Sergent v Land and Property Management Authority

[2010] NSWADT 50

CITATION:	Sergent v Land and Property Management Authority [2010] NSWADT 50
DIVISION:	General Division
PARTIES:	APPLICANT Michael Sergent RESPONDENT Land and Property Management Authority
FILE NUMBER:	093017
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	20 November 2009
DATE OF DECISION:	17 February 2010
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Freedom of Information - exempt document - documents affecting business affairs - Internal working documents
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7 Department of Education and Training v GJ [2009] NSWADTAP 33 Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 735 Kermode v Department of Environment & Climate Change [2009] NSWADT 120 Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37 McGuirk v University Of New South Wales; University Of New South Wales v McGuirk [2009] NSWCA 321 Neary v State Rail Authority [1999] NSWADT 107 Public Interest Advocacy Centre and Department of Community Services and Health and Schering Pty Ltd (1991) 23 ALD 714 R (on the application of Abdi) v Secretary of State for the Home Department [2009] EWHC 1324 Raethel v Director-General, Department of Education and Training [1999] NSWADT 108 Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 Re Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491 Re Lianos and Department of Social Security (1985) 7 ALD 475 at 500-1 Re Stewart and Department of Transport (1993) 1 QAR 227 Retain Beacon Hill High School Committee Inc v Department of Commerce (GD) [2006] NSWADTAP 58 Retain Beacon Hill High School Committee Inc v NSW Department of Commerce [2006] NSWADT 129 Surf Life Saving Australia Ltd v Department of Education and Training [2001] NSWADT 76 University of New South v McGuirk (no 2) [2008] NSWADTAP 8 University of New South Wales v McGuirk [2006] NSWSC 1362 Watt v Forests NSW [2007] NSWADT 197 Zagami v Waste Services New South Wales [2005] NSWADT 217
REPRESENTATION:	APPLICANT In person RESPONDENT S Morris, solicitor
ORDERS:	1. The decision under review is set aside 2. The matter is remitted for reconsideration by the Respondent pursuant to section 63(3)(d) of the Administrative Decisions Tribunal Act 1997

REASONS FOR DECISION

1 The Applicant lodged an application under the Freedom of Information Act 1989 (“the FOI Act”) with the Department of Lands (“the Department”) seeking access to a number of documents held by the Department:

Expressions of Interest regarding the redevelopment of Wollongong Harbour and foreshore, correspondence, file notes, reports regarding the Expressions of Interest.

2 The form of access was expressed as:

Copy of all plans, reports, correspondence, file notes, memos, emails - electronic
copies are suitable if available.

3 The Department undertook consultation with the parties (“the proponents”) who had provided Expressions of Interest (“the EOIs”). The Department then advised the Applicant that the proponents had claimed that the documents are exempt documents under the "commercial-in-confidence provisions" provisions of section 15A(14) and clause 7 (Documents affecting Business Affairs) of Schedule 1 to the FOI Act.

4 The Department determined to refuse access to the request for correspondence, file notes, reports, copy of plans, correspondence, emails etc regarding the EOIs on the basis that as internal working documents they are exempt from release under clause 9 of Schedule 1 to the FOI Act. It was considered that release of the documents would disclose the consultation and deliberation that was taking place with the EOIs. No final decision had been made on the submissions and the premature release of the documents could prejudice the outcomes of the ongoing negotiations and would on balance, be contrary to the public interest at that point in time.

5 The Applicant lodged an application for internal review of that determination. The application was again refuse on the same grounds as in the initial determination.

6 The Applicant then filed an application with the Tribunal seeking this external review of the determination.

7 At a planning meeting in the Tribunal on 9 June 2009, the Applicant agreed to narrow the scope of his request to the EOIs. Accordingly, the only documents remaining in dispute are copies of the six EOIs.

8 The parties agreed that the matter should be determined on the papers without the need for a hearing. I set a timetable for each of the parties to file material on which they proposed to rely. I subsequently invited the parties to provide written submissions in regard to the question of whether the Tribunal has the power to order the release of the document if it is found to be exempt in light of the Court of Appeal decision in the matter of McGuirk v University Of New South Wales; University Of New South Wales v McGuirk [2009] NSWCA 321 ("2009 McGuirk").

9 This decision is based on the material filed by the parties. The Applicant objects to much of the further submissions and evidence of the Department filed after 9 June 2009. He provided detailed argument in support of that objection. I have taken those arguments into account. However, I have determined to allow the Department to rely on that material and I have taken it into account. In my view, the material is relevant to these proceedings and therefore should be admitted: section 73(5) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act"). I have also determined to allow confidential evidence to be filed on behalf of the Department and that The Applicant is not to be provided with a copy of that material: section 75 of the ADT Act.

10 However, I note that the Applicant has not had the opportunity to test the evidence provided on behalf of the Department by cross-examining the witnesses.

11 The Public Sector Employment and Management (Department Amalgamations) Order 2009 (the "Amalgamations Order") commenced on 1 July 2009. Relevantly, the Amalgamations Order abolished the Department of Lands and created the Land and Property Management Authority (the "Authority"). Clause 31(3) of the Amalgamations Order has the effect that a reference to the former Department is to be construed as a reference to the Authority.

Applicable legislation

12 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with that Act.

13 Section 25(1) of the FOI Act provides, in part, that an agency may refuse access to a document if it is an exempt document. Section 25(l)(a) of the FOI Act provides that an agency may refuse access to a document if it is an exempt document in accordance with one or more of the grounds of exemptions referred to in Schedule 1.

14 The onus is on the agency to satisfy the Tribunal that its decision was justified: section 61 of the FOI Act.

15 Clause 7 of Schedule 1 to the FOI Act relevantly provides:

7 Documents affecting business affairs

(1) A document is an exempt document:
(a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or
(a1) if it contains matter the disclosure of which would disclose the commercial-in-confidence provisions of a government contract (within the meaning of section 15A), or
(b) if it contains matter the disclosure of which:
(i) would disclose information (other than trade secrets or commercial-in-confidence provisions) that has a commercial value to any agency or any other person, and
(ii) could reasonably be expected to destroy or diminish the commercial value of the information, or
(c) if it contains matter the disclosure of which:
(i) would disclose information (other than trade secrets, commercial-in-confidence provisions or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and
(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.
(2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made.

16 Clause 13(b) of Schedule 1 to the FOI Act relevantly provides:

13 Documents containing confidential material

A document is an exempt document:
…

(b) if it contains matter the disclosure of which:
(i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and
(iii) would, on balance, be contrary to the public interest.

17 Clause 15 of Schedule 1 to the FOI Act relevantly provides:

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

(b) would, on balance, be contrary to the public interest.

18 Section 63 of the ADT Act provides:

63 Determination of review by Tribunal
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

19 Section 73 of the ADT Act provides:

73 Procedure of the Tribunal generally
(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) The Tribunal is to take such measures as are reasonably practicable:
…
(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.
(5) The Tribunal:
…
(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and
(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and
...

20 Section 75 of the ADT Act provides:

75 Proceedings on hearing to be conducted in public
(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.
(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:
(a) an order that the hearing be conducted wholly or partly in private,
(b) an order prohibiting or restricting:
(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or
(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,
(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,
(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,
(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
...

21 The Department submits that the information in the EOIs contain indicative contractual arrangements as well as proposals for the redevelopment of Wollongong Harbour that may form part of a future government contract with the successful proponent. Copies of each of the six EOIs have been provided to the Tribunal. The Department relies on clauses 7(1)(b), 7(1)(c), 13(b) and 15 of Schedule 1 to the FOI Act.

22 The Department relies on open and confidential affidavits. Affidavits were provided by:

Mr Bruce Robertson a Freedom of Information Coordinator employed by the Department;
Mr Eric Koullouros, Development Manager, Leighton Properties Pty Ltd;
Mr Craig Abbs, the Director Coastal and Estuary Infrastructure in the Crown Lands Division of the Department;
Ms Natalie Heise Special Projects Manager in the Department’s Crown Lands Division;
The Managing Director of a company that led a consortium of companies established for the purposes of submitting an EOI.

23 The Department also relies on written submissions provided by Ms Morris.

24 The context of the matter is set out in the affidavit and statement of Ms Heise dated 23 April 2009 and 18 June 2009, respectively, and Mr Abbs’ statement dated 19 June 2009.

25 Mr Abbs has management responsibility for the delivery of the Wollongong Harbour Redevelopment Project.

The Expressions of Interest Process

26 Mr Abbs’ evidence is that the call for EOIs was part of a two stage tendering process to select private sector proponents to invest in the redevelopment of Wollongong Harbour (“the redevelopment”). The process as defined proposed that the EOIs would be assessed and a "shortlist" invited to submit detailed proposals. The EOIs were to be assessed on a competitive basis using information provided by proponents relating to matters such as their concepts for development, financial capability, their assessment of key issues impacting on the development (and how they might be addressed) and an outline business case, capital and operating costs, assumed revenue and financing considerations.

27 The first call for EOIs has been discontinued, however the Minister has determined that there will be a further call for development proposals from the open market. Mr Abbs stated that although the detail of the specifications for the next call for proposals has not been finalized, he expects it to have many similarities to the previous EOI document.

28 As a result, much of the research undertaken by previous EOI proponents, and incorporated into their EOIs, would remain current for the next round of proposals. In addition, he stated that many of the development ideas, site analyses and business models developed by EOI proponents will be of substantial ongoing value to those proponents if they continue to participate in the project. He considers that inappropriate disclosure of this information would therefore be of considerable financial and business disadvantage to these proponents in terms of their ongoing participation in upcoming phases of the project.

29 The tender documents were compiled in the context of the process requirements of the NSW Government's procurement policies, including the 2005 Code of Practice for Procurement ("the Procurement Code"), the January 2007 NSW Government Procurement Guidelines - Tendering Guidelines ("Tendering Guidelines") and Premier's Memorandum M2007-01 - Public disclosure of information arising from NSW Government Tenders and Contracts. The Code was specifically referred to in the EOI document. A key principle of these policies is the concept that there is a restricted scope of tendered material that must be made public. Mr Abbs annexed copies of these documents to his affidavit.

30 Mr Abbs says that information in a tender that is intellectual property, proprietary, commercial-in-confidence, or otherwise identified as confidential should not be disclosed.

31 None of the requirements for disclosing tender Information require the disclosure of details of any unsuccessful tender.

32 Based on his experience in the management of the tendering phase of Government projects, together with the contents of the EOI document, and the applicable policies, Mr Abbs expected that the contents of all of the EOIs would not be made public. He also anticipated that the tenderers would have expected the substantive contents of their EOIs to remain confidential.

33 Mr Abbs said that the Department has made it clear that there will be a further call for development proposals for the redevelopment. If the EOIs were released, this would have detrimental consequences for future tendering processes for the project. The Department chose to conduct an EOI process because, within the guidelines for Government procurement, it was considered the best approach to promote effective competition between private sector investors and thus ensure the best outcome in terms of overall project objectives, including design quality and value to government. Mr Abbs considers that it is reasonable to expect that proponents would be more reluctant to submit commercially important information in the next call for proposals, if release of their information would provide their competitors with a potential business advantage.

34 Mr Abbs noted that the redevelopment has been the subject of considerable public controversy. He considers that it is highly likely that if the EOIs were released the proponents would be subject to media exposure of their proposals that they would have expected to remain confidential. It is possible that the reputation of the entities and future business prospects could be damaged. In addition, some proponents may be hesitant to submit a further proposal because of unwarranted public criticism. The overall outcome for government would therefore not be as favourable. Any reluctance on the part of future proponents to submit a proposal or a proposal with sufficient detail will detract from the Department's ability to attract the best range of competitive proposals and thus obtain the best public value for the site.

35 Mr Abbs said that he would expect that broad disclosure of all tender details could result in a lack of confidence in the integrity of the tendering process and a reluctance on the part of tenderers to submit commercially important information and that it would be prejudicial to the business interests of the NSW Government.

Mr Robertson’s evidence

36 Mr. Robertson wrote to the third parties requesting their opinion as to the disclosure of the EOIs. Wollongong City Council did not object to the disclosure. Wollongong Yacht Club did not respond. All the other proponents expressed a desire that the EOIs should remain confidential and exempt from disclosure.

37 Mr Robertson also received advice from Mr Abbs and Ms Heise that the tender process was incomplete and that the Minister had postponed the process pending further determination.

Ms Heise’s evidence

38 Ms Heise has had responsibility for the redevelopment since about August 2007. She provided background details in relation to the call for Expressions of Interest for the redevelopment, the evaluation and deliberation process and preliminary recommendation on the process.

39 Ms Heise's affidavit is that the EOIs contain information concerning the business, professional or financial affairs of Department and the proponents.

Mr Koullouros’s evidence

40 Mr Koullouros was responsible for drafting and compiling key elements of the EOI submitted by Leighton Properties. He stated that Leighton Properties' EOI contains commercial-in-confidence information pertaining to design, technology and financial parameters. Its EOI is the product of significant work and is of considerable value to the Company. If any member of the public or another proponent obtains a copy of the EOI, this value and any competitive advantage will be lost.

41 When Leighton Properties' EOI was lodged he understood that it would be kept confidential. He stated that it is industry practice that the contents of EOIs and tenders remain confidential. He has never seen an EOI lodged by a competitor. Generally, the details of a successful proposal are only released when it obtains approval to proceed. The details of unsuccessful EOIs are generally not released. Even where a proposal is successful, the entire contents of an EOI are still not necessarily released.

42 He said that, as a whole Leighton Properties' submission is commercial-in-confidence. It is vital that Leighton Properties' competitors and potential competitors are not exposed to any component of Leighton Properties' submissions as in many instances components of a failed submission can be reutilised, with suitable amendments, in other EOI submissions. If another proponent or potential proponent saw Leighton Properties EOI, its competitive edge would be gone. Unless the requirements were dramatically changed, there may be little point in Leighton Properties submitting a further EOI in a future EOI process.

The Managing Director’s evidence

43 The Managing Director provided a confidential and an open statement in these proceedings. The Managing Director established a consortium of companies ("the Consortium") for the purposes of submitting an EOI for the redevelopment. The Managing Director’s company led the Consortium. The Managing Director was the Principal co-ordinator and facilitator in regard to preparation of the Consortium’s EOI.

44 The Managing Director stated that he/she is concerned that his/her identity and that of the Consortium remain confidential. It was his/her understanding that all of the EOIs would be kept confidential. He/she also understood that only details of a successful EOI would be released. This was his/her understanding prior to the Consortium lodging the EOI. On a number of occasions the Minister and other Departmental representatives indicated that the EOIs would be kept confidential to the public until a decision was made. The redevelopment is a highly sensitive and political topic in the Wollongong community. The process has been aborted and the Consortium’s submission discarded along with the other six. The Managing Director said that he/she works in a highly competitive and sometimes controversial profession and that release of the Consortium’s submission could cause the consortium and others serious commercial harm. He/she envisages that release of the EOI would make the Consortium and its proposal the subject of adverse comment.

45 The Consortium’s submission contains intellectual property and confidential information about how the proposal would be financed and on what basis. It contains a significant amount of sensitive commercial information, such as expected profits and returns and a proposed financial structure. That information is the culmination of many years’ hard work, experience and substantial cash investments on the Consortium’s behalf, which should not under any circumstances be available to third parties. It would be grossly unfair if a potential proponent got hold of this information. In his/her view, the Consortium’s submission should be kept confidential in its entirety. The planning, preparation, production and delivery cost the consortium approximately $48,000.

46 The Managing Director stated that appropriate time to release information is if, or when, a proposal is selected. At that stage, there is no competition between proponents. The Managing Director said that he/she would expect information about the successful proposal to be placed in the public arena then. However, in this case, the EOI process has been aborted and no proposal has been successful.

47 If there is another call for EOIs, and the Consortium’s submission has been released, the Consortium would have to consider whether it would be worth submitting an EOI. Even if the Department scales back the proposed redevelopment, any EOI submitted by the Consortium would have fundamental underlying similarities. It could even be the same.

48 The Managing Director stated that if its EOI were released under the FOI Act, the Consortium would be less inclined to submit another EOI to the Department or another government agency. The Consortium and in particular the Managing Director’s company, was led to believe that the submissions would be reviewed on a detailed, professional basis by an appropriately appointed committee and the winning tender would be exhibited for public comment. These are the only circumstances under which the Consortium would be willing to have its submissions aired.

The Department’s submissions

Clause 7(1)(b)

49 In considering a claim for exemption under clause 7(l)(b), the Tribunal must satisfy itself (i) that the document contains "information that has a commercial value"; and, (ii) that disclosure "could reasonably be expected to destroy or diminish the commercial value of the information".

50 The meaning of "commercial value" in the FOI context was considered in the decision of the Queensland Information Commissioner in Cannon and Australian Quality Egg Farms Ltd [I994] QICmr 9 (30 May 1994); (1994) 1 QAR 491 at [54] - [55]. The Information Commissioner said that there were two alternative interpretations of the phrase "commercial value" which were apposite in the context of FOI:

54. … The first (and what I think is the meaning that was primarily intended) is that information has commercial value to an agency or another person if it is valuable for the purposes of carrying on the commercial activity in which that agency or other person is engaged. The information may be valuable because it is important or essential to the profitability or viability of a continuing business operation, or a pending, "one-off" commercial transaction. ...
55. The second interpretation of "commercial value" which is reasonably open is that information has commercial value to an agency or another person if a genuine, arms-length buyer is prepared to pay to obtain that information from that agency or person. ..."

51 The Department submits that the commercial value of the EOIs to the proponents arises because they have intellectual property in things like their submitted business cases, the legal structures they are proposing for the re-development project, concept plans, proposed planning controls, proposed zonings, proposed permissible uses, proposed building and infrastructure details and proposed financing and leasing arrangements. Should a given proponent be successful they will be awarded development contracts and a long-term lease that are worth many millions of dollars. The Department submits that if the intellectual property in those plans is released to the public at large then it can reasonably be expected that that proponent's competitors will use that information to formulate rival proposals against them, such that that proponent's competitive advantage in the tendering process will be undermined and the commercial value of their intellectual property completely destroyed or diminished.

52 The Department also submits that the EOIs have commercial value for the Department which disclosure can reasonably be expected to destroy or diminish. The confidentiality of the EOIs and the information therein has commercial value for the Department because it can reasonably be expected that disclosure would diminish the competitiveness of the tendering process and allow rival proponents to match their bids in unison.

53 The Department argues that there are a number of cases recognising that "product or similar information that resulted from the investment of significant research and time and effort by a business organisation" has a commercial value (Neary v State Rail Authority [1999] NSWADT 107 at [42]). In Surf Life Saving Australia Ltd v Department of Education and Training [2001] NSWADT 76, the Tribunal held that materials submitted by a private company in support of an application for accreditation by the Vocational Education and Training Accreditation Board had a commercial value. There was no need for a monetary estimate as to that value (at [28]). The Tribunal concluded that

"[m]aterial submitted in support of a course-approval application is, and ought reasonably be, treated as the creative work of the applicant, provided in confidence for the purpose of assessing the application". Also of relevance was the context. Given that a private business may face competition from others in respect of its course offerings, it had "a market interest in protecting the confidential elements of its course-applications from scrutiny by others" (at [29]).

54 The Department submits that the same reasoning applies in respect of the EOIs. Each EOI, as a package, contains information of a commercial value to the proponent who submitted it. It relies on Mr Koullouros’s evidence that the EOI Leighton Properties submitted is the product of significant work and of considerable value to the company. Similarly, it is the evidence of the Managing Director that the Consortium's EOI should be viewed as a package representing the culmination of many years' hard work, experience and substantial monetary investment. From a review of the documents, it is reasonable to assume that the same applies to the remaining proponents. An EOI submitted by a company engaged in property development must be considered "important or essential to the profitability" of its business operation.

55 Accordingly, the Department contends that the EOIs contains "information that has a commercial value" within the meaning of clause 7(1)(b) of Schedule 1 of the FOI Act.

56 The Applicant concedes that the EOIs would contain information regarding commercial value to the proponents, including business cases referring to financing, cost structure and profit margins. However, the Applicant does not concede the Department has satisfied clause 7(1)(b)(i) by simply establishing the EOIs contain information of commercial value.

57 Clause 7(1)(b)(ii) requires that the Department show that the disclosure of information that has a commercial value could reasonably be expected to destroy or diminish the commercial value of the information.

58 The risk or expectation that release of the EOIs would diminish the commercial value of those EOIs must be "reasonably based" (Watt v Forests NSW [2007] NSWADT 197) and it must not be minimal or nominal (Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37 at [54]). However, it is not necessary that it be "more probable than not" (Neary v State Rail Authority at [35]).

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

60 In Retain Beacon Hill High School Committee Inc v NSW Department of Commerce [2006] NSWADT 129 (“Retain Beacon Hill High”), the applicant sought various documents concerning the sale of the former Beacon Hill High School site to Landcom. The Tribunal held that documents referring to a valuation or proposed purchase price for the site or discussing options for purchase or the conditions to which an offer was subject were exempt under clause 7(1)(b). On appeal from that decision the Appeal Panel in Retain Beacon Hill High School Committee Inc v NSW Department of Commerce [2006] NSWADTAP 58 (“Retain Beacon Hill High Appeal Panel”), at paragraph [28] observed that the Tribunal "has recognised that disclosure of confidential commercial documents at a point when the sale or tender process is not complete" may reasonably be expected to destroy or diminish the commercial value of those documents.

61 The Department submits that the proponents' expectation that the commercial value of their EOIs would be lost or diminished on disclosure is "reasonably based" and is not minimal or nominal. The property development industry is highly competitive. There is a significant risk that the EOIs, if released, would be obtained by other proponents or potential competitors with the consequent diminution of the proponents' competitive advantage. It is the evidence of Mr Koullouros that in many instances, components of a failed EOI submission can be reutilised, with suitable amendments, in other EOI submission.

62 While it can no longer be assumed that release under FOI legislation is "disclosure to the world at large" (Department of Education and Training v GJ [2009] NSWADTAP 33) the Department submits that it should reasonably be assumed that the Applicant would seek maximum publicity for the EOIs, should they be released to him. In support of that submission the Department relies on an article in the Wollongong & Northern Leader dated 26 March 2009 and apparently quotes the Applicant in reference to his FOI application and these proceedings. That article is annexed to an affidavit of Michael Colebatch, a paralegal employed at the Crown Solicitor's Office.

63 The Department submits that in the circumstances, disclosure of the EOIs to the Applicant should be considered as disclosure to the world at large, including to the proponents' competitors and future competitors.

Clause 7(1)(c)

64 In considering a claim for exemption under clause 7(1)(c), the Tribunal must be satisfied that disclosure of matter in a document (i) would disclose information "concerning the business, professional, commercial or financial affairs" of an agency or any other person, and (ii) disclosure of the document could reasonably be expected to "have an unreasonable adverse effect on those affairs" or "to prejudice the future supply of such information to the Government or to an agency."

65 The meaning of ‘business affairs’ was considered in Re Stewart and Department of Transport (1993) 1 QAR 227 at [103] to be "the affairs of a business undertaking which is carried on in an organised way (whether it be full-time or only intermittent) with the purpose of obtaining profits or gains (whether or not they actually be obtained). The Department submits that the EOIs concern the business affairs of the proponents on that basis.

66 The Department submits that the EOIs also concern the engagement in commerce by the proponents, and so their commercial affairs (Re Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491 at [54] and [73]). Further, it says that aspects such as information about financial arrangements, profit margins and business case, concern the proponents' financial affairs. In support of that submission it relies on the view expressed in Re Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 49 1 at [76] that the “ordinary meaning of "financial" comprehends information about the finances (i.e. money resources) of an agency or another person”.

67 In addition, the Department submits that the EOIs concern the commercial affairs of the Department. The commercial affairs of an agency can include transactions such as the leasing and sale of property vested in it, and related negotiations: Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7 at [63]; Raethel v Director-General, Department of Education and Training [1999] NSWADT 108 at [46]-[47].

68 The Department submits that if the EOIs are disclosed there will be an unreasonable adverse effect on the proponents' business, commercial and financial affairs because any intellectual property or competitive advantage they may possess in those documents will be lost to their competitors, adversely effecting their chances not only in the tender process for the redevelopment but other future projects as well.

69 The Department also submits that if the EOIs are disclosed then the business, professional, commercial and financial affairs of the Department will be compromised. It says that if the EOIs are disclosed some proponents may lose confidence in the Department and the confidentiality of the tendering process and withdraw their EOIs causing the call for tenders and the public consultation process to be re-opened, postponed indefinitely or even cancelled altogether. Disclosure may also lead rival proponents to match their bids undermining the competitiveness of the tendering process.

70 The Department relies on the decision in Retain Beacon Hill High as authority for the proposition that information, the disclosure of which would undermine the competitiveness of a tender or contractual process is information the disclosure of which would have an unreasonable adverse effect on the business, professional, commercial or financial affairs of an agency and is therefore exempt pursuant to clause 7(1)(c) of Schedule 1 of the Act, That decision was upheld on appeal in Retain Beacon Hill High

71 Appeal Panel.

72 It also relies on the same arguments that were presented in relation to the asserted exemption pursuant to clause 7(1)(b) of Schedule 1 of the FOI Act.

73 The Department submits that it is therefore the case that disclosure of the EOIs at this stage can reasonably be expected to have an unreasonable adverse effect on the Department's business, professional, commercial and financial affairs so that they are exempt documents in accordance with clause 7(1)(c) of Schedule 1 of the FOI Act.

Reasonable expectation of prejudice of future supply of information to the Government or an agency

74 The Department submits that release of the EOIs could reasonably be expected to discourage the proponents and future proponents from submitting proposals, or at least proposals with the same level of detail, at the next stage of the process. Both Mr Koullouros and the Managing Director have given evidence that they would be reluctant to submit another EOI, or at least of the same detail in those circumstances.

75 In considering a claim for exemption under clause 13(b), the Tribunal must be satisfied that a document contains matter the disclosure of which would (i) disclose information obtained in confidence, (ii) which could reasonably be expected to prejudice the future supply of such information to the Government or an agency and (iii) would, on balance, be contrary to the public interest

76 In order for information to be ‘obtained in confidence’ it must be shown that it was "communicated and received under an expressed or inferred understanding that it would be kept confidential. In considering the equivalent phrase in the Queensland FOI Act, the Queensland Information Commissioner in Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 stated:

152 I consider that the phrase "communicated in confidence " is used in this context to convey a requirement that there be mutual expectations that the information is to be treated in confidence. One is looking then for evidence of any express consensus between the confider and confidant as to preserving the confidentiality of the information imparted; or alternatively for evidence to be found in an analysis of all the relevant circumstances that would justify a finding that there was a common implicit understanding as to preserving the confidentiality of the information imparted.

77 The Department submits that the information in the EOIs was information obtained in confidence for the purposes of clause 13(b)(i). It was both communicated and received under an inferred understanding that it would be kept confidential. In support of this submission it relies on the evidence of Mr Koullouros and the Managing Director. It says that it is reasonable to assume from all the circumstances that the other proponents likewise provided the EOIs to the Department on the inferred understanding that they would be kept confidential.

78 The Department submits that the EOIs were received on the inferred understanding that they would be confidential. It relies on the evidence of Ms Heise and Mr Abbs together with the EOI call document and Government policies, in support of this submission.

79 For the reasons previously noted, the Department submits that disclosure of the EOIs could reasonably be expected to prejudice the future supply of such information to the Government or the Department for the purposes of clause 13(b)(ii).

80 In relation to the clause 13(b)(iii) requirement that disclosure would, on balance, be contrary to the public interest, the Department relies on the views expressed by Judicial Member Higgins in Kermode v Department of Environment & Climate Change [2009] NSWADT 120 at paragraph [20]:

20 The final aspects of clause 13(b) exemption involves the balancing of competing public interests; namely the public interest in members of the public being given a right to access to information in documents held by a government agency and the public interest in the non disclosure of information in documents which are reasonably necessary for the proper administration of the Government (see section 5(2) of the FOI Act).

81 The Department submits that there are a number of significant competing public interest factors to be balanced against the public interest in open and transparent government and the desire for community consultation:

(i) The planning framework and parameters of the redevelopment has been the subject of extensive community consultation. Any development proposals by the successful proponent in the next phase will be subject to the consultation requirements of the statutory planning process. The successful proponent will also be required to consult with the community and stakeholders in preparing development applications.

(ii) The six EOIs relate to the first unsuccessful EOI process. The publication of certain information about the successful proponent of the next process would be required.

(iii) There is a reasonable expectation that release of the EOIs will adversely affect the commercial and business affairs of the proponents and diminish the commercial value of the EOIs.

(iv) There is a reasonable expectation that release of the EOIs would prejudice the future supply of EOIs to the Department and impair the integrity of the tendering process, both in the next phase in relation to the redevelopment and more generally, which will have flow-on effects for the Department's and the Government's ability to attract the best range of competitive proposals and obtain the best value for public assets.

82 Having regard to these factors it is submitted that, on balance, disclosure is contrary to the public interest. The Department submits that in particular, the reasonable expectation that release of the EOIs would prejudice the future supply of EOIs reflects the public interest in the nondisclosure of documents that are reasonably necessary for the proper administration of Government.

Clause 15

83 In considering a claim for exemption under clause 15, the Tribunal must be satisfied that that disclosure: (i) could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency; and (ii) would, on balance, be contrary to the public interest.

84 The circumstances in which an exemption under clause 15 would apply were considered by Judicial Member Needham in Leichhardt Municipal Council v Roads and Traffic Authority at [55] - [56]:

55 The exemption under clause 15 requires a "significant adverse dollar effect" – see David Miles Connolly v. Department of Finance No 94/50 AAT no 9571. The financial interests which can be affected include income streams. The effect of release must be "serious" or "significant.

56 Again, there must be some evidence, rather than merely an expressed concern, to satisfy the Tribunal of the necessity to refuse to disclose documents under this clause.

85 Judicial Member Needham accepted that that the release of financial modelling information would lessen the competition in the envisaged tendering process in respect of the M4 East proposal and fell within clause 15.

86 In Retain Beacon Hill High the Tribunal accepted that where disclosure would jeopardise the Department of Education’s ability to achieve a comparable sale price should sale to Landcom not proceed, or would undermine the integrity of the tendering process, the requirements of clause 15 would be satisfied.

87 The Department contends that an EOI process is the best approach to promote effective competition between private sector investors and ensure the best outcome in terms of overall project objectives, including design quality and value to government. It submits that release of the EOIs would discourage the proponents and future proponents from submitting EOIs in the future, or at least EOIs with sufficient detail. This will impede the integrity of the tendering process and detract from the Department's ability to attract the best range of competitive proposals and obtain the best public value for the site. It is submitted that this constitutes a substantial adverse effect on the Department's financial and/or property interests.

88 The Department notes that the factors that may be relevant to the assessment of whether disclosure is contrary to the public interest for one exemption, are not necessarily the same as those relevant to the assessment of another: Department of Education and Training v GJ at [29]). It submits that of the factors referred to at paragraph [80] above, (i), (ii) and (iv) are of relevance to clause 15(b). It is submitted that these factors, in particular (iv), demonstrate that disclosure is contrary to the public interest.

The Tribunal's residual discretion

89 In University of New South Wales v McGuirk [2006] NSWSC 1362 ("2006 McGuirk"), Nicholas J held that section 63 of the ADT Act provides the Tribunal with the discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it.

90 The Court of Appeal in 2009 McGuirk held that the Tribunal has no power under section 63(2) of the ADT Act to grant access to a document which is an exempt document by virtue of clause 10 of Schedule 1 to the FOI Act.

91 Basten JA, with whom Ipp and Macfarlan JJA agreed, delivered the Court of Appeal’s 2009 McGuirk decision. Basten JA specifically declined to consider whether the Tribunal has a general power to grant access to an exempt document or to reconsider the 2006 McGuirk decision.

92 The Department submits that the 2009 McGuirk decision is not authority for the broader proportion that the Tribunal has no power under section 63(2) to grant access to a document that is an exempt document on any other basis. Accordingly, it has no direct relevance to these proceedings. However, the Department submits that it does cast doubt on the correctness of the obiter dicta in the Supreme Court's decision in the 2006 McGuirk decision.

93 In relation to the application of the residual discretion, the Appeal Panel in University of New South v McGuirk (no 2) [2008] NSWADTAP 8 at [18] concluded that:

The FOI Act requires discretions be exercised, as far as possible, so as to facilitate the disclosure of information: section 5(3)(b). Consistently with the objects of the FOI Act, and the means by which those objects are to be achieved, it can be assumed that the exemptions were included because parliament considered that they were "reasonably necessary for the proper administration of the Government". In that sense, the balancing exercise between competing public interest considerations has already been undertaken. Nevertheless, a relevant consideration when exercising the discretion is whether there is a reason, particular to the circumstances of the case, for giving access to such documents. That reason needs to be sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of Government. In that sense, it may be described as special, overriding or strong: See Department of Premier and Cabinet v Hulls [1999] VSCA 117; Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55.

94 The Department submits that the Tribunal is unable to take "public disquiet" into account in exercising any discretion to grant access to exempt documents. It says that the extent to which the public are, or are believed to be, interested in a particular matter cannot constitute a special or overriding circumstance justifying release of an exempt document. To do so would constitute an impermissible widening of the objects of the FOI Act, which neither expressly nor impliedly suggests that regard should be had to "the public's interest" in a matter. Section 5(2)(b) recognises that "each member of the public [has] a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government". Each member of the public has an equally enforceable right, regardless of how many, or few, other persons are interested in accessing a document.

95 The Department says that pursuant to section 63 of the ADT Act the Tribunal's task is to decide what the correct and preferable decision is having regard to the material before it.

96 It says that the Tribunal does not have jurisdiction to consider whether, in the course of facilitating the redevelopment, the Department or the Government has a duty to engage in community consultation and that to take account of the Applicant's submissions in this regard would be to take into account an irrelevant consideration.

97 On the assumption that the Tribunal was bound by the 2006 McGuirk decision the Department argued that there was no reason for disclosure which was sufficient to displace the assumption that the exemptions claimed in respect of clauses 7(1)(b), 7(l)(c), 13(b) and 15 are reasonably necessary for the proper administration of justice.

The Applicant's case

98 The Applicant submits that the major issue for determination by the Tribunal is whether the correct and preferable decision is to release all of the EOIs in the public interest where the redevelopment is being considered. He contends that this is a very significant public interest matter.

99 The Applicant says that Wollongong Harbour and its foreshores belong to the people. The Government of the day does not own the harbour and its foreshores. It simply manages this significant community asset as trustee for the community. As a result, the public or the community must be allowed the right to know what is being considered for the proposed redevelopment. He says that the technical legal arguments regarding the exemption provisions of the FOI Act are secondary to the most significant overriding discretion issue. That is, whether the correct and preferable decision is to release all of the EOIs in the public interest.

100 The Applicant invites the Tribunal to establish new common law. That is, where release of documents regarding a significant environmental issue, or issues, is being considered, the public interest in release of documents is paramount or overwhelming, unless there are exceptional circumstances for the documents to be suppressed. The Applicant submits this new test and common law apply to the circumstances of this matter.

101 The Applicant relies on Ms Heise’s evidence to assert that it is clear that the original EOI process has been determined and that none of the EOIs will be selected. He submits that the there is now no competitiveness regarding the EOIs. He also says that it is clear that future EOIs will be different to the parameters requested in the original EOI process. He says that the procurement process applying to current EOIs will have no relevance to the future procurement process.

102 He also says that it is clear from Mr Abbs’ statement that the first call for EOIs has been determined and that there will be a further call for development proposals. The further call for EOIs will be part of a modified procurement process. Mr Abbs confirms the original EOI proposals will not be relied upon in future calls for EOIs. He says that there is therefore no reason to withhold release of the EOIs since they have no further value to the proponents and no further competitiveness around them.

103 The Applicant submits that submissions for the EOIs closed in February 2008 and that what may have been realistic business cases at that time may not be so today, especially as a result of changes to local, State and global economic conditions. He says that any commercial value that may have existed in the submitted EOIs has been lost because of the time that has passed since they were provided to the Department. Future EOIs, if they are called for, will be required to address new parameters for the redevelopment.

104 Accordingly, the Applicant submits that the Department has not established that disclosure could reasonably be expected to destroy or diminish the commercial value of the information as required for the clause 7(1)(b)(ii) exemption to apply.

105 The Applicant further submits that as the tendering process closed in February 2008 and the consultation process between the Department and the proponents has for all intents and purposes come to an end, there is no further competitiveness around the EOIs. The EOIs no longer have commercial value for the Department.

106 As to clause 7(1)(c)(i) and (ii) regarding disclosure of business, professional commercial or financial affairs the Applicant submits that the terms and conditions of the EOI process made it clear that the Department intended that generally EOI information cannot, or should not, be suppressed.

107 Proponents could mark certain parts of their proposal as 'Commercial-in- Confidence' however this must be minimal and reasons given as to why information should not be disclosed by the Department.

108 The Applicant also disputes that Department’s assertion that its affairs will be compromised if the EOIs are disclosed. He says that the submission that there may be loss of confidence in the Department and the confidentiality of the tendering process is self-serving. He says that there is simply no evidence to substantiate these claims. There is no evidence to support the Department’s concerns that loss of faith in the fairness and confidentiality of the Government's competitive tendering process would prejudice the future supply of such information."
109 He points to a number of matters in which the Tribunal has been critical of unsupported claims or assertions.

110 In considering the first limb of clause 7(l)(c)(ii) in Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 735 the Tribunal stated:

123 In this case both limbs are relied on. It is noted that it is asserted that disclosure of the invoices will have an adverse effect on the business or financial affairs of the persons issuing the invoice, however there is no evidence as to the nature of that adverse effect, and that a disclosure would be unreasonable having regard to that adverse effect. In my opinion, it is not sufficient to merely make the assertion for the exemption to apply. Accordingly, having regard to the context of the invoices I am unable to find that they will have the requisite adverse effect on the respective business or financial affairs of the person issuing the invoice.

124 I also find that there is no evidence, for the purpose of the second limb of the business affairs exemption, that disclosure of the invoices would prejudice future supply of such information. In this regard, I agree with Mr Hynes’ submission that to suggest otherwise is absurd.

111 In Retain Beacon Hill High Appeal Panel it is stated at paragraph [20]:

20 The agency must put forward credible evidence of a specific kind in support of a claim for an exemption. ...

112 With respect to the Department’s concern that disclosure would also adversely affect future projects, the Applicant submits that the Department and/or the State Government have powerful legislative and legal reforms available to them to remedy such concerns which may arise regarding future EOIs. Further, the Applicant points to the that Department’s assertion that a successful proponent will be awarded development contracts and a long-term lease that are worth many millions of dollars. He submits that that is hardly a matter for a proponent, or future proponents, to ignore.

113 Furthermore, the Applicant submits that the Department has no evidence to support the proposition that withdrawal of the EOIs and related concerns would impose great and unreasonable business, financial and commercial costs on the Department.

114 In reference to the Department’s reliance on Retain Beacon Hill High for the proposition that information, the disclosure of which would undermine the competitiveness of a tender or contractual process would have an unreasonable adverse effect on the affairs of an agency, he says that the case is distinguishable because in that matter the process had advanced considerably with exchange of contracts taking place. He further says that there is no analysis of Retain Beacon Hill High and how it applies to the circumstances of this application.

115 The Applicant submits that the Tribunal must adopt an objective approach in determining the issue of whether release of the information will have an unreasonable adverse effect on an agency's affairs, and the expectation must be more than a mere risk: Neary v State Rail Authority where the Tribunal’s President stated at paragraph [35]

35 An objective view must be brought to bear on an agency’s claim that release will have an adverse impact on its financial affairs. The Tribunal should approach issue from the viewpoint of a reasonable administrator. The administrator should have reasonable grounds for his or her perception. There must be more than a mere risk. While the key word used in the relevant provision - ‘expect’ - carries a firmer connotation than words such as ‘anticipates’, it is not necessary that the level of risk be such that it be assessed as more probable than not. Nor is it necessary for the administrator to apply a balance of probabilities calculus similar to that used to set the burden of proof in litigation. All relevant factors, including public interest considerations, should be taken into account. The extent and nature of the effect will be relevant, and often decisive. It is necessary to assess what is reasonable in the circumstances.

116 The AAT, in Public Interest Advocacy Centre and Department of Community Services and Health and Schering Pty Ltd (1991) 23 ALD 714 stated at paragraph [59]:

59. The Tribunal has difficulty in accepting the submissions of Dr Flick which were supported by Ms Henderson. This is not a situation where information is supplied to the Commonwealth in a purely voluntary fashion, for example by informants in the law enforcement area. Here companies themselves are seeking approval from the Commonwealth to market a particular product in Australia. As Dr Riisfeldt acknowledged in answer to a question by Dr Cashman, the company would go out of business if it was not prepared to submit information to the Department of Health. The information which is required to be submitted is set out in detail in NDF4. Thus we do not consider that prejudice to the future supply of information arises in these circumstances.

117 The Applicant submits that the EOIs were supplied in a purely voluntary fashion for commercial purposes or gain. He says that the proponents submitted the EOIs in anticipation of considerable commercial gain. Thus prejudice to the future supply of EOIs does not arise.

118 The Applicant disputes the Department’s assertion that the EOIs were obtained in confidence. He submits that there never were confidentiality agreements between the proponents and the Department and that no evidence is offered that the EOIs were nonetheless obtained in confidence.

119 As to clause 15 regarding adverse effect on the financial or property interests of the State or an agency, the Applicant disputes the Department’s assertion that the disclosure of the EOIs would 'probably" result in the asserted effects. He says that there is no evidence to support the assertion that any proponents will withdraw the EOIs, that there could be delay and/or cancellation of the tendering and public consultation processes, uncompetitive collusion of bids from rival proponents.

120 He submits that clause 15 requires that the degree of "adverse effect" must be "substantial", not just "unreasonable": Retain Beacon Hill High Appeal Panel.

121 The Applicant submits that given the significant public interest regarding the redevelopment, the EOIs and related documents should be disclosed. He submits that this matter raises substantive issues of administrative decision-making and that where there is a public interest, consultation by an administrative decision maker about a decision or issue may arise. He says that the duty to consult arises where a legitimate or reasonable expectation to consult exists in the circumstances. It may also arise where the decision-maker assumes a duty to consult. In support of that submission he relies on a paper by the Hon. Justice Brian J Preston, Chief Judge of the Land and Environment Court of NSW presented to the Australian Institute of Administrative Law June 2008: "Consultation: One aspect of procedural propriety in administrative decision-making"

122 He submits that the Department has raised a legitimate expectation in this case to properly and fully consult with the public and that consultation should lead to the release of all the requested documents: R (on the application of Abdi) v Secretary of State for the Home Department [2009] EWHC 1324.

123 He points to numerous media articles in support of his submission that the Minister has regularly raised the expectation since he called for the EOIs. He submits that a legitimate expectation of consultation has been raised if a decision-maker has determined that it is going to undertake consultation as part of the process of exercising a power, and that the consultation must be undertaken adequately or thoroughly.

124 The Applicant submits there is such overwhelming public interest regarding the redevelopment that the correct and preferable decision is to release all requested documents. He submits that considerable weight should be given to public interest environmental matters affecting the community as a whole. He contends that a public interest consideration exists where there is an interest in finding out about current decision-making at a stage when it is still possible to contribute to that process: Re Lianos and Department of Social Security (1985) 7 ALD 475 at 500-1.

Consideration

125 The Department relies on the exemptions in clauses 7(1)(b), 7(1)(c), 13(b) and 15 of Schedule 1 and to the FOI Act. The onus is on the Department to satisfy the Tribunal that its decision to refuse access to the EOIs was justified.

126 I agree with the Applicant that the EOIs were supplied voluntarily for commercial purposes and that prejudice to the future supply of EOIs is not made out. In my view, it is implausible that the current proponents or other potential proponents will not submit expressions of interest in relation to future developments if the opportunity for considerable commercial gain exists. It is reasonable to expect that potential proponents may reconsider the basis on which they are prepared to submit an expression of interest and it is conceivable that potential proponents would require and be offered agreements as to confidentiality. However, I do not accept that expressions of interest would not be made. The need to reconsider the basis on which proponents are prepared to submit an expression of interest would not present significant obstacles to a future development and therefore it is my view that any prejudice to the future supply of such information would not be unreasonable. For this reason, it is my view that those exemptions that require provisions the Department to establish that release of to the EOIs would prejudice the future supply of such information are not made out. It follows that the Department’s assertion that the EOIs are exempt pursuant to clauses 7(1)(c) and 13(b) of Schedule 1 to the FOI Act on that basis is not established.

127 Similarly, I do not accept that the disclosure of the EOIs could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency. The Department’s reliance on clause 15 is essentially on the same basis. On the evidence before me I am unable to conclude that the release of the EOIs will have more than a mere risk of adverse effect on the Department’s affairs: Neary v State Rail Authority. The degree of "adverse effect" must be "substantial": Retain Beacon Hill High Appeal Panel.

128 While it is unnecessary that I consider clause 13(b) any further, I note that I am satisfied that the EOIs were obtained in confidence. I accept that it is industry practice that the contents of EOIs and tenders remain confidential. In my view, this can be inferred from the circumstances in which they were provided.

129 As indicated above, the Department has provided copies of the EOIs with the Tribunal. I have considered those documents and I am satisfied that each of the EOIs contains information that would have had a commercial value to its proponent at the time they were submitted. However, each of the EOIs also contains information that is of a more general nature and which cannot be said to fall into that category.

130 The information would have been valuable because it was important to the proponent’s expression of interest in relation to a "one-off" commercial transaction i.e. the redevelopment: Cannon and Australian Quality Egg Farms Ltd. The EOIs have also clearly resulted from the investment of significant research and time and effort by each of the proponent and therefore had a commercial value: Neary v State Rail Authority. I am also satisfied that each of the EOIs contains information that concerns the business, professional, commercial or financial affairs of its proponent. That much is apparent from the face of the documents. It is probable that the commercial value of the information has diminished since February 2008 and it is possible that the information may no longer have a commercial value to its proponent. This will need to be explored further and the Department is best placed to undertake that process.

131 Each of the EOIs also contains information that is of a more general nature that is not specific to the redevelopment and it therefore may not be commercially valuable. It does not appear that the Department has attempted to extract the commercially valuable information from the EOIs, but has asserted that the exemptions apply to the whole of the documents. I do not accept that argument.

132 On balance, I am satisfied that the first limb of clause 7(1)(c) is made out with respect to those parts of the EOIs that are specific to the redevelopment. However, in relation to that material it is appropriate that the Department reconsider the issue of the first limb of clause 7(1)(b).

133 I accept the Department’s evidence as to the potential consequences to the affairs of the proponents if that information were released. I also accept that, in the circumstances of this matter, disclosure of the information to the Applicant should be considered as disclosure to the world at large, including to the proponents' competitors and future competitors. In my view, the release would provide an unfair advantage to the proponents’ competitors. That could reasonably be expected to destroy or diminish the commercial value of the information and to have an unreasonable adverse effect on the business, professional, commercial or financial affairs of the proponents.

134 It follows that I am satisfied that the second limbs of clauses 7(1)(b) and 7(1)(c) are made out with respect to parts of the EOIs. It is appropriate that the Department reconsider the issue in order to determine the extent of the material that will fall within the scope of those clauses.

135 In my view, the asserted exemptions are not made out with respect to the remainder of the EOIs.

136 I have considered the arguments with respect to the public interest. I do not agree with the Applicant’s assertions that the existence of a legitimate expectation of consultation and that the public interest environmental matters affecting the community as a whole should lead to the release of the EOIs. I agree with the Department that the extent to which the public are, or are believed to be, interested in a particular matter cannot constitute a special or overriding circumstance justifying release of an exempt document. It is my view that there are no strong grounds to support the release of those parts of the documents that are exempt. It is my view that on balance, it would be contrary to the public interest to release the complete EOIs at this time.

137 In the circumstances the appropriate outcome is to set aside the Department’s determination and to remit the matter for reconsideration by the Department pursuant to section 63(3)(d) of the ADT Act. I recommend that the Department undertake further consultation with the proponent of each of the EOIs to determine those parts of the EOIs, if any, that remain commercially valuable and those parts of the EOIs, if any, that would have an unreasonable adverse effect on the business, professional, commercial or financial affairs of the proponents were it to be released. The remainder of the EOIs should be released to the Applicant.

Order

138 The decision under review is set aside.

The matter is remitted for reconsideration by the Respondent pursuant to section 63(3)(d) of the Administrative Decisions Tribunal Act 1997.