Sicard v The Hills Shire Council

[2024] NSWCATAD 162

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Sicard v The Hills Shire Council [2024] NSWCATAD 162

Hearing dates:

14 December 2023

Date of orders:

14 June 2024

Decision date:

14 June 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

(1) The decision under review is set aside.

(2) The withheld information is to be released to the Applicant no later than 28 days from the date of this decision.

Catchwords:

Administrative Law – GIPA Act – Government Information – Access - Balancing competing public interest factors for and against disclosure

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Government Information (Public Access) Act 2009

Cases Cited:

Adams v Commissioner for Police [2022] NSWCATAD 178

AIN v Medical Council (NSW) [2013] NSWADT 112

AMH v Western New South Wales Local Health District [2013] NSWADT 282

Assn for Berowra Creek Inc v Department of Lands [2009] NSWADT 157

Attorney-General's Department v Cockcroft (1986) 10 FCR180, 64 ALR

Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252

Battin v University of New England [2013] NSWADT 73

Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5

Cianfrano v Director General, NSW Treasury [2005] NSWADT 7

Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48

DDL v Mid-Western Regional Council [2018] NSWCATAD 2

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Elf Farm Supplies Pty Ltd v Department of Planning and Environment [2018] NSWCATAD 277.

Fire Brigade Employees’ Union v Fire & Rescue (NSW) [2014] NSWCATAD 113.

Hurst v Wagga Wagga City Council [2011] NSWADT 307

In Media Research Group Pty Ltd v Department of Premier and Cabinet [2011] NSWADTAP 7

Jenkinson v Department of Education and Communities [2013] NSWADT 280

McKinnon v Blacktown City Council [2012] NSWADT 44

Murphy v Broken Hill City Council [2015] NSWCATAD 135

Nature Conservation Council v Department of Trade and Investment, Regional Infrastructure and Services (NSW) [2012] NSWADT 195

Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254

Re Waterford and Department of the Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588

Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55

South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services [2019] NSWCATAD 83

Taylor v Destination NSW [2020] NSWCATAD 137

Woodhouse v City of Sydney Council [2012] NSWADT 95

Zonnevylle v NSW Department of Finance and Services [2015] NSWCATAD 175

Category:

Principal judgment

Parties:

Kerry Sicard (Applicant)
The Hills Shire Council (Respondent)

Representation:

Solicitors:
Stringybark Legal (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)
Office of the Information Commissioner (Intervenor)

File Number(s):

2023/00291559

Publication restriction:

Nil

Reasons for Decision

Introduction

1. Ms Kerry Sicard (“the Applicant”) lodged an access application under the Government Information (Public Access) Act 2009 (“the GIPA Act”) with The Hills Shire Council (“the Respondent”) seeking:

“Ecology / environmental report (produced February / March 2023)”

2. The application related to the property address described as "Hills District Pony Club site, Fred Caterson Reserve, Castle Hill" (“the site”).

3. The Office of Information Commissioner (the OIC") is an independent statutory appointment under the Government Information (Information Commissioner) Act 2009 (NSW). She exercises her right under section 104 of the GIPA Act to appear and be heard. In these proceedings Mr Lewis appeared on behalf of the OIC and made submissions in regard to the construction of the relevant provisions in the GIPA Act.

The Masterplan

4. In 2020, the Respondent generated a “Masterplan” for development of the site. The Respondent relies on evidence from its Principal Co-ordinator of Open Space and Recreation, Mr Robert Szoszkiewicz. In his affidavit dated 25 October 2023, Mr Szoszkiewicz explained:

In August / September 2020 Council exhibited a Master Plan for a site known as Fred Caterson Reserve with submissions from the public to be made by 11 September 2020.

That site includes a portion of land known as the Pony Club site as it used to be a Horse Riding Facility that has not been used as such since 2021.

The Master Plan includes a high level overview of the future development of the whole Fred Caterson Reserve, which also now contains the former Pony Club site (previously fully owned and controlled by NSW Crown Lands - Council is now responsible for its management under the Crown Land Management Act 2016, ownership remains with the Crown).

The proposed development of the former Pony Club site is just one component of the proposed embellishment of the entire Reserve. Other works across the Reserve includes an expansion to the Tennis Centre with additional courts, extension to Field 6 to a full size playing field, improved track and spectator facilities at the BMX Track, upgrade and extension to the Baseball Field, improved playing surface to Football / Cricket Fields, enhanced spectator facilities at Playing Fields, upgrade of the Radio Control Car Track, refurbishment of Amenities Buildings, improve cycling and walking tracks with some new links / connections, provide plaza / meet up spaces, upgrade playgrounds and improve circulation of roadways and car parking throughout the complex.

On 24 November 2020, following the public exhibition. Council by resolution, adopted the Master Plan.

Background to the access application

5. The Applicant’s reasons for wanting to obtain the reports are due to her concerns about the impact that proposed developments on the site could have on native flora and fauna. She is also concerned that the Respondent will not give adequate consideration to that impact.

The Determination

6. The Respondent has identified three documents (“the reports”) as falling within the scope of the access application:

1. Ecological Constraints Report dated May 2023

2. Arboricultural Assessment Report dated February 2023

3. Tree Hollow Inspection Report dated July 2023

7. The Respondent’s Governance Officer determined the access application and refused access to the reports. The decision stated:

Having considered the application and noting the considerations found at the Table of section 14 of the Government Information (Public Access) Act 2009, I confirm I have decided to refuse to provide access to the information sought because there is an overriding public interest against disclosure of the information.

Noting the above, I have found that there is a public interest consideration against disclosure of the information as disclosure of the information could have one or more of the following effects:

1. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (1e);

2. prejudice the effective exercise by an agency of the agency’s functions (1f);

3. prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed (4e); and/or

4. expose any person to an unfair advantage or disadvantage as a result of the premature disclosure of information concerning any proposed action or inaction of the Government or an agency (5e).

As you are no doubt aware, the documents you seek comprise external working documents, all of which form part of the deliberative processes of Council in redevelopment of the Fred Caterson reserve site. The release of the external working documents that comprise or form part of Council’s deliberative process, may prejudice the effective exercise of Council’s assessment function. I have therefore found that there is a public interest consideration against disclosure of the requested documents.

8. The decision provided no further details in regard to how the determination was reached. However, on the same day as the determination, the Governance Officer wrote to the Applicant and advised:

I note you made formal application for release of consultant’s reports concerning the redevelopment of the Pony site at Fred Caterson Reserve and access was denied.

If you submit an informal application to access the information at Council (view at Council) and sign a document agreeing that you will not disclose or disseminate any information related to the documents being accessed, permission may be granted.

9. The Applicant did not take up that offer.

The Respondent’s position.

10. The Respondent identified the reports as falling within the scope of the access application:

11. The Respondent relies on the overriding public interest considerations against disclosure in clauses 1(e), 1(f), 4(a), 4(b), 4(c), 4(d), 4(e), and 5(e) of the table to section 14 of the GIPA Act. The Respondent contends that disclosure of the information in issue could reasonably be expected to:

1. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, (clause 1(e));

2. prejudice the effective exercise by an agency of the agency’s functions, (clause 1(f));

3. prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed), (clause 1(h));

4. expose a person to an unfair advantage or disadvantage as a result of the premature disclosure of information concerning any proposed action or inaction of the Government or an agency, (clause 5(e));

5. undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market, (clause 4(a));

6. reveal commercial-in-confidence provisions of a government contract (clause 4(b));

7. diminish the competitive commercial value of any information to any person, (clause 4(c));

8. prejudice any person’s legitimate business, commercial, professional or financial interests, (clause 4(d)) and;

9. prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed), (clause 4(e)).

12. The Respondent does not propose that the requested information should never be released. It is opposed to the release at this time because of the potential impact on a tender process related to the site redevelopment. The Respondent contends that early access to the information in the reports could give rise to the following concerns:

1. A competitive advantage could be obtained by one company over another company who did not have access to the reports at an early stage;

2. Any competitive advantage creates unfairness in the tender process and the future tender process is likely to be prejudiced, and challenged by other tenderers;

3. The reports reveal parts of a critical decision making process internally of the Respondent, which will prejudice its effectiveness in conducting the functions it is required to carry out under the Local Government Act 1993;

4. By revealing crucial information to a tender process the community will lose confidence in the ability for the Respondent to undertake responsible decision making.

13. The Respondent accepts that information relating to the tender process may be released once the tender contract has been awarded.

The Applicant’s position.

14. Through her experience as a volunteer in a number of different areas, the Applicant has developed an understanding of the relationship between the native fauna a flora at the site and she is concerned that the proposed developments present threats that have not been given sufficient consideration. It is apparent that she is concerned about lack of transparency within the agency. She contends that the need for transparency is a consideration in favour of release of the withheld information.

15. The Applicant has provided a significant amount of material and has made detailed submissions in relation to issues to be determined.

16. In her application to the Tribunal the Applicant raised a number of issues in regard to the determination:

1. The Determination did not identify what documents were responsive to the application.

2. The Determination did not establish how it was determined that it could reasonably be expected that release of the documents would reveal a deliberation (1e); prejudice the functions of the Agency (1f); prejudice the conduct of research (4e); or expose a person to an unfair advantage (5e).

3. The Determination did not conduct a balancing test of the reasons for and against disclosure as required by Section 13 of the GIPA Act.

4. The Determination does not actually say with any precision which of the 4 parts of the table to section 14 it considered and determined could reasonably be expected to have the outcome which is claimed. It’s words were: one or more of the following effects.

17. As noted above, the Applicant is concerned about the concerned about the impact of development on the wildlife, the flora, the biodiversity, and the ecological balance within the bushland, and the lack of available information on the proposed development. She is concerned that the proposed development can occur without putting proper safeguards in place to ensure that these concerns are given appropriate consideration.

18. The Applicant relies on a number of articles and correspondence related to these issues.

19. In May 2023, the Friends of Fred Caterson Reserve presented an open Letter to Respondent, supported by a petition with over 15,000 petition signatories concerned about the impacts of the Master Plan. The open Letter raised a number of issues in relation to the Master Plan.

• Loss of community greenspace

• Environmental impacts

• Impacts of elite sport

• inappropriate inclusion of the rugby club facility.

• Use of synthetic surfaces

• Inadequate public consultation

20. In February 2023, a conservation officer on behalf of the Australian Plants Society NSW Limited wrote to the Respondent expressing concerns about the proposal to redevelop sporting facilities at the site. They advocated for the preservation of the 5 hectares of native vegetation threatened by the proposed development. The issues raised included:

• The proposed development will have adverse impacts on threatened ecological communities

• The proposed development will have adverse impacts on two threatened flora species

• The proposed development is contrary to the responsibility and requirement of the Hills Shire to protect biodiversity

• The proposed development is contrary to Commonwealth Biodiversity Goals

• The impacts to native vegetation cannot be sufficiently offset or mitigated

• The proposed development has ongoing impacts on remaining native vegetation

Applicable legislation

21. The object stated under section 3(1) of the GIPA Act is to open government information to the public by authorising and encouraging proactive public release of government information (section 3(1)(a)); and giving members of the public an enforceable right to access government information (section 3(1)(b)). It is the intention of Parliament that the GIPA Act be interpreted and applied so as to further its object: section 3(2)(a).

22. Section 5 of the GIPA Act provides that there is a presumption in favour of disclosure of government information.

23. Section 8 of the GIPA Act authorises an agency to release information held by it to a person in response to an informal request, unless there is an overriding public interest against disclosure of the information. The term “informal request” is not defined; however, section 8(1) makes it clear that an informal request is a request that is not an access application.

24. Generally speaking, the use or disclosure of information to which access is provided in response to an access application cannot be made subject to conditions: GIPA Act, section 73.

25. Section 9 of the GIPA Act provides that applicants for access to government information have a legally enforceable right to be provided with access to it unless there is an overriding public interest against disclosure.

26. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information that is not covered by overriding secrecy laws. The category of public interest considerations in favour of disclosure is not limited. Subsection 12(2) sets out several examples of public interest considerations in favour of disclosure.

27. Section 13 of the GIPA Act provides that there is an "overriding public interest against disclosure" of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. The balancing exercise set out in section 13 "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74].

28. Access is restricted only when there is an overriding public interest against disclosure: see Taylor v Destination NSW [2020] NSWCATAD 137 at paragraph [6].

29. Section 14(1) of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 to the GIPA Act. Section 14(1) is not applicable in this matter. The public interest considerations listed in the Table to section 14 of the GIPA Act are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

30. An agency can decide an access application in a number of different ways. Section 58 of the GIPA Act provides:

58 How applications are decided

1. An agency decides an access application for government information by—

(a)   deciding to provide access to the information, or

(b)   deciding that the information is not held by the agency, or

(c)   deciding that the information is already available to the applicant …, or

(d)   deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

(e)   deciding to refuse to deal with the application …, or

(f)   deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.

Note—

These decisions are reviewable under Part 5.

...

31. Pursuant to section 72 of the GIPA Act, access can be granted to information in a number of different ways. Pursuant to section 73(1) of the GIPA Act, access granted to the information released in response to an access application is to be unconditional. Generally speaking, the use or disclosure of the information cannot be made subject to conditions. Section 73 of the GIPA Act provides:

73 Access to be unconditional

1. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application.

2. A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information.

3. A condition may be imposed that access to medical or psychiatric information will only be provided to a medical practitioner nominated by the applicant and not to the applicant personally.

...

32. Part 5 of the GIPA Act provides for which decisions are reviewable. The decision under review is a reviewable decision in accordance with section 80(d) of the GIPA Act:

80 Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part—

…

(d)   a decision to provide access or to refuse to provide access to information in response to an access application,

…

33. The Tribunal's jurisdiction is enlivened by section 100 of the GIPA Act. Section 105 of the GIPA Act provides that the Respondent bears the onus of satisfying the Tribunal that its decision is justified.

34. The Tribunal’s function on review under section 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Public Interest Considerations in favour

35. The general public interest favouring the disclosure of government information is recognised by section 12(1) of the GIPA Act. The following public interest considerations in favour of disclosure of the withheld information are applicable in this matter:

1. The general public interest in favour of disclosure of government information.

2. The disclosure of the information could reasonably be expected to promote openness and transparency and accountability regarding the Respondent’s decision-making processes.

36. The Applicant has submitted that the following considerations in favour of disclosure of the withheld information are also applicable in the present matter:

1. The disclosure of the information could reasonably be expected to inform the public about the policies and practices of the Respondent when dealing with the public.

2. The disclosure may reveal a lack of transparency and community consultation.

3. The disclosure could inform the public about the policies and practices of the Respondent when dealing with the public.

4. The disclosure could demonstrate high environmental values which may be put at risk from the development of the site.

37. I accept that these considerations are relevant in this matter. I am satisfied that the issues that the Applicant has raised can be regarded as falling within these considerations. In my view, these considerations should be given reasonable weight.

Public Interest Considerations against disclosure

38. The Respondent relies on several public interest considerations listed in the Table to section 14 of the GIPA Act. The Respondent relies on the overriding public interest considerations against disclosure in clauses 1(e), 1(f), 4(a), 4(b), 4(c), 4(d), 4(e), and 5(e) of the table to section 14.

39. Clause 1 of the table to section 14 of the GIPA Act provides:

1. Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)—

…

(e)   reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,

(f)   prejudice the effective exercise by an agency of the agency’s functions,

...

40. Clause 4 of the table to section 14 of the GIPA Act provides:

1. Business interests of agencies and other persons

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects—

(a)    undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market,

(b)    reveal commercial-in-confidence provisions of a government contract,

(c)    diminish the competitive commercial value of any information to any person,

(d)    prejudice any person's legitimate business, commercial, professional or financial interests,

(e)    prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

41. Clause 5 of the table to section 14 of the GIPA Act provides:

1. Environment, culture, economy and general matters

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects--

…

(e)    expose any person to an unfair advantage or disadvantage as a result of the premature disclosure of information concerning any proposed action or inaction of the Government or an agency.

42. The public interest considerations against disclosure need to be examined at a broad operational level and that many of those considerations are concerned with systemic features of the operation of government: Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5.

43. The words ‘could reasonably be expected to’ require the Tribunal to determine whether the effect that is alleged to occur with disclosure of the information could reasonably be expected.

44. The term 'prejudice' has its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60].

The Respondent’s case.

45. As noted, the Respondent relies on the evidence of Mr Szoszkiewicz. Mr Szoszkiewicz provided two affidavits, attended the hearing and was cross-examined. The Respondent also relies on the affidavit of its Governance Officer Ms Mary Pereira. Ms Rose, the Respondent’s solicitor, also made submissions.

46. The Applicant relies on her own evidence. Mr Ryan, the Applicant’s solicitor, also made submissions.

Mr Robert Szoszkiewicz

47. Mr Szoszkiewicz provided evidence in relation to the Masterplan and the process adopted by the Respondent in relation to the development of the site. In his affidavit sworn 25 October 2023 (“October affidavit”), Mr Szoszkiewicz gave evidence that his team engaged experts to prepare advice to the Respondent. The advice was to enabling officers of the Respondent to set out specifications for the design of the site to be used to prepare a tender (“the Tender”). The tender would seek proposals for a contractor to carry out works to develop the site. The advice sought was to address:

• Ecological Constraints on the Site (to be prepared by an Ecologist)

• A Tree Hollow inspection of several trees on the Site (to be prepared by Ecologist); and

• An Arboricultural Assessment (to be prepared by an Arborist).

48. The intended tender process would be confidential, and the documents provided to tenderers would be provided on a commercial- in-confidence basis.

49. In his October affidavit, Mr Szoszkiewicz stated:

As at the date of making this Affidavit, the final specifications and plans for the site have not yet been finalised and/or disclosed to the Councillors as yet and once this is done, they may be submitted to Council for the purposes of a decision to be made and if approved, a resolution requiring the documents to be put out to tender.

These reports also form a part of larger reports and studies that the Council will need to obtain in various other areas that impact the site such as traffic and engineering and as those studies have not yet been completed it is unclear whether these reports will need to be reviewed and/or updated by the experts at a future date.

A number of studies in numerous disciplines will impact the overall and final design and specifications for the site prior to the tender process commencing.

Early access to the documents … may enable a contractor additional time to prepare a tender addressing the specifications which are to form part of the tender documentation. If that occurs the tender process can be prejudiced with the potential for an unfair advantage to occur to a future tenderer.

50. Mr Szoszkiewicz attached a copy of the Masterplan to his affidavit dated 13 December 2023 (“December affidavit”). He agreed that the Masterplan is a visionary document and that it could be expected that some aspects will be implemented and some will be changed. He stated that at the time that the Master Plan was exhibited, the Respondent had sought expressions of interest (“EOI”) for a registered club to make a proposal in relation to the site. An EOI submission was received from the Eastwood District Rugby Union Football Club (“the Rugby Club”) before the closing date. Mr Szoszkiewicz agreed that the Rugby Club’s EOI and the assessment of the EOI were not made public. He did not dispute that there had been changes to a number of aspects of the Masterplan as presented in recent designs or that some impact could result from those changes. With respect to the proposal for the inclusion of sporting fields in the development, he stated:

Whilst the layout of the rugby fields varies between the Master Plan and the recent designs shown on Council’s website, these are still considered to be substantially the same design in that they propose the same number of playing fields (3), amenities buildings, car parking, pathways and spectator facilities.

The main difference relates to a small footprint impact on the bushland but they do not alter the emphasis of design on protecting the CEEC (“Critically Endangered Ecological Community’’)

The Master Plan has always been made available via Council’s website, both in draft form during public exhibition and since adoption.

A Dam de-watering ecological report was prepared and adhered to in accordance with legislation. Ecological consultant was present on site during the dam de-watering.

Council is entitled to undertake works on the site as proposed under the State Environmental Planning Policy (Transport and Infrastructure) 2021 for a base level facility with or without the Eastwood Rugby Club involved.

If Eastwood were to deliver the facility proposed that goes beyond a base level facility then some aspects of it, which are not covered in the SEPP, would require a DA. This is what occurred on another site in Kellyville.

The Council may consider the final design before determining to progress to the tender stage.

If that is reported to Council in a public forum, the matter including final design will be available to the public to view, and under normal protocol, an opportunity to address the Council may be granted.

51. Under cross-examination, Mr Szoszkiewicz agreed that further advice needs to be obtained in relation to traffic flow from a traffic engineer, as well as advice in relation to flora and fauna social impact. This advice has not yet been obtained or considered. He agreed that the tender document will only be finalised when all the advice has been received and considered.

52. His evidence was that the Respondent wants major sporting codes to have a presence in the facility. An EOI submission was received from the Rugby Club but any other EOIs would have also been considered if received.

53. Mr Szoszkiewicz agreed that the current design may not be the final design that goes to tender and that the Respondent might decide against a proposal. He agreed that there is no guarantee that the public would see the final design. However, there could be an opportunity for public comment on an SEPP proposal. He agreed that documents published on the Respondent’s website could assist in the preparation of a tender. He also accepted that if the reports were released and placed on the Respondent’s website, the risk of an advantage to potential tenderers would be removed.

Mary Pereira

54. As noted, Ms Pereira is the Respondent’s Governance Officer who determined the Applicant’s access application. She provided an affidavit which set out the process of the determination and confirmed her view in relation to the potential consequences of releasing the reports. That view is consistent with her determination of the access application.

55. She stated in her affidavit:

I considered the application and determined that the Reports requested were studies commissioned by the Council for the purpose of consultation with and deliberation by the Councillors at a future Council meeting to make decisions in relation to the site that they relate to as well as for Council officers to use that information to inform their designs of the site for a future tender process for a contractor to undertake the works in respect of the Master Plan for the site.

The tender process has not yet occurred.

I am aware that Council officers are still in the process of acting on the advice and recommendations in those Reports in order to carry out their functions relating to a future tender process and/or report to Council, which I understand will include these reports. Once they consider and use that information, they will make a decision by way of Council resolution to award the tender contract. Accordingly, I refused to release those reports.

...

The release of the information on a public basis may prejudice the tender process which is yet to be finalised, in that if a potential contractor were to access the information in the reports before other contactors had access to the information, they may have advance time to prepare the response to tender. This would be unfair for the other tenderers. As set out above, the tender process has not yet been finalised, and the Council has not yet resolved to release a tender for works to be carried out in accordance with the Master Plan that has been adopted by Council.

56. Ms Pereira did not provide any evidence in support of her belief that release of the withheld information on a public basis may prejudice the tender process.

Respondent’s Submissions

57. Ms Rose provided both written and oral submissions in support of the Respondent’s case.

58. With respect to the issue of non-disclosure of the MOU, she submitted that it is a public document on the Respondent’s website. However, there is no requirement to invite submissions on a non-binding agreement.

59. With respect to the Masterplan, it is submitted that the Masterplan is a reference document which sets out a vision. The plan can change and no further consultation is required prior to the tender. Documents will be released as part of the tender process and there may be additional public consultation. The issue for the Respondent is how the disclosure of the reports is done. That is, the timing of any release is important. Once information is released, the Respondent no longer has control over the information. The Respondent contends that the appropriate time for release of the reports is when all tenderers are given access. No preference should be given to any tenderers.

60. Further, it is not appropriate to publish a deliberative document. To do so would create a problem with respect to how to use the documents to prepare the tender.

61. Ms Rose points to the discussion by Deputy President Higgins in Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 (“Barangaroo”). The Deputy President stated at paragraph [53]:

Application of the public interest test

In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [24] and [25], the Appeal Panel noted the structured approach within the GIPA Act to the question of whether an agency has properly refused access. In that regard the Appeal Panel said the following:

24 Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused.

25 The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government.

62. The Deputy President considered a number of public interest considerations against disclosure at paragraphs [56] – [75].

1. As set out above, the public interest considerations in cl 1 and cl 4 of the table to subs 14(2) of the GIPA Act are predicated with the words - 'could reasonably be expected to' have the prescribed effect as set out in one or more of the paragraphs in each clause. It is accepted that these words are to be given their ordinary meaning and 'require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous': see Attorney-General's Department v Cockcroft (1986) 10 FCR180, 64 ALR, per Bowen CJ and Beaumont J, at 190 and 106, as applied in McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61], Re Lobo and Department of Immigration and Citizenship (2011) 124 ALD 238, at [62] to [64] and [74], Nature Conservation Council v Department of Trade and Investment, Regional Infrastructure and Services (NSW) [2012] NSWADT 195 at [146], Hurst v Wagga Wagga City Council [2011] NSWADT 307, at [56] and [57] and Woodhouse v City of Sydney Council [2012] NSWADT 95 at [32] to [34].

   63. In Barangaroo at paragraph [61], in reference to discussion in the matter of Attorney-General's Department v Cockcroft (1986) 10 FCR180, 64 ALR, the Deputy President stated:

2. In my view, the approach adopted by their Honours above, remains the correct approach in determining whether the disclosure of information 'could reasonably be expected to' have one or more of the effects as prescribed in the clauses in the table to subs 14(2) of the GIPA Act. That is, the inquiry is not whether the occurrence of the prescribed effect is likely, possible or probable. The inquiry is whether the expectation of the claimed effect is reasonably based (cf the approach in Nature Conservation Council (supra), at [179]).

   64. The Deputy President considered a number of the public interest considerations against disclosure on which the Respondent relies. She stated at paragraphs [62] – [75]:

3. The public interest considerations in favour of disclosure examples in subs 12(2), I note, are also predicated with the words 'could reasonably be expected' to 'promote', 'enhance', inform' and 'insure' public discussion, Government accountability etc. The term 'could reasonably be expected' in this context must have the same meaning.

   ...

4. Clause 1(e) reveal an opinion, advice, or recommendation so as to prejudice a deliberative process of government or an agency

This public interest consideration against disclosure is only relied by BDA, in respect of the disclosure of the information in the KPMG Report.

1. In order for this public interest consideration against disclosure to apply, it is necessary to establish a connection between the particular opinion, advice or recommendation and the relevant deliberative process of the agency: see Van der Wall v University of Sydney [2008] NSWADT 213 at [36] and Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at [58] to [61].

...

1. Clause 4(b) reveal commercial-in-confidence provisions of a government contract

   The word 'reveal' is defined in cl 1 of Schedule 4 of the GIPA Act as follows:

   reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).

2. For the purpose of Government contracts, 'confidential information' is defined in s 32 of the GIPA Act to include the 'commercial-in-confidence provisions' of the contract. These are defined in cl 1 of Schedule 4 of the GIPA Act as follows:

   commercial-in-confidence provisions of a contract means any provisions of the contract that disclose:

   (a) the contractor's financing arrangements, or

   (b) the contractor's cost structure or profit margins, or

   (c) the contractor's full base case financial model, or

   (d) any intellectual property in which the contractor has an interest, or

   (e) any matter the disclosure of which would place the contractor at a substantial commercial disadvantage in relation to other contractors or potential contractors, whether at present or in the future.

1. To the extent the disputed deleted information is also information deleted from the copy of the PDA on BDA's website, BDA and LL argue that this information is a 'commercial-in-confidence provision' in that Agreement and hence the information, as it appears in the documents in these proceedings should be treated as such. In my view, consideration needs to be given to each deletion as to whether a disclosure of that information could reasonably be expected to have the prescribed effect, as asserted by BDA and LL, and if it does whether, on balance it outweighs the public interest in favour of disclosure. That is, the fact that the parties have determined that a provision in the PDA falls within the abovementioned description of a 'commercial-in-confidence provision' in the Agreement is not conclusive and even if it does, the public interest test must still be applied to see where the balance lies.

2. Clause 4(c) diminish the competitive commercial value of the information

   In McKinnon v Blacktown City Council [2012] NSWADT 44 at [79] and [80], the Tribunal noted that the words 'commercial value' were modified by the adjective 'competitive' and after considering the ordinary meaning of that word, said:

   "Competitive commercial value" therefore connotes information of commercial value gained in, or relating to, a competitive commercial or business context, including competitive information relating to the competitive purchase and provision of government services.

3. In Nature Conservation Council (supra), at [160], the Tribunal held that the descriptor 'competitive' implied that the information would need to provide the person with a competitive edge.

4. In McKinnon (supra), at [78], the Tribunal accepted the following meanings of the term 'commercial value':

   • 'if [the information] is valuable for the purposes of carrying on the commercial activity in which the entity is engaged' (Sitel and Employment Advocate (2005) 40 AAR 552 at 561 and Cannon and Australian Quality Egg Farms Ltd (1994) QIC 94 at 16),

   • 'if a genuine arms-length buyer is prepared to pay [to] obtain the information' (Sitel and Employment Advocate (2005) 40 AAR 552 at 561, citing Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491), and

   • 'capable of being described as commercial in character' (Mangan and the Treasury [2005] AATA 898 [36]).

5. Clause 4(d) prejudice a person's legitimate business, commercial or financial interests

   There is no dispute that the disputed information largely concerns the legitimate business, commercial or financial interests of BDA, LL, BM and/or KPMG in so far as the information relates to their respective business, commercial or financial interests. The issue is whether a disclosure of that information could reasonably be expected to prejudice those interests. In some instances, I have found that the asserted prejudice was not reasonably based.

The Applicant’s case.

65. The Applicant relies on her own evidence. Her solicitor, Mr Ryan, also provided written and oral submissions.

66. The Applicant lives near the site and has been a user of the site over many years. In recent years she has volunteered with WIRES Inc as a native wildlife rescuer and rehabilitator and at the Respondent’s nursery in Baulkham Hills planting, potting and propagating native plants for use by the Respondent’s contractors on bush regeneration or development sites. She has also volunteered with the Birdlife Australia Powerful Owl Project, to monitor the breeding pair of Powerful Owls in Fred Caterson Reserve.

67. The Applicant values the wildlife in the bushland and is concerned about the impact of development on the wildlife, the flora, the biodiversity, and the ecological balance within the bushland.

68. In 2020, the Respondent generated a “Masterplan” for development of the Fred Caterson Reserve. The Applicant submitted an objection to the development because of the potential impact to all species and impact on the Powerful Owl in particular.

69. The Applicant later became aware that there was a Memorandum of Understanding (“MOU”) with the Rugby Club to build a premier facility on the site.

70. She expressed concern that the MOU was not disclosed in the Masterplan, nor was there any mention of the Rugby Club in the Masterplan, nor has the MOU proposal ever been publicly exhibited. The Applicant stated that the Masterplan contains the ‘vision’ for the rugby fields. However, a significantly different revised proposal that has never been on public exhibition can be found on the Respondent’s webpage.

71. The revised proposal identifies some vegetation as Critically Endangered Ecological Community (“CEEC”) and notes that some will be removed however, it does not identify the type of CEEC.

72. The Applicant also expressed concern that works began on the Pony Club site without notice to residents. Buildings were removed and the dam was drained. As a result, wildlife was left to struggle.

73. In October 2023, at a public information meeting, the Respondent’s Mayor stated that the Development Approval process will comply with environmental legislation and would only proceed if it complied with legislation and guidelines. This was confirmed by the General Manager, who advised that no Development Approval application had been submitted, and that the proposed fields had not been allocated.

74. In November 2023, the Mayor described the process for development using the State Environment Planning Policy (Transport and Infrastructure) 2021 (“the SEPP”) to prepare the Pony Club site with future development by the Rugby Club to be subjected to the Development Approval process. The Respondent has subsequently stated that the SEPP will be the legislative pathway to carry out the works and will be accompanied by a review of environmental factors.

75. The Applicant is concerned that by following the SEPP pathway the Respondent can carry out construction of the rugby fields without consents. She is concerned about the lack of information and refusal to provide answers, public consultation or even copies of reports commissioned by the Respondent for this site.

The Applicant’s submissions

76. Mr Ryan made detailed written submissions. The essence of the Applicant’s case is that the Respondent has provided no real and substantial grounds to support any of its contentions and has instead relied on mere statements that a particular effect could occur.

77. He submitted that the Respondent is required to demonstrate that each of the grounds cited can reasonably be expected to result in the outcome. He referred to the views expressed by Senior Member Higgins in Adams v Commissioner for Police [2022] NSWCATAD 178. She stated at paragraph [61]:

As noted above, the s 14(2) public interest considerations against disclosure are dependent on whether the disclosure of the information in issue ‘could reasonably be expected to’ have the effect as prescribed in the relevant clause in the Table to that subsection. This is to be assessed objectively and approached from the view point of a reasonable decision maker and based on real and substantial grounds and not something that is purely speculative, fanciful, imaginary or contrived: Neary v State Rail Authority [1999] NSWADT 107, at [35]; Searle Australia Pty Ltd v PIAC [1992] FCA 241, at [43]; (1992) 108 ALR 163 and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].

78. Further, he notes that the Appeal Panel in Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 stated at paragraph [59]:

Based on these authorities when considering the evidence on which it is asserted that disclosure “could reasonably be expected” to have a particular effect, the following principles should be kept in mind:

1. a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

2. there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

3. prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

   79. Mr Ryan noted that the evidence of Mr Szoszkiewicz demonstrates that:

   • the tender process is not complete. The withheld reports form part of a larger suite of studies including traffic and engineering which have not yet been completed. It is not yet clear whether withheld reports will need to be reviewed and or updated.

   • the final plans and specification for the sporting fields tender had not been finalised.

   80. Mr Ryan submitted that it is clear that the withheld reports have been commissioned prior to the final specification being drawn up and their release at worst would provide a potential tenderer with a broad brush ecological report. He further submitted that the reports are likely to only provide background to the formation of a project design which is to be put out to tender but the reports are not the tender documents.

   81. Mr Ryan also provided detailed submissions in relation to each of the asserted public considerations against disclosure of the withheld information and contrasted these with the considerations in favour of disclosure.

Consideration

82. The Respondent relies on the public interest considerations against disclosure in clauses 1(e), 1(f), 4(a), 4(b), 4(c), 4(d), 4(e), and 5(e) of the table to section 14 of the GIPA Act. As I have noted above, the onus of proof rests with the Respondent. Each element of a consideration against disclosure must be satisfied.

83. Section 5 of the GIPA Act provides that there is a presumption in favour of disclosure of government information. Section 9 of the GIPA Act provides that applicants for access to government information have a legally enforceable right to be provided with access to it unless there is an overriding public interest against disclosure.

84. The presumption in favour of disclosure must prevail unless the Respondent is able to satisfy the Tribunal that there is an overriding public interest against disclosure.

85. As noted by the Appeal Panel in Newcastle City Council v Newcastle East Residents Action Group, a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient. There must be real and substantial grounds supporting an opinion. Prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

86. The Respondent has provided submissions in regard to the withheld information. However, the only evidence provided in relation to the asserted public interest considerations against disclosure of the withheld information is that given by Mr Szoszkiewicz and Ms Pereira.

87. Both Mr Szoszkiewicz and Ms Pereira expressed the view that the asserted pubic interests against disclosure apply to the reports. However, they have provided very little evidence to substantiate those views. In fact, under cross-examination, Mr Szoszkiewicz conceded that he did not have evidence to support his opinions.

Clause 1 Public interest considerations against disclosure

88. Clause 1 of the table to section 14 of the GIPA Act concerns responsible and effective government. Relevantly, it provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,

(f) prejudice the effective exercise by an agency of the agency's functions

Clause 1(e)    reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process

89. There are two elements to the consideration under Clause 1(e). Firstly, the information must reveal a deliberation, consultation, advice or recommendation – the internal thinking – of an agency; Fire Brigade Employees’ Union v Fire & Rescue (NSW) [2014] NSWCATAD 113. Secondly, the disclosure of that information must reasonably be expected to prejudice a deliberative process; South Dural Residents and Ratepayers Group Inc v Roads and Maritime Services [2019] NSWCATAD 83 at [42]–[47].

90. A relevant connection must be established between the deliberation as contained in the withheld information and the Respondent's 'deliberative processes': see Fire Brigade Employees' Union v Fire and Rescue NSW at paragraphs [57] – [58].

91. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action: see Re Waterford and Department of the Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588 at [58] to [61].

92. The evidence before me does not explain what deliberations might be revealed if the reports were released. It appears that the Respondent obtained the reports to allow it to prepare the tender documentation and that the deliberation stage has not yet been reached.

93. I accept that in order to obtain the reports, it is likely that the Respondent would have engaged in a consultation process with the authors of the reports and that the reports contain “an opinion, advice or recommendation”. I accept that this element of the clause 1(e) consideration is satisfied.

94. However, the Respondent also needs to establish how the disclosure of the information contained in the reports would prejudice its deliberative process. The Respondent’s witnesses have expressed an opinion that this would be the consequence of releasing the information, but they have not identified what deliberative processes would be involved or how those processes would be prejudiced. In my view, there is no evidence to show that there is more than a hypothetical risk of this outcome.

95. In the circumstances, I am not satisfied that Clause 1(e) of the table to section 14 of the GIPA Act should be given weight as a public interest consideration against disclosure of the withheld information.

Clause 1(f) - prejudice the effective exercise by an agency of the agency's functions

96. Clause 1(f) relates solely to the reasonably expectation of prejudice to the effective exercise of the agency's functions concerning the information sought to be disclosed. The clause requires an agency to establish that the release would prejudice the effective exercise of its functions. In Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48 the Tribunal accepted that Clause 1(f) applied as disclosure of the communications in the form sought by the applicant could reasonably be expected to prejudice the exercise of the Service's functions.

97. In AMH v Western New South Wales Local Health District [2013] NSWADT 282 the withheld information related to the investigation of a complaint of bullying and harassment. The Tribunal accepted that the disclosure of information in that case would prejudice the agency's future management of human resource issues requiring disciplinary investigations and on the day to day operations of the agency.

98. In Jenkinson v Department of Education and Communities [2013] NSWADT 280 the Tribunal accepted that disclosure of information in question could reasonably be expected to prejudice the effective exercise by the respondent of its functions in respect of the health and wellbeing of staff.

99. In the present matter, it is unclear which functions would be impacted by disclosure of the withheld information or how the disclosure would prejudice the exercise of the Respondent's functions. A mere statement that disclosure could reasonably be expected to have a particular effect is insufficient. In my view, there is no evidence to show that there is more than a hypothetical risk of this outcome.

100. In the circumstances, I am not satisfied that Clause 1(f) of the table to section 14 of the GIPA Act should be given weight as a public interest consideration against disclosure of the withheld information.

Clause 4 Public interest considerations against disclosure

101. Clause 4 of the table to section 14 of the GIPA Act concerns business interests of agencies and other persons. Relevantly, it provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects -

(a) undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market,

(b) reveal commercial-in-confidence provisions of a government contract,

(c) diminish the competitive commercial value of any information to any person,

(d) prejudice any person's legitimate business, commercial, professional or financial interests,

(e) prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

Clause 4(a) - undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market

102. In Murphy v Broken Hill City Council [2015] NSWCATAD 135, the Tribunal considered the expression ‘undermine competitive neutrality’ at [34] – [36]:

1. The first alternative requires the effect of ‘undermining competitive neutrality’ to be in connection with any function of an agency. No submissions were provided about the relevant function. I am unable to ascertain the function for the reasons given at paragraph 17.

2. The term ‘competitive neutrality’ used in the first alternative is used under the section heading ‘business interests of agencies and other persons’. In that context, it is a non-legal term with a technical meaning. The term is to be interpreted with regard to the Competition Principles Agreement which underpins the National Competition Principles. Council is bound by the Agreement: Clause 7.

3. The objective of competitive neutrality policy is set out in Clause 3 of the agreement as “the elimination of resource allocation distortions arising out of the public ownership of entities engaged in significant business activities: Government businesses should not enjoy any net competitive advantage simply as a result of their public sector ownership.”

   103. In Cianfrano v Director General, NSW Treasury [2005] NSWADT 7, O'Connor DCJ said at paragraph [63]:

4. The Tribunal is satisfied that the commercial affairs of an agency can include transactions such as the leasing and sale of property vested in it, and related negotiations.

   104. At paragraph [67] he found that the release of documents likely to reveal the Government's approach to developing a price for negotiation in the sale of an asset could reasonably be expected to affect the conduct of potential purchasers in a way adverse to the public's interest in obtaining an appropriate price.

   105. The Tribunal took a similar view in Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55. Handley ADP stated at paragraph [38]:

5. In my view, the evidence establishes that the documents containing information about the valuation of the site, including as to projected development expenditure, costings, and estimated revenue from its sale, contain information concerning the business, commercial or financial affairs of the DET. Revenue generated by the sale of DET property is, according to Mr Peace's evidence, invested in school capital works and maintenance programs. The evidence of all three witnesses is that the disclosure of such information could reasonably be expected to have an adverse effect on the ability of the DET to obtain the best possible market price for the site because tenderers are likely to tender at a price closely related to the agency's valuation. I am satisfied that this would result in an unreasonable adverse effect on the DET's the business, commercial or financial affairs.

   106. In Meriton Property Services Pty Ltd v UrbanGrowth NSW [2017] NSWCATAD 71, I was not satisfied that there was a situation of competitive neutrality that could be undermined by the release of the information. I stated at paragraphs [123] – [125]:

1. ... I accept that UrbanGrowth would be placed at a relative disadvantage in comparison with the private sector as a result of the need to comply with the GIPA Act. However, if UrbanGrowth has a competitive advantage as a result of its public ownership and the ability to obtain public land without purchasing that land for valuable consideration, it raises questions about whether any competitive neutrality exists.

2. It appears that if the withheld information is released, all potential tenderers would be placed in a similar position as Meriton. There would be no benefit to Meriton in comparison to the other potential tenderers.

3. In these circumstances it is difficult to identify what impact the release of the withheld information would have on any competitive neutrality. It may be that UrbanGrowth has a competitive advantage and that the advantage would be diminished by release of the information, however if that is the case the release of the information would not be undermining competitive neutrality but rather it would be undermining competitive advantage.

   107. The evidence before me does not address these issues. In these circumstances it is difficult to identify what impact the release of the withheld information would have on any competitive neutrality. In my view, the Respondent is in a similar position to that of the agency in Meriton Property Services Pty Ltd v UrbanGrowth NSW. In the circumstances, I am not satisfied that Clause 4(a) of the table to section 14 of the GIPA Act should be given weight as a public interest consideration against disclosure of the withheld information.

Clause 4(b) - reveal commercial-in-confidence provisions of a government contract

108. The evidence before me does not address these issues. In these circumstances it is difficult to identify what government contract is said to be involved. It is clear that the tender process has not commenced. It is not clear that the Respondent has entered any relevant contract yet or if it has entered a contract, what commercial-in-confidence provisions might be revealed.

109. The exemption does not apply to references in notes of meetings to matters that might, at the end of the negotiation process, find their way into a concluded contract: Assn for Berowra Creek Inc v Department of Lands [2009] NSWADT 157.

110. It is difficult to identify what impact the release of the withheld information would have on a government contract. A mere statement that disclosure could reasonably be expected to have a particular effect is insufficient. It follows that the Respondent has not satisfied the onus in relation to the is clause.

111. In the circumstances, I am not satisfied that Clause 4(b) of the table to section 14 of the GIPA Act should be given weight as a public interest consideration against disclosure of the withheld information.

Clause 4(c) - diminish the competitive commercial value of any information to any person.

112. In order to establish that this consideration applies it is necessary to establish that the withheld information has a competitive commercial value and that, if so, it’s competitive commercial value would be diminished if the information were disclosed. These are questions of fact.

113. The information will have a "commercial value" if it is valuable for the purposes of carrying on the business: Nature Conservation Council v Department of Trade and Investment, Regional Infrastructure and Services (NSW) [2012] NSWADT 195 at paragraph [161]. The use of the descriptor “competitive” implies that the information would need to provide the person with a competitive edge.

114. The Tribunal has held that the use of the adjective “competitive” in clause 4(c) “connotes information of commercial value gained in, or relating to, a competitive commercial business context, including competitive information relating to the competitive purchase and provision of government services”: McKinnon v Blacktown City Council [2012] NSWADT 44at [79]-[80], see also Elf Farm Supplies Pty Ltd v Department of Planning and Environment [2018] NSWCATAD 277.

115. In Media Research Group Pty Ltd v Department of Premier and Cabinet [2011] NSWADTAP 7 the Appeal Panel stated at [48]:

1. In our view, information of “commercial value” would ordinarily be information with a proprietary character, information of an internal character (such as specialised statistics) or information the product of some unique or special intellectual processes of a high order that might fall below the level of a “trade secret”. There should, as we see it, be some uniqueness attaching to the information that justifies treating it as exclusive, secret or confidential.

   116. In the present matter, the evidence does not address these issues. In these circumstances it is difficult to identify what information of “commercial value” is said to be involved. It is also difficult to identify what impact the release of the withheld information would have on any commercial value of information to any person. It follows that the Respondent has not satisfied the onus in relation to the is clause.

   117. In the circumstances, I am not satisfied that Clause 4(c) of the table to section 14 of the GIPA Act should be given weight as a public interest consideration against disclosure of the withheld information.

Clause 4(d) - prejudice any person's legitimate business, commercial, professional or financial interests.

118. Clause 4(d) has commonly been the subject of applications with respect to the release of information concerning the affairs of others, rather than those of the agency that holds the relevant information. Whether or not this consideration applies will turn on the particular facts of the case.

119. In Woodhouse v City of Sydney Council [2012] NSWADT 95 the Tribunal dealt with an application seeking information concerning a sponsorship proposal that the agency had been received from Walt Disney Company Australia Pty Ltd in regard to its Mary Poppins Musical. The recommendation was made that the agency should provide sponsorship support and the applicant sought access to information related to the recommendation. The Tribunal stated at [48]:

1. [T]there is a strong public interest in the public being informed about how the Council expends its funds, regardless of whether it is in the form of value-in-kind or revenue forgone. In my view, this interest is satisfied in that the information as to the nature of the sponsorship and its total value has been disclosed. On the other hand, disclosure of the specific values of each item within the sponsorship package and the basis on which the values were calculated, could reasonably be expected to effect the business and commercial interests of the Council and as a consequence adversely affect the community in regard to major events being hosted in Sydney.

   120. In AIN v Medical Council (NSW) [2013] NSWADT 112 the Tribunal accepted that disclosure of hourly rates of counsel engaged by the agency would prejudice the legitimate business and commercial affairs of the counsel. At paragraph [127] Judicial member Isenberg stated:

2. ... in addition to the general public interest in favour of the disclosure of government documents, there is a public interest in the amount spent by agencies on legal services; the respondent submitted that that public interest is satisfied by the disclosure of the total amount of the invoices issued by the counsel. I accept that there is little in favour of release of counsels' hourly rates, while the economic harm to those counsel may be significant. In those circumstances, I accept that there is an overriding public interest against disclosing information as to their hourly rates and information which would allow those hourly rates to be calculated ...

   121. In DDL v Mid-Western Regional Council [2018] NSWCATAD 2, the Tribunal dealt with an application for access to an ICAC report that concerned the applicant. The report stated that no findings of corrupt conduct were made. The Tribunal stated at paragraphs [57] - [61]:

3. DDL gave evidence of the implications for his professional career and financial interests should the report be disclosed. His evidence was unchallenged. ...

4. The contents of the report lead him to believe that if they were disclosed, his contract of employment would be terminated.

...

1. I accept that adverse impacts upon a person's professional reputation which could disadvantage their future employment prospects come within "professional and financial interests" (Pemberton v Macquarie University [2014] NSWCATAD 76).

2. In my view certain parts of the report could reasonably be expected to make it more difficult for DDL to retain or obtain new employment in certain roles. On the basis of DDL's evidence, which was not challenged, I am satisfied that the disclosure of the report as a whole, even excluding those adverse sections outlined above, could reasonably be expected to prejudice DDL's legitimate professional and financial interests to some extent, although whether it would go so far as to lead to termination of his current employment was unclear.

   122. In the present matter, it is not clear what legitimate business, commercial, professional or financial interests are said to be involved. Similarly, the evidence does not indicate how those interests might be prejudiced by release of the withheld information.

   123. In Zonnevylle v NSW Department of Finance and Services [2015] NSWCATAD 175 the Tribunal I stated at paragraph [77]:

3. In my view, the redacted information includes details about the tenderer's strengths and weaknesses, or specific information about a company, which might be used by that company's competitors in future tenders. For those reasons I am satisfied that disclosure of the information could reasonably be expected to “diminish the competitive commercial value of any information to any person” or to “prejudice any person's legitimate business, commercial, professional or financial interests”.

   124. If the Respondent had progressed to the tender stage, the circumstances would be different. If that were the case it might be arguable that the tenderer's information could potentially be legitimate business, commercial, professional or financial interests. However, I am not satisfied that the Respondent has satisfied the onus in relation to this clause.

   125. In the circumstances, I am not satisfied that Clause 4(d) of the table to section 14 of the GIPA Act should be given weight as a public interest consideration against disclosure of the withheld information.

Clause 4(e) - prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed)

126. In order to establish that this consideration against disclosure is applicable, it is necessary for the Respondent to identify the relevant research that is said to be prejudiced by release of the withheld information.

127. The meaning of the term “research” in 4(e) is as a noun. The Macquarie Dictionary defines research as:

•   noun 1. diligent and systematic inquiry or investigation into a subject in order to discover facts or principles: research in nuclear physics.

128. It is not in dispute that the withheld information comprises reports that have been prepared by consultants. The reports comprise surveys or assessments. The Respondent has not presented evidence that establishes that the reports contain “research” as defined.

129. I agree with Mr Ryan’s submission that research in clause 4(e) of the Table to Section 14 has a different meaning than the commissioning of a consultant’s report for an environmental assessment. In 4(e) research is intended to mean an undertaking conducted in order to discover what was not known previously. That is, in an academic sense. It is not concerned with a survey or assessment of environmental constraints present at a particular site and the production of a report on what is present in order to guide operations decisions.

130. Nevertheless, even if the withheld information can be classified as research, it is not clear how the release of that information would prejudice the conduct, effectiveness or integrity of the research.

131. In Meriton Property Services Pty Ltd v UrbanGrowth NSW I considered this provision in regard to an application for access to a Tender Evaluation Report. I found that clause 4(e) was applicable and I stated at paragraphs [157] – [158]:

1. Mr Beggs’ evidence is that historical analysis and related research undertaken by UrbanGrowth led to the formulation of the evaluative formulas, evaluation methodologies and weighting criteria which were taken into account in the assessment the bids. He is of the view that disclosure of the Tender Evaluation Report would reveal the research that underpins those evaluative formulas, evaluation methodologies and weighting criteria. He says that that disclosure could reasonably be expected to prejudice the conduct of UrbanGrowth’s future tender processes.

2. Mr Beggs’ evidence in regard to the research underlying the formulas, evaluation methodologies and weighting criteria is based on his personal experience and is unchallenged. I accept that evidence.

   132. In the present matter, the Respondent has not provided evidence of the type that I referred to in the Meriton Property Services Pty Ltd v UrbanGrowth NSW decision. A mere statement that disclosure could reasonably be expected to have a particular effect is insufficient. I am not satisfied that the Respondent has satisfied the onus in relation to this clause.

   133. In the circumstances, I am not satisfied that Clause 4(e) of the table to section 14 of the GIPA Act should be given weight as a public interest consideration against disclosure of the withheld information.

Clause 5 Public interest considerations against disclosure

134. Clause 5 of the table to section 14 of the GIPA Act concerns environment, culture, economy and general matters. Relevantly, it provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects -

…

(e) expose any person to an unfair advantage or disadvantage as a result of the premature disclosure of information concerning any proposed action or inaction of the Government or an agency.

Clause 5(e) - expose any person to an unfair advantage or disadvantage as a result of the premature disclosure of information concerning any proposed action or inaction of the Government or an agency.

135. The Respondent contends that the release of the reports might give some prospective tenderers who were able to obtain access to the information an advantage over other prospective tenderers who did not have that access. Mr Szoszkiewicz agreed that he did not have any evidence to support this view.

136. Mr Szoszkiewicz agreed that documents published on the Respondent’s website could assist in the preparation of a tender. In response to a question from the Tribunal, he also accepted that if the reports were released and placed on the Respondent’s website, the risk of an advantage to potential tenderers would be removed.

137. In South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services [2019] NSWCATAD 83, Senior Member Hamilton accepted that this consideration applied. He stated at paragraph [79]:

This document contains high level (but detailed) estimates regarding strategic properties which may be impacted. The claims for application of Table items 1(e), 1(f), 4(c) and 5(e) are made out on the evidence of the agency. I would accord these considerations very great weight, strongly outweighing considerations in favour. The agency’s decision is affirmed.

138. The withheld information in the present matter does not fall into that category. Nevertheless, in the circumstances, I am satisfied that the release of the reports could result of the premature disclosure of information concerning proposed action by the Respondent.

139. However, it is also necessary for the Respondent to establish that disclosure of the information could reasonably be expected to expose any person to an unfair advantage or disadvantage. Mr Szoszkiewicz’s evidence was that the release of the information could possibly give an unfair advantage to some prospective tenderers. I am not satisfied that this outcome could reasonably be expected given that the tender process has not commenced, and a considerable amount of information remains to be obtained. There is no guarantee that the information that is contained in the reports would still be current at the time that the tender documents are released. In those circumstances, prospective tenderers may well undertake their own information gathering exercises rather than simply rely on the reports.

140. In any event, any potential unfair advantage to some prospective tenderers can be removed by publishing the withheld information on the Respondent’s website.

141. In the circumstances, it is my view that this public interest consideration against disclosure should be given minimal weight.

Balancing the considerations

142. Section 13 of the GIPA Act provides for a balancing exercise involving public interest considerations against disclosure and those in favour of disclosure. The balancing exercise requires the weighing of the competing considerations.

143. I have identified that the only public interest consideration against disclosure that is applicable in this matter is that in clause 5(e) of the table to section 14 of the GIPA Act. As I have noted, it is my view that the clause 5(e) consideration should be given minimal weight.

144. When this consideration is balanced against the considerations in favour of release of the information, taking account of the presumptions in sections 5 and 9 of the GIPA Act, I am satisfied that the public interest consideration in favour of disclosure of the withheld information outweigh those public interest consideration against disclosure.

145. The correct and preferable decision is that the Respondent’s decision should be set aside. In its place the decision should be made that the withheld information is to be released.

Orders

1. The decision under review is set aside.

2. The withheld information is to be released to the Applicant no later than 28 days from the date of this decision.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 14 June 2024