Marrickville Legal Centre v Legal Aid NSW

[2024] NSWCATAD 378

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Marrickville Legal Centre v Legal Aid NSW [2024] NSWCATAD 378

Hearing dates:

24 October 2024

Date of orders:

12 December 2024

Decision date:

12 December 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Robinson, Principal Member

Decision:

(1) The decision under review is affirmed.

(2) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013:

(a) other than to the Tribunal and the respondents, disclosure, publication or broadcast of the contents of exhibits CR8 and CR9 received in evidence by the Tribunal on 24 October 2024 is prohibited; and

(b) the withheld information remains confidential to the First Respondent and the Tribunal.

Catchwords:

ADMINISTRATIVE LAW – access to government information – freedom of information – public interest test – public interest considerations in favour of disclosure outweighed by public interest considerations against disclosure

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Cases Cited:

Alexander v University of Sydney & Anor [2008] NSWADT 214

Burnett (on behalf of Burnett) v Secretary, Department of Communities and Justice [2021] NSWCATAD 114

Cameron v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 13

Commissioner of Police (NSW) v Barrett (No 2) [2016] NSWCATAP 86

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

Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113

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

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Leech v Sydney Water Corporation [2010] NSWADT 298

Leydon v Commissioner of Police [2019] NSWCATAD 267

YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Marrickville Legal Centre (Applicant)
Legal Aid NSW (First Respondent)
University of New South Wales (Second Respondent)

Representation:

Counsel:
L Hamilton (Applicant)
M Della-Pozza (Second Respondent)

Solicitors:
Marrickville Legal Centre (Applicant)
Crown Solicitor (First Respondent)
Kingsford Legal Centre (Second Respondent)
B Viset, (Information Commissioner)

File Number(s):

2024/00158237

Publication restriction:

Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013:
(a) other than to the Tribunal and the respondents, disclosure, publication or broadcast of the contents of exhibits CR8 and CR9 received in evidence by the Tribunal on 24 October 2024 is prohibited; and
(b) the withheld information remains confidential to the First Respondent and the Tribunal.

REASONS FOR DECISION

Introduction

1. The Applicant, Marrickville Legal Centre, seeks information relating to a program it participated in as a community legal centre and information relating to funding of community legal centres.

2. The Applicant made an application to Legal Aid NSW (the First Respondent) for access to information under s 58 of the Government Information (Public Access) Act 2009.

3. The First Respondent, following consultation with third parties including the Second Respondent, determined that it was not in the public interest to provide all of the information because there was an overriding public interest against disclosure, withholding 105 documents (the withheld information).

4. The Applicant seeks administrative review of the decision to refuse access to the withheld information.

Background

5. The Applicant sought information by an application dated 23 August 2023. The scope of the application for access was narrowed on 21 September 2023. The First Respondent decided not to grant access to the withheld information on 3 October 2023. The Applicant then sought external review by the Information Commissioner on 28 December 2023 and the Commissioner delivered a report on 27 March 2024 recommending a new decision be made.

6. On 3 April 2024 the First Respondent decided not to make a new decision.

7. The Applicant lodged its application for review to the Tribunal on 29 April 2024.

Context

8. The Applicant participated in the Migrant Employment Legal Services pilot project (MELS project) collaboratively with three other community legal centres, namely Inner City Legal Centre, Redfern Legal Centre and Kingsford Legal Centre (the three CLCs) between July 2019 and mid 2021. For some time within that period the Applicant was lead agency for the project and the Applicant and First Respondent were parties to an agreement executed on 2 December 2020. The MELS project funding and administration was delivered by the First Respondent.

9. While intended to be a three year project, the MELS project was ended in June 2021.

10. The Applicant is aggrieved at the termination of the project, its exclusion from a similar subsequent project using unspent funds from the project in which the remaining community centres were participants, the refusal of certain grant applications it made to the First Respondent, and the commission and performance of a forensic financial review of the Applicant for the period 1 October 2020 to 30 June 2021.

Material before the Tribunal

11. The application for review attaching the reasons for refusal and a bundle of documents was before the Tribunal.

12. The Applicant provided an affidavit of Mr Maroulis, CEO of the Applicant and written submissions. The First Respondent provided two bundles of documents, including a number of affidavits of staff of the First Respondent (Ms Sullivan and Mr Bradbury), two of the three CLCs (Ms Pandolfini and Ms Green), and the peak body of community legal centres (CLCNSW) (Mr Beilby), as well as written submissions and written submissions in reply. The Second Respondent provided open and closed versions of a statement of Ms Gollege, who is employed by the Second Respondent as Director of the Kingsford Legal Centre, as well as open and closed versions of written submissions.

13. Ms Sullivan, an employee of the First Respondent, gave oral evidence and was cross examined at the hearing.

14. The Information Commissioner appeared in the proceedings and provided written submissions.

Confidential Information

15. The Second Respondent applied under s 107 of the GIPA Act for the closed parts of Ms Gollege’s statement and the Second Respondent’s written submissions to be kept confidential.

16. Section 107 relevantly provides:

107   Procedure for dealing with public interest considerations

(1)  In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2)  On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3)  On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of—

(a)  the public and the applicant, and

(b)  the applicant’s representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

17. Upon inspection, in general, the closed material addressed and discussed the content of the documents for which access has been refused. I was therefore satisfied that it was necessary to require the closed parts of the relevant statement and written submissions to be kept confidential, other than to the Tribunal and respondents, to prevent the disclosure of information for which there is, or for which there could be or was claimed to be, an overriding public interest against disclosure: see 107 of the GIPA Act and s 66 of the Civil and Administrative Tribunal Act 2013 (the CAT Act). An order under s 64 of the CAT Act was made to that effect.

18. No confidential hearing occurred in this review.

19. The withheld information, in a confidential bundle, was also before the Tribunal and remained confidential in this review.

Applicant’s case

20. The Applicant submits that public interest considerations against disclosure do not outweigh public interest considerations in favour of disclosure.

21. The Applicant submits public interest considerations in favour of disclosure include:

1. The general public interest in favour of disclosure (s 12 GIPA Act);

2. Disclosure of the withheld information would promote discussion of public affairs;

3. Disclosure of the withheld information would enhance government accountability;

4. Disclosure of the withheld information would contribute to positive and informed debate on a matter of public importance, being the issue of the federal government funding of legal services for vulnerable communities, its use and effectiveness;

5. Disclosure of the withheld information could reasonably be expected to inform the public about the operations of agencies;

6. Disclosure of the withheld information could reasonably be expected to provide oversight of the expenditure of public funds; and

7. The personal factors of the Applicant are relevant (s 55 of the GIPA Act), particularly its participation in, and treatment during and after, the MELS project is such that disclosure of the information would assist it to better understand the circumstances of its exclusion and be better informed for its participation in future projects and funding bids.

Respondents’ case

22. The First Respondent submits its decision to refuse access to the withheld information is the correct and preferable decision because the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.

23. While the First Respondent made submissions regarding the withheld documents by category for efficiency and ease of reference, the First Respondent also provided a schedule specifying the particular public interest considerations against disclosure said to apply to each individual document within the withheld information (see pp 79-89 of exhibit R1).

24. The Second Respondent objects to release of a subset of the withheld documents relevant to it comprising 30 documents. The Second Respondent submits, in essence, the relevant documents were always intended to remain confidential and release would be prejudicial and harmful to it, as well as that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.

Role of the Tribunal

Jurisdiction

25. The Tribunal has jurisdiction to review an administratively reviewable decision: ss 7, 9 and 55 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 100 of the GIPA Act provides that applications may be made to the Tribunal for administrative review of reviewable decisions made by an agency. A decision to refuse to provide access to information in response to an access application is a reviewable decision (s 80 of the GIPA Act).

Administrative Review

26. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration (s 63(3) of the ADR Act).

27. The onus lies with the First Respondent to justify the decision to refuse access: see s 97(1) of the GIPA Act.

Legislative Framework

28. Section 3 of the GIPA Act sets out the object of the Act:

(1)  In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by—

(a)  authorising and encouraging the proactive public release of government information by agencies, and

(b)  giving members of the public an enforceable right to access government information, and

(c)  providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2)  It is the intention of Parliament—

(a)  that this Act be interpreted and applied so as to further the object of this Act, and

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

29. The GIPA Act provides that there is a presumption in favour of the disclosure of government information and a person who makes an access application has a legally enforceable right to be provided with access to the information, unless there is an overriding public interest against disclosure: see ss 5 and 9 of the GIPA Act.

30. There is a general public interest in favour of the disclosure of government information and public interest considerations in favour of disclosure are not limited in scope: s 12 of the GIPA Act.

31. There is an overriding public interest against disclosure of government information if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure: s 13 of the GIPA Act.

32. It is conclusively presumed that there is an overriding public interest against disclosure of the information specified in Sch 1 to the GIPA Act: s 14(1) of the GIPA Act. The considerations listed in the Table in s 14 of the GIPA Act are the only other considerations that may be taken into account in determining whether there is an overriding public interest against disclosure: s 14(2) of the GIPA Act.

33. Relevantly the Table in s 14 of the GIPA Act provides:

1   Responsible and effective government

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

(a)  prejudice collective Ministerial responsibility,

(b)  prejudice Ministerial responsibility to Parliament,

(c)  prejudice relations with, or the obtaining of confidential information from, another government,

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

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

(f)  prejudice the effective exercise by an agency of the agency’s functions,

(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

(h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

…

4   Business interests of agencies and other persons

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

(a)  undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market,

(b)  reveal commercial-in-confidence provisions of a government contract,

(c)  diminish the competitive commercial value of any information to any person,

(d)  prejudice any person’s legitimate business, commercial, professional or financial interests,

(e)  prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

34. Section 15 of the GIPA Act sets out the following principles to apply when determining whether there is an overriding public interest against disclosure:

(a)  Agencies must exercise their functions so as to promote the object of this Act.

(b)  Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c)  The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d)  The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e)  In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

35. Section 55 of the GIPA Act allows personal factors of an applicant to be taken into account as follows:

(1)  In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section—

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

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

(c)  any other factors particular to the applicant.

(2)  The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.

…

Consideration

Issue for determination

36. The approach to be adopted by the Tribunal in this review is the two step process outlined in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri) at [24]-[25], relevantly that:

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

… The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions…

37. There being no conclusive presumption of an overriding public interest against disclosure of the withheld information in this review, it is necessary to apply the public interest test to the withheld information to determine whether an overriding public interest against disclosure of the withheld information exists. An overriding public interest against disclosure of the withheld information will exist if the public interest considerations against disclosure of the withheld information outweigh the public interest considerations in favour of disclosure of the withheld information: see s 13 of the GIPA Act.

38. As noted in Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [94]:

Ultimately, the balancing of these competing interests is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation.

The withheld information

39. I examined all of the documents comprising the withheld information. Based on the material before the Tribunal and my inspection of the documents, I make the following findings about the nature of the withheld information. References to document numbers in these reasons correspond to the schedule at pp 79-89 of exhibit R1.

40. The withheld information contains information about the finances and/or business operations of the three CLCs who participated in the MELS project (documents 3-7, 11-13, 21-30, 32-34, 39-49, 62-63, 65-69, 169-180). The withheld information also contains information about the project and dispute resolution regarding the project shared between the Applicant, the three CLCs and CLCNSW and/or the First Respondent (documents 2, 14, 18-20, 44, 46, 48-50, 52-55, 60, 64, 70-72, 76-78).

41. The withheld information includes information created within the First Respondent including information shared with and created by the CEO and inhouse counsel of the First Respondent (documents 1, 7, 9-10, 17, 35-38, 56-57, 59). While some of this withheld information relates to advice provided by the First Respondent’s inhouse legal counsel relating to the project, no claim for legal professional privilege has been made over any document in the withheld information.

42. The withheld information contains information shared with the Office of the Attorney-General regarding the project (documents 8, 15-16, 31, 51, 58, 61, 73-75, 79, 166). The withheld information also contains information relating to the engagement of KPMG to conduct a forensic financial audit of the Applicant (documents, 140-144, 146-147, 150-155).

Public interest considerations in favour of disclosure

43. The general public interest consideration in favour of disclosure under s 12 GIPA Act is relevant and I give it moderate weight, as a foundational consideration in light of the object of the GIPA Act.

44. The Information Commissioner submitted it is open to the Tribunal to consider “the public interest in favour of disclosing contextual information that allows the public to know why public funding was allocated (or not allocated) for the purposes of providing legal aid and other legal services”, citing Burnett (on behalf of Burnett) v Secretary, Department of Communities and Justice [2021] NSWCATAD 114 at [46]. The Applicant’s submitted public interest considerations in favour of disclosure set out (at [21(2)]-[21(6)] above) essentially relate to that characterisation, namely that there are public interest considerations in favour of disclosure founded on the concept the public has an interest in how public money is allocated and spent, as well as in how government agencies and those they use for delivery, operate in delivering government programs as transparency and accountability mechanisms. I accept those are public interest considerations in favour of disclosure applying in this review on the material before the Tribunal, particularly on the evidence of Mr Maroulis of the Applicant that in addition to its functions in relation to delivery of legal services provided with funding from the NSW Government, the First Respondent also performs functions in relation to Commonwealth Government funding programs.

45. Having inspected the withheld information and on the material before the Tribunal, I am therefore satisfied disclosure of the withheld information:

1. would promote discussion of public affairs;

2. would enhance government accountability;

3. would contribute to positive and informed debate on a matter of public importance, being the issue of the federal government funding of legal services for vulnerable communities, its use and effectiveness;

4. would reasonably be expected to inform the public about the operations of agencies; and

5. would reasonably be expected to provide oversight of the expenditure of public funds.

46. I also give those considerations moderate weight. I cannot attribute higher weight to these considerations because I accept the submission of the First Respondent, and I am satisfied on the material before the Tribunal, particularly the evidence of Mr Bradbury, that insofar as the First Respondent participates and is responsible for funding decisions, that other information relevant to these matters, especially funding allocation by the First Respondent, is already in the public domain.

47. The public interest considerations in favour of disclosure identified to this point have been general in nature. More specifically, in relation to the status of the Applicant, as identified at [10] above, the Applicant was aggrieved by the ending of the project and its non-participation in what followed with the remaining funds and other projects, as well as being subject to a forensic financial review. Therefore these are relevant personal factors of the Applicant under s 55(2) of the GIPA Act relevant to this review and I am satisfied those factors form a public interest consideration in favour of disclosure. I give that consideration moderate weight because I consider those factors are not insignificant, but I note disclosure of information under the GIPA Act is not just to an Applicant, but to the world at large: see s 73(1). I do not consider a higher weight would be appropriate in the absence of a broader application for this factor.

Public interest considerations against disclosure

48. The Information Commissioner submitted that:

for any public interest consideration against disclosure in the table to section 14 to apply, the respondent must show that each of the public interest considerations on which it relies "could reasonably be expected to" have the "effects" listed in that section.

49. The further submissions of the Information Commissioner were similar in nature to the submissions of the parties as to the correct analysis to be applied by the Tribunal and I am satisfied the analysis to be performed by the Tribunal when assessing relevant public interest considerations against disclosure is as set out below.

50. The term "prejudice" is to be given its ordinary or everyday meaning, being "to cause detriment or disadvantage" or "to impede or derogate from": see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].

51. The test to be applied when considering the words "could reasonably be expected" was discussed in Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [40]-[41], citing Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]:

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

52. Relevant to this review is that a “fairly abstract analysis" must be undertaken when “determining the question of whether disclosure could reasonably be expected to prejudice the future supply of information”: see Alexander v University of Sydney & Anor [2008] NSWADT 214 at [31] and that analysis also requires examination of the issue, not in isolation, but in determining the agency's ability to obtain confidential information in the future: see Leydon v Commissioner of Police [2019] NSWCATAD 267 at [33].

53. The First Respondent is to identify its particular functions and then demonstrate how prejudice to the effective exercise of those functions arises in order to establish the relevant prejudice: see Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113 at [66]-[75].

1(d) - prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions

54. For information to fall within the Table 14, clause 1(d) consideration, it must have been obtained in confidence. In  Camilleri the Appeal Panel (at [34]-[35]) stated that the question as to whether information is confidential information is to “be examined, primarily at least, by reference to the agency’s evidence as to the conditions under which it conducts the service within which the information was received”, and the inquiry “should focus on the point of receipt, and the administrative standards and community understandings which surround it”.

55. On the material before the Tribunal, including unchallenged evidence from representatives from the three CLCs, I am satisfied the information contained in communications between the First Respondent and each of those community legal centres, including the Second Respondent, was given and received in confidence. Further, there were specified confidentiality requirements imposed in the funding deeds between the First Respondent and the three CLCs (see Annexure B to the affidavit of Ms Sullivan in exhibit R1).

56. I am also satisfied the exchange of information between the First Respondent and CLCNSW was given and received in confidence on the evidence provided by Mr Beilby of CLCNSW.

57. While the Applicant submits any potential prejudice to the three CLCs and First Respondent would be minimised by the passage of time. I do not accept this submission because the evidence of representatives of each of the three CLCs is that such information will continue to be used in future funding bids and continuing confidentiality remains critical to their operations.

58. Following inspection of the withheld information and on the material before the Tribunal I am satisfied this public interest consideration against disclosure applies to all of the withheld information except for documents 1, 6, 8-14, 16-18, 31, 35, 36-38, 50, 56-60, 70-72, 76, 140-144, 146, 147.

59. I am satisfied, particularly on the evidence of Ms Sullivan, that for the First Respondent to perform its functions, including in relation to delivery and oversight of grant funding, it requires full and frank disclosure of relevant information, and essential to that provision is an assurance of confidence, without which information provided to the First Respondent may not be reliable.

60. Therefore I am satisfied disclosure of the withheld information where this consideration applies would prejudice supply to the First Respondent of confidential information that facilitates the effective exercise of the First Respondent’s functions and I give this consideration significant weight because I am satisfied the supply of confidential information of this nature is critical to the First Respondent’s functions.

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

61. In Cameron v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 13 the Tribunal considered deliberative processes of agencies to be (at [66]):

The deliberative processes of an agency are its thinking processes - including those by which it seeks internal input and discussions as to possible courses of action, evaluates the wisdom of them, and the relative benefits and detriments of them: see the discussion in Re JE Waterford and Department of Treasury (No 2) (1984) 5 ALD 588.

62. As I have found above, the First Respondent relies on confidential information provided by community legal centres and other stakeholders to perform its responsibilities in delivery and oversight of funding programs and projects. Therefore it is important the First Respondent receives accurate and complete information from the community legal centres and other stakeholders it deals with regarding current and future funding programs and projects.

63. Further, I accept the evidence of the First Respondent that it is not the decision maker regarding funding, instead it makes recommendations to the Attorney-General who is the decision maker. The First Respondent therefore performs an advisory role and is obliged to provide accurate and fulsome information when advising the Attorney-General and his office.

64. Following inspection of the withheld information and on the material before the Tribunal I am satisfied this public interest consideration against disclosure applies to all the withheld information, except for documents 6, 11-14, 35, 37, 38, 50, 60, 70, 71, 76, 144 and 147.

65. I am satisfied disclosure of the withheld information to which this consideration applies would reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency and I give this consideration significant weight because those processes are necessary for government and the First Respondent’s exercise of functions.

1(f) - prejudice the effective exercise by an agency of the agency’s functions

66. Following inspection of the withheld information and on the material before the Tribunal I am satisfied this public interest consideration against disclosure applies to all of the withheld information except for document 144.

67. On the same bases found above in relation to the first two public interest considerations against disclosure considered in these reasons, I am also satisfied disclosure of the withheld information where this consideration applies would prejudice the effective exercise by the First Respondent of its functions and I am again unable to accept the submission of the Applicant as to prejudice minimising over time for the same reasons considered at [57] above.

68. I give this consideration significant weight because I am satisfied it is critical for the First Respondent as a publicly funded agency to effectively and efficiently exercise its functions.

1(g) - found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence

69. Following inspection of the withheld information and on the material before the Tribunal I am satisfied this public interest consideration against disclosure applies to documents 3-5, 21-30, 32-34, 39-49, 52-55, 62-69 and 166 of the withheld information.

70. At [55] above, I have determined that the information contained in communications between the First Respondent and each of the other CLCs, including the Second Respondent was given and received in confidence.

71. I am therefore satisfied disclosure of the withheld information where this consideration applies would result in disclosure of information provided to the First Respondent in confidence and I apply moderate weight to this consideration.

1(h) - prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed)

72. Following inspection of the withheld information and on the material before the Tribunal I am satisfied this public interest consideration against disclosure applies to documents 3-5, 22-30, 140-144, 146 and 147 of the withheld information. Information in these documents relates to the issue of audit.

73. In Commissioner of Police (NSW) v Barrett (No 2) [2016] NSWCATAP 86, the Appeal Panel was satisfied that the release of audit reports could reasonably be expected to have the effect of prejudicing the effectiveness of any audit by revealing its results.

74. I give this consideration significant weight because audit integrity is essential to ensure appropriate expenditure of public funds.

4(d) - prejudice any person’s legitimate business, commercial, professional or financial interests

75. The Applicant submits the three CLCs’ status as not for profit entities who operate for the benefit of the community is such that they should not be considered to operate commercially or on a commercial basis. I cannot accept this submission because while the three CLCs are not for profit entities, merely because an entity is operated on a not for profit basis does not mean the entity does not operate in a competitive or commercial environment.

76. It is clear from the material before the Tribunal, particularly on the evidence of the First Respondent including the consistent evidence of representatives of the three CLCs, that community legal centres regularly compete for funding and I am satisfied this is a competitive process with a commercial value to each community legal centre. I am also satisfied disclosure of sensitive information relating to finances, deliverables, targets and operations of community legal centres could prejudice those legal centres because such information could inform competitors in future funding bids, thus reducing the competitiveness of a community legal centre’s future bid.

77. I am unable to accept the submission of the Applicant as to prejudice minimising over time for the same reasons considered at [57] above.

78. I give this consideration significant weight because I am satisfied on the material before the Tribunal that disclosure of the information could reasonably be expected to severely prejudice the other CLCs in future operations including their successful participation in future funding bids.

4(b) - reveal commercial-in-confidence provisions of a government contract

79. Following inspection of the withheld information and on the material before the Tribunal I am satisfied this public interest consideration against disclosure applies to documents 140-144 and 147 of the withheld information because the information in the documents relates to the engagement of KPMG to conduct a forensic financial review under a government contract. I apply moderate weight to this consideration.

The public interest test

80. In following the structured two step process outlined in Camilleri, I examined each document of the withheld information and performed the balancing test for each of the documents according to the relevant public interest considerations against disclosure identified for each document.

81. I am satisfied that the First Respondent, who bears the onus, has established that the public interest considerations against the disclosure of the withheld information, on balance, outweigh the public interest considerations in favour of disclosure for each document of the withheld information.

82. This is even the case where only a single public interest consideration against disclosure is identified for a document such as consideration 1(f) for documents 14, 31, 35, 37, 38, 50, 60, 70, and 71 because of the weight applied to that consideration as set out at [68] above.

83. I am therefore satisfied that the First Respondent has established that there is an overriding public interest against the disclosure of the withheld information.

84. It follows the correct and preferable decision is to affirm the decision to refuse access to the withheld information.

Orders

1. The decision under review is affirmed.

2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013:

1. other than to the Tribunal and the respondents, disclosure, publication or broadcast of the contents of exhibits CR8 and CR9 received in evidence by the Tribunal on 24 October 2024 is prohibited; and

2. the withheld information remains confidential to the First Respondent and the Tribunal.

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

Registrar

Decision last updated: 12 December 2024