Moran v Shellharbour City Council

Case •

[2011] NSWADT 241

•

19 October 2011

Administrative Decisions Tribunal


New South Wales

Medium Neutral Citation: Moran v Shellharbour City Council [2011] NSWADT 241
Hearing dates:08/12/2010 and 09/02/2011
Decision date: 19 October 2011
Jurisdiction:General Division
Before: S Higgins, Deputy President
Decision:

1.With the exception of the deletions noted below, the decision of the respondent in regard to the deletions in the 2009 Feasibility Report, the Annual Programs and the Monthly Reports is affirmed.

2.The decision of the respondent in regard to the deletions in the 2009 Feasibility Report concerning the identity of the three feasibility options and the general description of those options as set out in the Executive Summary of the Report are set aside and in substitution thereof a decision to grant the applicant access to the identity of the three feasibility options in the Table of Contents and otherwise and also grant access to the general description of these options as contained in the Executive Summary in accordance with paragraph 98 of these reasons for decision.

3.The decision of the respondent in regard to the deletions in the 2009/2010 and 2010/2011 Annual Programs relating to the 2009 Feasibility Report is set aside under section 63(3)(d) of the Administrative Decision Tribunal Act 1997 for reconsideration in accordance with these reasons for decision.

4.The decision of the respondent in regard to the deletions in the March 2009 and May 2010 Monthly Reports as set out in paragraphs 101 and 102 of these reasons for decision, and the deletions in the minutes of meeting of the Committee attached to the April 2009 and May 2010 Monthly Reports as set out in paragraph 105 of these reasons for decision is set aside under section 63(3)(d) of the Administrative Decision Tribunal Act 1997 for reconsideration in accordance with these reasons for decision.

Catchwords: Access to documents concerning a development project of the agency that was being conducted by another person on behalf of the agency - applicant granted access to documents subject to deletions - whether deletions were exempt under the business affairs, internal working or the financial and property interests of an agency had a commercial value or concerned the business, commercial and financial affairs of an agency or another person - public interest
Legislation Cited: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989 (repealed)
Government Information (Public Access) Act 2009
Cases Cited: Department of Community Services v Latham [2000] NSWADTAP 21
General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84
McGuirk v University of New South Wales [2010] NSWADT 158
Neary v State Rail Authority [1999] NSWADT 107
Re Angel and Department of Arts, Heritage & Environment (1985) 9 ALD 113
Re Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491
Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111; 16 AAR 28; 108 ALR 163
Watt v Forests NSW [2007] NSWADT 197
Category:Principal judgment
Parties: Susan Lorraine Moran (Applicant)
Shellharbour City Council (Respondent)
Representation: Counsel
D O'Sullivan (Applicant on 08/12/2010)
S Moran (Applicant in person on 09/02/2011)
Sparke Helmore (for the Respondent)
File Number(s):103150

REasons for decision

Introduction

  1. GENERAL DIVISION (S Higgins, Deputy President): The applicant, Ms Susan Moran, seeks review of a decision of the respondent, the Shellharbour City Council, to refuse her access to documents she had sought access to under the Freedom of Information Act 1989 (the FOI Act).

  1. Although the FOI Act was repealed on 1 July 2010 and replaced by the Government Information (Public Access) Act 2009, it continues to apply in respect of the applicant's application: see clause 3(1) of Schedule 3 of the Government Information (Public Access) Act 2009.

  1. The applicant's request for access was made on 15 July 2009. In that request she sought access to: '1) All documents associated with the Shell Cove/Australand Management Agreement including all feasibility studies, annual programmes, monthly reports, deeds and maps; 2) All correspondence between SCC and Australand from 1/3/09 to 30/5/09'.

  1. Shell Cove is a large coastal/tourist/residential development project initiated by the respondent in 1993 (the Project). It is an ongoing development and the respondent has engaged Australand (formerly Walker Corporation (New South Wales) Pty. Limited) to undertake the development on its behalf. The applicant is a resident in Shell Cove and seeks to obtain information about the Project, in particular the information concerning the development of the Boat Harbour, which at all times has been an integral part of the Project.

  1. In its initial determination of the applicant's FOI request, the respondent categorised the documents for which access was sought into six categories. Its determination in regard to each category was as follows:

Category

Documents

Determination

1

Annual Programmes

> 7 years

< 7 years

access granted

access denied.

2

Feasibility studies

access denied - clause 7(1)(b) of Schedule 1 of the FOI Act.

3

Monthly progress reports

as above.

4

Maps

access denied - s 25(1)(b1) of the FOI Act.

5

Deeds

no documents held

6

Correspondence between Council and Australand

access denied. Clause 9(1)(a) of Schedule 1 of the FOI Act.

  1. On internal review, the respondent affirmed the decision to refuse the applicant access to those documents falling within categories 1, 2 and 3. However, the applicant was given access to the maps and was provided with the details in regard to accessing the documents in category 5 through the respondent's website. In regard to category 6, the respondent granted the applicant access to five documents but refused access to the remaining documents.

  1. The applicant, being dissatisfied with the determination of the respondent on internal review, lodged a complaint with the NSW Ombudsman, as she was entitled to do. On 22 April 2010, the NSW Ombudsman wrote to the applicant and the respondent suggesting that the respondent re-determine the applicant's FOI request and 'releases relevant parts of the monthly and annual reports created within the last seven years and the revised feasibility report dated 31 March 2009 concerning the Shell Cove development.' When the respondent failed to respond to this suggestion, the applicant filed this application for review with the Tribunal.

  1. During the initial planning meeting, the applicant identified those documents for which she pressed access. On the basis of the applicant having identified the documents for which she pressed access, the respondent agreed to prepare and file and serve a schedule that listed the documents for which access had been refused (in part or in whole) and the grounds of refusal. The respondent filed and served that schedule on 24 October 2010. A copy of the documents, as provided to the applicant (i.e. with the exempt matter deleted), was also filed and served (see Exhibit R3 and R4).

  1. The applicant's application was initially heard on 8 December 2010. At the conclusion of the hearing, I made an order, pursuant to section 65 of the Administrative Decisions Tribunal Act 1997 (the ADT Act), to remit the decision of the respondent, the subject of review for further consideration. I also made an order that on or before 24 January 2011 the respondent was to file and serve its decision on reconsideration and that the hearing was adjourned to 9 February 2011.

  1. On 24 January 2011, the respondent wrote to the applicant informing her of its decision on reconsideration. In that decision, the respondent determined to vary the decision the subject of review in that it determined to grant the applicant access to the correspondence for which access had been pressed. The respondent also determined to grant the applicant access to some additional material contained in the remaining documents in issue. Notwithstanding this reconsideration the applicant pressed for access to the remaining deletions in the following documents:

  • the March 2009 Feasibility Report
  • the Annual Programs for the years ended 30 June 2008 (2007/2008), 30 June 2009 (2008/2009), 30 June 2010 (2009/2010) and 30 June 2011 (2010/2011)
  • the Monthly Reports of March 2008, April 2009 and May 2010.

  1. It is the applicant's contention that access should be granted to the deleted material on public interest grounds and also on the basis that the essence of the information for which exemption is claimed is already within the public domain.

Issues

  1. The issue in this application is whether the respondent has established that the deleted material in the documents in dispute (i.e. March 2009 Feasibility Report, the 2007/2008, 2008/2009, 2009/2010 and 2010/2011 Annual Programs and the selected Monthly Reports) contain information falling within the exemptions in clause 7(1)(b) and (c) (business affairs exemption), clause 9 (internal working exemption)', or clause 15 (financial or property interests of the agency) of Schedule 1 of the FOI Act.

  1. For the reasons set out below, I have found that the respondent has established that the majority of deletions are exempt under clause 7 of Schedule 1 of the FOI Act. However, to the deletions concerning the identity of the feasibility options and the general description of each option is not exempt and this information, to the extent it can be disclosed without disclosing the exempt matter should be provided to the applicant.

  1. As a consequence of my findings, I have found that the applicant should be granted access to the entirety of the Table of Contents and further portions of the Executive Summary in the 2009 Feasibility Report. As a result of this finding the respondent is to re-consider those deletions in the 2009/2010 and 2010/2011 Annual Reports and the April 2009 and May 2010 Monthly Reports which relate to the feasibility options.

Relevant legislation

  1. There is no dispute that the relevant legislation is the FOI Act. Section 16 of that Act gives every person a legally enforceable right to be given access to an agency's document in accordance with the provisions of the Act. Section 17 sets out how a person makes an application for access and section 25 sets out the circumstances where an agency may refuse access to a document for which access has been sought.

  1. It is not disputed that the respondent is an 'agency' for the purpose of the FOI Act: see section 6(1) which defines an 'agency' to include a 'local authority' (i.e. a council within the meaning of the Local Government Act 1993).

  1. Nor is it disputed that the grounds on which an agency may refuse access to a document is that it is an 'exempt document': see paragraph 25(1)(a) of the FOI Act. The term 'exempt document' is defined in subsection 6(1) of the FOI Act. It relevantly includes a document referred to in any one or more of the provisions of Schedule 1 of that Act.

  1. As I have mentioned, the main exemptions relied on by the respondent are those contained in clauses 7 and 9 of Schedule 1 of the FOI Act. These relevantly provide as follows:

7 Documents affecting business affairs
(1)A document is an exempt document:
[...]
(b) if it contains matter the disclosure of which:
(i) would disclose information (other than trade secrets or commercial-in-confidence provisions) that has a commercial value to any agencies or any other person, and
(ii) could reasonably be expected to destroy or diminish the commercial value of information, or
(c) if it contains matter the disclosure of which:
(i) would disclose information (other than trade secrets, commercial in-confidence provisions or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of an agency or any other person, and
(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the government or to any agency.
(2)A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document has been made.
9 Internal working document
A document is an exempt document if it contains matters the disclosure of which:
(a) would disclose:
(i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or
(ii) any consultation or deliberation that has taken place,
in the course of, or for the purpose of, the decision-making functions of the government, a minister or an agency, and
(b) would, on balance, be contrary to the public interest.
(1)A document is not an exempt document by virtue of this clause if it merely consist of:
(a) matter that appears in an agency's policy document, or
(b) factual or statistical material.

  1. The respondent has also relied on clause 15 of Schedule 1 of the FOI Act, which provides:

15 Documents affecting financial or property interests
A document is an exempt document if it contains matter the disclosure of which:
(a) could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency, and
(b) would, on balance, be contrary to the public interest.

  1. Section 59A of the FOI Act provides that certain factors (i.e. embarrassment to the Government and misinterpretation of information) are irrelevant when considering whether the disclosure of a document would be contrary to the public interest. That section relevantly provides as follows:

59A Public interest
For the purpose of determining under this Act whether the disclosure of a document would be contrary to the public interest it is irrelevant that the disclosure may:
(a) cause embarrassment to the Government or a loss of confidence in the Government, or
(b) cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.

  1. Section 25(4) of the FOI Act provides that an agency is not to refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and it appears to the agency that the FOI applicant would wish to be given access to such a copy.

  1. For the purpose of these proceedings, the burden of establishing that the determination of the respondent is justified lies on the respondent: see section 61 of the FOI Act. I note that the respondent only needs to establish one ground of exemption applies to a document or deletion for which access has been refused.

Evidence and submissions

  1. In support of its contentions the respondent filed and served 2 affidavits, an affidavit sworn by Kevin Stanley James (Mr James)( the respondent's Shell Cove Commercial Manager) and an affidavit sworn by Glen Allan Colquhoun (Mr Colquhoun)( Australand's Development Director of the Project). Both affidavits were sworn in mid November 2010.

  1. As I have mentioned, the respondent also filed and served a copy of the documents in issue, as provided to the applicant (i.e. with the exempt matter deleted). The respondent has filed and served a schedule of the deletions in the documents and the exemptions relied on for those deletions.

  1. In accordance with section 55 of the FOI Act, the respondent provided the Tribunal, on a confidential basis, a full copy of the documents in issue. It has also provided the Tribunal with a confidential affidavit. The hearing, in part, before the Tribunal was also held in confidence, in the absence of the applicant and her legal representative.

  1. The applicant has also provided detailed written submissions and a folder of documents in support of her submissions.

  1. I have considered all the material that is before the Tribunal, including the detailed written submissions of both parties.

The Shell Cove development project

  1. Before considering the deletions in the documents in dispute, it is convenient to briefly set out the context in which these documents have been created.

  1. Mr James explained that the Project was a major initiative to stimulate the economy and improve economic development in the Illawarra region. The Project involves the development of 3,000 residential lots, a public school, a community centre, a sporting facility, a small shopping/commercial centre, an 18-hole championship golf course, a community park, and a boat harbour precinct. The latter is to be made up of a 20 hectare harbour with a 300 birth marina, a public boat ramp and 1.5 kilometre public promenade/boardwalk and associated facilities, including a hotel, shops, restaurants and cafes, residential accommodation, public parking and parkland. In 1993, when the Project commenced, the estimated timeframe for its completion was 15 years. Although the completion date for the Project has been extended, aspects of it have already been completed (e.g. the development of the residential lots, the public school, the community centre (in part) and the 18 hole golf course).

  1. Mr James explained that the Project is funded primarily from the sale of the residential components/stages of the Project. He went on to say that due to the reliance of funding from residential sales, it is important for the continued viability of the Project that a commercially advantageous price is obtained, by Australand, for the sale of these residential components.

  1. Australand project manages the Project pursuant to a Management Agreement between it and the respondent. A copy of that Agreement was attached to the affidavit of Mr James.

  1. Under the Agreement, the respondent has retained ownership of the land, however Australand has possession and control of the land for the purpose of managing the Project. The role of Australand under the Management Agreement includes the following:

  • develop and use Project assets for the purposes of the Project;
  • engage contractors and experts to do all things necessary for the purposes of conducting the Project;
  • negotiate and enter into contracts for the supply of materials, equipment, building and services in connection with the Project; and
  • offer for sale residential lots and parts of the boat harbour land once developed - these sales have provided the funds for ongoing development of the Project.

  1. Clause 17 of the Agreement makes provision for the establishment of a Committee to monitor the performance of the Project and also to approve certain parts of the Project. The Committee is made up of 3 members nominated by Australand and 3 members nominated by the Council. Both Mr James and Mr Colquhoun are members of the Committee. The Committee is required to meet monthly and its powers include:

adopt (with or without amendment) each proposed Annual Program,

modify, cease, curtail, suspend or resume the Project or any part of it,

supervise the activities of Australand as Project manager,

approve the audited annual statements of account required to be prepared by Australand under clause 20.5 of the Agreement, and

resolve disputes.

  1. Clause19 of the Agreement requires Australand to submit to the Committee a proposed Annual Program at least 2 months before the end of each financial year - the Committee is required to consider and adopt the Program (with or without amendment) before the beginning of the financial year. However, the Committee can revise or modify the Program at any time during the year.

  1. Clause 20.1 of the Agreement requires Australand to provide a Monthly Progress Report to the Committee within 7 days after the end of each month, or such date the Committee decides (see the Deed of Variation to the Agreement, executed in March 2002).

  1. Clause 19 of the Agreement requires Australand to prepare, for submission to and approval by the respondent, revised feasibility studies for the balance of the Project (see the Deed of Variation to the Agreement, executed in March 2002). In preparing each study Australand is required to comply with directions of the Committee. The respondent is able to undertake an independent review of each study and also require reasonable amendments to each study before its approval. Once approved, the study becomes the Feasibility Study for the purpose of the Agreement. These feasibility studies were to be prepared every 3 years up to 2009 and on any other date determined by the Committee.

  1. In July 2008, pursuant to Chapter 9, Part 2, Division 6 of the Local Government Act 1993, the Governor of New South Wales appointed an administrator of the respondent. I note Council elections were recently held on 3 September 2011 and the new Council has been operational since 13 September 2011.

2009 Feasibility study/report

  1. The 2009 Feasibility study/report (the Report) is 66 pages long and has 10 Appendices (i.e. Appendix A to Appendix J), which make up the bulk of the Report. The Report is dated 31 March 2009 and it is identified as 'Revised Feasibility Report #4'. The front page has 'commercial in confidence' stamped on it, but the information contained within the Report and the Appendices are not identified as such. The Report contains a 3 page 'Table of Contents' and it is then divided into 13 sections as follows:

  • Executive Summary (Section 1)
  • Feasibility Balance of Life Cash Flow (Section 2)
  • Development Program (Section 3)
  • Feasibility Options (Section 4)
  • Sensitivity Analysis (Section 5)
  • Stage 1-10 Residential Subdivision (Section 6)
  • Boat Harbour (Section 7)
  • Boat Harbour Platform Costs (Section 8)
  • Major Works (Section 9)
  • Lot Yield Assessments (Section 10)
  • Sales Rate and Revenue (Section 11)
  • Goods and Service Tax (GST) (Section 12)
  • Land Acquisitions (Section 13)

  1. Subject to a number of deletions, the applicant has been granted access to the Executive Summary, which states the following in the introduction:

This feasibility study has been prepared by Australand Corporation (NSW) Pty Limited in respect of the Shell Cove development and is a specific requirement of the Management Agreement between Australand and Shellharbour City Council, which provides for triennial production of a detailed feasibility review.
Preparation of this feasibility study has been brought forward from its timed requirement under Management Agreement, in accordance with the resolution of the Shell Cove Management Committee at its meeting of 15 October 2008, to permit Australand and Council to review the potential program for the Boat Harbour in light of current market and economic conditions.
The 2009 feasibility study has been prepared with the backdrop of an unprecedented global credit crisis that has had a significant impact on both domestic and global economies. Shell Cove has not been immune to these factors, which are well beyond the control of the project management team. With the current credit environment and the inability to mortgage Council owned land, attracting additional funding sources to the Shell Cove project has proven difficult.
Accordingly, consistent with the Management Agreement and our historical approach, the feasibility study has been prepared on the basis that the working capital for the project is funded from sales revenue with the price and the rate of lot sales having a determining factor with respect to the funding available for the project. Independent research for future market demand and projected sales rates has been undertaken by Urbis. A copy of the Urbis residential market demand study is included at Appendix I.
Alternate options for the project have been considered as part of the assessment and sensitivity modelling conducted on these options in respect of rates of sale.
The feasibility study provides for the commencement of the Boat Harbour in April 2012.
...

  1. The introduction states that the feasibility study had been based on the same premise as the overall Project (i.e. availability of surplus cash flow from sales to meet construction expenditure costs). At the conclusion of the Introduction, it is noted that 'the next feasibility for the project is required to be completed in 2011', which 'will enable a review of the market conditions at that time'.

  1. What has been deleted from the Executive Summary is the information concerning the three feasibility options for the Boat Harbour. Included in that information are income and costing estimates and advice in regard to market conditions as provided by Landsbury Property Pty Ltd and Walsh and Morgan Pty Ltd and Urbis, whose reports are at Appendix H and J respectively.

  1. However, the applicant has been granted access, in part or whole, to the following Sections and Appendices of the Report:

  • Section 6 - Stage 1-10 Residential Subdivision (in part)
  • Section 7 - Boat Harbour (pages 31 to 33 and page 34, in part)
  • Section 8 - Boat Harbour Platform Costs (the whole Section, pages 41 & 42)
  • Section 9 - Major Works (in part)
  • Section 10 - Lot Yield Assessment (with the exception of the Boat Harbour Precinct Standard Lot Layout, the whole Section provided)
  • Section 11 - Sales Rate and Revenue (in part)
  • Section 12 - Goods and Service Tax (GST) (in part)
  • Section 13 - Land Acquisitions (the whole Section, 1 document provided)
  • Appendix E - Major Works Cost Estimates: Cove Blvde Extension &Harbour Blvde, Sewerage infrastructure and Water Quality Treatment Train (in part)
  • Appendix G - SCER Lot Pricing (in part)

  1. Accordingly, the applicant has been refuse access to the entire contents of the following Sections and Appendices of the Report:

  • Section 2 - Feasibility Balance of Life Cash Flow
  • Section 3 - Development Program
  • Section 4 - Feasibility Options
  • Section 5 - Sensitivity Analysis
  • Appendix A - Option 2 & 3 Cash Flow Sheets & Supporting Documentation
  • Appendix B - Sensitivity Analysis
  • Appendix C - Precinct Financial Feasibility Sheets
  • Appendix D - Historical Subdivision Cost
  • Appendix F - Boat Harbour Platform Costs
  • Appendix H - Englobo Land Valuation Reports ( expert reports of Landsbury Pty Ltd and Walsh & Monaghan Pty Ltd)
  • Appendix J - Residential Market Demand Study (expert report of Urbis)
  • Appendix J - Option #4

  1. As their titles suggest, Section 2, Appendix A, Appendix C, Appendix D, Appendix F and Appendix J, are made up of financial spreadsheets that contain itemised costs and other detailed financial information about the Project and the various stages thereof. With the exception of Appendix D, the spreadsheets contain estimated costs etc.

  1. Section 3, Section and Section 5 concern the feasibility options and as I have already indicated Appendix H and J contain reports of experts engaged by Australand for the purpose of the Report.

  1. That which has been deleted in the Executive Summary, other Sections of the Report and Appendices is information that can be conveniently described as income and cost estimates, actual costs, the feasibility options and expert advice on valuations and market demand.

  1. The respondent contends, first and foremost, that the Report is a draft Report. This is the evidence of Mr James and Mr Colquhoun. Mr James said that the usual process was for the relevant staff member of the respondent to review the Report. In that process he said the Report can be subject to substantial amendment and remains a draft Report until such time as the respondent has considered it and approved one of the options contained in the Report. Mr Colquhoun, the author of the Report, gave similar evidence.

  1. I am not persuaded by the arguments of the respondent. While I accept, for the purpose of clause 9 of Schedule 1 of the FOI Act, that the Report is a document that was prepared in the course of, or for the purpose of, the decision-making functions of the respondent, in my view, on the material before the Tribunal, it cannot be said that the Report is a draft document. It is not marked as such and does not in any other respect appear to be a draft. As indicated in the Executive Summary of the Report, it is a report that has been prepared by Australand in accordance with its obligations under the Management Agreement and at the direction of the Committee. The content of the Report is also time specific in that it deals with the market conditions in the first quarter of 2009 and it specifically foreshadows another feasibility report in 2011. I note that Mr James and Mr Colquhoun both said that the Report had been submitted to the respondent for its approval, which is inconsistent with the Report being a draft. In any event, it is no more than a Report for consideration by the respondent, which on the evidence of Mr James and Mr Colquhoun is that despite the Report being more than 2 years old, the respondent has not considered it. Yet I note reference to in is included in the 2009/2010 and 2010/2011 Annual Reports and the April 209 and May 2010 Monthly Reports. Each of these reports were prepared well before Mr James and Mr Colquhoun swore their respective affidavits.

  1. As I have indicated, the respondent contends that the deleted material is exempt under clause 7, 9 and 15 of Schedule 1 of the FOI Act. Mr James and Mr Colquhoun in their affidavits explain that the information is commercial in nature and has a commercial value and concerns the business, commercial and financial affairs of the respondent and Australand. They both express the opinion that the release of the information could reasonably be expected to have an adverse effect on the commercial value of the information and the business, commercial and financial affairs of the respondent and Australand. This is discussed in more detail below.

  1. Mr Colquhoun described the deleted material as being 'commercial in confidence' and said that disclosure of this material would affect the ongoing financial viability of the Project. He also said that release of the deleted information 'would provide confusion in the community and make available information that has not been adopted.'

  1. The applicant accepts that the deleted material, in so far as it relates to income and costs and the experts reports, is information that concerns the business, commercial or financial affairs of Australand and the respondent. However, she does not otherwise conceded that disclosure of this information could reasonably be expected to give rise to the matters set out in 7(1)(b) or 7(1)(c) of Schedule 1 of the FOI Act. The information she asserts is now 'aged' and should 'in the public interest' be disclosed.

  1. In regard to the information concerning the feasibility options for the Boat Harbour, the applicant pointed out that Ministerial approval for this aspect of the Project had been given many years ago, in 1996. She said that construction of the residential area west of the Harbour Boulevarde has been ongoing since the 1990's. However, since 2007, Australand has showed a reluctance to proceed with the construction of the Boat Harbour. The applicant referred to an announcement by Australand, in August 2008, that construction of the Boat Harbour was deferred due to the downturn in the residential market leading to insufficient funds in the Project account. The applicant also stressed in her oral submissions that promotional material of the Project had always included the Boat Harbour and marina as one of the main drawing cards of the area. Many people she said had bought and continue to buy properties on the basis of this and given that the Boat Harbour has always been an essential feature of the Project, she contended it was 'in the public interest' for the information relating to the feasibility options, including the costings, to be released.

  1. As the issues differ, depending on the category in which the deleted information falls it is convenient to consider the deletions in the context of the different categories. It is convenient to first consider the deletions that are income and costing estimates and to leave the descriptive information about the feasibility options to last.

Income and costing estimates

  1. The primary issue in regard to the income, costs and/or cashflow estimates is whether this information falls within clause 7(1)(b) or 7(1)(c)(ii) of Schedule 1 of the FOI Act. As I have indicated, the onus is on the respondent to establish this and only one exemption needs to be satisfied.

  1. In regard to the exemption in clause 7(1)(b)(i), information that has a 'commercial value' to an agency or another person is information that is of value to the agency or the other person 'for the purposes of carrying on the commercial activity' in which the agency or other person is engaged, or 'it is important or essential to the profitability or viability of a continuing business operation': see Re Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491 at [54] and [55]. 'Commercial value' in this context has also been held to mean information which a genuine arms length buyer is prepared to pay to obtain and information concerning 'a product' that 'resulted from the investment of significant research and time and effort by a business organisation': see Neary v State Rail Authority [1999] NSWADT 107 at [42].

  1. It is accepted that the words 'could reasonably be expected' in clause 7(1)(b) and 7(1)(c) are to be given their ordinary meaning and should be assessed objectively from the viewpoint of a reasonable administrator: see Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111; 16 AAR 28; 108 ALR 163 and Neary (supra) at [35]. As pointed out in Neary there must be more than a mere risk of an adverse effect if the information is disclosed. Relevant factors in determining whether disclosure of the information could be expected to have an 'unreasonable adverse effect' include the extent and nature of the adverse effect and the age of the information: see also Watt v Forests NSW [2007] NSWADT 197 at [128], McGuirk v University of New South Wales [2010] NSWADT 158 and Re Angel and Department of Arts, Heritage & Environment (1985) 9 ALD 113.

  1. It is the evidence of Mr James and Mr Colquhoun that the spreadsheets containing detailed breakup of income, costs and/or cash flow estimates would be of considerable value to prospective sub-contractors and also prospective purchasers and Australand would loose its bargaining power. That is, sub-contractors and purchasers in negotiating with Australand could maximise their income and minimise their costs to the detriment of Australand, the respondent and the Project as a whole. As identified in the Executive Summary of the Report the feasibility options have been costed on the same basis as the Project has been funded to date, namely the income earned from the sale of the developed land is used to fund the next development stage of the Project.

  1. While I accept the applicant's argument that this information is 'aged' in that it may no longer be current, I do not accept her contention that the information has no commercial value, or if disclosed would not have an adverse effect on Australand's business, commercial and financial affairs and those of the respondent. The spreadsheets and the detailed estimated amounts, in my view, continue to provide an important insight into the various aspects of the Project's income, costs and/or cash flow structures. It is evident from these spreadsheets that Australand has spent considerable time and effort in creating the information contained in these spreadsheets and that they remain relevant for the ongoing budgeting of the next development stages of the Project. Accordingly, I accept the evidence of Mr James and Mr Colquhoun that these income, costs and/or cashflow estimate spreadsheets have a commercial value and if disclosed, could reasonably be expected to diminish or destroy that commercial value. I also find that a disclosure of this information could reasonably be expected to have an unreasonable adverse effect on Australand's business, commercial and financial affairs and the financial affairs of the respondent.

  1. On this basis I find that the respondent has established that the income, costs and/or cashflow estimate spread sheets at Section 2, Appendix A (Option 2 & 3 Cash Flow Sheets), Appendix C (Precinct Financial Feasibility Sheets), Appendix F (Boat Harbour Platform Costs), and Appendix J (Option #4) is exempt under clause 7(1)(b) and 7(1)(c) of Schedule 1 of the FOI Act.

  1. Appendix E (Major Works Estimates) and Appendix G (Shell Cove Estate Realty Lot Pricing) also contain information about cost estimates. The applicant has been provided a copy of these documents with the descriptions of the itemised costs disclosed and the information as to the cost estimates deleted. For the reasons stated above, in my view this information is also exempt under clause 7(1)(b) and 7(1)(c) of Schedule 1 of the FOI Act.

Past costs

  1. As I have indicated Appendix D of the Report contains a number of spreadsheets that contain a detailed breakup of historical financial information of actual income and costs of the subdivisions of the Project.

  1. It is the evidence of Mr Colquhoun and Mr James that the information in these spreadsheets continue to be of relevance for the purpose of preparing the income, costs and/or cashflow estimates for the development of the future stages in the Project. Again, their relevancy being as a result of the Project continuing to be funded by the sale of the land that is developed.

  1. Having regard to the content of the detailed past costs spreadsheets and the introductory statements in the Report, I accept this evidence of Mr Colquhoun and Mr James. And for the same reasons stated above, I am satisfied that the respondent has established that the information in these spreadsheets have a commercial value and if disclosed could reasonably expect to diminish or destroy that value. I also find that if the information was disclosed, it could reasonably be expected to have an unreasonable adverse effect on Australand's business, commercial and financial affairs and the financial affairs of the respondent.

  1. Accordingly, I find that the respondent has established that the information of past costing structures as set out in the spreadsheets at Appendix D is exempt under clause 7(1)(b) and 7(1)(c) of Schedule 1 of the FOI Act.

  1. I note that the respondent has otherwise, disclosed, in part, within the body of the Report some past costs, which I understand are within the public domain in any event.

The expert reports

  1. As I have indicated, attached to the Report are 3 expert reports. These, as explained by Mr James in his affidavit, are:

  • a report from Landsbury Property Pty Ltd providing indicative valuation advice on the 'englobo' sites surrounding the Boat Harbour - this report is at Appendix H
  • a report from Walsh and Morgan Pty Ltd providing advice and assessment of the current market value of a number of 'englobo' development sites surrounding the Boat Harbour - this report is also at Appendix H
  • a report by Urbis, who was engaged to conduct a residential market demand study to consider the housing activity in the region and the effect of that residential market demand - this report is at Appendix I

  1. The sensitivity analysis that is at Appendix B to the Report, I understand to have been created on the basis of the advice contained in the reports of the experts.

  1. The respondent contended that the document at Appendix G was also an expert report. In my view this report, by Shellcove Estate Realty, is not that of an expert. As I have stated above, in my view, the cost estimate deIetions in this report are nevertheless exempt under clause 7 of Schedule 1 of the FOI Act.

  1. It is evident from the content of the Report, in particular Sections 4 and 5, that the information contained in these is based on the advice contained in the expert reports. As that advice concerns estimates of land values and market demand for the retail land, apartments and medium density portions of the next stages of the Project, I accept the evidence of Mr Colquhoun and Mr James that it is information that has a commercial value to the respondent and Australand, or concerns their respective business, commercial and financial affairs and the disclosure of this information could reasonably be expected to have the adverse effect as set out in clause 7(1)(b)(ii) or 7(1)(c)(ii) of Schedule 1 of the FOI Act.

  1. While the information in these reports are now more than 2 years old, for the reasons I have already stated, in my view the information remains of relevance as the Project is ongoing and the disclosure of the estimated valuations and market demand could reasonably be expected to destroy or diminish Australand's bargaining position when selling the land the subject of these reports.

  1. Accordingly, I am satisfied that the respondent has established that the information in the expert reports at Appendix H and Appendix I are exempt under clause 7(1)(b) and 7(1)(c) of Schedule 1 of the FOI Act. I also find that, to the extent the valuation and market demand advice in these reports are contained in, or referred to within the body of the Report, is also exempt under these clauses

The feasibility options

  1. In my view this is the most difficult aspect of this application.

  1. For the reasons I have already explained, the information concerning the feasibility options, which is in the form of income, costs and cashflow estimates, or relates to advice contained in the three reports of the experts is exempt. The question is whether the information as to the identity of the three feasibility options and any general description of these options is also exempt.

  1. Mr James, nor Mr Colquhoun have specifically asserted that the identity of the feasibility options or the more general descriptive information in regard thereto has a commercial value in the relevant sense: see Re Cannon and Australian Quality Egg Farms Ltd (supra). For example, it has not been asserted that this is information that a third party would be prepared to pay for or that it is information that is valuable for the purpose of Australand being able to carry on its commercial activity in regard to the Project. The identity of the options and the general description of each does no more than identify the different development choices that Australand has assessed as to their feasibility and presented to the respondent for its consideration and action, should it choose to do so. On this basis it is difficult to see how this information, on its own, could be of commercial value to the respondent, or Australand.

  1. However, I accept that it is information that concerns the business, commercial and financial affairs of Australand and the respondent in so far as it relates to the Project. However, in order for these deletions to be exempt under clause 7(1)(c) of Schedule 1 of the FOI Act, the respondent must show that disclosure could reasonably be expected to have an unreasonable adverse effect on those affairs, or would prejudice the future supply of such information to the respondent: see clause 7(1)(c)(ii).

  1. As the information is provided to the respondent pursuant to an agreement it cannot be said that the disclosure of this information would prejudice future supply of such information. Accordingly, to claim that this information is exempt under clause 7(1)(c) of Schedule 1 of the FOI Act, the respondent must establish that disclosure of this information could reasonably be expected to have an unreasonable adverse effect on the business, commercial and financial affairs of Australand or the respondent. Unlike the information in regard to income, costs and cashflow in the Report, I am not satisfied that the respondent has established the requisite adverse effect if the identity of the options and the general description of each option is disclosed. I accept, on the basis of Mr Colquhoun's evidence, that adverse public comment about one or more of the feasibility options may possibly arise as a result of the disclosure of this information. However, this is not an adverse effect in the sense relevant to the clause 7(1)(c)(ii) exemption.

  1. Accordingly, I find that the respondent has failed to establish that the identity of each option and the general description of the three feasibility options is exempt under clause 7(1)(c) of Schedule 1 of the FOI Act.

  1. In regard to the clause 9(1) exemption, the respondent must establish that disclosure of this information would, on balance, be contrary to the public interest: see clause 9(1)(b) of Schedule 1 of the FOI Act. As I have noted above, section 59A of the FOI Act provides that embarrassment, loss of confidence, misinterpretation or misunderstanding are not relevant to determining whether disclosure of this information is contrary to the public interest. Consequently, Mr Colquhoun's evidence of confusion or misunderstanding is not relevant.

  1. The fact that the decision making process for which a document has been prepared has not been finalised is a factor weighing in favour of a finding that disclosure of the document would be contrary to the public interest: see Department of Community Services v Latham [2000] NSWADTAP 21 at [34].

  1. The public interest test in clause 9(1)(b) was considered by the Court of Appeal in General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84 at [146] and following. At [146], McColl JA (with whom Handley JA and Hodgson JA agreed) said the following:

'The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view": O'Sullivan v Farrer (at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ). Determining where the public interest lies is a question of fact and degree: Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393 at 395.

  1. At [151], McColl AJ noted that:

'... the Act gives a legally enforceable right to be given access to documents held by the Government, that right is subject to such restrictions as are reasonably necessary for the proper administration of the Government: s 5(2)(a) and (b). Determining whether documents should be disclosed involves balancing those two matters.'

  1. In my view, in objectively assessing all the material before the Tribunal, there are a number of factors relevant to the public interest, which support the disclosure of the identity of the feasibility options and the general description of each option, which does not also disclose the income and costs estimates and the valuation and market demand advice of the experts. These are:

  • the Project and its various stages (including the Boat Harbour) have been in the public domain for almost 20 years,
  • the Boat Harbour has at all times been an essential element of the Project,
  • the Report is now more than 2 years old,
  • the feasibility options are included in the Annual Programs for the year ended 30 June 2010 and 30 June 2011 and the April 2009 and May 2010 Monthly Reports (see under the relevant headings below),
  • the Report has been disclosed in part, including the Introduction to the Executive Summary, which clearly identifies the purpose of the Report,
  • there has been discussion within the public domain about the various options for the Boat Harbour - these discussions having included Australand and the respondent, and
  • there is no evidence to suggest that the disclosure of this information will prevent the respondent from considering these or any other feasibility options presented to it by Australand or any other person in the future.

  1. In my view, clause 9 of Schedule 1 of the FOI Act is not a vehicle for an agency to withhold access to information it holds, merely on the basis that it has not taken any steps to action or not action it.

  1. I would make similar findings in regard to this information (i.e. identity of the three feasibility options and the general description of each) in so far as it relates to the clause 15 exemption, which also has a public interest component.

  1. On the basis of my findings, the question is to what extent this information as to the identity of each feasibility option and the general description in the Report can be disclosed so as to preserve the information which I have found to be exempt (i.e. the income and costs estimates of each feasibility option and the valuation and market demand advice as contained in the expert reports).

  1. As the deletions in the Table of Contents are no more than a description of each option, in my view, for the reasons I have stated, these are not exempt and should be disclosed.

  1. On the basis of the content of Sections 4 and 5 of the body of the Report, I find that these contain a descriptive analysis of the options in the context of the information I have found to be exempt and it is not practicable to delete the exempt information from that which is descriptive of each feasibility option (see section 25(4) of the FOI Act). Accordingly, I am satisfied that the respondent has established that these Sections of the Report are exempt in their entirety under clause 7 of Schedule 1 of the FOI Act.

  1. This leaves the Executive Summary and Section 3 of the Report.

  1. In my view the following pages of the Executive Summary contain further information of a general descriptive nature in regard to the feasibility options that is not exempt and where it remains practicable to delete information that I have found to be exempt under clause 7 of Schedule 1 of the FOI Act:

  • Page 5 - while the information in this deletion falls within the description of an estimated cost, in my view it is of such a general nature that it does not have a commercial value and it is not an estimate cost if disclosed that could reasonably be expected to have an unreasonable adverse effect on Australand's or the respondent's commercial and financial affairs.
  • Page 8 - identity of each feasibility option
  • Page 9 - details contained in the table, other than the 'Net Project Profit', the last sentence in the paragraph immediately above the heading 'Sensitivity Analysis' and
  • Page 12 - the identified total actual costs

  1. The chart that is at Section 3 of the Report is also of a general descriptive nature, which in my view is not exempt under clause 7, 9 or 15 of Schedule 1 of the FOI Act.

Annual Programs for the year ending 30 June 2008, 2009, 2010 and 2011

  1. With the exception of the 2007/2008 Annual Program, the front page of each Programme has been stamped 'Commercial-in-Confidence'. The 2010/2011 Annual Program has also been stamped 'Draft'. In his affidavit, Mr Colquhoun said that this was a Draft Annual Program, subject to further consultation between [the respondent] and Australand' before the full ambit of the proposed works (and estimate costs) are accepted by the respondent. Mr James gave similar evidence in his affidavit. Both affidavits were sworn in mid November 2010, which was well and truly within the period of this Annual Program. Even on its reconsideration, the respondent appears to have regarded this as a draft in the sense that it had not approved the proposed Annual Programme of Australand.

  1. In my view, for the reasons I have already indicted, the fact that the Annual Program, as presented by Australand, has not been approved by the respondent is not necessarily determinative of the issue as to whether the document is an exempt document under clause 9 of Schedule 1 of the FOI Act. I have dealt with this issue in more detail below.

  1. The format of each Annual Program the subject of this application appears to be the same. They each have a 'Table of Contents' and are divided into 6 Sections as follows:

  • Executive Summary
  • Overview
  • Development Program (for the year in question) - Progress
  • Future Development Plan to Completion
  • Annual Program for (the year in question)
  • Attachments

  1. The applicant has been granted access to the 'Table of Contents' in each Annual Program the subject of this application.

  1. The deletions that are common to all three Annual Programs are the financial feasibility spread sheets for each stage of the Project, the subject of the Annual Program as identified in the 'Table of Contents'. Each spreadsheet contains detailed estimates of costs and income for the various components of the various stages of the Project that are the subject of the Program.

  1. For the reasons I have already stated in regard to the Report, I am satisfied that the respondent has established that these financial feasibility spreadsheets for pending stages of the Project are exempt under clause 7(1)(c) of Schedule 1 of the FOI Act (see paragraph 59 above).

  1. Deleted from the 2007/2008, 2008/2009 and the 2010/2011 Annual Program is the information under the heading 'Future Project Cashflow Projections' at Section 4.3 and the spreadsheet that follows. Again, for the reasons I have already stated in regard to the Report, I am satisfied that the respondent has established that this information is exempt under clause 7(1)(c) of Schedule 1 of the FOI Act (see paragraph 59 above). Section 4.2 of the 2009/2010 Annual Program also contains a similar cash flow projection spreadsheet and I make the same findings in regard thereto.

  1. The remaining deletions to the 2009/2010 and 2010/2011 Annual Programs contain information that is relevant to the feasibility options that are contained in the 2009 Feasibility Report. In light of my findings above and the fact that the 2010/2011 Annual Program is in any event now out dated, the only information in these deletions that are exempt is the information described in paragraphs 59, 64, 71 and 87 above (i.e. income and costs estimates and valuations and market demand if disclosed could reasonably be expected to have the adverse effects as set out in cluse 7(1)(b)(ii) and 7(1)(c)(ii) of Schedule 1 of the FOI Act). In my view, it is appropriate that the respondent assess which parts of the deleted information in these Annual Programs, if any, concerning the 2009 Feasibility Report falls within this category.

Monthly Progress Reports

  1. The Monthly Progress Reports (Monthly Report(s)) the subject of this application are also in the same format. Each Monthly Report has an 'Index' and it is then divided into 4 sections as follows:

  • Discussion Issues
  • Project Managers Overview
  • Annual Program Status
  • Appendices

  1. The applicant has been granted access to the 'Index' of each Monthly Report.

  1. Subject to some deletions, the applicant has been granted access to the body of each Monthly Report. The deletions in the body of the March 2008 Monthly report include the contract amounts to be paid to particular contractors (see Section 1.2). If these amounts where agreed to, in my view, the amounts being total contract amounts for specified work is not exempt under clause 7 of the FOI Act. That is, disclosure of these amounts having been agreed cannot be said to diminish any commercial value that may be in the amounts stated or, have an adverse effect on the commercial or financial affairs of Australand or the respondent.

  1. The May 2010 Monthly Report has a similar deletion and for the reasons I have stated, if these amounts were agreed and paid they are no longer exempt.

  1. The documents in Appendix C and Appendix D of each Monthly Report have been deleted. The documents in Appendix C are spreadsheets containing detailed cost estimates of the various stages the subject of development and for the reasons stated in paragraph 59 above, I am satisfied that the respondent has established that these are exempt. The documents in Appendix D are a report on the status of current contracts and in my view they are also exempt under clause 7(1)(c) of Schedule 1 of the FOI Act.

  1. The documents in Appendix F of each Monthly Report are schedules of approved development costs. The applicant has been provided a copy of these with the approved amount of costs deleted. As these costs are in effect cost estimates, for the reasons set out in paragraph 59 above, I am satisfied that the respondent has established that these amounts are exempt under clause 7(1)(c) of Schedule 1 of the FOI Act.

  1. The remaining deletions are contained in the minutes of the meeting of the Committee, which are at Appendix A to the April 2009 and May 2010 Monthly Report. These deletions related to the Boat Harbour, and in light of my findings in regard to the feasibility options in the 2009 Feasibility Report, in my view these are also not exempt in their entirety. The relevant paragraphs are section 1.5.1 and 4.0 in the April 2009 Monthly Report and paragraph 5.0 in the May 2010 Monthly Report. For the same reasons I have stated, it is appropriate that the respondent reconsider these deletions.

Conclusions and orders

  1. In summary my findings in regard to each document the subject of this application is as follows:

  • With the exception of the deletions noted below, the decision of the respondent in regard to the deletions in the 2009 Feasibility Report, the Annual Programs and the Monthly Reports is the correct and preferred decision and should be affirmed.
  • The decision of the respondent in regard to the deletions in the 2009 Feasibility Report concerning the identity of the feasibility options and the general description of those option as set out in the Executive Summary of the Report are not the correct and preferred decision and should be set aside. And in substitution thereof there should be a decision to grant the applicant access to the identity of these options as contained in the Table of Contents and otherwise and the general description of these options as contained in the Executive Summary in accordance with paragraph 98 of these reasons for decision.
  • The decision of the respondent in regard to the deletions in the 2009/2010 and 2010/2011 Annual Programs relating to the 2009 Feasibility Report is set aside under section 63(3)(d) of the Administrative Decision Tribunal Act 1997 for reconsideration in accordance with these reasons for decision.
  • The decision of the respondent in regard to the deletions in the March 2009 and May 2010 Monthly Reports as set out in paragraphs 101 and 102 above, and the deletions in the minutes of meeting of the Committee attached to the April 2009 and May 2010 Monthly Reports as set out in paragraph 105 above is set aside under section 63(3)(d) of the Administrative Decision Tribunal Act 1997 for reconsideration in accordance with these reasons for decision.

  1. I make orders accordingly.

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Decision last updated: 19 October 2011

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