schedule (Annexure A) records the date, author and recipient of the Contested Documents as well as a brief “description” of each of the Contested Documents. Some of the “descriptions” are more informative than others but are, on the whole, provided limited insight into the particular nature of the information contained in the Contested Documents.
What can be gleaned from the information about the Contested Documents contained in the Amended Schedule (Annexure A) is that not all of the Contested Documents appear to be conditionally exempt under s 47B(a) of the FOI Act for the reasons that their disclosure would not, or could not reasonably be expected to, cause “damage”, of the kind contemplated by paragraph 6.30 of the FOI Guidelines, to relations between the Commonwealth and the State of Western Australia as the section requires: refer to paragraph 54 above.
Contrary to the evidence of Mr Woronzow (refer to paragraph 58 above), the Tribunal does not accept that the disclosure of Contested Documents (such as Contested Documents 9, 12, 14, 16 29, 30 31, 32, 33, 34, 38, 39, 40, 41, 42, 43, 44, 45, 46, 53, 54, 55, 56, 67, 68, and 87 in Annexure A) containing information concerning Roe Highway traffic, traffic volumes, traffic forecast plots, travel time savings, traffic peak hour information, traffic counts and the like, would, or could reasonably be expected to, cause “damage”, of the kind listed in paragraph 6.39 of the FOI Guidelines (refer to paragraph 54 above), to relations between the Commonwealth and the State of Western Australia. In this regard, the Tribunal notes that the Secretary has already released a number of documents dealing with daily traffic volumes, namely documents 11, 13 and 15 in Annexure A and the Secretary has done so despite Mr Woronzow’s evidence that disclosure of these documents would cause damage to Commonwealth-State relations if they were to be released.
Similarly, contrary to the evidence of Mr Woronzow (refer to paragraph 58 above), the Tribunal does not accept that the disclosure of Contested Documents (such as Contested Documents 18, 19, 35, 59 and 62 in Annexure A) containing information in relation to heavy vehicle restrictions, methods for directing heavy vehicles onto a preferred route, heavy vehicle data and the like, would, or could reasonably be expected to, cause “damage”, of the type mentioned in paragraph 6.39 of the FOI Guidelines (refer to paragraph 54 above), to relations between the Commonwealth and the State of Western Australia. In this regard, the Tribunal notes that that the Secretary has already released a document dealing with heavy vehicle volumes, namely document 36 in Annexure A.
Whilst it is possible that the disclosure of Contested Documents (such as Contested Documents 21, 22, 23, 24, 25, 26, 27, 28, 47, 48, 50, 66, 70, 71 and 80 in Annexure A) containing information concerning cost estimates, funding options, productivity benefits, toll revenue and the like would, or could reasonably be expected to, cause “damage”, of the type mentioned in paragraph 6.39 of the FOI Guidelines (refer to paragraph 54 above) to relations between the Commonwealth and the State of Western Australia, it is difficult to be satisfied of this with any degree of certainty based on the limited “description” of the documents provided by the Secretary in the Amended Schedule: refer to Annexure A. Further, as identified by counsel for Ms MacTiernan, if one takes a closer look at the date of the cost estimate documents listed in Annexure A it becomes apparent that these cost estimates are very early cost estimates produced at a time when the Project was still a concept plan (not at a time when there was any detailed design for the Project in place) and a detailed design plan is generally required before a detailed cost estimate can be produced. As such, to suggest that such early cost estimates would or could cause damage to future Commonwealth-Western Australia is, with respect, misguided.
As regards the remaining Contested Documents, the Tribunal finds that they would either not be conditionally exempt under s 47B(a) of the FOI Act because:
· disclosure of the documents would, or could not reasonably be expected to, cause “damage”, of the type mentioned in paragraph 6.39 of the FOI Guidelines (refer to paragraph 52 above) to relations between the Commonwealth and the State of Western Australia: refer, for example, to Contested Documents 1, 2, 7, 8, 10, 17, 51, 69, 75, 76, 77 and 78 in Annexure A; or
· the description of the document is simply too vague to be able to determine with any degree of certainty whether disclosure of document would satisfy the requirements of s 47B(a) of the FOI Act. For example, a number of Contested Documents are described as “”Email – Perth Freight Link” (Contested Documents 58, 79, 81, 86 and 89) or as “Email – Roe Highway” (Contested Document 5) or as “Email- High Street works” (Contested Document 57). It is impracticable to draw a conclusion concerning the damage to Commonwealth-Western Australia relations that the disclosure of such documents would or could cause based on such a scant description.
The Tribunal is of the view that the Secretary, who carries the onus of proof in establishing that there would be “damage” has failed to discharge that onus. Even if the Tribunal is wrong in this and some or all of the Contested Documents are conditionally exempt s 47B(a) of the FOI Act, the “public interest” must also be considered: refer to paragraphs 71 and 72 below.
Contrary to the public interest
The “Note” at the end of s 47B provides:
Note:Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
Accordingly, even if any of the Contested Documents are conditionally exempt under s 47B(a) of the FOI Act (refer to paragraph 66 above), access to the Contested Documents must nevertheless be given unless such access would be contrary to the “public interest”.
The public interest test is considered below in paragraphs 122 to 142.
(i) Whether any of the Contested Documents are conditionally exempt under s 47B(b) of the FOI Act
Section 47B(b) of the FOI Act provides:
Public interest conditional exemptions – Commonwealth-State relations etc.
A document is conditionally exempt if disclosure of the document under this Act:
……..
(b)would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth; or
Paragraph 6.44 of the FOI Guidelines provides, under the heading “Information communicated in confidence”:
6.44When assessing whether the information was communicated in confidence, the test is whether the communication was considered to be confidential at the time of the communication. The circumstances of the communication may also need to be considered, such as:
·whether the communication was ad hoc, routine or required
·whether there were any existing, implied or assumed arrangements or understandings between the Commonwealth and State concerning the exchange or supply of information
·how the information was subsequently handled, disclosed or otherwise published.
The FOI Guidelines further provide (at [6.46]) that this exemption should not be claimed where the documents relate to routine or administrative matters or documents that are already in the public domain.
In his Witness Statement, dated 14 April 2016, Mr Pittar describes (at [21]) the nature of the confidential communications between Main Roads WA and the Department as follows:
(a)Oral and written communications between Main Roads WA and the Department
(i)Mr Peter Woronzow from Main Roads WA told me orally and in writing that the information Main Roads WA was providing to the Department in connection with the Project was provided in confidence. This included information that was central to the early assessment and consideration of the Project by Main Roads WA and the Department. One such example that evidences this is an email sent to me from Mr Woronzow in which Mr Woronzow requests that the Department treat “with the usual confidentiality”. Annexed to this statement and marked “RP4” is a copy of that email.
(b) The sensitive and inherently confidential nature of the documents
(i)Many of the documents within the scope of the FOI request contain information in relation to the consultation undertaken by Main Roads WA and the Department prior to the 2014 Federal Budget and the 2014 WA Budget. This consultation included developing a consolidated project scope, assessment of productivity benefits, and investigating the viability of a heavy vehicle user charge. This information is inherently sensitive and confidential because it fed into deliberations about the 2014 Federal Budget and the 2014 WA State Budget and contemplates private sector funding of the Project. As set out above, the Project will funded by both the Commonwealth and the WA Government. Although the Commonwealth funding commitment was officially announced as part of the 2014 Federal Budget, I believe that the information contained in many of the documents, for example, documents 2, 21, 23, 24, 25, 26, 27, 28, 48, 50 and 80) will continue to feed into ongoing discussions about the Commonwealth funding commitment, especially discussions relating to future Federal Budgets and WA Budgets. For these reasons, I have no doubt that these communications occurred in a context of confidentiality.
(c)The Department's practice regarding information in relation to infrastructure projects
(i)The Department’s practice, in relation to all infrastructure projects, is to always treat information of this nature in confidence, especially in circumstances where a State (such as the WA Government in this matter) or a Territory is seeking consideration of and assessment of a project for the purposes of obtaining Commonwealth funding assistance (in this case, pursuant to the Infrastructure Investment Programme). The Department operates within a confidential setting in order to foster frank and open consultation and collaboration with States and Territories. This assists the Department to ensure the Commonwealth’s interests are met early on in the project planning and development stage.
(ii)My understanding is that the confidential exchange of information in relation to infrastructure projects and priorities is a central feature of the relationship between Main Roads WA and the Department, as evidenced by previous projects. The relationship between Main Roads WA and the Department has been established over a long period of time through consultation and engagement on a number of infrastructure projects that precede the Perth Freight Link Project. I believe that this understanding of confidentiality creates an open and honest deliberative process whereby Main Roads WA and the Department can candidly negotiate and discuss the viability and merit of current and proposed infrastructure projects early on in the project planning and development stage.
Mr Woronzow's evidence concerning the nature of the confidential communications between Main Roads WA and the Department is consistent with the evidence of Mr Pittar, as set out above. In his Witness Statement, dated 15 April 2016, Mr Woronzow states (at [16]):
(a)The sensitive and inherently confidential nature of the documents
(i)I told Mr Roland Pittar from the Department, both orally and in writing (see, for example, document 70), that information in relation to the Project was provided to the Department in confidence. I also told my staff that communications with the Department in relation to the Project were sensitive and to be kept confidential.
(ii)Many of the documents within the scope of the FOI request contain or relate to sensitive and confidential information that influenced the deliberations about the 2014 Federal Budget and the 2014 WA State Budget, and contemplate private sector funding of the Project. Although Commonwealth funding for the Project has already been committed and approved, consultations, discussions and negotiations in relation to the payment of Commonwealth funding are still ongoing between Main Roads WA and the Department. I consider that the information in many of the documents (for example, documents 2, 21, 23, 24, 25, 26, 27, 28, 48, 50 and 80) will continue to influence ongoing discussions relating to Commonwealth funding commitment for the Project, and, in particular, discussions in relation to future Federal Budgets and WA State Budgets. These discussions between the WA Government and the Commonwealth are inherently confidential.
(b)The relationship between Main Roads WA and the Department in relation to information shared about infrastructure projects
(i)The Department and Main Roads WA enjoy a highly collaborative relationship in which the candid exchange of information during consultations in relation to infrastructure projects, including this Project, is encouraged. I believe that this collaborative relationship between Main Roads WA and the Department is based on the practice that information in relation to infrastructure projects, especially projects similar to the magnitude and significance of this Project, is communicated on an in-confidence basis. This practice has been established over a long period of time through consultations and engagement on a number of infrastructure projects, including projects which precede this Project. Prior to my work on this Project, I was involved in a number of similar projects for which Main Roads WA sought Commonwealth funding assistance through the Department. In a similar practice to that adopted for this Project, information in relation to those projects was also communicated on the basis that it was to be kept confidential.
(c)Main Roads WA’s practice regarding information in relation to infrastructure projects
(i)It is Main Roads WA's practice to store information relating to infrastructure projects on a secure electronic documents and records management system known as TRIM. Within TRIM, restricted access arrangements exist so as to limit the number of people that can access confidential information about the Project. Information about the Project is to only be accessed on a strict, need to know basis.
The Secretary submits that all of the Contested Documents are conditionally exempt from disclosure under s 47B(b) of the FOI Act because if disclosed the Contested Documents would divulge information or matter communicated in confidence by Main Roads WA to the Department.
The Secretary also submits that each of the Contested Documents subject to the FOI Request was communicated in the context of confidentiality between Main Roads WA and the Department. The Secretary relies on the evidence of Mr Pittar and Mr Woronzow in support of this contention.
In her “Amended Statement of Facts, Issues and Contentions”, dated 16 May 2016, Ms MacTiernan makes the following contentions in relation to the application of s 47B(b) of the FOI Act to the Contested Documents:
In confidence/confidential - s47B(b)
12.It is alleged that the information is “inherently confidential”. This necessarily must relate to internal characteristics of the nature and subject of the information rather than external circumstances such as its creation or use. Thus, a range of information relating to matters such as national security, defence, criminal matters, personal medical matters and the like may be inherently confidential simply by reason of their subject matter. But the information sought in these proceedings relates to a road. There is nothing about such a subject that could render it inherently confidential.
13.It is further alleged that the information passed between Main Roads WA and the Department against a background understanding that all such material was confidential. That is, there was no specific designation that any particular information was confidential; rather, simply that everything was confidential whatever its nature. Mr Woronzow’s email of 22 October 2015 simply reminds the recipient of this understanding.
14.It is submitted that just because information is said to be given in confidence it does not thereby, without more, attract the protection of the conditional exemption in s47B(b). If this were the case then any information, whatever its nature, could be blanketed in secrecy by, as in this case, a general invocation of “confidential”. For s47B(b) to apply there must be some particular feature or characteristic of the information either in itself or in the surrounding circumstances that warrants it being rendered confidential.
15It is alleged by the Department that many unspecified documents were inherently confidential and sensitive because the information they contain fed into deliberations about the 2014 State and Federal budgets. The use of the information for budget purposes could not of itself render it inherently confidential and sensitive. Much publicly available information is used for that purpose.
Further, in her Witness Statement, dated 13 May 2016, Ms MacTiernan states:
40.I refer to paragraph 16(a) (ii) of the statement of Mr Peter Woronzow. I know of no reason why the information contained in the documents should be regarded as confidential and sensitive, other than the potential political impact that the information might have if released. The fact that the information influenced the budget simply reflects the fact that the Commonwealth has made the decision to fund the Project and has confirmed the amount of that funding.
Further, in my opinion, the information is not inherently confidential. It concerns matters underpinning a decision to build transport infrastructure. It does not concern national security, defence, criminal matters, personal information or similar such matters. The statement does not give any basis for the alleged inherent confidentiality.
41.I refer to paragraph 16(b)(i) of Mr Woronzow’s statement. I accept that the Department and Main Roads enjoy a collaborative relationship but I do not accept that keeping matters passing between them secret is essential or necessary for that relationship. On the contrary, in my opinion, the process of formulating and developing infrastructure projects benefits from early public involvement. The prospects of obtaining the approval and support of the community for major infrastructure projects by which they are affected are greatly improved by information sharing throughout the planning process. They also are entitled to understand the projected traffic impacts.
42.In any event, in this matter, the decision to build and fund the Project has been made. In my opinion it is fundamental to a democratic system that the information and materials on which such a decision has been made be released so that the public may understand the basis and detail of the decision, paid for, as it is, from their funds and said to be for their benefit.
Conclusions - s 47B(b) of the FOI Act
It is clear from the words used in s 47B(b) of the FOI Act, “communicated…by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth”, that s 47B(b) of the FOI Act can only apply to a particular Contested Document if its disclosure would divulge information or matter communicated in confidence by Main Roads WA (an authority of the State of Western Australia) to the Department (an authority of the Commonwealth) and not the reverse (i.e. from the Department to Main Roads WA). For this reason and for the same reasons given in relation to s 47B(a) (refer to paragraphs 63 and 64 above), the Secretary’s submission that all of the Contested Documents fall within the conditional exemption in s 47B(b) of the FOI Act is untenable and is, as Ms MacTiernan submits, in the nature of a “class claim”. Determining this issue surely requires a closer analysis of the nature of the information contained in each of the Contested Documents. All that the Amended Schedule (Annexure A) provides is the date, author, recipient and brief description of each of the Contested Documents. This information is for the most part not particularly helpful in ascertaining the nature of the information contained in the Contested Documents.
The evidence of Mr Pittar and Mr Woronzow was that there was some kind of “existing, implied, assumed arrangement or understanding” concerning the exchange or supply of information between Main Roads WA and the Department of the kind contemplated by paragraph 6.44 of the FOI Guidelines: refer to paragraphs 74, 76 and 77 above. That is, according to the evidence of Mr Pittar and Mr Woronzow the communication of information concerning the Project between Main Roads WA and Department, and vice versa, was considered by them (assumed) to be information which was being communicated “in confidence” at the time it was communicated. The Tribunal acknowledges that the existence of such an arrangement is, according to paragraph 6.44 of the FOI Guidelines, a circumstance to be considered when assessing whether information was communicated “in confidence”. However, the existence of such an arrangement does not automatically render the information or matter that is being communicated in the Contested Documents inherently “confidential”. The Witness Statements of Mr Pittar and Mr Woronzow both states that many of the Contested Documents (for example, 2, 21, 23, 24, 25, 26, 27, 28, 48, 50 and 80) will continue to feed into ongoing discussions about the Commonwealth funding commitment for the Project and, in particular, discussions in relation to future Federal Budgets and WA State Budgets, and, therefore, should be conditionally exempt under s 47B(b) of the FOI Act are still ongoing between Main Roads WA and the Department. As submitted by counsel for Ms MacTiernan, the fact that a document contains information which feeds into the budget (such as a document which contains cost estimates) does not make it inherently confidential. A great deal of public information goes into the budget process, including consumer price index figures, wage growth figures, the price of iron ore and other publicly available statistics.
Based on the evidence of Mr Pittar and Mr Woronzow (regarding the manner in which information is regularly exchanged between Main Roads WA and the Department) and from the limited information contained in the Amended Schedule (Annexure A) it is possible that the following Contested Documents may divulge information or matter communicated in confidence by Main Roads WA to the Department – Contested Documents 9, 10, 12, 14, 16, 17, 18, 19, 21, 22-35, 37, 38, 47, 51, 52, 58, 62, 86, 88 and 89: refer to Annexure A. However, from the limited description of the Contested Documents contained in the Amended Schedule (Annexure A) it is difficult to conclude with any degree of certainty whether the information contained in those Contested Documents is inherently “confidential” in nature and if disclosure of those particular Contested Documents “would” divulge information or matter communicated in confidence by Main Roads WA to the Department, as required by s 47B(b) of the FOI Act. In any event, the question of the “public interest” must also be considered: refer to paragraphs 86 and 87 below.
The remaining Contested Documents do not appear to fall within the ambit of s 47B(b) of the FOI Act at all, as they do not relate to information or matter communicated in confidence by Main Roads WA to the Department as required by s 47B(b): refer to Annexure A. For example, Contested Documents 1 and 7 involve communications between the Department and the Department of Infrastructure and Transport (being another Commonwealth Department), Contested Documents 40-46, 53-57, 59-60, 67-69 and 75 concern communications between Main Roads WA and Veitch Lister, Consulting Transport Planning, Modelling & Data Experts, and vice versa, Contested Documents 5, 39, 70 and 78 relate to communications within the Department, without any mention of Main Roads WA, and Contested Documents 48, 50, 66 and 71 involve communications between Ernst & Young, Accountants and Main Roads WA and Ernst & Young and an undisclosed recipient, without any mention of the Department. Even if the Tribunal is wrong in this, access to any conditionally exempt Contested Documents would still need to be given unless it would be contrary to the public interest: refer to paragraphs 87 and 88 below.
Contrary to the public interest
The “Note” at the end of s 47B provides:
Note:Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
Accordingly, even if the Tribunal finds that some or all of the Contested Documents are conditionally exempt under s 47B(b) of the FOI Act, access to those Contested Documents must nevertheless be given unless such access would be contrary to the “public interest”.
The public interest test is considered below in paragraphs 122 to 142.
(iii) Whether the Contested Documents are conditionally exempt from disclosure under s 47C(1) of the FOI Act
Section 47C(1) of the FOI Act provides:
Public interest conditional exemptions – deliberative processes
General rule
(1)A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of:
(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth; or
(d) the Government of Norfolk Island.
The expression “deliberative matter” is not defined in the FOI Act.
In Secretary, Department of Prime Minister and Cabinet and Secretary, Department of Infrastructure and Regional Development and Sanderson [2015] AATA 361 (Sanderson), this Tribunal considered the expression of “deliberative matter”, stating (at [86]):
The expression “deliberative matter” adopted in s 47C(1) encompasses “matter… in the nature of advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister…”. What amounts to deliberation, as well as what amounts to consultation, are matters that have been considered on a number of occasions in the context of the former s 36. Cases include Re Howard and Treasurer of the Commonwealth of Australia, [79] Re Murtagh and Commissioner of Taxation, [80] Re Waterford and Department of the Treasury (No. 2), [81] Re James and Others and Australian National University [82] and Kavvadias v Commonwealth Ombudsman (No 2), [83]. In so far as those cases considered the word “deliberation”, their conclusion may be summarised in the words of Beaumont J in Harris v Australian Broadcasting Corporation and others [84] (Harris) when he said that:
“… ‘deliberation’ suggests not only collective discussion but collective acquisition and exchange of facts preliminary to ultimate decision.”
“Deliberative matter” is a “shorthand term for ‘opinion, advice and recommendation’ and ‘consultation and deliberation’ that is recorded or reflected in a document”[8].
[8] Parnell & Dreyfus and Attorney-General’s Department [2014] AlCmr 71 (30 July 2014) at [38].
In Smith and Aboriginal and Torres Strait Islander Commission [2000] AATA 512, the Tribunal considered the meaning of the words “opinion, advise or recommendation” and “consultation” as they were used in what was then s 36(1)(a) of the FOI Act (which contained the previous deliberative process exemption). The Tribunal concluded as follows:
55.The ordinary meanings of "consultation" include "... A meeting in which parties consult together, or one person consults another ...” (The New Shorter Oxford English Dictionary, 1993) and "... the act of consulting; conference. ... a meeting for deliberation ...an application for advice to one engaged in a profession ..." (The Macquarie Dictionary, 3rd edition, 1997). Again, there is a notion of consideration inherent in the meaning of "consultation". That consideration may or may not lead to the formation of an opinion, advice or recommendation.
56.Similarly, the word "deliberation” encompasses the notion of consideration. That consideration may involve consultation or discussion amongst more than one persons. Equally, a person who considers a matter on his or her own can be said to have deliberated upon it. Whether or not the deliberation leads in either case to the formation of an opinion, advice or recommendation is another matter.
In considering any qualifications to the words “consultation” and “taken place” as they are used in section 47C of the FOI Act, the Tribunal in Sanderson concluded:
88.There is no reason to adopt a different interpretation when the language of s 47C(1) mirrors that of s 36(1 )(a). Both have been broadly drafted to gather a range of matters within their scope and, with one qualification, there is no reason in the context either of the remainder of those provisions or of the FOI Act generally to limit the ordinary meanings given to the words "opinion, advice or recommendation ... consultation or deliberation". The qualification is that which I identified in Booker and Department of Social Security in relation to the word “consultation” as it was used in s 36(1 )(a). After reviewing various authorities, I concluded that “...in order for there to be a consultation, there must be something of a two way exchange between at least two parties. ..." This qualification seems equally applicable to the way in which "consultation” should be understood when it appears in s 47C(1).
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89.Section 47C goes on to limit what is to be regarded as “deliberative matter" by qualifying the words “opinion, advice or recommendation” and the words “consultation or deliberation". The qualifications are: “obtained, prepared or recorded" (if an opinion, advice or recommendation); and “ha[ve] taken place” (if a consultation or deliberation) “in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency...”.
90. The meaning of the expression "taken place" seems clear enough...
In relation to the meaning of the term “consultation”, paragraphs 6.70 and 6.71 of the FOI Guidelines relevantly provide:
Consultation
6.70A consultation undertaken for the purposes of, or in the course of, a deliberative process includes any discussion between the agency, minister or government and another person in relation to the decision that is the object of the deliberative process.
6.71The agency should create the consultation document with the intention of initiating a two way exchange between at least two parties. If the other person does not respond or participate, the consultation document will still be deliberative matter.
Paragraph 6.29 of the FOI Guidelines provides a non-exhaustive list of public interest factors against disclosure. Paragraph 6.29 of the FOI Guidelines provides:
Public interest factors against disclosure
(a) could reasonably be expected to prejudice the protection of an individual’s right to privacy, including where:
(i)the personal information is that of a child, where the applicant is the child’s parent, and disclosure of the information is reasonably considered not to be in the child’s best interests
(ii)the personal information is that of a deceased individual where the applicant is a close family member (a close family member is generally a spouse or partner, adult child or parent of the deceased, or other person who was ordinarily a member of the person’s household) and the disclosure of the information could reasonably be expected to affect the deceased person’s privacy if that person were live.
(b) could reasonably be expected to prejudice the fair treatment of individuals and the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct
(c) could reasonably be expected to prejudice security, law enforcement, public health or public safety
(d) could reasonably be expected to impede the administration of justice generally, including procedural fairness
(e) could reasonably be expected to impeded the administration of justice for an individual
(f) could reasonably be expected to impede the protection of the environment
(g) could reasonably be expected to impede the flow of information to the police or another law enforcement or regulatory agency
(h) could reasonably be expected to prejudice an agency’s ability to obtain confidential information
(i) could reasonably be expected to prejudice an agency’s ability to obtain similar information in the future
(j) could reasonably be expected to prejudice the competitive commercial activities of an agency
(k) could reasonably be expected to harm the interests of an individual or group of individuals
(l) could reasonably be expected to prejudice the conduct of investigations, audits or reviews by the Ombudsman or Auditor-General[12]
(m) could reasonably be expected to prejudice the management function of an agency
(n) could reasonably be expected to prejudice the effectiveness of testing or auditing procedures
[12] See Australian Broadcasting Corporation and Commonwealth Ombudsman [2012] AlCmr 11.
The Secretary acknowledges that the following factors set out in s 11B(3) of the FOI Act may tend to support disclosure of the Contested Documents;
(i)reveal the reason for a government decision and any background or contextual information that informed the decision; and
(ii)promote effective oversight of public expenditure.
In opening, the Secretary’s made the following concession:
The respondent acknowledges the disclosure of the documents in issue would inform debate on a matter of public importance. So there’s no dispute whatsoever that a factor in favour of releasing the documents is that they would inform public debate. And this is because the Perth railway Freight Link project is a significant Commonwealth State Infrastructure project which has attracted considerable interest[13].
[13] Transcript at p8.
However, as contemplated in paragraph 6.39 of the FOI Guidelines and as the evidence of Mr Pittar and Mr Woronzow discloses, the Secretary submits that various factors weigh against disclosure of the Contested Documents, including that disclosure of the Contested Documents:
(i)would divulge information communicated “in confidence” by Main Roads WA to the Department;
(ii)could reasonably be expected to cause damage to the highly collaborative working relations between the Department and Main Roads WA;
(iii)would adversely affect the administration of a continuing Commonwealth-Western Australia infrastructure project;
(iv)would adversely affect the planning and development of future Commonwealth-Western Australia infrastructure projects;
(v)could reasonably be expected to impede the flow of information from Main Roads WA to the Department in relation to this Project and future infrastructure projects;
(vi)could reasonably be expected to prejudice the Department’s ability to obtain all relevant information in order to properly assess, scope and decide whether (and to what extent) to fund Commonwealth-State/Territory infrastructure projects;
(vii)which contain matter in the nature of, or relating to, consultation and deliberation that has taken place, in the course of and for the purpose of, the deliberative processes involved in the functions of the Department, would damage working relations between the Department and Main Roads WA; and
(viii)would or could reasonably be expected to have a “substantial” adverse effect on the ability of the Department to administer the Infrastructure Investment Programme.
In addition to the above factors against disclosure of the Contested Documents, the Secretary also submits that disclosure of the Contested Documents could reasonably be expected to prejudice the competitive commercial process currently engaged in by Main Roads WA (as contemplated by subparagraph 6.29(j) of the FOI Guidelines) as it would undermine the ongoing procurement process (and any future procurement process) for the Project. The Secretary relies on the evidence of Mr Woronzow in support of this contention. In his Witness Statement, Mr Woronzow relevantly states that:
(i)Some of the Contested Documents within the scope of the FOI Request (in particular, documents 2, 21, 23, 24, 25, 26, 27, 28, 48, 49, 50, 65, 66, 70, 71, 81, 82, 83, 84 and 86) contain information that, if released, may impact the ongoing procurement process for the Project;
(ii)In his opinion, release of the Contested Documents referred to in (i) above would significantly impact the ongoing procurement process (and any future procurement process) as it would disclose sensitive information to the current tenderer for the Project and any future tenderers;
(iii)He is of view that the release of the Contested Documents referred to in (i) above would jeopardise the ongoing negotiations with Main Roads WA’s preferred contractors for the construction of Roe 8 as those entities would essentially be aware of (or be able to ascertain) the WA Government’s bargaining position;
(iv)He is of the view that should the procurement process need to be revisited, the release of the information in the Contested Documents referred to in (i) above may very likely give future tenderers an unfair commercial advantage for the same reason;
(v)He considers that this would result in the preferred contractor and any future tenderers offering bids based on the WA Government and Commonwealth’s value of the Project, rather than their own commercial assessment, which may be a higher value;
(vi)He is of the view that this would very likely compromise the WA Government’s ability to achieve value for money and may result in a decreased return on investment for both the WA Government and the Commonwealth; and
(vii)If the Contested documents referred to in (i) above were to be disclosed, he considers that the WA Government and Commonwealth’s position as vendors would be compromised.
For the above reasons, the Secretary submits that disclosure of any conditionally exempt Contested Documents would be contrary to the “public interest”.
In her “Amended Statement of Facts, Issues and Contentions”, date 16 May 2016, Ms MacTiernan makes the following submissions in relation to whether it would be contrary to the public interest to disclose the Contested Documents:
Public interest - S11A(5)
……….
38.It is trite that the objects of the Act in s3 inform and govern the interpretation and application of the Act. The starting point is that there is right of access to Government documents. By s3(2) express purposes are to increase public participation in Government processes and to improve representative democracy by exposing Government information to consideration and discussion by the public.
39.Necessarily and as informed by s11B, determining the public interest requires a balancing of factors. As Gleeson CJ and Kirby J noted in McKinnon v Secretary, Department of the Treasury (2006) 229 ALR 187 at [5]:
Inevitably, it will involve a judgment as to where public interest lies. Such judgment, however; is not made in a normative vacuum. It is made in the context of, and for the purposes of legislation which has the object described above, which begins from the premise of a public right of access to official documents, and which acknowledges a qualification of that right in the case of necessity for the protection of essential public interests (s 3(1 )(b))
40.It is not apparent on the material filed by the Department that any essential public interest is being protected or that there is any necessity to protect anything relevant. The Department’s primary position amounts to a claim that agencies might be less forthcoming if they knew their work and communications would be publicly scrutinised. But the purpose of the Act is to render their work and communications amenable to public scrutiny.
41.In making the judgement as to where the public interest lies it is submitted that the following matters favouring disclosure should be taken into account:
a. the statutory presumption in favour of disclosure
b. the massive size and cost of the project
c.the ongoing and substantial public controversy in connection with the Project
d. the:
(i) abrupt announcement of the decision to fund the project,
(ii) absence of any, or any recent, public consultation,
(iii) absence of up to date or detailed planning,
(iv) failure to carry out a cost benefit analysis
(v) failure to carry out an environmental assessment
(vi) limited life of the usefulness of the Project
(vii)significant changes being made to the Project long after the decision to proceed and fund it was made
are factors in favour of disclosure. That is, there is a powerful public interest in knowing how and why such a decision came to be made in such circumstances and the course the Project subsequently took.
e.The desirability of early public consultation and involvement in large proposed infrastructure projects prior to decisions being made. The release of the documents will serve to bring the public in from the dark, albeit belatedly.
42.As to the factors relied on by the Department, for the reasons given above no damage or adverse effect resulting from disclosure has been demonstrated. Assuming that the documents otherwise fall within s42B(a) and/or 47E(d), the absence of damage or adverse effects means these objections to disclosure must fail. Should any damage or adverse effect have been demonstrated it is properly characterised as remote and/or minor and cannot operate to displace the powerful multiplicity of factors favouring disclosure.
43.Neither the s42B(b) nor the s47C(l) objections require damage or adverse effect to be demonstrated. However, again assuming that the documents fall within either or both of these subsections, as no damage or adverse effect is demonstrated by release of the documents there is nothing in these objections that could operate to displace the powerful multiplicity of factors favouring disclosure.
Conclusions – “public interest”
The Tribunal notes that the Secretary’s contention above in paragraph 133 really go to the question whether the Contested Documents are conditionally exempt under s 47B(a) of the FOI Act rather than being directed to the question now being considered, namely whether granting access to otherwise conditionally exempt Contested Documents would be contrary to the “public interest”.
Whilst the Tribunal acknowledges the Secretary’s submissions in paragraphs 133 to 135 above concerning the “public interest”, on balance, the Tribunal considers that the “public interest” overwhelmingly favours disclosure of the Contested Documents. Or, to adopt the language used in the “Notes” to s 47B, s 47C and s 47E of the FOI Act, the Tribunal finds that granting access to any conditionally exempt Contested Documents would not be “contrary to the public interest”.
On balance, the Tribunal finds that the benefit to the public of withholding the information in the Contested Documents is outweighed by the benefit to the public resulting from the disclosure of the Contested Documents: paragraphs 6.8 and 6.9 FOI Guidelines (refer to paragraph 125 above).
Section 3 of the FOI Act sets out the “Objects” of the FOI Act, as follows:
(1)The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2)The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards the following:
(a)increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b)increasing scrutiny, discussion, comment and review of the Government's activities.
(3)The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4)The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
Based on the evidence before the Tribunal, access to the Contested Documents would promote the objects of the FOI Act (refer to paragraph 140 immediately above), inform debate on a matter of significant public importance (namely the Project) and promote effective oversight of public expenditure: s 11B(3) of the FOI Act and paragraph 6.25 of the FOI Guidelines. The Secretary has conceded the last two of these three points: refer to paragraphs 131 and 132 above. Given the large scope and cost of the Project and the multiplicity of impacts it will potentially have, greater weight should be placed on the importance of public interest than may be the case in respect of a lesser project. In this case, the “public interest” weighs heavily in favour of access to the Contested Documents being granted. Whether access to the Contested Documents could result in embarrassment to the Commonwealth Government or in confusion or unnecessary debate are not factors which are to be taken into account in deciding whether access to the Contested Documents would be contrary to the “public interest”: s 11B(4) of the FOI Act. The merits of and politics behind the Project are also not relevant considerations in determining whether it is in the “public interest” that access be given to the Contested Documents.
The Tribunal refers to the “public interest” factors identified in paragraph 6.29 of the FOI Guidelines which weigh against the disclosure of documents: refer to paragraph 130 above. The only factors which have any potential relevance to this application are paragraphs (g), (h), (i) and (j) of paragraph 6.29 of the FOI Guidelines. However, even if relevant, these factors are far outweighed by the benefit to the public in granting access to the Contested Documents.
DECISION
For the above reasons, the Tribunal sets aside the FOI Decision and, in substitution therefor, decides that the FOI Request is allowed in full and that access be granted to all of the Contested Documents listed in Annexure A to these Reasons for Decision.
I certify that the preceding 143 (one hundred and forty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh ..........[Sgd]..............................................................
Administrative Assistant
Dated 19 July 2016
Date of hearing 7 June 2016 Counsel for the Applicant Mr D Schapper Representative for
the RespondentMr J Bird Solicitors for the Respondent
Clayton Utz
Annexure A*
*The Contested Documents are the unshaded documents
Document Number Date Author Recipient Description Exemptions Claimed on AAT Review 1. 19/03/14 Mr Roland Pittar, General Manager, North Wests Roads Branch, Department (Mr Pittar) Mr Andrew Jaggers, Executive Director, Department of Infrastructure and Transport Australia (Mr Jaggers) Email – Roe Highway extension – Project justifications Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 2. 09/12 Main Roads WA Attachment to Document 1 - Draft Infrastructure Australia submission Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 3. Main Roads WA Attachment to Document 1 - Roe Highway extension concept plan Released 4. 03/14 Main Roads WA Attachment to Document 1 – Briefing on Roe Highway extension Released in full 5. 02/04/14 Department Department Email – Roe Highway Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 6. Main Roads WA Attachment to Document 5 – Draft letter re Roe 8 extension Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 7. 04/04/14 Mr Pittar Mr Jaggers Emails – Roe/Fremantle Port options Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 8. Main Roads WA Attachment to Document 7 – Options to extend Roe Highway beyond Stock Road to Fremantle Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 9. 16/04/14 Main Roads WA Department Email – Roe Highway traffic Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 10. 21/03/14 Main Roads WA Attachment to Document 9 – Roe 8 Stock and High upgrade – Port information Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 11. Main Roads WA Attachment to Document 9 – 2013 Daily Traffic Volumes Released in full 12. 16/04/14 Main Roads WA Department Email – Roe Highway traffic Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 13. Main Roads WA Attachment to Document 12 – 2013 Daily Traffic Volumes Released in full 14. 16/04/14 Main Roads WA Department Email – Roe Highway traffic Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 15. Main Roads WA Attachment to Document 14 – 2031 Daily Traffic Volumes Released in full 16. 16/04/14 Main Roads WA Department Email – Roe Highway traffic Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 17. 21/03/14 Main Roads WA Attachment to Document 16 – Draft Roe 8 Stock and High upgrade Exempt in full under sections 47B(a) and (b), 47C and 47E(d). 18. 16/04/16 Main Roads WA Department Email – Heavy vehicle restrictions Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 19. Main Roads WA Attachment to Document 18 – Methods for direction heavy vehicles onto a preferred route Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 20. 17/04/14 Department Main Roads WA Email – Roe Highway estimate Out of scope 21. 01/10/13 Main Roads WA Attachment to Document 20 – Project estimate summary report Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 22. 22/04/14 Main Roads WA Email – Cost estimates – Stock Road and Leach Highway/High Street upgrades Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 23. 16/04/14 Main Roads WA Attachment to Document 22 – Cost estimate Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 24. 16/04/14 Main Roads WA Attachment to Document 22 – Cost estimate Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 25. 16/04/14 Main Roads WA Attachment to Document 22 – Cost estimate Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 26. 16/04/14 Main Roads WA Attachment to Document 22 – Cost estimate Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 27. 16/04/14 Main Roads WA Attachment to Document 22 – Cost estimate Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 28. 16/04/14 Main Roads WA Attachment to Document 22 – Cost estimate Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 29. 22/04/14 Main Roads WA Department Email – Perth Metro modelled traffic volumes and peak hour information Exempt in full under sections 47B(a) and (b), 47C and 47E(d). 30. 22/04/14 Main Roads WA Attachment to Document 29 – Traffic forecast plot Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 31. 22/04/14 Main Roads WA Attachment to Document 29 – Traffic forecast plot Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 32. 22/04/14 Main Roads WA Attachment to Document 29 – Traffic forecast plot Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 33. 22/04/14 Main Roads WA Attachment to Document 29 – Traffic forecast plot Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 34. 22/04/14 Main Roads WA Attachment to Document 29 – Traffic forecast plot Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 35. 24/04/14 Main Roads WA Email – Roe Highway, Stock Road, High Street – Heavy vehicle data Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 36. Main Roads WA Attachment to Document 35 – Heavy vehicle volumes Released in full 37. 28/04/14 Main Roads WA Department Email re Perth Metro modelled traffic volumes and peak hour information Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 38. 22/04/14 Main Roads WA Attachment to Document 37 – Traffic volumes pot Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 39. 28/04/14 Department Department Email – Roe travel time savings Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 40. 28/04/14 Main Roads WA Veitch Lister, Consulting Transport Planning, Modelling & Data Experts (Veitch Lister) Email – Perth Metro modelled traffic volumes and peak hour information Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 41. 28/04/14 Main Roads WA Attachment to Document 40 – Traffic volume plot Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 42. 28/04/14 Main Roads WA Attachment to Document 40 – Traffic volume plot Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 43. 30/04/14 Main Roads WA Veitch Lister Email – Perth Metro modelled traffic volumes and peak hour information Exempt in full under sections 47B(a) and (b), 47C and 47E(d). 44. 29/04/14 Main Roads WA Attachment to Document 43 – Traffic volume plot Exempt in full under sections 47B(a) and (b), 47C and 47E(d). 45. 29/04/14 Main Roads WA Attachment to Document 43 – Traffic volume plot Exempt in full under sections 47B(a) and (b), 47C and 47E(d). 46. 29/04/14 Main Roads WA Attachment to Document 43 – Traffic volume plot Exempt in full under sections 47B(a) and (b), 47C and 47E(d). 47. 01/05/14 Main Roads WA Department Email – productivity benefits report Exempt in full under sections 47B(a) and (b), 47C and 47E(d). 48. 01/05/14 Ernst & Young Main Roads WA Attachment to Document 47 – Letter and report – Productivity benefits of upgrades to the Roe Highway corridor Exempt in full under ss 47, 47B(a) and (b), 47C and 47E(d) of the FOI Act
Ms MacTiernan does not contest exempt status under section 4749. 02/05/14 Department Main Roads WA Email – Minister’s meeting Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 50. 02/05/14 Ernst & Young Attachment to Document 49 – Roe Highway Extension Project – draft funding Options Analysis Exempt in full under ss 47, 47B(a) and (b), 47C and 47E(d) of the FOI Act
Ms MacTiernan does not contest exempt status under s 47 of the FOI Act51. 02/05/14 Main Roads WA Department Email – Roe Highway extension – updated technical note Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 52. Main Roads WA Attachment to Document 51 – Draft Roe 8 Stock and High upgrade Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 53. 06/05/14 Veitch Lister Main Roads WA Email – Roe Highway – review of WA ROM Forecasts Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 54. Veitch Lister Attachment to Document 53 – Traffic forecasts Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 55. Veitch Lister Attachment to Document 53 – Traffic forecasts map Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 56. 07/05/14 Veitch Lister Main Roads WA Email – Roe Highway – Review of WA ROM forecasts Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 57. 07/05/14 Department Veitch Lister Email – High Street works Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 58. 12/05/14 Main Roads WA Department Email – Perth Freight Link Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 59. 14/05/14 Department Veitch Lister Email – Roe Project – current heavy vehicle restrictions Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 60. 05/14 Main Roads WA Attachment to Document 59 – South Metropolitan Area RAV Network Released in full 61. 13/05/14 Department Main Roads WA Email – Australian Government’s 2014 Budget announcement.
Note: Attachment out of scope
Released. Section 22 of the FOI Act applied 62. 14/05/14 Main Roads WA Department Email – Roe Project – current heavy vehicle restrictions Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 63. Main Roads WA Attachment to Document 62 – Prime Mover, Trailer Combinations flyer Released 64. 15/05/14 Veitch Lister Main Roads WA Email – Roe Highway Extension Exempt in full under sections 47B(a) and (b), 47C and 47E(d). 65. 15/05/14 Department Main Roads WA Email – Minister’s meeting Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 66. 04/08/14 Ernst & Young Attachment to Document 65 – Roe Highway extension Project – draft funding options analysis Exempt in full under sections 47, 47B(a) and (b), 47C and 47E(d).
Ms MacTiernan does not contest exempt status under s 47 of the FOI Act67. 20/05/14 Veitch Lister Main Roads WA Email – Roe Highway – traffic counts Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 68. Veitch Lister Attachment to Document 67 – Traffic counts Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 69. 22/05/14 Veitch Lister Main Roads WA Email – Roe Highway extension – Future Road Network Improvement Strategy for Perth Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 70. 22/5/14 Department Department Email – Ernst & Young Productivity Report Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 71. 14/05/14 Ernst & Young Main Roads WA Attachment to Document 70 – Letter and report – Draft – Productivity benefits of upgrades to the Roe Highway corridor Exempt in full under ss 47, 47B(a) and (b), 47C and 47E(d).
Ms MacTiernan does not contest exempt status under s 47 of the FOI Act72. 23/05/14 Main Roads WA Department Email – Perth Freight Link Minister Nalder Legislative Assembly Estimates comments Out of Scope. Section 22 of the FOI Act applied 73. Main Roads WA Attachment to Document 72 – Transcript – Legislative Assembly Estimates comments Released
74. 29/05/14 Main Roads WA Department Email – Coordinates for WA Projects Released. Section 22 of the FOI Act applied 75. 30/05/14 Veitch Lister Main Roads WA Email re Roe Highway extension – information requirements Exempt in full under sections 47B(a) and (b), 47C and 47E(d). 76. 13/06/14 Department Main Roads WA Email – Perth Freight Link meeting Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 77. 13/06/14 Department Attachment to Document 75 – Meeting agenda Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 78. 16/06/14 Department Department Email – Budget letter
Note: attachment out of scope
Out of Scope. Section 22 of the FOI Act applied 79. 16/06/14 Department Main Roads WA Email – Perth Freight Link Exempt in full under ss 47, 47B(a) and (b), 47C and 47E(d) of the FOI Act
Ms MacTiernan does not contest exempt status under s 47 of the FOI Act80. Department Attachment to Document 79 – Toll revenue Exempt in full under sections 47, 47B(a) and (b), 47C and 47E(d).
Ms MacTiernan does not contest exempt status under s 47 of the FOI Act81. 04/08/14 Department Main Roads WA Email – Perth Freight Link Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 82. Department Attachment to Document 81 Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 83. Department Attachment to Document 81 Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 84. Department Attachment to Document 81 Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 85. Department Attachment to Document 81 Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 86. 25/06/14 Main Roads WA Department Email – Perth Freight Link Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 87. 26/06/14 Department Main Roads WA Email – Veitch Lister – Traffic Modelling Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 88. 26/06/14 Main Roads WA Department Email – Roe 8 Environmental Approval Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act 89. 04/07/14 Main Roads WA Department Email – Perth Freight Link Exempt in full under ss 47B(a) and (b), 47C and 47E(d) of the FOI Act
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