Searle v Transport for NSW

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

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

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