Searle v Transport for NSW - [2017] NSWCATAD 256

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Searle v Transport for NSW [2017] NSWCATAD 256
Hearing dates: 2 June 2017
Date of orders: 14 September 2017
Decision date: 14 September 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
Decision:
(1) The decision of Transport for NSW to refuse access to the information the subject of the applicant’s access application is set aside and, in substitution for that decision, Transport for NSW is to provide the applicant with access, within 28 days, to the information the subject of his access application, with the exception of:

(a) information in the table in Appendix B of each of the documents entitled “Gateway Review report, Gate Health Check 3 – [In Delivery], Draft for Discussion, v 0.3, 24 October 2016,” “Gateway Review report, Gate Health Check 3 – [In Delivery], Draft for Discussion, v 0.2, 24 October 2016” and “Gateway Review report, Gate Health Check 3 – [In Delivery], Draft for Discussion, v 0.4, 27 October 2016,” but access is to be provided to the information in the heading to each of those tables and to the information in the column headed “Agency”;

(b) information in the table in Appendix B of “Gateway Health Check Report, CBD and South East Light Rail Project, preliminary draft” (undated), under the headings “Person” and “Project Role.”

(2) Access to the information identified in Orders 1(a) and (b) is refused, pending further determination and order of the Tribunal.

(3) The applicant is to inform the Tribunal and the respondent in writing, by 21 September 2017, whether he presses his application for access to the information identified in Orders 1(a) and (b) above.
(4) The matter is listed for directions on 26 September 2017 at 9:30am at Level 10, John Maddison Tower, 86-90 Goulburn Street, Sydney.
Catchwords: ADMINISTRATIVE LAW – Government information – Whether conclusive presumption of overriding public interest against disclosure - Cabinet information – Where Infrastructure NSW engages experts to conduct reviews of major infrastructure projects in order to monitor progress of projects and for other purposes - Where applicant sought information in reviews of Sydney Light Rail Project – Where summaries of reviews regularly submitted to Cabinet but reviews themselves never yet submitted to Cabinet - Whether agency had reasonable grounds for claim that dominant purpose of preparing review documents was submission of documents to Cabinet – Meaning of “reasonable grounds”
ADMINISTRATIVE LAW – Government information –Public interest considerations against disclosure – Whether disclosure of the information sought could reasonably be expected to prejudice the supply of confidential information – Where public servants providing information in confidence were under a duty to be candid – Whether public servants could reasonably be expected to be less than candid when providing information which could damage relationships with stakeholders – Where little evidence led as to the position of private sector individuals providing confidential information to agency – Whether disclosure of the information sought could reasonably be expected to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWCATAD 256
Decision Date: 14 September 2017

CaseChat Overview and Summary

The applicant, Searle, sought access to certain documents produced by experts engaged by Infrastructure NSW to review the Sydney Light Rail Project. The respondent, Transport for NSW, refused access to the documents on the basis of various public interest considerations. The matter was brought before the Administrative Appeals Tribunal to determine whether the refusal to disclose the documents was lawful. The central legal issue was whether the respondent had established that disclosure of the documents would be contrary to the public interest under section 33(1)(b) of the Government Information (Public Access) Act 2009 (NSW). In particular, the court had to assess whether there were reasonable grounds to believe that the dominant purpose of preparing the review documents was to submit them to Cabinet, and whether disclosure of the information sought could reasonably be expected to prejudice the effective exercise by an agency of its functions or its legitimate business and commercial interests.

The Tribunal found that the respondent had not established that there were reasonable grounds to believe that the dominant purpose of preparing the review documents was to submit them to Cabinet. The Tribunal held that the onus was on the respondent to establish that the public interest considerations against disclosure applied, and that the respondent had not discharged this onus in relation to the conclusive presumption of overriding public interest against disclosure. The Tribunal also found that the respondent had not established that disclosure of the information sought could reasonably be expected to prejudice the effective exercise by an agency of its functions or its legitimate business and commercial interests. The Tribunal held that the respondent had not led sufficient evidence to establish that disclosure of the information sought could reasonably be expected to prejudice relationships with stakeholders, or that public servants would be less than candid when providing information in the future. The Tribunal held that the public interest in favour of disclosure outweighed any potential prejudice to the respondent's interests.

The Tribunal set aside the respondent's decision to refuse access to the documents and ordered the respondent to provide the applicant with access to the documents within 28 days, with certain exceptions. The Tribunal also ordered that access to the excepted information be refused pending further determination and order of the Tribunal. Finally, the Tribunal ordered the applicant to inform the Tribunal and the respondent in writing by a certain date whether he pressed his application for access to the excepted information, and listed the matter for directions.

Orders

Orders of the court

(1) The decision of Transport for NSW to refuse access to the information the subject of the applicant’s access application is set aside and, in substitution for that decision, Transport for NSW is to provide the applicant with access, within 28 days, to the information the subject of his access application, with the exception of:

(a) information in the table in Appendix B of each of the documents entitled “Gateway Review report, Gate Health Check 3 – [In Delivery], Draft for Discussion, v 0.3, 24 October 2016,” “Gateway Review report, Gate Health Check 3 – [In Delivery], Draft for Discussion, v 0.2, 24 October 2016” and “Gateway Review report, Gate Health Check 3 – [In Delivery], Draft for Discussion, v 0.4, 27 October 2016,” but access is to be provided to the information in the heading to each of those tables and to the information in the column headed “Agency”;

(b) information in the table in Appendix B of “Gateway Health Check Report, CBD and South East Light Rail Project, preliminary draft” (undated), under the headings “Person” and “Project Role.”

(2) Access to the information identified in Orders 1(a) and (b) is refused, pending further determination and order of the Tribunal.

(3) The applicant is to inform the Tribunal and the respondent in writing, by 21 September 2017, whether he presses his application for access to the information identified in Orders 1(a) and (b) above.

(4) The matter is listed for directions on 26 September 2017 at 9:30am at Level 10, John Maddison Tower, 86-90 Goulburn Street, Sydney.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Searle v Transport for NSW [2017] NSWCATAD 256
Hearing dates:	2 June 2017
Date of orders:	14 September 2017
Decision date:	14 September 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	(1) The decision of Transport for NSW to refuse access to the information the subject of the applicant’s access application is set aside and, in substitution for that decision, Transport for NSW is to provide the applicant with access, within 28 days, to the information the subject of his access application, with the exception of: (a) information in the table in Appendix B of each of the documents entitled “Gateway Review report, Gate Health Check 3 – [In Delivery], Draft for Discussion, v 0.3, 24 October 2016,” “Gateway Review report, Gate Health Check 3 – [In Delivery], Draft for Discussion, v 0.2, 24 October 2016” and “Gateway Review report, Gate Health Check 3 – [In Delivery], Draft for Discussion, v 0.4, 27 October 2016,” but access is to be provided to the information in the heading to each of those tables and to the information in the column headed “Agency”; (b) information in the table in Appendix B of “Gateway Health Check Report, CBD and South East Light Rail Project, preliminary draft” (undated), under the headings “Person” and “Project Role.” (2) Access to the information identified in Orders 1(a) and (b) is refused, pending further determination and order of the Tribunal. (3) The applicant is to inform the Tribunal and the respondent in writing, by 21 September 2017, whether he presses his application for access to the information identified in Orders 1(a) and (b) above. (4) The matter is listed for directions on 26 September 2017 at 9:30am at Level 10, John Maddison Tower, 86-90 Goulburn Street, Sydney.
Catchwords:	ADMINISTRATIVE LAW – Government information – Whether conclusive presumption of overriding public interest against disclosure - Cabinet information – Where Infrastructure NSW engages experts to conduct reviews of major infrastructure projects in order to monitor progress of projects and for other purposes - Where applicant sought information in reviews of Sydney Light Rail Project – Where summaries of reviews regularly submitted to Cabinet but reviews themselves never yet submitted to Cabinet - Whether agency had reasonable grounds for claim that dominant purpose of preparing review documents was submission of documents to Cabinet – Meaning of “reasonable grounds” ADMINISTRATIVE LAW – Government information –Public interest considerations against disclosure – Whether disclosure of the information sought could reasonably be expected to prejudice the supply of confidential information – Where public servants providing information in confidence were under a duty to be candid – Whether public servants could reasonably be expected to be less than candid when providing information which could damage relationships with stakeholders – Where little evidence led as to the position of private sector individuals providing confidential information to agency – Whether disclosure of the information sought could reasonably be expected to…