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 prejudice the effective exercise by an agency of its functions - Whether disclosure of the information sought could reasonably be expected to prejudice an agency’s legitimate business and commercial interests and/or place an agency at a competitive disadvantage in the market
ADMINISTRATIVE LAW – Government information – Public interest considerations in favour of disclosure – Where disclosure could reasonably be expected to enhance the maintenance and advancement of a system of responsible and representative government that is open, accountable, fair and effective – Where information of public interest and importance
ADMINISTRATIVE LAW – Government information – Power of Tribunal to raise public interest considerations against disclosure not raised by respondent – Onus of respondent – Where respondent did not consult with individuals about release of their personal information.
Legislation Cited: Government Information (Public Access) Act 2009 (NSW)
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Freedom of Information Act 1982 (Cth)
Freedom of Information Act 1989 (NSW)
Evidence Act 1995 (NSW)
Infrastructure NSW Act 2011 (NSW)
Government Sector Employment Act 2013 (NSW)
Local Government Act 1993 (NSW)
Local Government (General) Regulation 2005 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited: Attorney General’s Department v Cockcroft (1986) 10 FCR 180
D'Adam v New South Wales Treasury [2014] NSWCATAD 68
D’Adam v New South Wales Treasury and the Premier of New South Wales [2015] NSWCATAP 61
Electoral Commissioner, State Electoral Office v McCabe [2003] NSWADTAP 28
Fisse v Secretary, Department of the Treasury [2008] FCAFC 188; 172 FCR 513
Hurst v Wagga Wagga City Council [2011] NSWADT 307
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423
Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441
Secretary to the Department of Treasury and Finance v Dalla Vella [2007] VSCA 11
Smith v Pittwater Council [2016] NSWCATAD 67
Category: Principal judgment
Parties: The Hon Adam Searle MLC (Applicant)
Transport for NSW (First Respondent)
Premier of New South Wales (Second Respondent)
Representation:
Counsel:
In Person (Applicant)
A Mitchelmore (Respondents)
Solicitors:
NSW Crown Solicitors Office (Respondents)

File Number(s): 2016/00378549
Publication restriction: Orders under s 64 of the Civil and Administrative Tribunal Act 2013 were made during the proceedings and s 107 of the Government Information (Public Access) Act 2009 also applies.

REASONS FOR DECISION

These proceedings concern an application for access to information contained in expert review reports about the Sydney Light Rail Project. The review reports were commissioned by Infrastructure NSW as part of its Infrastructure Investor Assurance Framework.
Transport for NSW claims that it is to be conclusively presumed that there is an overriding public interest against disclosure of the information because it is Cabinet information. It contends that the documents containing the information were prepared for the dominant purpose of their being submitted to Cabinet.
Transport for NSW also relies upon alternative public interest considerations against disclosure of the information, in the event that its Cabinet information claim is not successful. These include that the disclosure of the information could reasonably be expected to prejudice the supply of confidential information to Infrastructure NSW and to prejudice the effective exercise of the functions of Infrastructure NSW and those of Transport for NSW.
I have found that Transport for NSW has not established that it has reasonable grounds for its Cabinet information claim. It has not established that any other public interest considerations against disclosure apply, except the consideration that disclosure of some of the information could reasonably be expected to prejudice the effective exercise of its functions.
Balancing the public interest considerations for and against disclosure, I have found that the public interest favours disclosure of the information sought, subject to one unresolved matter. This is the public interest in the disclosure of information identifying the individuals interviewed by the expert reviewers. I have determined that those individuals should be consulted about disclosure of their information before the Tribunal makes a decision about providing access to it.
With this exception, I have decided that the applicant is entitled to be provided with access to the information sought.

BACKGROUND

Mr Searle applied to Transport for NSW for the following information under the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”):

“Any and all versions of any document or report, however recorded, by John ‘Jock’ Murray and/or King and Wood Mallesons about the CBD Light Rail project, held by the Department or any of its officers.”

Transport for NSW located information responsive to the access request, contained in four documents (together, “the Documents”). These were reports relating to Infrastructure NSW health checks and gateway reviews. Three relate to a health check undertaken in October 2016 and are drafts of a document entitled “Gateway Review Report, Gate Health Check 3” which was finalised in November 2016. One is a preliminary draft of a gateway review report which relates to a review that was undertaken in February 2016, and is entitled “Gateway Health Check Report, CBD and South East Light Rail Project, Preliminary Draft”.
The CBD and South East Light Rail project (or Sydney Light Rail Project) is being developed pursuant to a public-private partnership. The public sector parties are Transport for NSW and the Treasurer, and there are a number of private sector parties. The principal contract for the CBD and South East Light Rail project is the SLR Project Deed, which was entered into by Transport for NSW and one of the private sector parties. In addition to the parties to the public-private partnership, there are thirteen other major stakeholders involved in, or affected by, the delivery of the CBD and South East Light Rail project, including councils and the University of New South Wales. Transport for NSW has entered into a third party agreement with each of these stakeholders.
The Documents arise from reviews of the Sydney Light Rail project conducted by an independent expert panel in 2016. The expert panel prepared reports at the conclusion of the two reviews. The reports form part of the system of gateway reviews and health check reviews which are conducted during “Tier 1” High Risk/High Profile projects (of which this project is one), pursuant to the Infrastructure Investor Assurance Framework, discussed below. They are the mechanism by which the independent experts appointed to conduct the review record the results of the review, including recommendations as to actions to be taken.
The Sydney Light Rail Delivery Office was established for the purpose of delivering the CBD and South East Light Rail project. It is an agency within Transport for NSW (that is, within the first respondent). Officers within the Sydney Light Rail Delivery Office participate in gateway reviews and health checks by giving interviews to the reviewers. Further, the Sydney Light Rail Delivery Office is provided with a draft of the reviewers’ report for fact-checking and, after review by Infrastructure NSW, to comment and provide a response.
Infrastructure NSW is also a government agency, the functions of which include overseeing and monitoring the delivery of major infrastructure projects and assessing and managing risks involved in delivering infrastructure (Infrastructure NSW Act 2011 (NSW), ss 6, 11(1)(f) and (h)). Infrastructure NSW has responsibility for undertaking all independent assurance reviews for capital projects valued at or over $10 million. Infrastructure NSW has developed the Infrastructure Investor Assurance Framework, an independent risk-based assurance process for the State’s capital projects. Its objective is to ensure that the government’s key infrastructure projects are delivered on time and on budget, through the implementation of a risk-based external assurance framework.
The Infrastructure Investor Assurance Framework establishes a system of reporting in relation to capital projects by which Cabinet, through the Cabinet Standing Committee on Infrastructure (“the Standing Committee”) and the Minister for Infrastructure are able to monitor the government’s infrastructure program. Review reports are prepared by an independent team of experts regarding the outcomes of gateway reviews and health checks, which are also reported to Cabinet. A “gateway review” is an independent review at a specific key decision point or gate in the life cycle of the project. Gateway reviews are supported by periodic “health checks,” being independent reviews seeking to identify issues in a project which may arise between gateway reviews.
It is not the usual practice to provide a full copy of gateway review or health check reports to Cabinet. However, Infrastructure NSW prepares a monthly submission to the Standing Committee that reports on the outcomes and recommendations of all gateway reviews and health checks that have been completed in the previous month. This provides a summary of review outcomes for high profile/ high risk projects such as the Sydney Light Rail Project. Infrastructure NSW also prepares a one-page summary of the key outcomes of each gateway review or health check for all such projects, for the purpose of reporting to cabinet. Each summary is provided to Cabinet as an attachment to the submission.

Response of Transport NSW to GIPA application

On 5 December 2016, Transport for NSW refused access to all of the information sought by Mr Searle. In its notice of decision, Transport for NSW stated that the health checks formed the basis of a summary report which was tabled and presented to the Standing Committee. The decision-maker stated that the information contained in the health checks had been prepared for submission to Cabinet (“Cabinet” being defined in cl 2(5) of Sch 1 to the GIPA Act to include a Cabinet committee or subcommittee). The decision-maker also stated that the documents themselves (that is, the review reports) were not prepared for the dominant purpose of being considered by Cabinet. However, the decision-maker concluded, in purported application of Tribunal authority on the question, that the information was Cabinet information within cl 2 of Sch 1 to the GIPA Act.
Mr Searle applied to this Tribunal for review of that decision.
Transport for NSW contended in the Tribunal that the information sought was Cabinet information, such that there was a conclusive presumption of an overriding public interest against disclosure of that information. In the alternative, it relied upon a number of public interest considerations against disclosure of the information sought by Mr Searle set out in the table to s 14 of the GIPA Act (being those in cl 1(d) and (f) and cl 4(a) and (d)). It had not relied upon these considerations in its Notice of Decision.

JURISDICTION

The Tribunal has jurisdiction to review the decision of Transport for NSW to refuse access to the documents: GIPA Act, ss 80(d), 100; Administrative Decisions Review Act 1997 (NSW), s 9; Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 30. Mr Searle’s application was made within time.

RELEVANT LEGISLATIVE PROVISIONS

Subsections 14(1) and (2) of the GIPA Act provide:

“14 Public interest considerations against disclosure
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.”

The table to s 14 provides, relevantly:

“1 Responsible and effective government
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):
…
(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,
…
(f) prejudice the effective exercise by an agency of the agency’s functions,
…
4 Business interests of agencies and other persons
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
(a) undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market,
…
(d) prejudice any person’s legitimate business, commercial, professional or financial interests,…”

Clause 2 of Sch 1 to the GIPA Act relevantly provides:

“2 Cabinet information
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information (referred to in this Act as Cabinet information) contained in any of the following documents:
…
(b) a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet’s consideration (whether or not the document is actually submitted to Cabinet),
…
(f) a document that is a preliminary draft of, or a copy of or part of, or contains an extract from, a document referred to in paragraphs (a)–(e).

(2) Information contained in a document is not Cabinet information if:
(a) public disclosure of the document has been approved by the Premier or Cabinet, or
(b) 10 years have passed since the end of the calendar year in which the document came into existence.

(3) Information is not Cabinet information merely because it is contained in a document attached to a document referred to in subclause (1).
(4) Information is not Cabinet information to the extent that it consists solely of factual material unless the information would:
(a) reveal or tend to reveal information concerning any Cabinet decision or determination, or
(b) reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet.

(5) In this clause, Cabinet includes a committee of Cabinet and a subcommittee of a committee of Cabinet.”

Section 106 of the GIPA Act provides:

“106 Decisions about Cabinet and Executive Council information
(1) On an NCAT administrative review of a decision by an agency that there is an overriding public interest against disclosure of information because the information is claimed to be Cabinet or Executive Council information (as described in Schedule 1), NCAT is limited to deciding whether there were reasonable grounds for the agency’s claim and is not authorised to make a decision as to the correct and preferable decision on the matter.
(2) If NCAT is not satisfied, by evidence on affidavit or otherwise, that there were reasonable grounds for the claim, it may require the information to be produced in evidence before it.
(3) If NCAT is still not satisfied after considering the evidence produced that there were reasonable grounds for the claim, NCAT is to reject the claim when determining the review application and may then proceed to make a decision as to the correct and preferable decision on the matter.
(4) NCAT is not to reject the claim unless it has given the Premier a reasonable opportunity to appear and be heard in relation to the matter.
(5) The Premier is a party to any proceedings on an application under this section.”

The burden of establishing that the decision is justified lies on the agency in these proceedings: GIPA Act, s 105(1).

Were there reasonable grounds for the claim of Transport for NSW that the information is Cabinet information?

The first matter the Tribunal needs to determine is whether there were reasonable grounds for the respondents’ claim that the information sought is Cabinet information (GIPA Act, s 106(1)). As the parties agreed, this is to be determined as at the time of the GIPA determination.
The Premier was represented in the proceedings, as is the Premier’s right as a statutory party under s 106(5) of the GIPA Act. The Premier had the same legal representation as Transport for NSW. When I refer to “the respondents” in relation to the Cabinet information claim, I mean to refer to Transport for NSW and the Premier.

Transport for NSW has provided to the Tribunal evidence on affidavit relevant to the question of whether the information sought is Cabinet information (see GIPA Act s 106(2)). Whilst most of the affidavit evidence has been made available to Mr Searle, some of the evidence is subject to an order prohibiting its disclosure to him (Civil and Administrative Tribunal Act, s 64(1)(d)). Transport for NSW has also provided the information the subject of the claim to the Tribunal on a confidential basis (see GIPA Act, s 106(2)).
Mr Searle submitted that there were no reasonable grounds for the claim that the information he sought was Cabinet information at the time his access application was determined. The decision-maker responsible for the GIPA determination found that the documents were not prepared for the dominant purpose of being submitted to Cabinet within cl 2(1)(b) of Sch 1 to the GIPA Act. This being the case, and no other provision in cl 2(1) being applicable, it followed, in his submission, that there were no reasonable grounds for the claim.
I accept Mr Searle’s submission that the original decision-maker erred in the reasoning by which he arrived at the conclusion that the information sought was Cabinet information. Having found that the information was prepared for submission for Cabinet but that the documents containing the information were not, the law then required him to conclude that cl 2(1)(b) of Sch 1 to the GIPA Act did not apply. It followed that, on the information available to the decision-maker, the information was not Cabinet information (see D’Adam v New South Wales Treasury and the Premier of New South Wales [2015] NSWCATAP 61 at [60] to [62]).

Is the Tribunal limited to considering the grounds relied upon by the decision-maker?

The critical question is, however, whether the Tribunal may have regard to other material and grounds upon which the decision-maker did not rely, when determining whether there were reasonable grounds for the decision.
Mr Searle submitted that, in determining whether Transport for NSW had reasonable grounds for its claim under s 106(1) of the GIPA Act, the Tribunal should give effect to the clear legislative intention that Transport for NSW was limited to its original reasons. He said that the effect of s 106(1) was to exclude s 63(1) of the Administrative Decisions Review Act (which provides that, in determining an application for an administrative review, the Tribunal is to decide what the correct and preferable decision is). The contraction in the scope of the review, according to Mr Searle, must be accompanied by a contraction in the scope of a respondent’s capacity to rely on additional or alternative grounds. He said that s 106(1) of the GIPA Act discloses a legislative intention that the focus should shift back to the original decision.
I accept Mr Searle’s submission that the effect of s 106(1) of the GIPA Act is to exclude the operation of s 63(1) of the Administrative Decisions Review Act, unless and until such time as the Tribunal rejects a respondent’s claim that the information in Cabinet information, pursuant to s 106(3) of the GIPA Act. The words “correct and preferable decision” in s 106(1) pick up the same words in s 63(1) of the Administrative Decisions Review Act. Instead of undertaking its usual task of determining the “correct and preferable decision” in an administrative review, the Tribunal is to consider whether the respondent agency had reasonable grounds for its claim that the information is Cabinet information.
However, I also accept the respondents’ submission that, in determining whether there are reasonable grounds for the claim of Transport for NSW that the information is Cabinet information, the Tribunal is not limited to consideration of the original reasons for the decision, or to the material upon which the decision-maker relied. It is clear from the terms of s 106(2) of the GIPA Act that the Tribunal is entitled to consider affidavit evidence (which would not have been before the decision-maker) when considering whether there were reasonable grounds for the claim. There is nothing in s 106 to indicate that this evidence must be relevant only to the grounds upon which the decision-maker relied. I do not accept that s 106 discloses a legislative intention to limit an agency to its original reasons; that is not what it says. So long as there were “reasonable grounds” for the claim at the time the decision-maker made his or her decision, the agency may raise these grounds in an administrative review, even if they were not relied upon by the decision-maker.
Another factor supporting this conclusion is that s 106(5) provides for the Premier to be a party to an application under s 106. It is unlikely that the legislature intended the Premier to be limited to the grounds or reasons relied upon by the decision-maker at first instance. That being so, it makes it less likely that the legislature intended that the respondent agency would be so limited.

Can the Tribunal be satisfied, on the evidence, that there were reasonable grounds for the claim?

The claim made by the respondents is that each of the Documents was prepared for the dominant purpose of its being submitted to Cabinet for Cabinet’s consideration, or was a draft of such a document (GIPA Act, Sch 1, cl 2(1)(b) and (f)). It is conceded that none of the documents was in fact submitted to Cabinet, but that is not determinative (see the words in parentheses in GIPA Act, Sch 1, cl 2(1)(b)).

Legal principles

The words “dominant purpose” in cl 2(1)(b) have the same meaning as in ss 118 and 119 of the Evidence Act 1995 (NSW): D'Adam v New South Wales Treasury [2014] NSWCATAD 68 at [51]. As the parties submitted, the purpose in question must be "causative in the sense that, but for its presence" the information would not have been prepared: Secretary to the Department of Treasury and Finance v Dalla Vella [2007] VSCA 11 at [13], [24]; D'Adam v New South Wales Treasury [2014] NSWCATAD 68 at [51].
The words “reasonable grounds” are to be given their ordinary meaning and paraphrases and adaptations of the phrase (such as “not irrational, absurd or ridiculous”) should be avoided (McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 (“McKinnon”), Hayne J at 445 [60], Callinan and Heydon JJ at 468 [131]). As Gleeson CJ and Kirby J observed in McKinnon, a determination of whether there were reasonable grounds for a claim “involves an evaluation of the known facts, circumstances and considerations which may bear rationally upon the issue” (McKinnon, at 430 [11]). Their Honours held (at 431 [13]) that, the reference in the provision in the Freedom of Information Act 1982 (Cth) to “reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest”:

“raises the question whether, having regard to all the relevant considerations available to the [Administrative Appeals] Tribunal, there are matters that are sufficient to induce in a reasonable person a state of satisfaction that disclosure of a document would be contrary to the public interest. The expression “reasonable grounds for the claim” means reasonable grounds for contending that the Minister should be so satisﬁed. That is the nature of the claim.”

The words “reasonable grounds”, in a different statutory context, were recently considered by the High Court in Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441. A Northern Territory statute provided that a member of the police force was entitled to arrest a person if the member had “reasonable grounds” for believing the person was intoxicated in a public place and likely to commit an offence. The appellant, who had been arrested under the provision, argued that the arresting officer did not have reasonable grounds for his belief. Kiefel and Bell JJ held (at 445 [4]) that the provision required that the constable hold the relevant beliefs and that “the facts and circumstances” known to the constable:

“constituted objectively reasonable grounds for those beliefs. Proof of the latter requires that those facts and circumstances be sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the subject matter of the belief.”

The statutory phrase differs here, because it is not concerned with reasonable grounds for a belief, but rather with reasonable grounds for a claim (as in McKinnon). Nevertheless, reasonable grounds for a claim may entail facts and circumstances sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the claim.

Evidence in support of claim

The respondents relied principally upon the evidence of Ms Anissa Levy, the Deputy Chief Executive Officer of Infrastructure NSW, to establish that Transport for NSW had reasonable grounds for its claim. It also relied upon Mr Summers’ evidence, but his evidence in this respect was very limited and did not, in my opinion, assist it.
Ms Levy oversees the development, implementation and ongoing operation of the Infrastructure Investor Assurance Framework. Her evidence is that, whilst it is not currently the usual practice to provide a full copy of gateway review or health check reports to Cabinet, the reports are prepared on the basis that they could be submitted in full to Cabinet. Under cross examination, Ms Levy conceded that none of the reports had ever gone to Cabinet. However, she said that summaries of the reports routinely went to Cabinet.

Relevance of identity of person giving evidence

Mr Searle noted that the respondents had not sought to adduce evidence from the decision-maker. He said that neither of the respondents’ witnesses (being Ms Levy and Mr Summers), had played any part in the decision to refuse access to the documents or any role in the creation of the documents which could give them knowledge of the purpose for which they were created. He said that, absent evidence of this kind, Transport for NSW could not discharge its onus under s 105(1) of the GIPA Act.
Mr Searle referred the Tribunal to Fisse v Secretary, Department of the Treasury [2008] FCAFC 188; 172 FCR 513. That was a case in which a Commonwealth government agency relied upon a Cabinet exemption in relation to the provision of information under the Freedom of Information Act 1982 (Cth). At issue was the question of whether the finding of the Administrative Appeals Tribunal that an executive summary of a document was brought into existence for the purpose of submission to Cabinet, was open on the evidence. The Full Federal Court found that it was.
There was discussion by the Full Federal Court of whether the evidence of a Ms Croke, as to the purpose for which the documents were brought into existence, could support the Tribunal’s conclusion. Ms Croke had no direct knowledge of the purpose for which the document was prepared. Buchanan J found that Ms Croke’s opinion should not be regarded as providing evidence for the Tribunal’s conclusion as her opinion was based upon her reading of correspondence (at 535 [71]). However, the correspondence provided some evidence for the conclusion. Flick J also found that the finding was one of fact open on the evidence (at 556 [152]). However, his Honour commented that the Tribunal had to draw inferences from a questionable factual foundation (at 549 [128]).
I accept Mr Searle’s submission that the court in Fisse did not find that the respondent had discharged the burden of establishing that the document had been brought into existence for the purpose of submission to Cabinet; rather, it found that, because there was some evidence for the Tribunal’s conclusion, it was not open to review by the court. I also agree with Mr Searle’s submission that it is clear from the judgments in Fisse that the court did not share the Tribunal’s view that the evidence would have persuaded it that the summary was brought into existence for the purpose of submission to Cabinet.
Mr Searle has not clearly explained what proposition he seeks to draw from Fisse. It provides some support for his contention that second-hand evidence of the dominant purpose for which documents were created may properly be given little weight. It is best understood as providing guidance as to how to approach the evidence in a case such as this.

Determination of purpose

When considering whether the respondent has reasonable grounds for its claim that the Documents were prepared for the dominant purpose of their being submitted to Cabinet, it is helpful to consider whose purpose is relevant. This is also necessary to address the submissions Mr Searle has made about the inability of the witnesses chosen by the respondent to provide evidence discharging the respondent’s onus, because of their lack of direct knowledge of purpose.
The Documents were prepared by a team of experts, engaged by Infrastructure NSW. Each of those experts presumably had a purpose in preparing the reports, but that is not necessarily the purpose for which they were created. If, as it would appear from the evidence, the experts had either an exclusive or the primary role in the preparation of the Documents, evidence of each expert’s subjective purpose in doing so would not necessarily be helpful in establishing the dominant purpose for which the Documents were prepared. This is because the purpose of preparation is best ascertained by reference to the corporate or governmental purpose underlying the commissioning of the reports. The evidence establishes that the expert reviewers were engaged to prepare gateway review and health check reports on behalf of Infrastructure NSW (“Infrastructure Investor Assurance Framework: Gateway Coordination Agency Framework for Capital Projects under the NSW Gateway Policy” (“IIAF Document”), cl 2.7, p 8). The reports remain the property of Infrastructure NSW until finalised (IIAF Document, cl 2.7, p 8). As the reports have been prepared in the context of complex interactions between Cabinet, the State government, government agencies, and private corporations, the purposes of individuals cannot be equated to the corporate or governmental purpose for preparing the reports.
Some of the best evidence of the purpose for which the reports were prepared is documentary evidence, because this best reflects “corporate” or group purposes. Transport for NSW has provided the Tribunal with the IIAF Document, referred to above. Mr Searle submits that the IIAF Document, taken with Ms Levy’s evidence, establishes that the dominant purpose of the preparation of health check review reports and gateway review reports is to help achieve overall infrastructure assurance. The document states, in cl 3.3.1:

“The Gateway Review process is in place to strengthen governance and assurance practices and to assist delivery agencies to successfully deliver major projects and programs. Gateway Reviews are part of an assurance process which provides confidence to Government in the information supporting their investment decisions; the strategic options under consideration; and the delivery agency’s capability and capacity to manage and deliver the project.
Gateway Reviews are supported by periodic Health Checks which assist in identifying issues which may emerge between decision points. Health Checks will be carried out, when required, by an independent team of experienced practitioners (industry experts including from the private sector), appointed by Infrastructure NSW.”

Mr Searle submits that the purpose of the reports is to fulfil the framework and not to go to Cabinet. Mr Searle also says that the highest Ms Levy’s evidence goes is that the Documents were prepared on the basis that they could go to Cabinet. He says that this is a long way short of satisfying the dominant purpose test.
Ms Mitchelmore, for Transport for NSW, seeks to draw a distinction between investor assurance and project assurance. She says the “investor” here is the government. The IIAF Document states on page 1, consistently with Ms Mitchelmore’s submission:

“The objective of the IIAF is to ensure the Government’s key infrastructure projects across NSW are delivered on time and on budget through the implementation of this risk-based external assurance Framework. The purpose of the IIAF is also to ensure that Cabinet and the Minister for Infrastructure are supported by effective tools to monitor the NSW Government’s infrastructure program, receive early warning of any emerging issues, and to act ahead of time to prevent projects from failing.”

In the IIAF Document, it is stated on p 3 that, in June 2015, the NSW Government decided to further enhance the governance and oversight of capital projects by requiring project assurance reports to be routinely examined by Cabinet.

Findings as to purpose

I am satisfied, from the documentary evidence and the evidence of Ms Levy, that the purposes of preparing each of the Documents were:

To ensure that Cabinet and the Minister for Infrastructure are supported by effective tools to monitor the NSW Government’s infrastructure program, receive early warning of any emerging issues, and to act ahead of time to prevent projects from failing (IIAF Document, p 1);

To strengthen governance and assurance practices and to assist delivery agencies to successfully deliver major projects and programs (IIAF Document, p 19);

In the case of Documents 1-3, to identify issues emerging between decision points (being gateways) (IIAF Document, p 19);

To appraise infrastructure projects, highlighting risks and issues, which if not addressed may threaten successful delivery (evidence of Ms Levy);

To enable Cabinet to monitor specific projects on an ongoing basis, enabling it to receive early warning of any emerging issues as to act ahead of time to prevent projects failing (evidence of Ms Levy);

To give Cabinet the benefit of expert assessment of how projects are tracking against delivery deadlines, and how that progress could be improved or risks alleviated (evidence of Ms Levy);

To provide Cabinet with “point in time” information about its investment decisions through the various project stages; to put it on notice of any issues which may present a risk to its return on particular investments and how those risk might best be managed and other matters (evidence of Ms Levy);

To provide a snapshot for Cabinet of the project’s progress, together with the review team’s recommendations as to how key issues identified can be addressed (evidence of Ms Levy).

The question of whether there are reasonable grounds for the claim that a purpose of preparing the Documents was their submission to Cabinet is finely balanced. As indicated above, Ms Levy’s evidence was that the reports are “prepared on the basis that they could be submitted in full to Cabinet”, consistently with their purpose as forming a basis for reporting to Cabinet. The IIAF Document also states that the Government decided in June 2015 that project assurance reports, which I understand to include gateway reviews and health check reports, would routinely be examined by Cabinet. However, Ms Levy’s evidence was that no gateway review report or health check report has ever been submitted to Cabinet. By early 2016, when Document 4 was prepared, there had been six months since the Government’s decision of June 2015, in which no review report had gone to Cabinet. By October 2016, there had been over a year in which no review report had gone to Cabinet. This casts some doubt on the claim that there was a collective purpose or individual purposes of submitting the Documents to Cabinet, “purpose” being understood in the sense of “the object for which anything exists or is done” or an “intention or determination” (Macquarie Dictionary, “purpose”, n 1, 3). The fact that no documents had been submitted to Cabinet might indicate that the persons preparing the Documents, or commissioning the reports, did not have as an object of preparing the Documents that they would go to Cabinet, nor intend that they would do so.

Resolution of this issue depends upon whether the respondents have persuaded the Tribunal that Ms Levy is in a position to have knowledge of the purpose of the preparation of the Documents. When asked in cross examination why she said that the Documents were prepared on the basis that they could be submitted to Cabinet, she said she could not answer without referring to the confidential evidence. For reasons given confidentially below, although the confidential evidence provides some support for the claim, it does not, of itself, persuade me that a purpose of preparing the Documents was their submission to Cabinet. However, I accept Ms Levy’s evidence that she had “first-hand knowledge” of the Documents and that one of her “direct reports” dealt directly with them. I also accept that her role involved reporting to and advising the Government and Cabinet on the State’s infrastructure program, including monitoring and conducting gateway reviews and health checks. I find, on the basis of this evidence, that Ms Levy is probably in a position to know the purpose of preparing the Documents. I consider that, Ms Levy’s open evidence, taken with the confidential and documentary evidence, provides reasonable grounds for the claim of Transport for NSW that a purpose of their preparation was their submission to Cabinet.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]

Are there reasonable grounds for the respondent’s claim as to dominant purpose?

Transport for NSW does not have reasonable grounds for its claim that a dominant purpose of preparing the documents was their submission to Cabinet, for Cabinet’s consideration, or to a committee of Cabinet, for its consideration. The respondents have not established that, but for this purpose, the Documents would not have been prepared (Secretary to the Department of Treasury and Finance v Dalla Vella [2007] VSCA 11 at [13], [24]). On the contrary, the evidence strongly indicates that the Documents would have been prepared, irrespective of whether there was any intention to submit the Documents to Cabinet. Information from gateway reviews and health check reports has routinely been submitted to Cabinet for some time, without submitting the entire reports. Gateway reviews and health check reports are prepared for a variety of purposes, as outlined above, including, significantly, to enable the government to monitor infrastructure projects effectively. I find that the purpose of submitting the Documents to Cabinet was a subsidiary purpose for preparing them. The main purposes of preparing the Documents were to monitor the Sydney Light Rail project effectively and to provide summaries of the findings and recommendations of the reviews to Government, including Cabinet.
There are no reasonable grounds for the claim that the dominant purpose of preparing the Documents was their being submitted to Cabinet or a Cabinet committee for Cabinet’s consideration. Ms Levy did not say in her affidavit or in oral evidence that this was the dominant purpose of preparation. She said in oral evidence that the reports were there in case Cabinet wants to see them but that the full documents do not usually go to Cabinet. This falls well short of establishing that the dominant purpose is as claimed.
For these reasons, Transport for NSW has not discharged its onus of establishing that there are reasonable grounds for its claim that there is a conclusive presumption of an overriding public interest against disclosure of the information contained in the Documents on the basis that it is Cabinet information (GIPA Act, s 14(1), Sch 1, cl 2).
It remains to consider the other public interest considerations against disclosure relied upon by the respondent.

Can the Tribunal have regard to the other grounds relied upon by the respondent?

Mr Searle submits that the Tribunal is limited, by s 106 of the GIPA Act, to determining whether there were reasonable grounds for the claim of Transport for NSW, and may not make the correct and preferable decision, even if it rejects the Cabinet information claim. He says that, in the Notice of Decision, the respondent only relied upon the Cabinet information “exemption,” and did not raise other public interest considerations against disclosure. Mr Searle submits that Transport for NSW should be confined to the original grounds it relied upon.
This argument should be rejected. On its proper construction, the word “claim” in s 106(1) of the GIPA Act refers to the claim that the information is Cabinet or Executive Cabinet information. It does not extend to a claim that there is a different category of a public interest against disclosure of that information. Subsection 106(3) of the GIPA Act permits the Tribunal to make the “correct and preferable” decision on the matter, if it is not satisfied that there were reasonable grounds for the agency’s claim that information is Cabinet or Executive Cabinet information. This authorises the Tribunal to consider any other claims made by the respondent and to determine them in the usual way.

Public interest considerations in favour of disclosure

There is a general public interest in favour of the disclosure of government information: GIPA Act, s 12(1).
Transport for NSW submits that the interests in favour of disclosure cannot be at large; they must be constrained by the text of s 13 of the GIPA Act, read in light of the purposes of the GIPA Act, as identified in s 3 of that Act. So much may be accepted.
Mr Searle submits that public interest considerations in favour of disclosure include:

That the project to which the information relates is a high profile, highly complex project, involves considerable amounts of public expenditure, has been the focus of considerable public interest and controversy, attention in Parliament and has been the subject of a report by the Auditor General containing significant criticisms of it;

That disclosure would enhance the maintenance and advancement of a system of responsible and representative government that is open, accountable, fair and effective.

I find that, broadly, Mr Searle has identified reasons, in the public interest, why the information should be disclosed. Transport for NSW has described the project as “a high profile, highly complex project” and I accept that this is the case.
Mr Searle has provided evidence substantiating his claims that the project involves considerable amounts of public expenditure, has been the focus of considerable public interest and controversy and attention in Parliament and has been the subject of a report by the Auditor General containing significant criticisms of it. Ms Levy accepted that there was a high public interest in this project and that the Auditor General’s report had been critical of it. I accept Mr Searle’s claims. Transport for NSW did not contend that they were incorrect.
The circumstances which Mr Searle has identified are probably not, of themselves, public interest considerations in favour of disclosure (being rather factual matters which are relevant to any such considerations). However, I accept Mr Searle’s submission that access to the information contained in the Documents is of public importance and public interest. This is a public interest consideration in favour of disclosure.
I also accept that the circumstances outlined by Mr Searle give weight to the other public interest consideration in favour of disclosure which he identifies, being that disclosure could reasonably be expected to enhance the maintenance and advancement of a system of responsible and representative government that is open, accountable, fair and effective (picking up the language of s 3(1) of the GIPA Act).

Prejudice the supply of confidential information (s 14, table, cl 1(d))

Transport for NSW contends that disclosure of the information in the Documents could reasonably be expected to prejudice the supply to Infrastructure NSW of confidential information that facilitates the effective exercise of its functions (GIPA Act, s 14, table, cl 1(d)).
I am satisfied that the information provided to reviewing teams who conduct gateway reviews and health checks is confidential information. The Documents are marked “Sensitive NSW Cabinet” or “Cabinet in Confidence” and much of the information contained in the Documents was provided to the reviewing team in confidence. Interviewees are informed that the discussions with the expert reviewers will be kept strictly confidential and provided only to Infrastructure NSW. The infrastructure assurance model, upon which the gateway reviews and health checks are based, requires that a review be undertaken under strict conditions of confidentiality between the review team and the project delivery team.
I am also satisfied from the evidence of Ms Levy that the supply of the information to Infrastructure NSW facilitates the exercise of its functions, particularly its assurance functions. It was not contended by Mr Searle that the information was not confidential information, nor did he suggest that the information does not facilitate the exercise of the functions of Infrastructure NSW.
The contentious question which arises in this case is whether, if information in the Documents were disclosed, this would prejudice the supply to Infrastructure NSW (including to the reviewers, acting on behalf of Infrastructure NSW) of confidential information in the future.
The respondent relied primarily upon the evidence of Mr Andrew Summers, the Project Director, Sydney Light Rail Delivery Office, as to the prejudice to the supply of information which would be occasioned, in the respondent’s submission, by the release of the information in the Documents.
Mr Summers is the point of contact for the Sydney Light Rail Delivery Office for the purposes of the Infrastructure Investor Assessment Framework. When a review process is conducted pursuant to that framework, such as a health check or gateway review, Mr Summers participates with an initial briefing with the expert reviewers then has daily briefings with the reviewers over the two to four days of the review. Mr Summers also attends a meeting with the Secretary for Transport for NSW and the Minister for Transport and Infrastructure on the last day of the review, together with the reviewers, to brief them on the observations that the reviewers have made and their proposed recommendations.
Mr Summers’ evidence is that the discussions which form the basis of gateway reviews and health check reports, and the reports themselves, are kept strictly confidential and provided only to Infrastructure NSW. Within the Sydney Light Rail Delivery Office, the documents stay within a small project team of four to five senior executives.
Mr Summers’ opinion is that, in order for a review panel and, through it, the Minister and Cabinet, to be properly and fully informed of the status of the CBD and South East Light Rail project and issues arising in relation to meeting project targets, officers in the Sydney Light Rail Delivery Office need to be able to speak with complete frankness to the reviewing team. This includes by openly identifying any problems experienced with stakeholders. He stated in his affidavit that, if he was not confident that whatever he told the reviewing team would be kept confidential, this would impact upon the level of detail he could provide to the reviewing team. Any reduction in the level of detail would, in Mr Summers’ view, compromise the Infrastructure Investor Assurance Framework and the reviews conducted under that framework.
Under cross examination, Mr Summers agreed that he would always undertake his duties honestly and diligently and that, even if he was not guaranteed of confidentiality, he would not knowingly withhold information from the review team. He said, however, that, as well as his obligations as a public official, he had an obligation of confidentiality to stakeholders, which he had to balance. He said that, if the Documents were released, he would have to review the way he interacted with the review team. He agreed that he would be candid with the review team, but that this was subject to his obligations to other parties. Mr Summers’ evidence was that if sensitive commercial information were to be released that had been communicated confidentially, there would be a serious risk of a break-down in communication and in relations with the stakeholder who had provided the information.
Mr Summers also gave evidence that, if recommendations for steps to be taken in relation to future contracting were disclosed, the ability of the Sydney Light Rail Delivery Office to negotiate outcomes consistent with those recommendations would be prejudiced. He said that publication of the recommendations would effectively give the stakeholders and contracting parties a blueprint of how the expert reviewers considered that the project would best be managed going forward, together with the response of Transport for NSW to the recommendations in terms of what steps it proposed to take to address them. This would, in Mr Summers’ opinion, make it difficult for the Sydney Light Rail Delivery Office to obtain a reasonable contract price and conclude a competitive contract.
In response to a question put to him by Mr Searle, Mr Summers acknowledged that he had not had any conversations with stakeholders or contractors about the potential release of the Documents. He also agreed that he could not provide a clear and factual basis for his concerns, beyond his judgment of the situation.
Ms Levy’s evidence is that a failure to maintain the confidentiality of the review process under the Infrastructure Investor Assurance Framework would inhibit open and frank dialogue which, in her view, is necessary for an effective review. She said that, if the review process were not carried out in confidence, it was her belief that members of the project delivery team would be reluctant to make detailed disclosures to independent reviewers where they perceived a risk that public release of the information would have adverse effects on the ongoing conduct of the project (such as by damaging stakeholder relations). She was of the view that it would also inhibit the discussion of confidential market intelligence and information that is considered to be commercially sensitive or commercial-in-confidence. She said that, to the extent that reviews involved consultation with stakeholders that were non-State government employees, those individuals may feel restricted in their ability to be open and frank if their comments could be released into the public domain.
Under cross examination, Ms Levy clarified that the project delivery team, which provided confidential information to the reviewers, comprised, in part, private contractors who were engaged by the State government. She agreed that public servants had a duty to frank and honest, but said they would have to talk about relationship issues, and would be concerned about how this might impact the ongoing ability to manage the project or deal with stakeholders. She anticipated that interviewees would “filter information.” However, Ms Levy accepted that no individual had told her that they would not provide information in the future or would provide less information, if the information sought by Mr Searle were to be disclosed.

Consideration

The issue is whether it could reasonably be expected that disclosure would inhibit the supply of information to the review team by public servants and by others. The words “could reasonably be expected” are to be given their ordinary meaning: see, for example, Smith v Pittwater Council [2016] NSWCATAD 67 at [36]; Attorney General’s Department v Cockcroft (1986) 10 FCR 180 (“Cockcroft”) at 190.
Mr Searle submitted that the word “expected” was not to be given too wide a meaning in light of the objectives of the statute, relying upon the comments of Sheppard J in Cockcroft. When considering the meaning of the word “expected” in the Freedom of Information Act 1982 (Cth), Sheppard J observed in Cockcroft at 195:

“the provision is contained in an Act which was intended to make available to members of the public a great deal of material which might otherwise have been regarded as confidential. We ought not be too ready to afford exemption unless the words of the statute are clear. “

The objects of the GIPA Act, and its purpose, are relevant when construing the term “expected”. However, the GIPA Act is different from the Freedom of Information Act 1982 (Cth), as it stood in 1986. The GIPA Act does not provide “exemptions” but rather considerations which need to be balanced (with the exception of the considerations listed in Sch 1). It achieves its objects of “giving members of the public an enforceable right to access government information” and “providing that access to government information is restricted only when there is an overriding public interest against disclosure” (s 3(1)) through the balancing process. In my view, the word “expected” is simply to be given its ordinary meaning.
Except in extraordinary circumstances (which I cannot currently envisage), it would not be reasonable to expect that disclosure of the information sought would cause public servants, and particularly senior public servants, to fail to fulfil their duties to be candid and frank with the reviewing team. It is to be remembered that such disclosure would be pursuant to the GIPA Act, being legislation expressing Parliament’s will. Government sector core values include to “act professionally with honesty, consistency and impartiality” and to “provide transparency to enable public scrutiny” (Government Sector Employment Act 2013 (NSW), s 7). Although Mr Summers and Ms Levy both expressed concerns that disclosure would inhibit open and frank dialogue, they both accepted that public servants have a duty to be frank and honest. Further, it could be reasonably expected that a public servant, and especially a senior public servant, would appreciate the importance of providing full and frank views to a reviewing team in the review of a major infrastructure project.
I have considered whether it is reasonable to expect that senior public servants would consider that they have a conflict of duties between, on the one hand, being frank and candid with the review team and, on the other, providing to the review team information which is commercial-in-confidence and/or could adversely affect stakeholder relationships. If so, it could be that it would be reasonable to expect a public servant to be less than frank when communicating with a review team about such information.
Mr Summers was reasonably consistent in maintaining that, if the information sought by Mr Searle were to be disclosed, this would make him cautious about what he said to the review team, if it could impact upon stakeholder relations. His evidence was that, if the release of information could disadvantage one stakeholder with respect to another, by one stakeholder leveraging information to gain a commercial advantage, he would need to think carefully about disclosing this information. This evidence was not entirely consistent with Mr Summers’ evidence that he would not knowingly withhold information from the review team.
The comments of the Appeal Panel of the former Administrative Decisions Tribunal in Electoral Commissioner, State Electoral Office v McCabe [2003] NSWADTAP 28 (“McCabe”) are apposite. In that case, the Appeal Panel of the former Administrative Decisions Tribunal commented (at [36]), in respect of the “law enforcement and public safety” exemption in the former Freedom of Information Act 1989 (NSW):

“The Tribunal is, we consider, obliged to bring some scepticism to the task of assessing what are necessarily self-serving statements by agencies as to the availability of grounds for exemption which involve matters of judgment. The question is always whether the material, statements of opinion and submissions put forward by the agency justifies reliance on the exemption (see s 61, burden of proof).”

Mr Searle submitted that McCabe established that there had to be a firm basis to accept the arguments of Ms Levy and Mr Summers that people would be reluctant to provide information to the review team frankly if the information sought were to be disclosed. Mr Searle said (and I generally accept) that Mr Summers could not articulate a factual basis for his opinion that people would be less frank in the provision of information if the information sought were disclosed.
Notwithstanding the concerns expressed by the respondent’s witnesses, I am not persuaded that it would be reasonable to expect that public servants would not give full and frank information to a reviewing team in an interview, if the information sought by Mr Searle were to be disclosed. The purposes of the reviews include to inform Cabinet of any issues arising in the progress of the project, to strengthen governance and assurance practices, and to highlight risks and issues, which if not addressed, may threaten successful delivery of a project. It would be improper for a senior public servant to withhold information from the expert review team (and thus indirectly from Cabinet), even if this were to impact upon stakeholder relationships. This would be to undermine both the Infrastructure Investor Assurance Framework and the objects of the GIPA Act to open government information to the public, except where there is an overriding public interest against disclosure. It could not reasonably be expected that this would occur.
The respondent sought to draw a distinction between the position of State public servants and the position of persons representing councils who provide information to Infrastructure NSW. In my view, council staff or councillors are not in a significantly different position. Section 439(1) of the Local Government Act 1993 (NSW) provides that “[e]very councillor, member of staff of a council and delegate of a council must act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under this or any other Act.” Council staff and councillors are also subject to a code of conduct (see Local Government Act, ss 440, 440AA; Local Government (General) Regulation 2005 (NSW), cl 193). In my view, it would not be reasonable to expect council staff, delegates or councillors to do other than fully cooperate with the reviewing team on this important project, by providing full and frank information to it.
Different considerations apply in respect of information provided by individuals representing private contractors, because they are not under the same duties to act in the public interest (as far as the Tribunal is aware, without the contracts being in evidence). The private parties identified by Ms Levy, who may provide information to a review team, include staff of private contractors, utility providers, property owners and “private operators”.
There is little evidence about the obligations or views of private contractors and/or of the individuals who provide information to the reviewers on behalf of private contractors. It could be expected that there would or at least might be a contractual obligation for contractors to provide information to the review team, given the importance of the assurance process and the value and significance of the Sydney Light Rail project. The respondent has not provided any evidence of the contracts with private contractors, nor has it provided any evidence from private contractors as to how the disclosure of the information sought by Mr Searle would impact upon their willingness to be frank with the review team. Neither Ms Levy nor Mr Summers spoke to any private contractor about the possibility of disclosing this information, and how it would affect their participation. All the Tribunal has is the views of Ms Levy and Mr Summers as to the effect of disclosure on the contractors’ willingness to speak freely.
The respondent has not discharged its onus of establishing that it could reasonably be expected that private contractors would be inhibited in their provision of confidential information to Infrastructure NSW, if the information sought by Mr Searle were to be disclosed. There are many factors which suggest they may not be. Private contractors might welcome an opportunity to have any concerns they have about the project aired publicly. They may be bound by contractual obligations to provide information to the reviewing team. They may wish to be frank in the provision of information to Infrastructure NSW, in the hope that their full cooperation would be a factor supporting them being awarded future contracts by the State government. The Tribunal cannot make findings as to any of these matters without the relevant evidence before it. However, the lack of evidence about the position of private contractors means that the respondent has not discharged its onus of establishing that this consideration applies, in the case of information provided by private contractors.
There is also little or no evidence about the position of utility providers, property owners and “private operators.” Ms Levy did not explain what she meant by “private operators.” There has been no evidence as to what sort of information these categories of persons are likely to supply and why they would be inhibited in providing information, when providing information to the review team. Accordingly, I find that the respondent has not discharged its onus in respect of information provided by private parties.
To conclude, it could not reasonably be expected that interviewees would cooperate less fully with the reviewing team, or would not be frank in the expression of their views, if the information sought by Mr Searle were to be disclosed.
It follows that the respondent has not discharged its onus of establishing that the consideration in cl 1(d) of the table to s 14 applies in the circumstances of this case.

Prejudice the effective exercise by an agency of its functions (s 14, table, cl 1(f))

The respondent submits that release of the information sought could reasonably be expected to prejudice the ability of Infrastructure NSW to effectively exercise its investment assurance functions via the Infrastructure Investor Assurance Framework. To the extent the respondent relied upon the argument that people would be inhibited in providing confidential information to Infrastructure NSW, this is dealt with above.
The respondent also relied upon this consideration in relation to the functions of Transport for NSW. It submitted that officers of the Sydney Light Rail Delivery Office openly identify, to the review team, any problems they might be having with stakeholders, the delays that might be causing and how it is proposed to address those problems. It submitted that disclosure of that information could reasonably be expected to damage that Office’s ongoing relationship with stakeholders.
I find that it could reasonably be expected that disclosure of information about problems the Sydney Light Rail Delivery Office is having with stakeholders would detrimentally affect that Office’s ongoing relationship with stakeholders and that this would prejudice that Office’s effective exercise of its functions. As the Sydney Light Rail Delivery Office is part of Transport for NSW, this would also prejudice the effective exercise of that agency’s functions. I do not accept that disclosure of information about the delays caused by issues with stakeholders or proposals to address the problems could reasonably be expected to damage relationships with stakeholders, unless this also disclosed information about the problems the Office was experiencing with stakeholders. There is insufficient evidence on which I could form such an opinion.
The respondent also relied upon the consideration in cl 1(f) in terms of how release of the confidential information would affect the way the review team performed its functions. Ms Levy’s view was that, if review reports were to be released into the public domain, review teams would be reticent to include information in their reports regarding stakeholder relations and commercial-in-confidence matters. Ms Mitchelmore, for the respondent, submitted that disclosure would mean that a review team would have to think about what the implications might be in terms of disclosure of aspects of the report and that there could be concerns about commercial in confidence information. At the moment, Ms Mitchelmore submitted, the review team does not have to be concerned about that.
The respondent did not provide any witnesses who prepared review reports. It did not put in evidence the contracts under which reviewers were engaged or any instructions to them as to how to perform their tasks. The Tribunal does not have sufficient evidence before it to accept the submission that members of review teams would be concerned about disclosing certain matters, to the point that they would write their reports differently, if the information sought were to be disclosed. Presumably, members of review teams are engaged to perform their review function including to compile a report, and they are required to do so irrespective of any concerns about the release of the information. Whether or not this is so, there is insufficient evidence upon which I could draw the conclusion the respondent invites me to draw.
The respondent submitted that the maintenance of confidentiality of the information provided to independent expert reviewers, which is distilled into the reports, is important in the discharge of the functions of the Sydney Light Rail Delivery Office and is of particular significance to the discharge of the functions of Infrastructure NSW in administering the Infrastructure Investor Assurance Framework. Whilst this submission was not developed in any detail, I understand the respondent to be submitting that disclosure of the information could reasonably be expected to adversely affect stakeholder relationships and, to this extent, prejudice the exercise of the functions of the Sydney Light Rail Delivery Office. I accept that that is the case in respect of disclosure of some of the information, being commercial-in-confidence information and information containing criticisms of particular stakeholders.
The submissions of Transport for NSW concerning the adverse effect of disclosure upon the functions of Infrastructure NSW rely upon the proposition, which I have rejected, that public servants could reasonably be expected to be less than candid with the review team, if the information Mr Searle seeks were to be disclosed.
To conclude, I find that disclosure of the following categories of information (which may overlap) could reasonably be expected to prejudice the effective exercise by Transport for NSW of its functions within cl 1(f):

information concerning problems the Sydney Light Rail Delivery Office is having with stakeholders;

commercial-in-confidence information; and

information containing criticisms of particular stakeholders.

Place respondent at a competitive disadvantage (cl 4(a)) and prejudice its legitimate business interests (cl 4(d))

The respondent submits that Mr Summers’ evidence establishes that the disclosure of the information sought could reasonably be expected to:

prejudice the legitimate business and commercial interests of the Sydney Light Rail Delivery Office (and thus the respondent), within cl 4(d) of the table to s 14 of the GIPA Act.

place the respondent at a competitive disadvantage in the market, within cl 4(a) of the table to s 14 of the GIPA Act.

The respondent relies upon Mr Summers’ evidence that disclosure of the review recommendations for steps to be taken in relation to future contracting, would prejudice the ability of the Sydney Light Rail Delivery Office to negotiate outcomes consistent with those recommendations. Mr Summers said that publication of the recommendations would effectively give the stakeholders and contracting parties a blueprint of how the reviewers considered that the project would best be managed going forward, together with the response of Transport for NSW to those recommendations. He said that information of that nature would be very valuable to contractors and potential tenderers, but would damage the respondent’s ability to obtain a reasonable contract price and otherwise to conclude a competitive contract.
There was very little evidence of the likelihood of the respondent entering into further contracts or the nature of such contracts. It would be reasonable to suppose that, given that the CBD and South East Light Rail project is well underway, most significant contracts have already been entered into. Mr Summers gave some oral evidence that the Sydney Light Rail Delivery Office was renegotiating aspects of existing contracts (such as details of finish). He also said that existing contracts were “not always nailed down as we’d like to think”. However, he did not give any evidence about the effect of the disclosure of the particular information sought upon any particular contracts to which the State is a party, or upon any identified proposed contracts.
The most recent of the documents containing information sought by Mr Searle is dated 27 October 2016. It is a draft of a document finalised in November 2016. One of the documents containing information sought by Mr Searle was created in or about February 2016. The recommendations in those documents are now many months old. The respondent’s evidence as to how the disclosure of this information would prejudice the ability of the Sydney Light Rail Delivery Office to negotiate outcomes consistent with the recommendations was mostly non-specific. Consistently with the decision of McCabe, referred to above, I approach this evidence by considering whether it “justifies reliance on” the public interest considerations relied upon by the respondent. I am not persuaded that it does.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
The respondent did not submit that potential damage to the relationship between the Sydney Light Rail Delivery Office and any stakeholder, following from the disclosure of the information sought, of itself gave rise to either a reasonable expectation of prejudice to that Office’s business or commercial interests or a reasonable expectation that it would be placed at a competitive disadvantage in the market.
The respondent has not discharged its onus of establishing that disclosure of the information sought by Mr Searle could reasonably be expected to prejudice the legitimate business and/or commercial interests of the respondent, or to place the respondent at a competitive disadvantage in the market.
I find that the respondent has not established that the considerations in clause 4(a) and 4(d) of the table in s 14 of the GIPA Act apply in the circumstances of the case.

Personal information

The respondent did not raise the consideration in cl 3(a) of the table in s 14 of the GIPA Act, concerning the revelation of an individual’s personal information, nor did it raise the consideration in cl 3(b) concerning contravention of an information protection principle under the Privacy and Personal Information Protection Act 1998. As indicated above, the respondent has the onus of establishing that there is an overriding public interest against disclosure of information. This is unusual in merits review, and means that the Tribunal is often less inclined to act inquisitorially when conducting a review of a decision made under the GIPA Act.
Notwithstanding this, the Tribunal is determining the proceedings under the Administrative Decisions Review Act (GIPA Act, s 100) and, except in the case of Cabinet information, must make the correct and preferable decision. Although the agency has the burden of establishing that its decision is justified (GIPA Act, s 105(1)), the Tribunal is not precluded from raising considerations upon which the agency has not relied.
The GIPA Act provides a process for individuals to be consulted if the agency processing an access application proposes to provide access to the individual’s personal information (GIPA Act, s 54). The purpose of consultation is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection (GIPA Act, s 54(4)). However, if, as in this case, the agency decides to refuse access to the information, it is not required to consult the individual concerned. The GIPA Act does not contain any procedure for an individual to be consulted about the proposed disclosure of the individual’s personal information during a review in the Tribunal, but the Civil and Administrative Act provides in s 38(1) that the Tribunal may determine its own procedure.
The Documents each contain a list of interviewees in a schedule with their positions, the agency they represent and (in some cases) their contact details. There may be some dispute about whether the names and positions of public sector interviewees constitute “personal information” within the definition of that term in the GIPA Act (Sch 4, cl 4). However, the evidence was clear that interviewees were guaranteed complete confidentiality in the interview process. While the respondent has not relied on cl 1(g), it may be that disclosure of the information could reasonably be expected to disclose (personal) information provided to an agency in confidence. In any event, it is consistent with the policy of the GIPA Act to provide interviewees with an opportunity to object to the release of their personal information and to give reasons for the objection, before making a decision about access to that information.
The appropriate course is not to provide access to this information until the individuals concerned have had an opportunity to make submissions as to whether their personal information should be disclosed. I will list the matter for directions after this decision has been published for the purposes of making orders that the respondent consult with those individuals, and for the making of any further submissions by the parties.

Balancing of public interest considerations

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": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [94].
The public interest considerations in favour of disclosure include:

the general public interest in favour of the disclosure of government information;

that access to the information contained in the Documents is of public importance and public interest; and

that disclosure could reasonably be expected to enhance the maintenance and advancement of a system of responsible and representative government that is open, accountable, fair and effective.

The public interest consideration against disclosure is that disclosure of the following information could reasonably be expected to prejudice the effective exercise by the Sydney Light Rail Delivery Office, being part of Transport for NSW, of its functions:

information concerning problems the Sydney Light Rail Delivery Office is having with stakeholders;

commercial-in-confidence information; and

information containing criticisms of particular stakeholders.

There may be a public interest against disclosure of the names, positions and contact details of interviewees, contained in a schedule to the Documents, but this has not yet been determined.
I find that there is a very strong public interest in the disclosure of the information sought by Mr Searle.
Mr Searle contends that the initial project cost of $1.6 billion has increased to $2.1 billion and that some of this increase was due to mispricing and omissions in the business case. Mr Summers confirmed, under cross examination, that the cost of the project was over $2 billion. Mr Searle says that the reason for the increase is contrary to a media release issued by the former Minister, which is in evidence, saying the increase was due to customer improvements. He also contends that the established assurance framework did not provide the independent assurance required for such a major infrastructure project and that tight time frames meant that planning was inadequate and normal governance systems were not in place. Mr Searle submits that Transport for NSW did not finalise key third party agreements before issuing tenders and signing the major public private partnership contract, thus increasing the project’s complexity and risks and reducing value for money.

I do not, as Mr Searle acknowledges, have to decide whether Mr Searle is correct in making any of the allegations I have set out in the paragraph above. The significance of the allegations is that they underline the public interest in the disclosure of the information contained in the Documents. It is information which may have relevance to public controversies about the conduct of a major infrastructure program involving a significant amount of taxpayers’ money. These allegations, taken with the other evidence before the Tribunal about the project, indicate that weight should be given to the consideration that access to the documents is of public importance and public interest.
I give considerable weight, in the circumstances of this case, to the consideration that disclosure could reasonably be expected to enhance the maintenance and advancement of a system of responsible and representative government that is open, accountable, fair and effective. Where the information sought is contained in reviews which monitor an infrastructure project of considerable cost and public importance, advancing the openness and accountability of such a system of government has particular significance. The release of the information would promote transparency on issues concerning a project with a high public profile and which comes at a high cost to the taxpayer. Public accountability is therefore of particular importance.
Transport for NSW submits that the balance of public interest considerations lies against disclosing the information. It says that the information relates to a high profile, highly complex project in which there are multiple stakeholders, relationships with all of whom must be managed by the Sydney Light Rail Delivery Office; and that it was gathered to feed into a process designed to facilitate Cabinet oversight of State infrastructure projects. It submits that the effective discharge of the functions of both Infrastructure NSW, in managing the Infrastructure Investor Assurance Framework process, and the Sydney Light Rail Delivery Office, in managing the construction and delivery of the Sydney Light Rail Project, outweighs the public interest considerations in favour of disclosing the information in the reports. It also submits that the mechanism by which public confidence in the delivery of large scale projects can best be achieved, is by a confidential process that facilitates an open and frank exchange between government, as the investor, and the project team, moderated by an independent review team constituted by experts.
I do not accept the implication underlying the respondent’s submissions that the Tribunal is required to choose between, on the one hand, the effectiveness of the Infrastructure Investor Assurance Framework process and, on the other, the public interest considerations in favour of disclosure of the information. I have not accepted the submissions of Transport for NSW that interviewees could not reasonably be expected to provide full and frank views to a review team, should the information be disclosed. Nor do I accept that disclosure of the information sought would render the Infrastructure Investor Assurance Framework process ineffective.
I have reviewed the information in the Documents which the respondent identifies, in its confidential evidence, as being commercial-in-confidence information.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
For these reasons, I give some weight to the consideration that disclosure of information identified by the respondent as commercial-in-confidence information could reasonably be expected to prejudice the effective exercise by the respondent of its functions, but I do not give this consideration a significant amount of weight.
I find that, on balance, the strong public interest considerations in favour of the disclosure of the information identified by the respondent as being commercial-in-confidence outweighs the public interest consideration against disclosure of that information (GIPA Act, s 13).
I have also considered the public interest considerations for and against the disclosure of information which is critical of stakeholders.
There is a public interest in favour of the disclosure of information which is critical of stakeholders as this is relevant to the management of a public private partnership, in which the government has invested a significant amount of money. The public has an interest in knowing about stakeholder behaviour and stakeholder management in a project of this scale and nature. Where government invests public funds in a public private partnership to provide public infrastructure, disclosure of information about the conduct of private entities within that partnership could reasonably be expected to enhance the openness and accountability of government. I give this public interest consideration a reasonable amount of weight.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
For these reasons, I find that disclosure of information critical of stakeholders would not adversely affect the exercise of the respondent’s functions to any significant extent.
I find that, on balance, the public interest considerations against disclosure of information which is critical of stakeholders do not outweigh the public interest considerations in favour of disclosure (GIPA Act, s 13).
There is a significant public interest in disclosure of information concerning problems the Sydney Light Rail Delivery Office is having with stakeholders and information which contains criticisms of particular stakeholders. This is information which is relevant to the progress of the project and the way it is being managed. The public interest against disclosure of this information is that it could reasonably be expected to prejudice the effective exercise by Transport for NSW (through the Sydney Light Rail Delivery Office) of its functions. Transport for NSW has not demonstrated in any concrete way how disclosure of the information would make the exercise of its functions less effective. I accept, in general terms, that disclosure of the information could damage its relationship with stakeholders, and that this could make the Office less effective when managing the project. However, without evidence of a more specific nature as to how the Office would be rendered less effective in the exercise of its functions, I am not prepared to give this consideration significant weight.
I find, on balance, that the public interest considerations in favour of disclosure of information in the Documents outweighs the public interest consideration against such disclosure (GIPA Act, s 13). This is subject to the proviso that I have not yet determined whether there is an overriding public interest against disclosure of the information identifying interviewees, which is contained in a schedule to each document.
Accordingly, subject to the proviso referred to above, I find that the respondent has not discharged its onus of demonstrating that there is an overriding public interest against disclosure of the information sought by Mr Searle.

orders

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:

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”;

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.”

Access to the information identified in Orders 1(a) and (b) is refused, pending further determination and order of the Tribunal.
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.
The matter is listed for directions on 26 September 2017 at 9:30am at Level 10, John Maddison Tower, 86-90 Goulburn Street, Sydney.

**********

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

Amendments

21 September 2017 - Paragraph 86 - typographical error corrected

Decision last updated: 21 September 2017

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 prejudice the effective exercise by an agency of its functions - Whether disclosure of the information sought could reasonably be expected to prejudice an agency’s legitimate business and commercial interests and/or place an agency at a competitive disadvantage in the market ADMINISTRATIVE LAW – Government information – Public interest considerations in favour of disclosure – Where disclosure could reasonably be expected to enhance the maintenance and advancement of a system of responsible and representative government that is open, accountable, fair and effective – Where information of public interest and importance ADMINISTRATIVE LAW – Government information – Power of Tribunal to raise public interest considerations against disclosure not raised by respondent – Onus of respondent – Where respondent did not consult with individuals about release of their personal information.
Legislation Cited:	Government Information (Public Access) Act 2009 (NSW) Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Freedom of Information Act 1982 (Cth) Freedom of Information Act 1989 (NSW) Evidence Act 1995 (NSW) Infrastructure NSW Act 2011 (NSW) Government Sector Employment Act 2013 (NSW) Local Government Act 1993 (NSW) Local Government (General) Regulation 2005 (NSW) Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited:	Attorney General’s Department v Cockcroft (1986) 10 FCR 180 D'Adam v New South Wales Treasury [2014] NSWCATAD 68 D’Adam v New South Wales Treasury and the Premier of New South Wales [2015] NSWCATAP 61 Electoral Commissioner, State Electoral Office v McCabe [2003] NSWADTAP 28 Fisse v Secretary, Department of the Treasury [2008] FCAFC 188; 172 FCR 513 Hurst v Wagga Wagga City Council [2011] NSWADT 307 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 Prior v Mole [2017] HCA 10; (2017) 91 ALJR 441 Secretary to the Department of Treasury and Finance v Dalla Vella [2007] VSCA 11 Smith v Pittwater Council [2016] NSWCATAD 67
Category:	Principal judgment
Parties:	The Hon Adam Searle MLC (Applicant) Transport for NSW (First Respondent) Premier of New South Wales (Second Respondent)
Representation:	Counsel: In Person (Applicant) A Mitchelmore (Respondents) Solicitors: NSW Crown Solicitors Office (Respondents)
File Number(s):	2016/00378549
Publication restriction:	Orders under s 64 of the Civil and Administrative Tribunal Act 2013 were made during the proceedings and s 107 of the Government Information (Public Access) Act 2009 also applies.