Meriton Property Services Pty Limited & Ors v UrbanGrowth NSW

[2017] NSWCATAD 71

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Meriton Property Services Pty Limited & Ors v UrbanGrowth NSW [2017] NSWCATAD 71
Hearing dates:	14 November 2016 and 7 December 2016
Date of orders:	07 March 2017
Decision date:	07 March 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	Access to government information - access application - information contained in tender documents - overriding public interest against disclosure - prejudice the supply of confidential information that facilitates the effective exercise of an agency's functions - disclosure of information provided in confidence - reveal commercial-in-confidence provision in a government contract - diminish the competitive commercial value of any information to any person- prejudice any person's legitimate business, commercial and financial interests
Legislation Cited:	Government Information (Public Access) Act 2009 Civil And Administrative Tribunal Act 2013
Cases Cited:	Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 Battin v University of New England [2013] NSWADT 73 Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Diehm v Greater Taree City Council [2010] NSWADT 241 Eyes v Central Coast Council [2016] NSWCATAD 306 Eyes v Wyong Shire Council [2016] NSWCATAD 120 Karimbla Properties (No 50) Pty Ltd v State of New South Wales & Anor [2015] NSWSC 778 Kinsley and Associates Pty Ltd v Wyong Shire Council [2007] NSWADT 279 Retain Beacon Hill High School Committee Inc v Department of Commerce (GD) [2006] NSWADTAP 58 Salmon v Corrective Services NSW [2016] NSWCATAD 257 Sergent v Land and Property Management Authority [2010] NSWADT 50
Category:	Principal judgment
Parties:	Meriton Property Services Pty Limited (First Applicant) Greenland (Aust) Investment Pty Ltd (Second Applicant) Greenland (Sydney) Lachlan's Line Macquarie Park Development Pty Ltd (Third Applicant) UrbanGrowth NSW (Respondent)
Representation:	Counsel: S Prince (First Applicant) R Gall (Second Applicant) R Gall (Third Applicant) K Richardson (Respondent)   Solicitors: Office of the General Counsel - Meriton Group (First Applicant) Herbert Smith Freehills (Second Applicant) Herbert Smith Freehills (Third Applicant) Minter Ellison Lawyers (Respondent)
File Number(s):	1610219
Publication restriction:	Section 64 of the Civil And Administrative Tribunal Act 2013 applies to the material filed by UrbanGrowth on a confidential basis and to the record of that part of the proceedings conducted in the absence of the Applicant pursuant to section 107 of the Government Information (Public Access) Act 2009. That material is not to be released to either the Applicant or to the public.

REASON FOR DECISION

1. Meriton Property Services Pty Limited (“Meriton”) applied to UrbanGrowth NSW (“UrbanGrowth”) under the Government Information (Public Access) Act 2009 ("the GIPA Act") seeking access to information held by that agency. In its access application Meriton sought access to information in relation to the development of land described as "Lachlan's Line" at Macquarie Park. Meriton’s request was in the following terms:

“List of all tenderers for the Tender Campaign;

The total price tendered by the successful tenderer, Greenland Australia Pty Limited (Greenland). If the total price tendered was varied at any stage throughout the Tender Campaign, each and every total price tendered by Greenland;

The result of any cost benefit analysis undertaken as part of the Tender Campaign; and

Any document, note, record or file detailing or relating to a put and call option, contract for sale of land and/or any transfer of title to Greenland or related entity

Note - 'document' having the same meaning as contained In the Evidence Act 1995 (NSW) and Includes all electronic documents.”

2. UrbanGrowth sought clarification of some aspects of the request and Meriton clarified that:

• the request related to the successful tender by Greenland Australia Investment Pty Limited (and not Greenland Australia Pty Limited);

• the reference to a request for any 'cost benefit analysis undertaken as part of the Tender Campaign' was to be construed as a request for the category of information referred to in the NSW Government's Register of Government Contract Guidelines and section 30(2)(c) of the GIPA Act. Specifically, Information about the perceived strengths and weaknesses of the successful tender when compared to the unsuccessful tenders; and

• the nature of the information sought is the detail of the mechanism of sale and/or transfer of the land; that is the terms and conditions of the sale or transfer. That information will be contained within the document or documents which affected the sale and/or transfer of land, be it a contract or a put and call option.

3. UrbanGrowth’s Right to Information Officer determined the access application. She decided:

1.   that some of the information was already available to Meriton; and

2.   to refuse to provide access to some of the information on the basis that there is an overriding public interest against disclosure of some of the Information.

4. In relation to the first category of the access application (“the List of Tenderers”), UrbanGrowth refused to disclose the names of the unsuccessful tenderers on the basis that there was an overriding public interest against disclosure.

5. In relation to the second category of the access application, UrbanGrowth disclosed the total price tendered by the successful bidder and the fact that the total price was not varied at any stage throughout the Tender campaign. It appears to me that the provision of this information has addressed the second category of the access application and therefore I do not propose to discuss it further.

6. In relation to the third category of the access application, UrbanGrowth identified that the only document that is responsive to this category is the Lachlan's Line Mixed Use Precinct - Tender Evaluation Report (“the Tender Evaluation Report”).

7. In relation to the fourth category of the access application, UrbanGrowth identified that the only document that is responsive to this category is the Put & Call Option Deed and Contract entered into by Greenland (“the Put & Call Option Deed and Contract”).

8. In these reasons I will refer to the List of Tenderers, the Tender Evaluation Report and the Put & Call Option Deed and Contract collectively as “the withheld information”.

9. Meriton has applied to the Tribunal for external review of UrbanGrowth’s decision.

10. Greenland (Aust) Investment Pty Ltd was joined to the proceedings as the second applicant and Greenland (Sydney) Lachlan's Line Macquarie Park Development Pty Ltd was joined as the third applicant.

Background

11. The parties are in general agreement in regard to the background to the access application.

12. Landcom, created by the Landcom Corporations Act 2001 (“the Landcom Act”), is State Owned Corporation trading through UrbanGrowth. UrbanGrowth is the New South Wales government's main agency responsible for urban transformation and development projects not only in relation to Lachlan's Line but also in relation to other urban development projects.

13. Section 6(1) of the Landcom Act provides:

6 Principal objectives of Corporation

(1) The principal objectives of the Corporation are as follows:

(a) to be a successful business and, to this end:

(i) to operate at least as efficiently as any comparable businesses, and

(ii) to maximise the net worth of the State’s investment in it,

(b) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates,

(c) to protect the environment by conducting its operations in compliance with the principles of ecologically sustainable development contained in section 6 (2) of the Protection of the Environment Administration Act 1991 ,

(d) to exhibit a sense of responsibility towards regional development and decentralisation in the way in which it operates,

(e) to undertake, or assist the Government in undertaking, strategic or complex urban development projects,

(f) to assist the Government in achieving its urban management objectives,

(g) to be a responsible developer of residential, commercial and industrial land.

14. Section 7 of the Landcom Act provides:

7 Functions of Corporation

(1) The Corporation has the functions conferred or imposed on it by or under this or any other Act or law.

(2) The principal functions of the Corporation are:

(a) to undertake and participate in residential, commercial, industrial and mixed development projects, and

(b) to provide advice and services related to urban development, on a commercial basis, to government agencies and others.

(3) Subsection (2) (b) does not affect the functions of the board of the Corporation under section 29 of the State Owned Corporations Act 1989 .

(4) The Corporation may also:

(a) provide facilities or services that are ancillary or incidental to its principal functions, and

(b) conduct any business or provide any service (whether or not related to its principal functions) that it considers will further its objectives.

15. In Karimbla Properties (No 50) Pty Ltd v State of New South Wales & Anor [2015] NSWSC 778 Beech-Jones J summarised the position at paragraphs [69] – [70]:

69. UrbanGrowth is a statutory State owned corporation and as such is subject to Part 3 of the State Owned Corporations Act 1989 (“the SOC Act”). Section 20F of the SOC Act provides that, inter alia, UrbanGrowth is not and does not represent the State except by express agreement with the voting shareholders or if legislation expressly so provides. There is no evidence of any such agreement and no suggestion of any legislative provision so providing. Again, s 20O to s 20P of the SOC Act confer a limited form of ministerial control and direction over UrbanGrowth. The only relevant provision conferring a power on UrbanGrowth is s 20ZB which confers upon it the powers of a “natural person”, including a power to enter contracts or dispose of property.

70. The overall effect of these provisions is to establish a body corporate with a quasi-commercial objective, a corporate management structure, limited ministerial control, financial accountability to the State via its ministers with only the powers of a natural person and which does not represent the State.

16. In November 2014, UrbanGrowth sought expressions of interest to purchase the Lachlan's Line. The two-stage tendering process involved submission of expressions of interest (Stage 1), with UrbanGrowth to then select a short list of preferred parties to submit a tender (Stage 2).

17. Meriton is a wholly owned subsidiary of the holding company of the Meriton Group. KarimbIa Properties (No. 50) Pty Limited (“Karimbla”) is also a wholly owned subsidiary. Accordingly, Meriton and KarimbIa are associated companies.

18. Karimbla was short listed for the Stage 2 Invitation to Tender. However, Karimbla was subsequently excluded from the Stage 2 Tender process. Karimbla challenged the exclusion in the Supreme Court but ultimately abandoned those proceedings. Meriton’s involvement in the tender process is set out in the affidavit of Mr Joseph Callaghan.

19. The successful tender bid by Greenland was for $190,000,000 plus GST.

20. Meriton has explained that its access application seeks documents that pertain to the transparency of the tender process. It contends that the requested information is significant to the transparency of the tender process and that its release will serve to publicly demonstrate whether or not the exclusion of KarimbIa from the tender process was in the best interests of the community. Its motivation in seeking the disclosure of the information is to:

a.   determine whether UrbanGrowth has adhered to its obligations to ensure the tender process achieved the objectives of obtaining the best possible price for the development land;

b.   evaluate whether KarimbIa was subject to wrongful exclusion from the tender process, and whether the tender process failed to achieve its ultimate objective of getting the best value for the development land in the tender process;

c.   reinforce public interest requirements pertaining to the tender processes to be followed for the sale of public land; or

d.   protect its own personal and professional reputation due to the circumstances surrounding its exclusion from the tender process.

21. Meriton contends that the reasons relied upon by UrbanGrowth to refuse disclosure do not demonstrate an overriding public interest against disclosure and that, to the contrary, the factors favouring disclosure overwhelmingly outweigh the factors against disclosure. It asserts that the information ceased to be commercially, professionally or financially sensitive at the conclusion of the Tender process and disclosure is necessary to ensure the deliberations, consultations, processes and procedures adopted by UrbanGrowth are consistent with its legislative functions and in accordance with the Tender campaign for Lachlan's Line.

22. It submits that there is a significant public interest in ensuring that the functions and activities of UrbanGrowth under the Landcom Act, dealing with public land in a quasi-commercial way, is undertaken with transparency and accountability.

Applicable legislation

23. The applicable legislation in determining an access application has been considered in numerous decisions of this Tribunal and the former Administrative Decisions Tribunal. See for example my summary in Eyes v Wyong Shire Council [2016] NSWCATAD 120.

24. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. An access applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: section 9(1) of the GIPA Act.

25. Section 12 of the GIPA Act sets out the general public interest consideration in favour of access to government information. Section 12(1) of the GIPA Act sets out a general public interest in favour of disclosing government information. Section 12(2) provides that the agency may take into account any other considerations in favour of disclosure which may be relevant.

26. Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure. Before deciding whether to release or withhold information, an agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists in regard to the information sought. Section 13 requires the decision maker to:

a.    identify relevant public interest considerations in favour of disclosure,

b.   identify relevant public interest considerations against disclosure,

c.   attribute weight to each consideration for and against disclosure, and

d.   determine whether the balance of the public interest lies in favour of or against disclosure of the government information.

27. The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act. This includes considerations set out in schedule 1 to the GIPA Act.

28. Considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the effect outlined in the table to section 14 of the GIPA Act. The words, ‘could reasonably be expected’ in section 14 are to be given their ordinary meaning, and require something more than a possibility, risk or chance of the relevant event occurring, assessed objectively: see my discussion of this issue in Salmon v Corrective Services NSW [2016] NSWCATAD 257 at paragraphs 22 – 30 and the cases that I have cited there.

29. This requires a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from irrational, absurd or ridiculous, to expect the effect outlined.

30. The Agency must apply the public interest test in accordance with the principles set out in section 15 of the GIPA Act:

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.

31. Pursuant to section 105 of the GIPA Act the burden of establishing that the decision is justified lies on the Council.

32. The word 'reveal' is defined in clause 1 of Schedule 4 to the GIPA Act as follows:

reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).

33. For the purpose of Government contracts, 'confidential information' is defined in section 32 of the GIPA Act to include the 'commercial-in-confidence provisions' of the contract. These are defined in clause 1 of Schedule 4 to the GIPA Act as follows:

commercial-in-confidence provisions of a contract means any provisions of the contract that disclose:

(a) the contractor's financing arrangements, or

(b) the contractor's cost structure or profit margins, or

(c) the contractor's full base case financial model, or

(d) any intellectual property in which the contractor has an interest, or

(e) any matter the disclosure of which would place the contractor at a substantial commercial disadvantage in relation to other contractors or potential contractors, whether at present or in the future.

34. The Tribunal's task is to make the correct and preferable decision having regard to all the material before it. It may decide to:

(a)   affirm the decision; or

(b)   vary the decision; or

(c)   set aside a decision and substitute a different decision; or

(d)    set aside a decision and remit the matter for reconsideration by the agency in accordance with any directions or recommendations of the Tribunal.

35. The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74].

36. In undertaking this exercise the Tribunal is to be guided by section 15.

37. Under section 55 of the GIPA Act, the Tribunal is entitled to consider the Applicant's motives for making the application to the extent that it is relevant to whether disclosure could reasonably be expected to have any of the asserted effects. 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. I have referred to those factors above.

38. In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, the Appeal Panel stated:

24. 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.

25. The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. 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. The Table considerations are concerned with systemic features of the operation of government.

39. In determining whether it is satisfied that UrbanGrowth has proven its burden, the Tribunal must first be satisfied that one or more of the public interest considerations against disclosure outlined in the Table to section 14 of the GIPA Act applies to the information in issue. Then, the Tribunal must weigh these factors against the public interest considerations in favour of disclosure.

"government contract"

40. The term ‘government contract’ is defined in clause 1 of Schedule 4 of the GIPA Act:

"government contract" means any of the following contracts between an agency and a private sector entity:

(a) a contract under which a party agrees to undertake a specific project (such as a construction, infrastructure or property development project),

(b) a contract under which a party agrees to provide specific goods or services (such as information technology services), other than a contract of employment,

(c) a contract under which a party agrees to transfer real property to another party to the contract,

(d) a lease of real property.

41. Part 3 Division 5 of the GIPA Act requires the publication of certain information on the government contract register in relation to government contracts. Section 32 provides that 'confidential information' does not need to be included in the government contract register.

42. The question arises as to whether UrbanGrowth is required to publish any of the requested information on the government contract register.

43. UrbanGrowth did not make any publication on the government contract register because of its view that Division 5 does not apply because of sections 39 and 40 of the GIPA Act.

Sections 39 and 40 of the GIPA Act

44. Sections 39 and 40 of the GIPA Act provide exceptions to the requirement for publication on the government contract register. Section 39 provides:

39 Exception for SOCs - competitive neutrality

This Division does not require a State owned corporation or a subsidiary of a State owned corporation to include any information about or a copy of a government contract in its government contracts register if the contract relates to activities engaged in by the corporation or subsidiary in a market in which it is in competition with any other person.

45. Section 40 of the GIPA Act provides:

40 Exception for Landcom - contracts for sale of land

This Division does not require Landcom to include any information about or a copy of a government contract in its government contracts register if the contract is a contract for the sale of land.

46. The section 39 exception for State owned corporations is limited to situations where the contract relates to activities engaged in by the corporation or subsidiary in a market in which it is in competition with any other person. The question arises as to whether UrbanGrowth operates and competes in a competitive market against other private and public operators for the disposal and sale of land.

47. Meriton contends that UrbanGrowth is not in the nature of a commercial developer who is developing land which it had purchased for value in the market. The relevant land is public land. No other person could compete against UrbanGrowth in relation to the development and use of the public land without purchasing that land for valuable consideration.

48. In my view, section 39 is not intended to give an exception to all activities of a State owned corporation that is engaged in a competitive marketplace. It is limited to situations where the particular contract relates to competitive activities where the State owned corporation is in competition with other persons. In the circumstances of this matter it seems that the relevant activity is as Meriton has submitted. That is, the development and use of the public land without purchasing that land for valuable consideration. The tenderers are in competition with each other but UrbanGrowth is not in competition with others. In these circumstances I am not satisfied that the section 39 exception is applicable.

49. The section 40 exception for Landcom is limited to circumstances where the relevant government contract is a contract for the sale of land.

50. Meriton contends that the transaction in this case was not a 'contract for the sale of land' but was for a Put & Call Option Deed to enter into a 'contract for the sale of land'; and also a contractual commitment to undertake substantial construction and development.

51. It is necessary to consider the document and to determine whether, properly construed, it is to be regarded as a contract for the sale of land. UrbanGrowth has provided a copy of the Put & Call Option Deed and Contract on a confidential basis.

52. A confidential session was held in Meriton’s absence. In the confidential session I had the opportunity to examine the unredacted documents and heard confidential submissions in regard to that material. This process is provided for by section 107 of the GIPA Act.

53. I have made an order under section 64 of the Civil and Administrative Tribunal Act 2013 that no record of the confidential session is to be released to either Meriton or to the public.

54. I have considered the Put & Call Option Deed and Contract and it is apparent from the face of the document that it is a contract that UrbanGrowth entered into for the sale of the property that was the subject of the Tender.

55. I agree with UrbanGrowth that it is to be regarded as a contract for the sale of land. It follows that I am satisfied that the section 40 exception is applicable. UrbanGrowth is not required to include the information in its government contracts register.

Mr Beggs’ evidence

56. UrbanGrowth relies on the evidence of Mr Matthew Beggs, Landcom’s Head of Western Sydney Projects Portfolio. Mr Beggs oversee UrbanGrowth's project activities in western Sydney, including the development of Lachlan's Line. He was one of the Evaluation Panel Members and one of the Panel Advisors for stage 1 of the Lachlan's Line project and a member of the Stage 2 Evaluation Committee.

57. It is not in dispute that Mr Beggs has over 29 years of experience in the property and development industry, with extensive experience in the planning and delivery of large development projects, major property transactions, business development and relationship management.

58. Meriton has expressed concern about the weight that can be given to Mr Beggs’ opinions about the consequences that could reasonably be expected if the withheld information is disclosed.

59. The need for caution in regard to the weight to be given to opinions is not in doubt. Judicial Member Wilson discussed this issue in the matter of Kinsleyand Associates Pty Ltd v Wyong Shire Council [2007] NSWADT 279. At paragraphs [22] – [23] of Kinsley he expressed concern in regard to the need for caution because by their nature the opinions are speculative in that future predictions are necessarily involved. The Judicial Member noted that the experience of the witnesses who expressed the relevant opinions is a significance factor.

60. Greater weight will be given to the opinions of witnesses with significant experience that is both historical and current and where the witness is able to speak as both giver and receiver of the type of information under consideration. Where the opinion is based on assumptions the opinions only have value should the assumption be correct.

61. In this matter, Mr Beggs’ experience is not in doubt. However, I agree with Meriton’s submission that Mr Beggs is not an independent witness and should not be treated as such. Nevertheless, I regard Mr Beggs’ experience as significant and relevant and I agreed to admit his evidence subject to weight.

62. Where Mr Beggs has direct knowledge of particular circumstances or details there is no basis on which that evidence should not be accepted. Where he has expressed an opinion it is necessary to consider that opinion in the context of his experience and to form a view as to what is merely possible and expectations which are based on real and significant grounds.

UrbanGrowth’s dealing with the Tender Process

63. Mr Beggs gave evidence in relation to the procedures that UrbanGrowth adopted in relation to the Lachlan's Line tender process. He explained in detail the steps taken to ensure the confidentiality of the process and in particular the steps taken to ensure that the information provided by tenderers would remain confidential. The evidence is that:

(a)   Clause 26 of the' Stage 2 Invitation to Tender made all information supplied to or obtained by the Tenderer confidential;

(b)   All UrbanGrowth staff and consultants involved in the Invitation to Tender were required to sign a declaration binding them to the contents of the UrbanGrowth Code of Conduct. In turn, this Code of Conduct made all tender details and any other material provided to the Evaluation Committee or project employees as provided on a commercial-in-confidence basis and confidential. The requirement of confidentiality was expressly stated to not cease upon the awarding of the contract concerned;

(c)   Members of the Stage 2 Evaluation Committee were required to sign an "Evaluation Plan" that contained provisions relating to the confidentiality of the information submitted by the tenderers and information in relation to the evaluation process;

(d)   Parties to the Tender were required to sign a confidentiality deed poll before gaining access to the data room for the Tender;

(e)   UrbanGrowth applied the highest levels of confidentiality:

i.    in relation to the List of Tenderers - the identity of participants in the process and the total number of participants in the process;

ii.    in relation to the Tender Evaluation Report - tender submission information and bid amounts, the nature of participants' proposals, UrbanGrowth's evaluation criteria and the evaluation it undertook (by applying those criteria to the various participants' proposals).

(f)   Physical access to the tender information and identities of tenderers was kept secure.

(g)   Only a minimal number of senior personnel within UrbanGrowth have seen the Requested Information.

64. This is a process in which Mr Beggs was personally involved and this evidence is not challenged. In my view there can be no doubt that UrbanGrowth treated the Lachlan's Line tender process as highly confidential.

Public interest considerations in favour of disclosure

65. Section 12 of the GIPA Act provides the following examples of public interest considerations in favour of disclosure of information that are relevant to this matter:

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

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

66. Meriton submitted that disclosure is necessary to ensure the deliberations, consultations, processes and procedures adopted by UrbanGrowth are consistent with its legislative functions and in accordance with the Tender campaign for Lachlan's Line.

67. It also submits that there is a significant public interest in ensuring that the functions and activities of UrbanGrowth under the Landcom Act, dealing with public land in a quasi-commercial way, is undertaken with transparency and accountability.

68. As I have noted above, Meriton has indicated that it is seeking the withheld information so that it can:

a.   determine whether UrbanGrowth has adhered to its obligations to ensure the tender process achieved the objectives of obtaining the best possible price for the development land;

b.   evaluate whether KarimbIa was subject to wrongful exclusion from the tender process, and whether the tender process failed to achieve its ultimate objective of getting the best value for the development land in the tender process;

c.   reinforce public interest requirements pertaining to the tender processes to be followed for the sale of public land; or

d.   protect its own personal and professional reputation due to the circumstances surrounding its exclusion from the tender process.

69. I agree that these are considerations in favour of release of the withheld information.

Public interest considerations against disclosure

70. In this matter UrbanGrowth contends that a number of the public interest considerations against disclosure of the information are applicable. It contends that disclosure of some or all of the withheld information could reasonably be expected to have the following effects:

(a) prejudiced the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (clause 1(d) of the Table to section 14);

(b) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice the deliberative process of government or an agency functions (clause 1(e) of the Table to section 14);

(c) prejudice the effective exercise by an agency of the agency's functions (clause 1(f) of the Table to section 14);

(d) ground an action against an agency for breach of confidence of otherwise result in the disclosure of information provided to an agency in confidence functions (clause 1(g) of the Table to section 14);

(e) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by UrbanGrowth by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (clause 1(h) of the Table to section 14);

(f) 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 disadvantage or disadvantage in any market functions (clause 4(a) of the Table to section 14);

(g) reveal commercial-confidence provisions of a government contract (clause 4(b) of the Table to section 14);

(h) diminish the competitive commercial value of any information to any person (clause 4(c) of the Table to section 14);

(i) prejudice any persons legitimate business, commercial, professional or financial interests (clause 4(d) of the Table to section 14);

(j) 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) (clause 4(e) of the Table to section 14).

71. Each of these public interest considerations against disclosure of the information has been considered in decisions of this Tribunal and decisions of the Administrative Decisions Tribunal. A thorough discussion can be found in Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 (“Barangaroo”).

Clause 1(d) of the Table to section 14

72. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions. UrbanGrowth contends that Clause 1(d) is applicable to all of the withheld information. That is:

i. List of Tenderers;

ii. Tender Evaluation Report;

iii. Put & Call Option Deed and Contract.

73. In Barangaroo Deputy President Higgins considered a number of the public interest considerations against disclosure and decisions that had dealt with the applicable factors in that case. In regard to Clause 1(d) of the Table to section 14 she stated:

63. Clause 1(d) prejudice supply of confidential information

In Camilleri at [27] to [33], the Appeal Panel considered the operation of the public interest consideration against disclosure in cl 1(d) of the table of subs 14(2) of the GIPA Act and said the following:

27 The approach to be adopted is similar to that commended by the Appeal Panel under the previous legislation, there in connection with cl 13(b)(ii). ...

28 In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), the Appeal Panel said:

58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872:

`The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...'

29 This approach was endorsed in many subsequent Tribunal and Appeal Panel decisions. The same approach is required, as we see it, in relation to many of the s 14 Table considerations. They squarely focus on considerations relating to the conduct of the business of government. ...

30 ...

31 In this case the Tribunal was required to form an opinion on whether disclosure of the information could reasonably be expected to have the effect of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions (cl 1(d)); or, ...

32 ...

33 In our view, the question of whether the information supplied is 'confidential information' must 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. ...

64. As outlined above, for the cl 1(d) public interest consideration to apply, the information in issue must not only be 'confidential information', it must also be information that facilitates the effective exercise of that agency's functions.

65. The Tribunal has accepted that the word 'prejudice', in the context of the public interest considerations against disclosure, is to be given its ordinary meaning, namely: 'to cause detriment or disadvantage': see Hurst (supra) at [60], McLennan v University of New England [2013] NSWADT 113 at [38] and Sobh v Victoria Police (1993) 1 VR 41.

74. It is not necessary that the decision-maker be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information.

75. UrbanGrowth relies on the evidence of Mr Beggs regarding the conditions under which the information was received. As I have noted above, I am satisfied that UrbanGrowth treated the Lachlan's Line tender process as highly confidential.

76. In regard to the question of whether release of information of the kind that UrbanGrowth is seeking to protect would prejudice the supply of similar material in the future, Mr Beggs expressed the view that the likely effect would be a decrease in the number of parties prepared to engage in tender processes and a decrease in the amount of confidential information they are willing to provide as part of the tender process. He is of the opinion that it is likely that those who do participate may have reservations and that the information provided may not have the detail and candour that is ideally required.

74. In contrast, Meriton contends that those involved in the tender process were put on notice that the information provided may not be confidential. It points to clause 23.3 of the Invitation to Tender which states:

23.3 Government Information (Public Access) Act 2009

Tenderers are advised that information provided with their Tender submission is subject to the requirements of the GIPA Act. Information on the Tender may also be released formally or informally under the GIPA Act and if required under an Access Application under the GIPA Act.

78. Meriton also notes that none of those involved in the tender process has made an application under section 56 of the GIPA Act to object to the inclusion of information in UrbanGrowth’s disclosure log.

79. I do not agree with Meriton’s submission regarding clause 23.3 of the Invitation to Tender. In my view this clause is no more than a statement of the law. It does not alter the fact that information was provided in confidence and UrbanGrowth treated the information provided as highly confidential.

80. However, the evidence on which UrbanGrowth relies is that of Mr Beggs and as I have noted above, Mr Beggs is not an independent witness. UrbanGrowth has not provided other evidence in support of Mr Beggs’ expressed views.

81. Nevertheless, I am satisfied that the withheld information addresses matters relating to the business, commercial and financial affairs of those involved in the tender process.

82. In relation to the list of tenderers it is my view that it is likely that the simple fact that an entity's direct market competitor does not know whether the entity took part in the Tender is information of a competitive and commercial value to the entity. This is consistent with the view expressed by President O'Connor in Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282 (“Cianfrano”), His Honour observed at paragraph [37] - [38]:

37 SML does not wish to have revealed to the outside world its offers and their foundation. It was involved in a confidential negotiating process. The ultimate outcome is known.

38 There would, I consider, be an adverse effect on the affairs of private bidders as well as on the agencies with which they deal if details of unsuccessful offers and their foundation were to be revealed. It is generally not desirable that a negotiation process be held out later to public view especially if the final outcome is known. …

83. I agree with that view.

84. The Tender Evaluation Report contains confidential information supplied by the tenderers to UrbanGrowth and UrbanGrowth’s analysis about the perceived strengths and weaknesses of the tenders. This is information of a competitive and commercial value to the tenderers. The tender evaluation process also adopts methodology that UrbanGrowth contends is unique to its tender processes. Mr Beggs’ evidence supports that view.

85. In Retain Beacon Hill High School Committee Inc v Department of Commerce (GD) [2006] NSWADTAP 58 the Appeal Panel found that methodology has commercial value to agencies as well as to the private sector. It stated at paragraph [27]:

27 As to cl 7(1)(b), the agency first (see (b)(i)) must show that the matter for which protection is sought has ‘commercial value’ to the agency. There can be no doubt, we consider, that confidential valuation methodologies, confidential valuations and confidential material relevant to formulation of a sale price is matter of ‘commercial value’ to an agency, just as it would be for a private sector business. There was ample evidence provided by the agency to enable the Tribunal to reach the conclusion that this requirement was satisfied. The agency must then demonstrate (see (b)(ii)) that the disclosure of the information ‘could reasonably be expected to destroy or diminish the commercial value of the information’.

28 The Tribunal noted the need to take an essentially objective approach (see, for example Vincent Neary v State Rail Authority [1999] NSWADT 107 at [35]) when determining whether there is a reasonable expectation and whether the assertions made by the agency that disclosure might ‘destroy or diminish’ that commercial value were persuasive. This is an exercise essentially of a discretionary kind. There was ample material before the Tribunal to support the conclusion it reached. The Tribunal’s conclusions are in line with similar decisions on similar circumstances in the past: for example Freeland v General Manager, Liverpool City Council [1999] NSWADT 95; and Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37. The Tribunal has recognised that disclosure of confidential commercial documents at a point when the sale or tender process is not complete may have this effect.

29 As to cl 7(1)(c), the first element (see (c)(i)) is broader than the first element of cl 7(1)(b). It is enough to show that the matter for which protection is sought would if disclosed reveal ‘information concerning the business, professional, commercial or financial affairs’. This requirement was easily satisfied in this case, as the Tribunal’s reasons explain (for similar cases, see, for example Cianfrano v Director General, NSW Treasury [2005] NSWADT 7 at [63]; Raethel v Director General, Department of Education and Training [1999] NSWADT 108 at [46]- [47]; and CH Real Estate Pty Ltd (t/a Raine & Horne Commercial, Penrith) v Penrith City Council [2005] NSWADT 147 at [51] and [54]).

30 The more difficult task for the agency is to bring the case within the second requirement ((c)(ii)) – to show that disclosure can ‘reasonably be expected to have an unreasonable adverse effect on those affairs or ... prejudice the future supply of such information to the Government or to an agency’. The judgement required of the decision-maker (initially, the agency, and, on review, the Tribunal) is one involving relatively factual matters (adverse effect) and matters more of an evaluative kind based on the evidence (‘unreasonable’ adverse effect, ‘prejudice ... future supply’). The evidence of the agency officers went to these matters and was detailed. The Tribunal carefully considered it, took account of the competing views of the appellant as to where the balance should lie, and accepted that the second requirement had been established. We see no reason to disturb its conclusions. It is in line with conclusions reached in the cases mentioned in the last paragraph.

86. The Put & Call Option Deed and Contract includes provisions relating to the successful bidder's financing arrangements, cost structures and full base-case financial modelling. The evidence is that this information was provided in confidence to UrbanGrowth.

87. In my view the release of that information could reasonably be expected to be of concern to those parties given the circumstances in which it was provided to UrbanGrowth. Given the fact that the tender process was expressed to be confidential, it is likely that release of the information would be a consideration by those parties and other potential participants in future tender processes. It could reasonably be expected that at least some potential tenderers would limit the level of detail that they would be prepared to provide.

88. In the circumstances I am satisfied that release of the withheld information could reasonably be expected to prejudice the supply of confidential information to UrbanGrowth in future tender process. There is no doubt that the supply of this type of information is important to UrbanGrowth’s activities and that any curtailment would be prejudicial. This would impact on the effective exercise of UrbanGrowth’s functions.

89. In my view this factor is to be given very significant weight.

Clause 1(e) of the Table to section 14

90. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to 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. UrbanGrowth contends that Clause 1(e) is applicable to the Tender Evaluation Report.

91. In order for this public interest consideration against disclosure to apply, it is necessary to establish a connection between the particular opinion, advice or recommendation and the relevant deliberative process of the agency.

92. UrbanGrowth contends that the release of the Tender Evaluation Report will reveal the deliberations of UrbanGrowth regarding the Tender. UrbanGrowth relies on Mr Beggs’ evidence and has provided a copy of the Report to the Tribunal. It is clear from the face of the document that it contains a cost benefit analysis. Mr Beggs’ evidence is that this analysis was undertaken by the Stage 2 Evaluation Committee as part of the tender campaign. This process involved an evaluation of the tenders received against the evaluation criteria. This resulted in a non-price score for each tender to enable a value for money consideration.

93. Mr Beggs’ evidence is that UrbanGrowth keeps its evaluation criteria confidential. UrbanGrowth contends that the release would reveal the process of how UrbanGrowth evaluated the various tenders received against its evaluation criteria. It submits that a key aspect to the competitive nature of the tender process is the fact that no participant knows the specifics of how UrbanGrowth conducts its deliberative processes.

94. UrbanGrowth submits that release must be viewed as not simply release to Meriton but also to other potential tenderers and that release of the evaluative formulas would allow Meriton and others who have access to the information to pre-empt the decisions that UrbanGrowth might make and tailor applications in future tender processes to address these formulas, methodologies and weighting criteria. This would impact on UrbanGrowth's deliberative process and also have the potential to reduce the detail of the information provided the overall nature of the bids.

95. UrbanGrowth further submits that release must be viewed as release to UrbanGrowth's competitors. It would allow competitors to tailor their own processes to unfairly compete with UrbanGrowth, which does not have such access to the methodologies of its competitors.

96. I accept UrbanGrowth's arguments in this regard. I am satisfied that disclosure of the Tender Evaluation Report could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of UrbanGrowth.

97. In my view this factor is to be given significant weight.

Clause 1(f) of the Table to section 14

98. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency’s functions. UrbanGrowth contends that Clause 1(f) is applicable to all three of the categories of the withheld Information.

99. UrbanGrowth submits that in order to carry out its wholesale land-disposal strategy, via a tender process, it needs to maintain its brand and reputation in the market place. It contends that release of the withheld information could reasonably be expected to prejudice the effective exercise of its functions because it would damage its brand and reputation. It submits that this would undermine the confidence that parties to the Lachlan's Line tender and parties to future potential tenders would have in UrbanGrowth's tender processes. That would adversely affect UrbanGrowth's ability to run competitive tender processes.

100. UrbanGrowth submits that commercially it is very important that there is confidentiality in relation to tender processes that it conducts in order to keep private industry engaged and willing to participate in those processes. It submits that the undermining of confidence in UrbanGrowth's tender processes would likely lead to a decrease in the number of parties prepared to engage in future tender processes conducted by UrbanGrowth which in turn will reduce the competitive nature of those tender processes and the ability of UrbanGrowth to carry out its functions.

101. UrbanGrowth relies on the views expressed by President O'Connor in Cianfrano that I have referred to at paragraph [78] above.

102. UrbanGrowth submits that disclosure of details of unsuccessful offers and their foundation would have an adverse effect on the agency. Further, for the reasons set out above, it submits that disclosure of the Tender Evaluation Report would reveal UrbanGrowth's evaluation methodologies and prejudice its effective exercise of its functions because it would allow tender parties to pre-empt future evaluative decisions. UrbanGrowth's ability to compete effectively with other entities selling land would be compromised if market competitors were aware of how it evaluated tenders.

103. It further submits that to allow access to the Put & Call Option Deed and Contract is contrary to the objects and scheme of the Act.

104. I agree with these submissions. I am satisfied that release of the information could reasonably be expected to impact on UrbanGrowth’s ability to conduct tender processes in the manner that it chooses. Any curtailment of those processes would be prejudicial. prejudice the effective exercise of UrbanGrowth's functions.

105. In my view this factor is to be given significant weight.

Clause 1(g) of the Table to section 14

106. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence. UrbanGrowth contends that Clause 1(g) is applicable to all 3 of the categories of Requested Information.

107. In Barangaroo Deputy President stated in regard to Clause 1(g):

68. Clause 1(g) disclose information provided to the agency in confidence

It is well established that even where information has not expressly been provided to an agency in confidence, this can be inferred from the circumstances in which it was provided. In these applications, I accept that the disputed information, to the extent it is information provided in the course of the tender process by LL, BM or KPMG, was provided in confidence.

108. I agree with this view. It is clear from both Mr Beggs’ evidence and from the circumstances of the matter that each of the withheld documents was provided in confidence during the tender process.

109. Mr Beggs noted that UrbanGrowth had made representations to tenderers that the information provided would be treated with confidentiality in order to maintain a fair and competitive tender process. He is concerned that in these circumstances the disclosure of the withheld information could reasonably be expected to be used against UrbanGrowth in an action for breach of confidence. Further, the Put & Call Option Deed and Contract contains a clause, which provides that its contents are confidential, and obliges UrbanGrowth to keep its contents confidential.

110. Meriton contends that the statements of confidentiality as between the parties are not conclusive. It notes that the Confidentiality provision at clause 26.2 of the Invitation to Tender provides that the terms of the document are to be kept confidential and yet this has not prevented UrbanGrowth from disclosing the document in its open affidavit in these proceedings.

111. I agree with Meriton that clause 26.2 of the Invitation to Tender is a Confidentiality clause. However, I do not agree that disclosure of the Invitation to Tender detracts from the confidential basis on which tenderers provided information to UrbanGrowth. The release of the Invitation to Tender does not release the confidential information that the tenderers provided.

112. I accept Mr Beggs’ evidence that UrbanGrowth made representations that the information provided would be treated with confidentiality. I am persuaded that his concern is reasonably based. I am also satisfied that where information was provided in reliance on those representations disclosure of the information could found an action for breach of confidence against UrbanGrowth.

113. In my view this factor is to be given considerable weight.

Clause 1(h) of the Table to section 14);

114. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to 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). UrbanGrowth contends that Clause 1(h) is applicable to the Tender Evaluation Report.

115. It submits that release of the Tender Evaluation Report could reasonably be expected to prejudice its tests for determining and evaluating tender processes. Mr Beggs’ evidence is that UrbanGrowth's evaluation criteria are kept confidential. A significant factor in regard to the effectiveness of the evaluation process and the competitive nature of the tender process is that the tender parties do not know the criteria. No participant knows the specifics of how UrbanGrowth conducts its deliberative processes. UrbanGrowth contends that revealing the Tender Evaluation Report and disclosing the purpose and results of the test, would undermine the effectiveness of the test.

116. I am persuaded that UrbanGrowth's concern is reasonably based. I am satisfied that release of the Tender Evaluation Report could reasonably be expected to prejudice the conduct, effectiveness or integrity of UrbanGrowth’s tests for determining and evaluating tender processes.

117. In my view this factor is to be given significant weight.

Clause 4(a) of the Table to section 14

118. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to 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. UrbanGrowth contends that Clause 4(a) is applicable to all 3 of the categories of Requested Information.

119. It submits that release of the information would undermine competitive neutrality in relation to UrbanGrowth's key function of selling wholesale land packages via tender processes. Meriton would receive significant amounts of highly sensitive and confidential information about the process likely to be undertaken which they could then leverage to its advantage. This would remove any neutrality.

120. UrbanGrowth further submits that release of the information would prejudice to the supply to UrbanGrowth of confidential information and it would damage UrbanGrowth's brand and reputation in the market place for the reasons discussed above. This would undermine the competitive nature of UrbanGrowth's future tender processes.

121. It further submits that its market competitors are able to maintain confidentiality in their tender processes because they are not subject to the GIPA Act. Therefore disclosure of the Requested Information would place UrbanGrowth at a competitive disadvantage in the sale of land market and thereby undermine its competitive neutrality.

122. In my view the inclusion of specific provisions in relation to State owned corporation suggests the intention that a state entity should not be disadvantaged in comparison with its private sector competitors as a result of the need to comply with the GIPA Act. However, I note Meriton’s submission that UrbanGrowth is not developing land which it has purchased for value in the market and that no other person could compete against UrbanGrowth in relation to the development and use of the public land without purchasing that land for valuable consideration.

123. UrbanGrowth did not address the question of whether or not it enjoys any net competitive advantage as a result of its public ownership. I accept that UrbanGrowth would be placed at a relative disadvantage in comparison with the private sector as a result of the need to comply with the GIPA Act. However, if UrbanGrowth has a competitive advantage as a result of its public ownership and the ability to obtain public land without purchasing that land for valuable consideration, it raises questions about whether any competitive neutrality exists.

118. It appears that if the withheld information is released, all potential tenderers would be placed in a similar position as Meriton. There would be no benefit to Meriton in comparison to the other potential tenderers.

119. In these circumstances it is difficult to identify what impact the release of the withheld information would have on any competitive neutrality. It may be that UrbanGrowth has a competitive advantage and that the advantage would be diminished by release of the information, however if that is the case the release of the information would not be undermining competitive neutrality but rather it would be undermining competitive advantage.

120. I am not satisfied that this is a consideration that I need to weigh.

Clause 4(b) of the Table to section 14

127. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal commercial-in-confidence provisions of a government contract. UrbanGrowth contends that Clause 4(b) is applicable to the Put & Call Option Deed and Contract.

128. As noted above, Meriton contends that the statements of confidentiality as between the parties are not conclusive. However, as I have also noted, I do not agree that disclosure of the Invitation to Tender detracts from the confidential basis on which tenderers provided information. It does not reveal the withheld information.

129. The Put & Call Option Deed and Contract is the contract that UrbanGrowth entered into for the sale of the property that was the subject of the Tender. It is clear from the face of the document that it includes provisions relating to the successful bidder's financing arrangements, cost structures and full base-case financial modelling that were provided in confidence to UrbanGrowth.

130. I agree with UrbanGrowth’s submission that this information is commercial-in-confidence information contained within a government contract.

131. I am satisfied that release of the Put & Call Option Deed and Contract could reasonably be expected to reveal commercial-in-confidence provisions of a government contract.

132. In my view this factor is to be given significant weight.

Clause 4(c) of the Table to section 14

133. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to diminish the competitive commercial value of any information to any person. UrbanGrowth contends that Clause 4(c) is applicable to all 3 of the categories of Requested Information.

134. UrbanGrowth referred to the discussion in Barangaroo at paragraphs [72] – [74] where Deputy President Higgins discussed a number of cases that had considered this provision:

72.   Clause 4(c) diminish the competitive commercial value of the information

In McKinnon v Blacktown City Council [2012] NSWADT 44 at [79] and [80], the Tribunal noted that the words 'commercial value' were modified by the adjective 'competitive' and after considering the ordinary meaning of that word, said:

"Competitive commercial value" therefore connotes information of commercial value gained in, or relating to, a competitive commercial or business context, including competitive information relating to the competitive purchase and provision of government services.

73. In [Nature Conservation Council of NSW v Department of Trade and Investment Regional Infrastructure and Services [2012] NSWADT 195] at [160], the Tribunal held that the descriptor 'competitive' implied that the information would need to provide the person with a competitive edge.

74. In McKinnon (supra), at [78], the Tribunal accepted the following meanings of the term 'commercial value': 'if [the information] is valuable for the purposes of carrying on the commercial activity in which the entity is engaged' (Sitel and Employment Advocate [2005] AATA 617; (2005) 40 AAR 552 at 561 and Cannon and Australian Quality Egg Farms Ltd (1994) QIC 94 at 16), 'if a genuine arms-length buyer is prepared to pay [to] obtain the information' (Sitel and Employment Advocate [2005] AATA 617; (2005) 40 AAR 552 at 561, citing Cannon and Australian Quality Egg Farms Ltd [1994] QICmr 9; (1994) 1 QAR 491), and 'capable of being described as commercial in character' (Mangan and the Treasury [2005] AATA 898 [36]).

135. UrbanGrowth referred to the view that I expressed in Sergent v Land and Property Management Authority [2010] NSWADT 50 at paragraph [53]:

"There are a number of cases where the Tribunal has accepted that the commercial value in particular documents could reasonably be expected to be destroyed or diminished if disclosure would give a competitor an insight into the business of the documents' owner. This is particularly in the context of a tendering process. In Zagami v Waste Services New South Wales [2005] NSWADT 217, I accepted that the commercial value of the information in question would be destroyed or diminished because disclosure would allow a person with sufficient technical knowledge to ascertain aspects of the agency's operations and in doing so, a competitor could obtain a commercial advantage in a tendering process.

136. In Eyes v Central Coast Council [2016] NSWCATAD 306 Senior Member Dinnen also considered cases that had discussed the issue of the “commercial value” of information. She stated at paragraphs [54] – [56]:

54. The question whether an item of information has “commercial value” is “to be determined by the Tribunal in an objective way taking account of the subjective view of the business party”: Media Research Group Pty Ltd v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7 (Media Research) at [44]. In Media Research from [40], the Appeal Panel endorsed the discussion of “commercial value” in Seeney and Department of State Development [2004] QICmr 4 (Seeney). There, the Queensland Information Commissioner identified two senses in which information may have “commercial value”: (1) “commercial value” in its “primary meaning” refers to information that is “valuable for the purposes of carrying on the commercial activity in which the ... person is engaged”: [36]. The information “may be valuable because it is important or essential to the profitability or viability of a continuing business operation, or a pending ‘one-off’ commercial transaction”: at [36].

(2) In its “second meaning”, information has a “commercial value to [a] ... person if a genuine arms-length buyer is prepared to pay to obtain that information from that ... person, such that the market value of the information would be destroyed or diminished if it could be obtained under the FOI Act from a government agency”: at [37]. There needed, the Commissioner noted, to be some evidence of a “legitimate market” for information of that character.

55. The Appeal Panel added that there must be some uniqueness attaching to the information that justifies treating it as exclusive, secret or confidential: Media Research at [48] (approved in Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [56]).

56. It is clear that the mere investment of time and money in producing information is not itself sufficient to demonstrate that it has “commercial value”: Re Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 at [52]. However, “the fact that resources have been expended in producing information, or money has been expended in acquiring it, are factors that may be relevant to take into account in determining whether information has a commercial value”: at [52].

137. UrbanGrowth submits that each part of the withheld information, by its very nature, has a competitive and commercial value to the parties that provided it. It repeats the arguments that have been discussed above in regard to this issue.

138. Meriton contends that Clause 4(c) would have little application to the present case given that the withheld information would need to provide the person with a competitive edge. In circumstances where the tender process has closed and the tender has been awarded it could not be said that any information relating to the successful tender would give any other person a "competitive edge".

139. In the present matter I am satisfied that in the tender process the withheld information had a competitive and commercial value to the parties that provided it. It is information of commercial value gained in, or relating to, a competitive commercial or business context. I am also satisfied that there is sufficient reason to justify “treating it as exclusive, secret or confidential”.

140. I do not accept that the value will have ceased to exist simply because the tender process has closed and the tender has been awarded. Even if the value has diminished to some extent as a result of closure of the tender process, it does not cease to have competitive commercial value.

141. I am satisfied that disclosure could reasonably be expected to diminish the competitive commercial value of the information. Clause 4(c) is therefore a relevant consideration.

142. In my view this factor is to be given significant weight.

Clause 4(d) of the Table to section 14

143. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice any person’s legitimate business, commercial, professional or financial interests. UrbanGrowth contends that Clause 4(d) is applicable to all 3 of the categories of Requested Information.

144. UrbanGrowth contends that the release of the withheld information would prejudice its own legitimate business, commercial, professional and financial interests and also those of the tenderers.

145. In Diehm v Greater Taree City Council [2010] NSWADT 241 Judicial Member Molony found that disclosure of documents evaluating tenders could reasonably be expected to have an unreasonable adverse effect on the business, commercial and financial affairs of the agency. At paragraph [75] he stated:

75 Mr Diehm said that he was not seeking information on successful tenders nor pricing schedules from either successful tenders or unsuccessful tenders for a Regional Waste Management Contract. This is precisely what the Waste report discusses. I accept that, as such, it contains matters which, if disclosed, would disclose information relating to the business, commercial and financial affairs of Council and others, and could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to Council. This is so as the tender process was expressed to be confidential. To now release a comparative analysis of the tenders, given the closeness in time of the tender process, could have adverse commercial consequences on those involved and prejudice future participation in confidential tenders to Council.

146. In Barangaroo Deputy President Higgins stated at paragraph [75]:

There is no dispute that the disputed information largely concerns the legitimate business, commercial or financial interests of BDA, LL, BM and/or KPMG in so far as the information relates to their respective business, commercial or financial interests. He (sic) issue is whether a disclosure of that information could reasonably be expected to prejudice those interests. ...

147. Meriton submits that UrbanGrowth must provide evidence that the disclosure could reasonably be expected to "prejudice those interests" and must go beyond a mere assertion that the information relates to those interests.

148. In my view that can be no doubt that the withheld information concerns the legitimate business, commercial or financial interests of both UrbanGrowth and the tenderers. The relevant question is whether the disclosure could reasonably be expected to prejudice those interests.

149. UrbanGrowth relies on the evidence Mr Beggs in relation to this issue. As I have noted above, any opinion regarding the likely affect of disclosure of information is speculative and must be treated with caution.

150. Nevertheless, I am satisfied on the totality of the evidence before me that there are reasonable grounds for an expectation that disclosure of the information could reasonably be expected to prejudice legitimate business, commercial, professional or financial interests. Both Greenland and UrbanGrowth have presented arguments in regard to how their interests could be affected by disclosure of the information.

151. For the reasons that I have discussed above I consider that it is reasonable to expect that at least some of the tenderers have a legitimate interest in not disclosing that they participated in the tender process.

152. The Tender Evaluation Report contains confidential information supplied by the tenderers to UrbanGrowth and UrbanGrowth’s analysis about the perceived strengths and weaknesses of the tenders. It also identifies methodology that UrbanGrowth applies to its tender processes.

153. The Put & Call Option Deed and Contract contains confidential information relating to the successful bidder's financing arrangements, cost structures and full base-case financial modelling.

154. I am satisfied that disclosure of this information could reasonably be expected to prejudice the legitimate business, commercial, professional or financial interests of both UrbanGrowth and the tenderers. Clause 4(d) is therefore a relevant consideration.

155. In my view this factor is to be given significant weight.

Clause 4(e) of the Table to section 14

156. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results. UrbanGrowth contends that Clause 4(e) is applicable to the Tender Evaluation Report.

157. Mr Beggs’ evidence is that historical analysis and related research undertaken by UrbanGrowth led to the formulation of the evaluative formulas, evaluation methodologies and weighting criteria which were taken into account in the assessment the bids. He is of the view that disclosure of the Tender Evaluation Report would reveal the research that underpins those evaluative formulas, evaluation methodologies and weighting criteria. He says that that disclosure could reasonably be expected to prejudice the conduct of UrbanGrowth’s future tender processes.

158. Mr Beggs’ evidence in regard to the research underlying the formulas, evaluation methodologies and weighting criteria is based on his personal experience and is unchallenged. I accept that evidence.

159. I am satisfied that disclosure of the Tender Evaluation Report would reveal that research. Clause 4(d) is therefore a relevant consideration.

160. In my view this factor is to be given reasonable weight.

The weighing process

161. The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise is a question of fact and degree, requiring the weighing of competing matters. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information.

162. Section 12 of the GIPA Act sets out examples of general public interest consideration in favour of disclosing government information. Meriton has identified several other considerations in favour of disclosure and its reasons for seeking the information and these are to be taken into account.

163. Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure.

164. Considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the asserted effect. The requested information must be released unless there is an overriding public interest against disclosure.

165. The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act. This includes considerations set out in schedule 1 to the GIPA Act. In the circumstances of this matter the considerations in schedule 1 do not apply. Therefore, the public interest considerations against disclosure listed in the Table to section 14 are the only considerations that may be taken into account.

166. I have noted above my view regarding the need for caution when considering opinions as to possible outcomes from the release of information. In this matter, for the most part, I have accepted Mr Beggs’ evidence as sufficient to establish that disclosure of the withheld information could reasonably be expected to have the identified outcome.

167. However, the mere fact that disclosure of the withheld information could reasonably be expected to lead to the identified outcome is not sufficient to allow the consideration against disclosure to override the presumption in favour of disclosure. It is necessary to determine what weight should be given to the various criteria having regard to the general terms of the GIPA Act, and the presumption in favour of disclosure.

168. In this matter I have expressed the view that some of the considerations against disclosure should be given significant weight. In regard to Clause 1(d) of the Table to section 14 I have expressed the view that the consideration against disclosure of the information should be very significant weight. I also regarded that consideration as applicable to all of the withheld information.

Conclusion

169. In my view, the public interest considerations against disclosure of information out-weighed the considerations in favour of release.

170. Having examined all of both the open and confidential material filed with the Tribunal by the respondent, and having noted all of the evidence and submissions in the proceedings, it is my view the correct and preferable decision is to affirm UrbanGrowth’s decision that some of the information was already available to Meriton; and to refuse to provide access to some of the information on the basis that there is an overriding public interest against disclosure.

Order

The decision under review is affirmed

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: 07 March 2017