Services Sydney Pty Ltd v Independent Pricing and Regulatory Tribunal
[2008] NSWADT 100
•3 April 2008
Set aside by Appeal:
CITATION: Services Sydney Pty Ltd v Independent Pricing and Regulatory Tribunal and anor [2008] NSWADT 100
This decision has been amended. Please see the end of the decision for a list of the amendments.DIVISION: General Division PARTIES: APPLICANT
Services Sydney Pty LtdFIRST RESPONDENT
SECOND RESPONDENT
Independent Pricing and Regulatory Tribunal
Sydney Water CorporationFILE NUMBER: 073180 HEARING DATES: 27 and 28 November 2007 SUBMISSIONS CLOSED: 28 November 2007
DATE OF DECISION:
3 April 2008BEFORE: Higgins S - Judicial Member CATCHWORDS: Access to documents - cabinet documents - business affairs - internal working documents - confidential material MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information 1989
Independent Pricing and Regulatory Tribunal 1992
Public Finance and Audit Act 1983
State Owned Corporations Act 1989
Sydney Water Act 1994
Therapeutic Goods Act 1966 (Cth)
Trade Practices Act 1974 (Cth)
Water Industry Competition Act 2006CASES CITED: Attorney General’s Department v Cockcroft (1986) 64 ALR 97
BY v Director General, Attorney General’s Department [2002] NSWADT 79
Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282
Dawson v Ministry of Transport [2007] NSWADT 236
McGuirk v Director General, The Cabinet Office [2007] NSWADT 9
Neary v State Rail Authority [1999] NSWADT 107
Re Actors’ Equity Association of Australia and Australian Broadcasting Tribunal (No 2) (1985) 7 ALD 584
Re Hudson and Department of the Premier, Economic and Trade Development (1993) 1 QAR 123
Re Organon (Australia) Pty Ltd and Department of Community Services and Health: Public Interest Advocacy Centre (1987) 13 ALD 588
Re Organon (Australia) Pty Ltd and Department of National Parks Association of New South Wales Inc v Department of Lands and anor [2005] NSWADT 124
Re Toomer and Department of Agriculture, Fisheries and Forestry (2003) 78 ALD 645
Watt v Forest NSW [2007] NSWADT 197REPRESENTATION: APPLICANT
J van der Merwe, agentFIRST RESPONDENT
SECOND RESPONDENT
M Izzo, barrister
N Sharp, barristerORDERS: 1. The decision of IPART in regard to Document 3 is affirmed
2. The decision of IPART in regard to Document 2, 5, 16 and 22 is set aside and in substitution thereof a decision that Services Sydney be granted access to these Documents
3. On or before Tuesday 22 April 2008 IPART to provide to the Tribunal, on a confidential basis, a copy of Document 23, 24, 25, 26 and 27 and any other relevant document
4. The application in so far as it relates to Document 23, 24, 25, 26 and 27 is set down for further Directions on Tuesday 6 May 2008 at 10:00am.
REASONS FOR DECISION
Introduction
1 The applicant, Services Sydney Pty Ltd (‘Services Sydney’) has sought review of a decision of the first respondent, the Independent Pricing and Regulatory Tribunal (‘IPART’), pursuant to section 25 of the Freedom of Information Act 1989 (‘the FOI Act’). The decision concerns IPART’s refusal to grant Services Sydney access to documents it had requested pursuant to the FOI Act. Services Sydney had requested access to:
2 The 2006 FOI request of Services Sydney sought access to:
“all information held by IPART related to Sydney Water’s 2005 pricing review that amongst others include those documents identified in our 2006 FOI application.”
3 Sydney Water Corporation (‘Sydney Water’) is the provider of water, wastewater and storm water services in the Sydney, Illawarra and the Blue Mountains area.
“information concerning the building block operating and capital expenditures and cost data used by the Tribunal in its May 2003 Determination on Metropolitan Water Prices for Sydney Water Corporation (including information sighted by the Tribunal’s consultants Atkins/Cardno in their assessment of the prudency of Sydney Water’s expenditure).”
4 IPART identified numerous documents it held that fell within the terms of Services Sydney’ request. Of these many were released in full. However, there were also many documents for which IPART determined that access be refused on the grounds that they were exempt documents under one or more of the clauses in Schedule 1 of the FOI Act. Many documents were held to be exempt under the business affairs exemption in clause 7(1)(c) of Schedule 1 of the FOI Act. The business affairs were those of Sydney Water, which by consent was joined as the second respondent to the application: see section 32 of the FOI Act.
5 During the course of several planning meetings, Services Sydney was granted access to more documents and Services Sydney indicated that it did not press access to others. At the time of hearing, only 27 documents remained in dispute. And during the course of the hearing, the parties agreed to consent orders in regard to seventeen of these. Consent orders were made in regard to these documents at the conclusion of the hearing and only ten documents remained in dispute. This decision only relates to those ten documents, which are described more fully below, together with the grounds on which IPART and/or Sydney Water claim they are exempt.
The documents in dispute
6 The ten documents that remain in dispute are numbered 2, 3, 5, 16, 22, 23, 24, 25, 26 and 27. A description of these and the exemption that has been claimed is set out in the table below:
Doc No IPART Draft Regulatory financial model for metropolitan water agencies cl.7(1)(c) – business affairs cl.9(1)(a) – internal working document
cl.13(b) – confidential material
Report by Frontier Economics ‘Measuring Sydney Water’s Economics Performance using Factor Productivity’ (2004) cl.7(1)(c) cl.13(b)
IPART Draft Regulatory financial model for metropolitan water agencies cl.7(1)(c) cl.9(1)(a)
cl.13(b)
Revised and updated page of Sydney Water’s draft pricing submission cl.7(1)(c) cl.13(b)
Internal IPART email and an attached Draft Discussion Paper of NSW Treasury entitled ‘Rate of Return’ cl.13(b) File copy, Appendices A-D to an October 2004 confidential Report to Government by the Institute for Sustainable Futures, University of Technology Sydney and Centre for International Economics – ‘Meeting Sydney’s water demand-supply balance’ cl.1(1)(a) and (e) Full copy, Report to Department of Infrastructure, Planning and Natural Resources by Institute for Sustainable Futures, University of Technology Sydney and Centre for International Economics – ‘Meeting Sydney’s water demand-supply balance’ cl.1(1)(a) and (e) Cover letter from the Cabinet Office to James Cox, acting IPART Chairman received 22 October 2004 – enclosing a cabinet in confidence communication cl.1(1)(e) Cover letter from the Cabinet Office to James Cox, acting IPART Chairman received 22 October 2004 – enclosing cabinet in confidence communication cl.1(1)(e) Letter, dated 25 October 2004, from James Cox, acting IPART Chairman to Director General, the Cabinet Office cl.1(1)(e) 7 A copy of document number 2, 3, 5, 16 and 22 were provided to the Tribunal on a confidential basis. However, the Tribunal was not provided with a copy of the remaining documents on the grounds that they were ‘restricted documents’ coming within section 57 of the FOI Act. IPART argued that sub-section 57(3) of the Act only required it to place sufficient evidence before the Tribunal to demonstrate that there were ‘reasonable grounds’ for its claim and only where it fails to so satisfy the Tribunal can the Tribunal order that the documents be produced in evidence to it. The operation of this section is discussed more fully below. Mr van der Merwe, on behalf of Services Sydney asserted that the documents in question were all subject to a 9 November 2005, Legislative Council Standing Order 52 and should on this basis be provided by IPART. In my opinion, on the material before the Tribunal, Mr van der Merwe’s contention is misconceived and I have not considered it any further.
The Parties
8 In light of the exemptions that have been claimed it is necessary to briefly provide a description of the parties to this application and their respective functions.
Independent Pricing and Regulatory Tribunal (IPART)
9 IPART exercises a range of economic regulatory functions under the Independent Pricing and Regulatory Tribunal Act 1992 (‘the IPART Act’) and other legislation and codes specific to gas, water and electricity distribution. Its primary function is pricing, including the setting of the maximum price that metropolitan water agencies may charge consumers for provision of water and waste water monopoly services: see Statement of Colin Reid dated 6 September 2007 at [8] & [9]. Sydney Water is one of five metropolitan water agencies operating within New South Wales.
10 Section 11 of the IPART Act makes provision for a standing reference for IPART to conduct an investigation and make a determination of the pricing of a ‘government monopoly service’ supplied by a government agency specified in Schedule 1 of that Act. Sydney Water is listed in that Schedule, as are all the other metropolitan water agencies. Under this section IPART is required to report to the Minister in regard to its investigations and determination. The frequency within which IPART conducts an investigation under section 11 is a matter entirely for its determination. Under section 12 of the IPART Act, the Minister has power to request IPART to conduct such an investigation.
11 Sydney Water’s 2005 pricing review was conducted by IPART pursuant to section 11 of the IPART Act. IPART’s determination in regard to the 2005 pricing review was effective from 2005 to 2009. However, on 13 June 2007, the Premier wrote to IPART, pursuant to section 12, requesting IPART to conduct a new pricing determination for Sydney Water in light of the construction of the new desalination plant at Kurnell and Sydney Water’s water recycling works. At the time of hearing, that investigation was underway.
12 IPART’s usual practice in conducting a metropolitan water pricing review is to first publish an Issues Paper that is made available for public viewing: see Statement of Colin Reid at [15]. It then seeks submissions from relevant stakeholders. These are usually provided voluntarily in two forms, a public form and a confidential form. The confidential form containing information the stakeholder in question regarded as being commercially sensitive. IPART has compulsive powers to obtain information (see section 22 of the IPART Act). However, this power has not been used to date for a pricing investigation in regard obtaining information from a regulated agency such as Sydney Water: see Statement of Colin Reid at [23].
13 IPART conducts public hearings as well as seminars and workshops so as to enable the regulated agencies to present their case and stakeholders to comment thereon (see section 21 of the IPART Act). Hearings can be conducted in private where IPART is of the view that it is desirable to do so (see sub-section 21(5) of the IPART Act). IPART has an obligation to make available for inspection, to any person who so requests, a document obtained by IPART in connection with the investigation (including submissions and documents obtained pursuant to its compulsive power) unless the document is exempt under the FOI Act: see sub-section 22A(1) of the IPART Act. Even where a document is exempt under the FOI Act, IPART has a discretion to make the document available for inspection to a person who has an interest in the investigation, subject to IPART giving the person who provided the document an opportunity to make submissions on whether the document should or should not be made available and it is satisfied that making the document available for inspection could not reasonably be expected to damage the commercial or other interests of that person or the State: see sub-section 22A(2) of the FOI Act.
14 The investigatory process can take up to 15 months before a final determination is published. In regard to the 2005 price determination, a final determination was made and published by IPART on 2 September 2005.
15 Between pricing determinations, Sydney Water and the other regulated agencies voluntarily submit to IPART an ‘Annual Information Report’ (‘AIR’), which is a detailed account of commercial information. This information enables IPART to assess the consistency of its assumptions in reaching its pricing determination. And in those years in which a pricing investigation is underway, these agencies will provide a ‘Special Information Report’ (‘SIR’), which contains more specific data to that contained in the AIR. Each report contains more information than what is contained in the annual reports of the relevant agencies: see Statement of Diane Nolder dated 28 September 2007 at [61].
Sydney Water Corporation (Sydney Water)
16 Sydney Water was established under section 4 of the Sydney Water Act 1994 (‘the SW Act’). It is a State Owned Corporation coming within the terms of the State Owned Corporations Act 1989 and has been granted a non exclusive operating licence(s) to provide, construct, operate, manage or maintain systems or services for storing or supplying water, sewage, stormwater and waste water: see section 12 of the SW Act and Statement of Diane Nolder dated 28 September 2007 at [22].
17 The objectives of Sydney Water includes being a successful business ‘by operating at least as efficiently as any comparable businesses’, ‘maximising the net worth of the State’s investment in the corporation’ and ‘exhibiting a sense of social responsibility by having regard to the interests of the community in which it operates’: see section 21 of the SW Act. It is made accountable for the services etc it provides under section 101 of the SW Act (that is provision of an annual report), section 24 of the State Owned Corporations Act 1989 and section 38B of the Public Finance and Audit Act 1983. It is also subject to the provisions of the FOI Act: see section 104 of the SW Act.
18 Sydney Water is and has been a monopoly supplier of water, wastewater and storm water services in its area of operation. However, the infrastructure owned by Sydney Water in regard to these services is also subject to a Commonwealth and State access regimes, whereby potential competitors can apply for access to the infrastructure so that they can use the infrastructure to compete with Sydney Water in the wholesale and retail level of the supply of water and wastewater services. The Commonwealth access regime is contained in Part IIIA of the Trade Practices Act 1974 (Cth) and the New South Wales access regime is contained in the Water Industry Competition Act 2006. The State regime has not come into operation. However, in 2004, Services Sydney made an application under the Trade Practices Act 1974 (Cth) for a recommendation that Sydney Water’s assets be opened to third party access in the retail market for sewage collection services. It was successful in its application but to date Sydney Water has retained its monopoly in this market. Action taken by Services Sydney since that recommendation is discussed below.
Services Sydney Pty Ltd (Services Sydney)
19 Services Sydney is a private infrastructure development company established to implement and operate specific solutions for sewage and water management in New South Wales. As mentioned above, Services Sydney successfully obtained a recommendation from the National Competition Council, pursuant to the Trade Practices Act 1974 (Cth), that Sydney Water’s assets be opened to third party access in the retail market for sewage collection services. When the Premier of New South Wales failed to act on the recommendation, Services Sydney made an application to the Australian Competition Tribunal seeking a declaration to the same effect. In December 2005, that Tribunal declared wastewater transportation and interconnection services provided by the North Head, Bondi and Malabar waste water systems open to third parties.
20 Following the declaration of the Australian Competition Tribunal, Services Sydney commenced negotiations with Sydney Water. However, a dispute arose between the parties over the access pricing methodology. That dispute was resolved, in July 2007, by the Australian Competition and Consumer Commission accepting Sydney Water’s pricing framework.
Document 2 and 5
21 Document 2 and 5 are a printout of statistical and other information used by IPART in its 2005 pricing determination. It is information prepared and used by consultants, engaged by IPART, to assist it in making its determinations.
22 Both Documents are in the same format, with Document 5 appearing to be an updated version of Document 2. In his statement, at [47] and [48], Colin Reid, of IPART, said the following in regard to these documents:
23 In her statement, at [84] to [87], Diana Nolder, of Sydney Water, said the following in regard to these documents:
'46 These documents contain draft modelling used to analyse the financial outcomes of pricing options. The models use information provided by [Sydney Water] in its AIR to determine [Sydney Water’s] total revenue requirement and the tariffs that will deliver it in respect of different options. The information in the AIR is modified using other data based on assumptions adopted by IPART.
47 …
48 In addition, the modelling comprises intellectual property belonging to IPART, which is of ongoing use to it in the conduct of the pricing determinations, which it undertakes, including the current review of [Sydney Water]. This modelling is regarded as confidential by IPART. Its release could compromise IPART’s ability to effectively scrutinise the business of regulated agencies because it could lead to stakeholders attempting to second-guess IPART’s decision-making process.’
24 Earlier in her statement, at [69], Diane Nolder acknowledged that some of the information in the AIRs and SIRs was information contained in the annual reports of Sydney Water. However, information such as the breakdown of costs, revenues and customer numbers by business is not publicly disclosed. At [70] she said that the AIR and SIR information contained information in regard to contracts entered into by Sydney Water. That information Diane Nolder explained was the subject of a contractual confidentiality clause and the disclosure of this information may result in Sydney Water breaching these agreements. Diane Nolder provided, on a confidential basis, a further statement in regard to these contracts. However, it was not the position of IPART or Sydney Water that the disclosure of this contractual information would found a breach of confidence: see clause 13(a) of Schedule 1 of the FOI Act.
‘84 From my review …, some of the information in these documents appear to me to be from draft versions of Sydney Water’s AIR and SIR that were provided to IPART by Sydney Water as part of the Price Determination process. …, the drafts AIR and SIR are provided to IPART on a confidential basis.
85 It is not possible to identify for certain which AIR and SIR data was used in the model, because it is an input model, which incorporates a number of data assumptions. …
86 I have reviewed [the documents] and have found data in them, which is, from Sydney Water’s view, inaccurate.
87 If Sydney Water was aware that draft versions of the AIR and SIR, or information contained in those documents, was to be released then Sydney Water would not provide draft versions of this information to IPART in the future. In fact, for the 2007 Price Determination process Sydney Water has not provided draft versions to IPART because of the fact that it is concerned that draft information could be sought under a request under the FOI Act.’
Clause 7(1)(c) – Business Affairs exemption
25 It is well established that the purpose of the clause 7 exemption is to ‘protect business from unwarranted disclosure to the public of sensitive commercial information’: see Re Actors’ Equity Association of Australia and Australian Broadcasting Tribunal (No 2) (1985) 7 ALD 584 at 592.
26 Judicial Member Montgomery, in Watt v Forest NSW [2007] NSWADT 197, provided a comprehensive analysis of judicial decision concerning the business affairs exemption (that is clause 7(1)(b) and (c)) and the confidential information exemption contained in clause 13(b) of Schedule 1 of the FOI Act. It is unnecessary to repeat these.
27 It is not disputed that, for the exemption in clause 7(1)(c) to apply it must be shown that the document contains information the disclosure of which:
28 That is, where a document is found to contain information about the business etc affairs of a business, the exemption may be applicable in two specific circumstances. The first, where disclosure of the information has the requisite ‘unreasonable adverse effect’ on the business affairs to which the information relates. And second, where disclosure of the information has the requisite ‘prejudice’ on the future supply of information of such kind.
(a) would disclose information concerning the business, professional, commercial or financial affairs of any agency or any other person, and
(b) could reasonably be expected to:
i. have an unreasonable adverse effect on those affairs, or
ii. prejudice the future supply of such information to the Government or to an agency.
29 Nor is it disputed that the onus rests on IPART and/or Sydney Water to satisfy the Tribunal that the exemption applies: see section 61 of the FOI Act. IPART and/or Sydney Water have the same onus in regard to all the documents for which an exemption has been claimed.
30 On the basis of the uncontested evidence of Colin Reid and Diane Nolder, I am satisfied that Document 2 and 5 contain information concerning the business and financial affairs of Sydney Water and that the disclosure of these Documents would disclose that information. That information, however, is limited to that which was taken from the AIR or draft AIR provided by Sydney Water to IPART for the purpose of its 2005 price determination. It is noted that this information forms only part of the information contained in the Documents. Exactly which portions of the Documents contain this information was not explained by IPART or Sydney Water.
31 IPART and Sydney Water have not contended that the AIR information in these Documents, is information that has a commercial value and that the disclosure thereof could reasonably be expected to destroy or diminish that value: see clause 7(1)(b).
32 The essence of their argument is that, (a) the information was provided voluntarily and in confidence, (b) the disclosure of the information would harm Sydney Water’s business in that it would provide information, not otherwise publicly available, about its business and financial affairs to its competitors, and (c) Sydney Water has said it will no longer provide this information voluntarily, thereby prejudicing the future supply of that information to IPART.
33 I accept that the information in Document 2 and 5, so far as it contains information from the AIR provided by Sydney Water, is information provided voluntarily and in confidence. I also accept that some of this information is not otherwise publicly available through annual reports etc. of Sydney Water. However, no attempt has been made to identify for the Tribunal that part of the information that is and is not publicly available.
34 However, in my opinion, Sydney Water, nor IPART, has shown how its business or financial affairs could reasonably be adversely affected by disclosure of the information to competitors: see Watt at [120] to [125]. Even if it were accepted that Sydney Water operated in a competitive market no evidence has been placed before the Tribunal to indicate the nature of an adverse effect, if any, that the disclosure of the AIR information in Document 2 and 5 could have on Sydney Water’s business or financial affairs. The information is historical in that it is almost 3 years old and some of it is already publicly available. The fact of competition does not of itself establish the requisite adverse effect. Nor do I accept that at the time these Documents came into existence that Sydney Water was operating in a competitive market. It essentially continued to operate as a State owned monopoly. This does not mean that disclosure of information about its business or financial affairs can never be adversely affected thereby. As I have mentioned, where it is contended that disclosure could give rise to such an adverse effect it is incumbent on the agency making the assertion to place some material before the Tribunal as to what that adverse effect is and that it could reasonably arise from the disclosure of the information in question. The Tribunal can then determine whether that adverse effect is unreasonable in the circumstances. A mere assertion as to the requisite adverse effect will not suffice.
35 In regard to the information in Document 2 and 5, which Sydney Water asserts is subject to a contractual confidentiality clause, in my opinion, on the basis of the material before the Tribunal (including that which was provided on a confidential basis), it is difficult to see how the specific information identified by Diane Nolder is information that falls within the terms of the confidentiality clause of the relevant contracts. In my opinion, the specific information identified by Diane Nolder, does not go so far as to provide details of the pricing structure as set out in the relevant contract. If it does, then arguably, Sydney Water’s disclosure to IPART of this information is also a breach of the contractual confidentiality clause. In any event Sydney Water, being subject to the provisions of the FOI Act, cannot contract itself out of the operation of that Act. Accordingly, I find that Sydney Water has failed to satisfy the Tribunal that the disclosure of the specific information, which it asserts to be subject of a contractual confidentiality clause, could reasonably be expected to have an adverse effect on its business affairs.
36 For the reasons set out below, IPART and Sydney Water have also failed to satisfy the Tribunal that the disclosure of Document 2 and 5 could reasonably be expected to prejudice the future supply of information of the kind contained in these Documents. That information I have again assumed to be limited to that which was taken from the relevant AIR of Sydney Water and which is not otherwise publicly available.
37 In Neary v State Rail Authority [1999] NSWADT 107 at [35] the Tribunal held that an objective view must be taken in regard to an agency’s claim the document is exempt under this clause. In Attorney General’s Department v Cockcroft (1986) 64 ALR 97, at 107, the Court held that the term ‘could reasonably be expected to prejudice the future supply of the information’, in the equivalent provision under the Commonwealth legislation, required ‘a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind’ to the agency would decline to do so if the ‘document in question was disclosed’. In Watt at [132], Judicial Member Montgomery held that information of the ‘prescribed kind’ or ‘such kind’ was information of the same kind to that which was contained in the document for which the exemption had been claimed. This appears to be an unnecessarily narrow construction of this exemption, which is not necessary to consider in this application.
38 Sydney Water contended that the decision of the Administrative Appeals Tribunal (Full Tribunal) (‘the AAT’) in Re Organon (Australia) Pty Ltd and Department of Community Services and Health: Public Interest Advocacy Centre (1987) 13 ALD 588 was applicable to this application. In that application the FOI applicant had sought access to documents lodged by the marketer of an intrauterine contraceptive device, in support of its application to the respondent agency for approval to sell the device in Australia. The documents in question had been provided by the marketer pursuant to the provisions of the Therapeutic Goods Act 1966 (Cth). Under that Act, the responsible Minister, had some compulsive powers to obtain information, however, the documents the subject of the AAT application had been provided voluntarily. The marketer had objected to the disclosure of four documents on the grounds that they contained information of commercial value to its business. The documents in question included a document of statistical information. The AAT was satisfied that the documents in question (including the document with statistical information) had a commercial value and that the disclosure of that information could reasonably be expected to diminish the commercial value of the information. That is, the documents were found to be exempt under the Commonwealth equivalent of clause 7(1)(a) of Schedule 1 of the FOI Act. The AAT having made this finding went on to find that the disclosure of the documents in question could also reasonably be expected to prejudice the future supply of that information to the agency in question. In making its findings the AAT placed weight on the fact that the document containing statistical information went beyond that which was normally required for approval applications under the Therapeutic Goods Act 1966 (Cth) and that the information had been provided voluntarily.
39 The question as to whether the disclosure of the information in Document 2 and 5 could reasonably be expected to prejudice the future supply of information of that kind is ultimately a question of fact having regard to all the relevant circumstances.
40 In my opinion, the circumstances of this application differ substantially to those in Re Organon. For example, in this application no claim has been made that Document 2 and 5 contain information of commercial value to Sydney Water and that this commercial value could be diminished if the information was disclosed. This was a critical finding in Re Organon and on which the subsequent findings of the AAT were based. The legislative schemes also differ substantially. One concerns the granting of approval to the makers and marketers of medical products and devices to sell their products in Australia and the other concerns price regulation of water, gas and electrical services provided to consumers by monopoly State Owned entities.
41 As mentioned above, to perform its role IPART is given specific investigatory powers. On the material before the Tribunal these powers include obtaining information of the nature contained in Document 2 and 5. It is noted from the material before the Tribunal that the AIR template or format was a creation of IPART, who forwarded it to Sydney Water and presumably other service providers for completion. The conclusion to be drawn from this is that the information in the AIR and SIR is indicative of the information IPART requires in order to perform its functions and also that which it would seek compulsorily if required to do so. On this basis it is difficult to see how the disclosure of Document 2 and 5 could reasonably be expected to prejudice the future supply of such information to IPART.
Clause 9 – Internal Working Document
42 In order for a document to be exempt under clause 9(1) of Schedule 1 of the FOI Act, IPART must satisfy the tribunal that it contains information the disclosure of which:
43 Clause 9(2) provides that a document is not exempt under that clause where it merely consists of factual or statistical material. In the case of Document 2 and 5, a large measure of the information is factual and statistical. That information on its own would not be exempt under this clause. It may nevertheless contain factual and statistical information that is exempt under another clause in Schedule 1 of the FOI Act (i.e. clause 7). For the reasons set out above, I have found that the information in Document 2 and 5 are not exempt under this clause.
(a) would disclose any opinion, advice or recommendation that has been obtained, prepared or recorded, or any consultation or deliberation that has taken place in the course of, or for the purpose of the decision making functions of IPART, and
(b) would, on balance, be contrary to the public interest.
44 The purpose of the clause 9 exemption is to protect the pre-decision making process of decision-making and policy-making functions of an agency, but only if, on balance it is contrary to the public interest to release the documents in question.
45 The evidence is that the Documents were prepared by consultants engaged by IPART. It was not argued that the information in the Documents evidenced actual deliberations of IPART in making its 2005 price determination. They merely formed a part of the documents on which IPART’s deliberations were based. Nor was it argued that the Documents record an opinion, advice or recommendation that was obtained in the course or for the purpose of IPART’s 2005 price determination.
46 The essence of IPART’s argument was that it would be contrary to the public interest to disclose these Documents as they evidence an analytical tool or model used by IPART in the course of its deliberations. I find this argument difficult to understand in light of IPART’s statutory functions, which are to be performed in an open and transparent manner. The model has of course now been provided to Sydney Water. Furthermore, disclosure of the model does not mean that IPART has lost its intellectual property rights in the model.
47 In my opinion, while I accept that Document 2 and 5 are based on a ‘model’ used by IPART in its deliberations of price determinations, I am not persuaded that disclosure of the ‘model’ would, on balance be contrary to the public interest. However, as the Documents also contain other information, it is necessary to consider whether the disclosure of this information would, on balance be contrary to the public interest. This must be determined as at the date of hearing having regard to all relevant factors, including whether a decision has been made in regard to the deliberations and consultations.
48 In the case of these Documents the deliberations were concluded in September 2005 when IPART made its determination. It is now in the process of making a new determination and it is difficult to imagine that it will be using the same information or model in its deliberations, as there is a new factor, which needs to be taken account of. In my opinion, for these reasons, it cannot be said that on balance the public interest lies in the non-disclosure of the Documents in question.
49 Accordingly, IPART has failed to satisfy the tribunal that Document 2 and 5 are exempt under clause 9(1) of Schedule 1 of the FOI Act.
Clause 13(b) Confidential Material
50 In order for a document to be exempt under clause 13(b) of the FOI Act, IPART must satisfy the Tribunal that the Documents contain information the disclosure of which:
51 I accept that IPART obtained the AIR information contained in Document 2 and 5 in confidence. However, for the same reasons set out in paragraphs [37] and [41] above, in my opinion, IPART has failed to satisfy the Tribunal that the information in question, if disclosed, could reasonably be expected to prejudice the future supply of such information it.
(a) would disclose information obtained in confidence; and
(b) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency; and
(c) would, on balance, be contrary to the public interest.
Document 3
52 In her statement, at [93], Diane Nolder said that Document 3 ‘was commissioned by Sydney Water as part of its internal processes in preparing for its planning and decision-making processes related to the 2005 Price Determination process.’ She went on to say that the report was not prepared for publication or for submission to IPART. However, a copy of the report was provided to IPART on a voluntary and confidential basis on 4 November 2004: see at [97].
53 In his statement, at [56], Colin Reid said the following in regard to this Document:
54 Diane Nolan agreed, at [98], with this statement of Colin Reid, which to some extent is inconsistent with her statement that the report was not prepared for the purpose of submission to IPART as part of its 2005 price determination. In any event I accept that the report was provided voluntarily, without any request having been made by IPART, and that it was provided on a confidential basis. I also accept that the information in the report concerns the business affairs of Sydney Water. I am also satisfied that disclosure of this Document could reasonably be expected to prejudice the future supply of such information to IPART. The information differs substantially to that contained in Document 2 and 5 and it is arguably not information that IPART would necessarily seek pursuant to its compulsive powers.
‘56 …document is a report by Frontier Economics commissioned by [Sydney Water] and provided to IPART in connection with [Sydney Water’s] submission to it for the 2005 review. The report contains a model developed by Frontier Economics to measure [Sydney Water’s] historical productivity over time. Its disclosure would enable a competitor to have a good understanding of [Sydney Water’s] historical productivity and enable it to extrapolate about strengths and weaknesses of its business and predict future business strategies. This would enable a competitor to compete more effectively with [Sydney Water] and undercut its business.’
55 Accordingly, IPART and Sydney Water have satisfied the Tribunal that Document 3 is exempt under clause 7(1)(c) of Schedule 1 of the FOI Act. On this basis it is unnecessary to consider the clause 13(b) exemption.
Document 16
56 This Document consists of a single page (that is page 71) of the sixth draft of Sydney Water’s submission to IPART and a facsimile coversheet from Gregg Perrett of IPART to Charlotte O’Connor. I have assumed that Charlotte O’Connor is a consultant engaged by IPART to assist in its determination. The single page of the submission is marked ‘Confidential/Subject to Change and Board Approval’ and ‘Not for public release’.
57 Colin Reid in his statement at [58] said that this document was provided to IPART by Sydney Water on a voluntary basis and on the understanding that it would remain confidential. He went on to say that the effect of releasing this document may be that Sydney Water will be less willing to provide comprehensive information of this kind in future.
58 In her statement, at [145] to [147], Diane Nolder said that the final submission of Sydney Water was lodged with IPART in November 2004 and that this earlier draft was provided to assist IPART and the efficiency reviewers in progressing the 2005 price determination.
Clause 7(1)(c) – Business Affairs exemption
59 Having regard to the content of the Document I accept that it contains information that concerns the business and financial affairs of Sydney Water.
60 Once again Sydney Water and IPART have placed no material before the Tribunal, which shows what the adverse effect, if any, on the business or financial affairs of Sydney Water, if the information was disclosed, other than to say that it would provide potential competitors with information that had been provided in confidence. Accordingly, for the same reasons set out in paragraph [34] and [35] above, IPART and Sydney Water have failed to satisfy the Tribunal that the disclosure of the information in Document 16 could reasonably be expected to have an unreasonable adverse effect on those affairs.
61 For the same reasons set out in paragraph [37] and [41] above, IPART and Sydney Water have failed to satisfy the Tribunal that the disclosure of the information in Document 16 could reasonably be expected to prejudice the future supply of such information to IPART.
62 While it is accepted that the material was provided in confidence, this on its own is not sufficient for the exemption to apply. Nor is there any evidence before the Tribunal to indicate whether the information contained in Document 16 formed part of the final submission lodged with IPART and whether that submission was publicly available.
Clause 13(b) Confidential Material
63 For the same reasons set out in paragraphs [50] and [51] above, IPART and Sydney Water have failed to satisfy the Tribunal that the information contained in Document 16 is exempt under clause 13(b) of Schedule 1 of the FOI Act.
Document 22
64 As pointed out by Colin Reid, at [42], of his statement, the email to which the Draft Discussion Paper of Treasury was attached requested that the Discussion Paper be treated as ‘commercial in confidence’. Colin Reid went on to say the following:
Clause 13(b) Confidential Material
‘… The input of Treasury is of particular value to IPART’s reviews of pricing for [Sydney Water]. Under section 15 of the Act, IPART must consider the rate of return to shareholders. As a voting shareholder, the Treasurer (and his department) will have particular views, which may inform IPART’s decision. To date those views have been provided voluntarily by Treasury. The effect of releasing a document of this kind is that Treasury is unlikely to be willing to provide confidential opinions to IPART in the course of future reviews and IPART will lose the benefit of a valuable source of input.’
65 I accept that Document 22 was provided to IPART on a confidential basis. However, I am not satisfied that each of the remaining requirements of the clause 13(b) exemption have been established by IPART in regard to this Document.
66 While the document was provided voluntarily, the evidence of Colin Reid is insufficient to make a finding that if the Document was disclosed it is reasonable to expect that in future Treasury will not provide this form of information: see Cockcroft at 107. In my opinion, the evidence of Colin Reid is subjective and self-serving. As indicated by him, under section 15 of the IPART Act, IPART is required to have regard to the ‘appropriate rate of return on public sector assets, including appropriate payment of dividends to the Government for the benefit of the people of New South Wales’ in making its price determinations: see paragraph 15(1)(c). This is one of several matters set out in section 15 that IPART is required to have regard to. There is no evidence from Treasury to the effect that it would not in future provide such documentation. Having regard to the content of the document and the role of Treasury in regard to price determinations under the IPART Act it is difficult to imagine that Treasury, as a stakeholder, would be reluctant to provide such information. Marking a document ‘commercial in confidence’ will not on its own necessarily be sufficient to make the information contained therein exempt under clause 13(b). In any event, as mentioned above, IPART has the necessary compulsive powers to obtain information of this nature and access to that information is subject to the provisions of the FOI Act: see section 22A.
67 For the reasons set out above, IPART has failed to satisfy the Tribunal that disclosure of Document 22 is exempt under clause 13(b) of the FOI Act.
Document 23, 24, 25, 26 and 27
68 IPART contends that Document 23 and 24 are documents that were prepared for submission to Cabinet and are exempt under clause 1(1)(a), or clause 1(1)(e) of Schedule 1 of the FOI Act. In regard to Documents 25, 26 and 27, it contends that these documents contain matter the disclosure of which would disclose information concerning a deliberation or decision of Cabinet and exempt under clause 1(1)(e) of Schedule 1 of the FOI Act.
Restricted Documents – section 57
69 As mentioned above, the Tribunal has not been provided, on a confidential basis, with a copy of these documents. The basis for this is that the documents in question are not only exempt but also ‘restricted documents’, which are subject to the provisions in section 57 of the FOI Act. There are three categories of exempt documents that are also ‘restricted’ documents. These are: Cabinet documents (see clause 1 of Schedule 1 of the FOI Act), Executive Council documents (see clause 2 of Schedule 1 of the FOI Act) and documents concerning law enforcement (see clause 4 of Schedule 1 of the FOI Act).
70 Section 57 of the FOI Act provides as follows:
71 In this application IPART did not seek to put any material before the Tribunal pursuant to sub-section 57(2) above. For the reasons set out below, in my opinion, if an agency seeks to rely on the procedure set out in this section the onus remains on the agency to satisfy the Tribunal that there are in fact ‘reasonable grounds’ for the exemption claimed. In determining whether there are ‘reasonable grounds’ the Tribunal is required to make an objective assessment on the basis of the material that is placed before it by the relevant agency or the Premier, who is the Minister responsible for administering the FOI Act, as to whether there is a proper basis for the claim that has been made. Difficulties may arise, as in this application where the material before the Tribunal are limited to assertions made by a government employee, without being supported by any independent material, provided in confidence or otherwise.
57 Consideration of restricted documents
(1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate.
(2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of:
(a) the public, and
(b) the review applicant, and
(c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant’s representative.
(3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it.
(4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application.
(5) The Tribunal is not to reject the claim unless it has given the Minister administering the Act a reasonable opportunity to appear and be heard in relation to the matter.
(6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings.
72 Section 59 of the FOI Act makes provision for the Minister to sign a certificate that a specified document is a restricted document and the provision of a copy of such a certificate to an FOI applicant is sufficient notice, for the purposes of section 28(2)(e) of the FOI Act, of the reasons for the refusal of access to the document. Where a claim for exemption and refusal to access is based on the issue Minister’s certificate, external review rights are to the Supreme Court: (see sections 58A, B, and C.
73 The operation of section 57 in the external review process before the Tribunal was considered by the President in BY v Director General, Attorney General’s Department [2002] NSWADT 79. In that decision the President found: (a) section 57 was applicable to any application for review which seeks review of an agency claim that a document is a restricted document (other than those which are the subject of a Ministerial certificate under section 59 and subject to sections 58A, B and C) (see at [61]); (b) as provided by sub-section 57(6) the Administering Minister is entitled to participate as a party in respect to the review (see at [65]); and (c) if the tribunal finds that there are reasonable grounds for the claim, its jurisdiction remains unaffected and it may go on to ascertain, pursuant to section 63 of the Administrative Decisions Tribunal Act 1997, whether the decision to claim the exemption is the correct and preferred decision (see at [76]).
74 IPART contended that the decision in BY was incorrect and invited the Tribunal to reconsider the issue. In my opinion, it is not appropriate, in this application for me to reconsider this issue.
75 Accordingly, the first issue for determination is whether there are reasonable grounds for the claim that the Documents in question are exempt under the relevant provisions of clause 1 of Schedule 1 of the FOI Act.
Are there reasonable grounds that Document 23 and 24 are exempt under clause 1(1)(a)?
76 As mentioned above, the tribunal has been informed that Document 24 is a copy of a report (including appendices) by the Institute for Sustainable Futures, University of Technology Sydney and Centre for International Economics (‘ISF/UTS & CIE’) entitled: ‘Meeting Sydney’s water demand-supply balance’ (‘the Report’). The Tribunal has also been informed that the Report was for the Department of Infrastructure, Planning and Natural Resources (‘DIPNR’). The Tribunal was informed that Document 23 was a copy of the appendices to the Report.
77 For a document to be exempt under clause 1(1)(a) of Schedule 1 of the FOI Act the document must be:
78 As pointed out by Magistrate (Deputy President) Hennessy in National Parks Association of New South Wales Inc v Department of Lands and anor [2005] NSWADT 124 at [29], the question as to whether a document was ‘prepared for submission’ to Cabinet was ultimately a question of fact and it is to be determined as at the date on which the document was created. If the document was ultimately not submitted to Cabinet the exemption continues to apply. At [26] Magistrate (Deputy President) Hennessy also held that it was not necessary for the document to have been prepared for the sole purpose of submission to Cabinet. It is enough if submission to Cabinet is one of the purposes for which a particular document was prepared.
‘… a document that has been prepared for submission to Cabinet (whether or not it has been so submitted), …’
79 IPART filed two statements of evidence in support of its claim: a statement of Marion Bennett, Executive Director, Metropolitan Water, Department of Water and Energy dated 19 September 2007; and a statement of Leigh Rae Sanderson, Deputy Director (General Counsel), Department of Premier and Cabinet dated 18 September 2007.
80 In her statement, Marion Bennett, said that in April 2004, in its consideration of the development of a co-ordinated whole-of-government strategy to ensure adequate water supplies for Sydney, Cabinet agreed that Ministers were to report back to it with relevant proposals ‘based on cost/benefit analysis, and that a draft Metropolitan Water Strategy was to be submitted to it.’ At the time, Marion Bennett was employed by DIPNR, which she said had, in June 2004, commissioned the ISF/UTS & CIE to prepare an ‘Options Evaluation Study’ in regard to the cost/benefit analysis of a Metropolitan Water Strategy for Sydney. Marion Bennett said she reported directly to DIPNR’s sponsor of the Study project. She went on to say that the brief issued for the Study ‘noted that the Metropolitan Water Strategy to be developed’ was to be based on the findings of the Study and would be presented for Cabinet consideration’. She had also advised ‘that the Study was to be treated as Cabinet-in-Confidence.’ A copy of the brief was not provided to the Tribunal.
81 Marion Bennett said that in October 2004, DIPNR was provided with the Report of the Study by ISF/UTS & CIE. She also said that the Report formed the basis of a Cabinet Minute submitted to a Cabinet Committee in September 2004. She states that she has reviewed the Minute in question which she said:
82 Leigh Sanderson makes her statement on the basis of her examination of the relevant documents held by the Department of Premier and Cabinet in its files. She states that Document 23 and 24 are marked ‘Cabinet-in-Confidence’, but they did not appear to have been presented to Cabinet. Otherwise her statement in regard to Document 23 and 24 are consistent with that of Marion Bennett.
‘…[recommended] the release of the 2004 Metropolitan Water Strategy/Plan and noted that the Strategy/Plan was based on the cost-benefit analysis requested by Cabinet in April 2004 that [the Study] had undertaken. The Minute also noted that the Strategy/Plan is informed by and based on the evidence in the [Study] report, summarised its key findings and an excerpt from the [Study] report was attached to the Minute.’
83 As mentioned above, the question for determination is whether in the preparation of the Report a purpose of its preparation was for submission to Cabinet. On the basis of Marion Bennett’s statement it is difficult to see how the Report could have been prepared for Cabinet when the Report was not completed before October 2004 and Cabinet (that is a Committee of Cabinet) had released the Metropolitan Water Strategy/Plan a month prior to this. Marion Bennett may of course have inadvertently and incorrectly recorded the relevant dates in her statement. Another possible explanation is that DIPNR were provided with a draft of the Report and it was this document from which the relevant Cabinet Minutes or submissions were based.
84 In any event, leaving aside possible discrepancies in the dates, in my opinion, the material before the Tribunal is not sufficient to show that one of the purposes for which the Report was prepared was for submission to Cabinet. An objective assessment of the material before the Tribunal suggests that the Report was prepared for the purpose of DIPNR and the relevant Minister(s) being able to prepare a Metropolitan Water Strategy/Plan, which would be submitted, to Cabinet for consideration. That is, the Report was not a document, which was envisaged as being a document for submission to Cabinet, it was a document on which a further document was to be created and it was this further document, which was prepared for Cabinet. It was a document prepared so that it could form a basis on which a submission to Cabinet would be prepared and therefore not exempt under this particular paragraph of clause 1 of Schedule 1 of the FOI Act: see Dawson v Ministry of Transport [2007] NSWADT 236 at [45].
85 Accordingly, I am not satisfied on the material before the Tribunal, that there are reasonable grounds that Document 23 and 24 are exempt under clause 1(1)(a) of Schedule 1 of the FOI Act.
Are there reasonable grounds that Document 23, 24, 25, 26 and 27 are exempt under clause 1(1)(e)?
86 For a document to be exempt under clause 1(1)(e) of Schedule 1 of the FOI Act the document must:
87 In Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282, at [57] the President observed that the following in regard to the clause 1 exemption:
‘ … contain matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet.’
88 At [87] the President said that the exemption in clause 1(1)(e) was ‘…perhaps, the most important exemption in the terms of maintaining the traditional convention’.
‘This exemption finds its justification in the primacy of Cabinet in the Westminster system of democratic government. It preserves the constitutional convention of collective ministerial responsibility. It seeks to ensure that what is said in Cabinet remains in Cabinet. …’
89 It is accepted that the concept of ‘deliberations’ is wide: see Cianfrano at [88]. Deputy President Forgie noted in Re Toomer and Department of Agriculture, Fisheries and Forestry (2003) 78 ALD 645 at [88]:
90 At [96], Deputy President Forgie went on to state that in determining whether a document contains information concerning the deliberations of Cabinet must be determined having regard to the relevant circumstances and ‘whether they were prepared before or after the meeting of Cabinet at which they were discussed is not determinative of the issue.’
‘[Cabinet’s] deliberations are its thinking processes be they directed to gathering information, analysing information or discussing strategies. They remain its deliberations whether or not a decision is reached. … ’
91 Deputy President Forgie was critical of the more narrow construction given by Albietz J in Re Hudson and Department of the Premier, Economic and Trade Development (1993) 1 QAR 123 at 141 as to what documents fell within ‘deliberations of Cabinet’. Albietz J had held that it included: ‘only documents created contemporaneously with, or subsequent to, active discussion and debate within Cabinet are capable of disclosing’ Cabinet deliberations. This more narrow meaning was however, accepted by Magistrate (Deputy President) Hennessy in National Parks Association at [37].
92 In McGuirk v Director General, The Cabinet Office [2007] NSWADT 9 at [35], Judicial Member Montgomery, accepted as correct the above more narrow interpretation of ‘deliberations of Cabinet’. However, he went to point out that clause 1(1)(e) is not only concerned with ‘deliberations of Cabinet’. It is also concerned with ‘disclosing information concerning any deliberation or decision of Cabinet.’ At [36] Judicial Member Montgomery went on to say the following:
93 In the following paragraph, Judicial Member Montgomery extended the above analogy to a briefing note from an agency to a Minister in regard to matters on which Cabinet was deliberating.
‘36 … [In] my view it is possible that a document that pre-dates a Cabinet meeting could still contain information that is ‘relevant to’ or ‘concerns’ the deliberative or decision-making process. I agree with the Cabinet Office’s submissions that documents created before a Cabinet meeting which are deliberated upon during that Cabinet meeting may profoundly influence the course of any debate or discussion that takes place during that meeting and hence, any deliberations made during that meeting. For example, a Cabinet Minute that contains a series of recommendations upon which Cabinet deliberates logically contains subject matter that is ‘relevant’ to or ‘about’ these deliberations. To the extent that any document is so central to a Cabinet meeting that it shapes the course of, or outcome of, any deliberations of Cabinet, the disclosure of its contents could reveal information concerning the process of deliberation or decision-making.’
94 In my opinion, the construction Judicial Member Montgomery has placed on clause 1(1)(e) is correct as is his approach in its application to documents that came into existence prior to the Cabinet meeting where it considered issues such as those contained in the pre-existing documents.
95 In regard to Document 23 and 24, as mentioned above, Marion Bennett said that the Report was commissioned as a result of Cabinet’s deliberation of options for inclusion in a Metropolitan Water Plan for Sydney. These deliberations she asserts commenced in April 2004 and were ongoing to September 2004 and included consideration of matters contained in the Report. Leigh Sanderson makes similar assertions from her examination of the files held at the Department Premier and Cabinet. In my opinion, having regard to all the material before the tribunal, I find that there are reasonable grounds for the claim that Document 23 and 24 are exempt under clause 1(1)(e) of Schedule 1 of the FOI Act.
96 In regard to Document 25, 26 and 27, Leigh Sanderson in her statement described the process by which Cabinet make its decisions. This process she said commenced with a Minister placing a proposal, with recommendations, for consideration by Cabinet. Such proposals are made by way of a Cabinet Minute. That Minute is then circulated to other Ministers, and on occasion Government agencies, for consideration and advice. The Cabinet meeting she said was the ‘culmination of this process’.
97 Leigh Sanderson went on to say that once a Minute had been submitted for Cabinet consideration, the role of the Department of Premier and Cabinet was to co-ordinate and prepare advice for the Premier for his use as part of the Cabinet process. This she said included obtaining advice from other Ministers and agencies within the Premier’s administration who may be affected by the proposal.
98 Leigh Sanderson said that Document 25, 26 and 27 were documents that fell within this process. She said that Document 25 and 26 consisted of a letter from the Director General of the Department of Premier and Cabinet to IPART and attached to that letter was a copy of a Cabinet Minute. Document 27 she said was IPART’s response to that letter and the Cabinet Minute. That is, it was her assertion that the Cabinet Minute evidenced deliberations of Cabinet for which the Department of Premier and Cabinet had sought IPART’s advice and which was subsequently provided. As mentioned above, no further information, confidential or otherwise, was provided to the Tribunal.
99 In my opinion, in the case of these Documents, IPART has failed to satisfy the tribunal that there are reasonable grounds for the claim that they are exempt under clause 1(1)(e) of Schedule 1 of the FOI Act. Other than mere assertions, no evidence has been provided as to the date of the Cabinet Minute in question, or the subject matter thereof. As IPART has identified the Documents as falling within the ambit of Services Sydney’s FOI request it can be assumed that they relate in some way to IPART’s 2005 pricing review for Sydney Water. How and what connection they may have, if any, to Document 23 and 24 are not stated.
100 As a consequence of this finding, it is appropriate that the Tribunal require the Documents to be produced in evidence to it pursuant to sub-section 57(3) of the FOI Act. That production should be on a confidential basis.
Is IPART’s decision in respect to Document 23 and 24 the correct and preferred decision?
101 In light of my findings in regard to Document 23 and 24 and on the basis of the principles set out in BY, it is necessary to determine whether the decision of IPART to refuse Services Sydney access to Documents 23 and 24 is the correct and preferred decision pursuant to section 63 of the Administrative Decisions Tribunal Act 1997.
102 Relevant to that determination is the residual discretion as described by Nicholas J in University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 at [102], where the Tribunal is satisfied on the material before it that the claim for exemption has been made out by the agency.
103 While I agree with the principles set out in IPART’s submissions in regard to the application of the residual discretion, in my opinion, the Tribunal has been provided with insufficient material on which to make a determination as to whether the Documents are exempt and if found to be exempt whether it is, or is not, appropriate to exercise the residual discretion. It is difficult to see how that determination can be made without the Tribunal being provided, on a confidential basis, with a copy of the Documents in question and any other relevant document on which the claim for exemption has been made.
Conclusions
104 For the reasons set out in paragraph [55] above, I find that IPART’s decision in respect to Document 3 is the correct and preferred decision and should be affirmed.
105 For the reasons set out in paragraphs [34], [35], [41], [49] and [51] above, I find that IPART’s decision in respect to Document 2, 5, 16 and 22 is not the correct and preferred decision and should be set aside and in substitution thereof a decision that Services Sydney be granted access to these Documents.
106 In the event I am incorrect in my findings in regard to Document 2 and 5, in my opinion, as the information in question (that is, the information extracted from the AIR and which is otherwise not publicly available) only forms a part of the information that is contained in these Documents, this information, could arguably be deleted from the Documents and it would be practicable to provide Services Sydney with a copy of the Documents with this information deleted pursuant to sub-section 25(4) of the FOI Act.
107 For the reasons set out in paragraph [100] and [103] above, it is appropriate to make orders to the effect that IPART provide to the tribunal, on a confidential basis, with a copy of Document 23, 24, 25, 26 and 27 and that the matter, in so far as it relates to these documents, be set down for further directions so that the matter can be finalised or further directions can be made.
Orders
1. The decision of IPART in regard to Document 3 is affirmed
2. The decision of IPART in regard to Document 2, 5, 16 and 22 is set aside and in substitution thereof a decision that Services Sydney be granted access to these Documents
3. On or before Tuesday 22 April 2008, IPART to provide to the Tribunal, on a confidential basis, a copy of Document 23, 24, 25, 26 and 27 and any other relevant document
4. The application in so far as it relates to Document 23, 24, 25, 26 and 27 is set down for further Directions on Tuesday 6 May 2008 at 10:00am.
03/04/2008 - Order 4, Directions listed on Tuesday 6 May 2008 at 10:00am in lieu of Tuesday 6 May 2007 at 10:00am. - Paragraph(s) Orders
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