Thompson v Ministry of Transport
[2009] NSWADT 185
•15 July 2009
CITATION: Thompson v Ministry of Transport [2009] NSWADT 185 DIVISION: General Division PARTIES: APPLICANTS
RESPONDENT
Gary Frederick Thompson and Cory Frederick Thompson
Ministry of TransportFILE NUMBER: 093030 HEARING DATES: 22 June 2009 SUBMISSIONS CLOSED: 3 July 2009
DATE OF DECISION:
15 July 2009BEFORE: Handley R - Deputy President CATCHWORDS: Access to documents – business affairs – residual discretion LEGISLATION CITED: Freedom of Information Act 1989
Passenger Transport Act 1990
Administrative Decisions Tribunal Act 1997CASES CITED: Ranier Pty Ltd v NSW Casino Control Authority [2007] NSWADT 118
Fulham v Director-General, Department of Environment and Conservation [2005] NSWADT 88
Young v Wicks (1986) 79 ALR 448
Vincent Neary v State Rail Authority [1999] NSWADT 107 Lawrence v Port Stephens Council [2008] NSWADT 243
University of NSW v McGuirk [2006] NSWSC 1362
Cianfrano v Director General, Premier’s Department [2007] NSWADT 216
University of NSW v McGuirk (No 2) [2008] NSWADTAP 8REPRESENTATION: APPLICANT
RESPONDENT
C Jackson, counsel
G Shirm, solicitorORDERS: The decision under review is set aside and the Tribunal orders the Respondent to release the documents in dispute to the Applicants.
1 Gary Thompson and his son Corey Thompson (‘the Applicants’) have applied to the Tribunal for the review of a decision of the Ministry of Transport (‘the Respondent’) made under the Freedom of Information Act 1989 (‘the FOI Act’) to refuse access to documents sought by the Applicants on the ground that the documents were exempt because they contained information concerning the business affairs of another person.
Background
2 On 11 August 2008, the Applicants’ solicitor, acting on their behalf, completed a FOI request for access to eight specified documents, which was received by the Respondent on 21 August 2008. By an undated letter, the Respondent’s FOI Officer, Pauline Ross, notified the Applicants that, on 29 September 2008, she had determined to release two documents to the Applicants in full, but to refuse access to the other six documents on the ground that these were exempt by reason of the business affairs exemption in Sch 1, cl 7(1)(c) of the FOI Act. The six documents to which access was refused are as follows:
1. Application for transfer of taxi-cab or private hire vehicle licence dated 19 June 2007.
2. Agreement for sale of taxi licence dated 28 May 2007.
3. Application for transfer of taxi-cab or private hire vehicle licence dated 27 September 2007.
4. Agreement for sale of taxi licence dated 16 November 2007.
5. Application for transfer of taxi-cab or private hire vehicle licence dated 27 September 2007.
6. Agreement for sale of taxi licence dated 16 November 2007.
3 The two documents released to Mr Thompson were a chart titled “Ordinary Country Licence Valuation Process” and a file note from Peter Gunton dated 18 December 2007. The file note states:
“Advice has been received from the Licensing and Accreditation section that there have been three recent sales of 50 year taxi licences in Broken Hill.
* $299,500 on 20 June 2007
* $300,000 on 26 November 2007
* $300,000 on 26 November 2007
This constitutes sufficient sales data on which to base a market value for a 50 year licence. Given that Ministry policy dictates that the fee for a 12 month short-term licence equates to 14% of the 50 year licence’s market value, the short-term licence fee is derived as follows.
(299,500 + 300,000 + 300,000)/3 = 299,833* 0.14 = $41,977.
Recommendation
That $41,977 is the fee for a Broken Hill 12 month short-term taxi licence.”
4 On 4 December 2008, the Applicants sought an internal review of Ms Ross’s decision. The Respondent failed to determine the internal review within 14 days and, on 9 February 2009, the Applicants lodged an application for review of the deemed decision by the Tribunal. An internal review officer subsequently affirmed the initial determination on 12 March 2009.
5 The Tribunal conducted Planning Meetings with the parties on 24 March 2009 and 15 April 2009, at which directions were given for the exchange of documents. A hearing was held on 22 June 2009, at the conclusion of which I gave directions for the filing of further evidence by the Applicants, namely a further statement by Gary Thompson, by 26 June 2009, and for the Respondent to file any further submissions, limited to matters raised by Mr Thompson in his further statement, by 3 July 2009.
The Relevant Legislation
6 The objects of the FOI Act are stated in s 5, as follows:
5 Objects
(1) The objects of this Act are to extend, as far as possible, the rights of the public:
(2) The means by which it is intended that these objects are to be achieved are:
(a) to obtain access to information held by the Government, and
(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.
(3) It is the intention of Parliament:
(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and
(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and
(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.
(4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.
(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and
(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.
7 Pursuant to s 16(1) of the FOI Act, “[a] person has a legally enforceable right to be given access to an agency’s documents”. However, s 25(1)(a) states that an agency “may refuse access to a document” if it is an “exempt document”, the onus being on the agency to establish this (s 61). Section 25(4) provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and it appears to the agency that the FOI applicant would wish to be given access to such a copy.
8 Section 6(1) defines ‘agency’ as including a Government Department, and ‘exempt document’ as including a document referred to in any one or more of the provisions of Sch 1. The exempt documents in Sch 1 include, relevantly, those affecting business affairs set out in cl 7(1)(c), which are relied on by the Respondent in these proceedings:
7 Documents affecting business affairs
(1) A document is an exempt document:
(a) ...
(a1) ...
(b) ...
(c) if it contains matter the disclosure of which:
(i) would disclose information (other than trade secrets, commercial-in-confidence provisions or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and
(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.
Evidence
9 The Applicants filed statements from Gary Thompson dated 4 June 2009 and 23 June 2009. The Respondent filed statements from David Tooze dated 12 May 2009 and 19 June 2009, and a statement from Pauline Ross dated 13 May 2009. None of the witnesses were called to give evidence at the hearing.
Gary Thompson
10 In his statement dated 4 June 2009, Mr Thompson stated that he owns one “taxi plate” in Broken Hill and his son, Corey Thompson, holds one short-term taxi licence and one short-term wheel chair taxi licence. These licenses are the foundation of their taxi business in Broken Hill, trading as Independent Taxis, which runs three taxis.
11 Mr Thompson said there is one other taxi business in Broken Hill known as Broken Hill Yellow Taxis, which is operated by Terry Capper. Mr Thompson said, to his knowledge, there are a total of 20 taxi licenses in Broken Hill plus a number of short-term licenses. Broken Hill has a population of about 19,000. Mr Capper is the owner/operator of 19 taxi licenses. Mr Thompson purchased his taxi licence from Ian Riley in February 2002 for the sum of $75,000. Prior to June 2007, this was the last taxi licence sold in Broken Hill.
12 Attached to Mr Thompson’s statement is the result of a Business Names search for ‘Broken Hill Yellow Radio Cabs’ showing the persons carrying on the business as Mr Capper and Robyn Grace Capper who, Mr Thompson states, is Mr Capper’s wife. Also attached to Mr Thompson’s statement is the result of a search of the Australian Business Names (‘ABN’) Register showing the family partnership ‘T & RG Capper’ trades as ‘Broken Hill Yellow Radio Cabs’.
13 Mr Thompson said he has searched through trade papers for information on taxi licenses currently for sale in country NSW. There is one licence for sale in Moree (approximate population 10,000) for $95,000, and there are four licenses for sale in Yass (approximate population 13,000) for a total of $420,000, equivalent to $105,000 each. Mr Thompson said, in his view, the sale price of a taxi licence in Broken Hill is between $80,000 and $90,000.
14 In his further statement dated 23 June 2009, Mr Thompson referred to Mr Tooze’s statement (summarised below). He attached to his statement copies of ASIC searches for four companies. The first search is in respect of Kedai Bunit Susu Investment Pty Ltd, showing that the sole director of that company is Brandon John Buyrn, who, Mr Thompson states, is Mr Capper’s stepson. The contact address for ASIC use is Locked Bag 2 Norwood SA 5067. The second search is in respect of Deestan Investments Pty Ltd, showing that the sole director of that company is Deonne Gebhardt, who, Mr Thompson states, is employed by Mr Capper “as a taxi base operator and payroll clerk”. The contact address for ASIC use is Locked Bag 2 Norwood SA 5067, and the registered office for the company is 338 Crystal Street, Broken Hill, which, Mr Thompson states, is the address for the garage for Broken Hill Yellow Radio Cabs.
15 The third search is in respect of Crabbapple Investments Pty Ltd, showing that the sole director of that company is Allan Gilmore Crabb, who, Mr Thompson states, “is a good personal friend of Terry Capper”. The contact address for ASIC use is Locked Bag 2 Norwood SA 5067, and the registered office for the company is 338 Crystal Street, Broken Hill, the address for the garage for Broken Hill Yellow Radio Cabs. The fourth search is in respect of Samphire Pty Ltd, which according to Mr Tooze, is the listed owner of 12 taxi licenses in Broken Hill. The sole director of this company is Terry Capper and the registered office of the company is 338 Crystal Street, Broken Hill.
Pauline Ross
16 In her statement dated 13 May 2009, Ms Ross said she is the Ministry’s Director of the Ministerial Coordination and its FOI Coordinator. When, in July 2007, the Applicants previously applied for access to the eight documents, two third parties were identified as persons whose business affairs might be affected by the granting of access to the documents. Those third parties were consulted and Ms Ross attached their responses to her statement. [Both objected to the release of the documents, including on the basis that release would adversely affect their business affairs.] In relation to the FOI application under review in this matter, Ms Ross said as the documents sought were of the same class as those sought in the Applicants’ previous FOI application, consultation was not undertaken again.
David Tooze
17 In his statement dated 12 May 2009, Mr Tooze said he is the Ministry’s Acting Manager, Regulation and Compliance, responsible for the management of taxi-cab licenses. He said the six documents sought by Mr Thompson to which access was refused, were provided to the Respondent as evidence of the sale of the licenses for the purpose of calculating the dutiable amount on the transfer of the licenses in accordance with s 44 of the Passenger Transport Act 1990 (‘PTA’). Usually, the contract for sale of a licence will include the value of a licence, of the vehicle and of other fittings associated with the taxi-cab. Except for the purpose of s 44 of the PTA, the Ministry would not require the parties to a transfer of a taxi-cab licence to provide these documents to it.
18 To his statement dated 19 June 2009, Mr Tooze attached a list of the last three sales of taxi licenses in each of different regions of country NSW in the past three years. [The price paid for these licenses varies widely from a low of $5,000 in Bourke on 29 August 2006, to a high of $660,000 in Coffs Harbour, Sawtell on 12 October 2007.] Mr Tooze said in his experience, “there is no correlation between the population of an area and the fee for a taxi licence”. Mr Tooze also attached a list of all taxi licence owners in Broken Hill. [This list confirms that there are 20 taxi licenses and two short-term licenses in Broken Hill. Of the 20 taxi licenses, one licence is owned by Gary Thompson, 12 licenses are owned by Samphire Pty Ltd, four licenses by Terry Capper, and one licence each by Kedai Bunit Susu Investment Pty Ltd, Deestan Investments Pty Ltd and Crabbapple Investments Pty Ltd. The two short term licenses are owned by Corey Thompson.]
The Applicants’ Submissions
19 Mr Jackson noted that Broken Hill Yellow Radio Cabs is the dominant player in the taxi-cab business in Broken Hill. Mr G Thompson has been operating a taxi in Broken Hill for a number of years. In January 2008, he was informed that the short-term licence fee for his son’s licenses would increase nearly fourfold from approximately $12,000 to $41,977, based on the sale of three taxi licenses in 2007. The method of calculating this fee used by the Respondent assumes these sales represent the market value of the relevant licenses. Mr Thompson has evidence suggesting that the sales were not arms’ length commercial transactions and believes the three sales do not represent the market value of the licenses. The documents evidencing the sales will assist in determining whether the transactions represent true market value and whether it was appropriate for the Respondent to rely on them in setting the short-term licence fee.
20 Mr Thompson’s evidence is that the first of the three recent sales referred to by the Respondent, to Kedai Bunit Susu Investment Pty Ltd, is to a company associated with Terry Capper’s stepson, Brandon John Buyrn, which will be operated by Broken Hill Yellow Radio Cabs, the business owned by Mr Capper and his wife, Robyn Grace Capper. The second sale, to Deestan Investments Pty Ltd, is to a company associated with Deonne Gebhardt who, Mr Thompson states, works in Mr Capper’s taxi business as an administrator. The third sale is to Crabbapple Investments Pty Ltd, a company associated with Allan Gilmore Crabb, who, Mr Thompson states, works for ‘Repco’ in Broken Hill and is a friend of Mr Capper’s. Both Deestan’s and Crabbapple’s licences are operated by Broken Hill Yellow Radio Cabs.
21 Mr Jackson said the Applicants concede that disclosure of the documents would disclose information concerning the business affairs of third parties, thereby satisfying cl 7(1)(c)(i). However, the Applicants contend that any adverse effect resulting from release of the documents would not be unreasonable (cl 7(1)(c)(ii)). First, the price of the sale of the three taxi licenses has already been revealed. Either the documents sought will reveal nothing to undermine the assumption that the sale prices did not represent the true value of the transactions, or they may reveal the contrary. While that knowledge could undermine the price prospective purchasers would be prepared to pay for a licence, it would only be because misleading values have been tempered with more accurate information.
22 With regard to any adverse effect on the third parties’ business, Mr Jackson said one should bear in mind that Broken Hill is a small country town in which only a small number of taxis operate and where it is the dominant player, Broken Hill Yellow Radio Cabs, that has the market power. Mr Jackson said the adverse effect on third parties suggested by the Respondent is exaggerated in circumstances where the sale price for the licenses is already known. The Respondent has not demonstrated how knowledge of the purchase arrangements in relation to three taxi licenses could possibly allow a competitor to arrange their business to adversely impact on the business of the purchasers of the licenses. Moreover, it is not unreasonable for a potential licensee to know more than the “headline sale price” of the taxi licenses so that any negotiations can be based on accurate rather than partial information. Such consequences would not constitute an unreasonable adverse effect.
23 Mr Jackson submitted that in the light of the particular circumstances of this case, the Tribunal should find that the documents sought are not ‘exempt’. However, if the Tribunal finds they are ‘exempt’, this is precisely the sort of case where, because of the special circumstances, the Tribunal should exercise its residual discretion to release the documents. In Broken Hill, where there is one dominant taxi operator who, essentially, controls the market, it is in the public interest that there should be transparency in disclosing relevant information affecting how decisions to determine short-term licence fees are made, especially where such decisions will affect the ability of the only other operator to compete in the market.
24 Mr Jackson submitted there is also a public interest in Mr Thompson’s genuinely and strongly held opinions being either confirmed or assuaged. Broken Hill Yellow Radio Cabs were involved in each of the three sales in question and the stated sale prices have dramatically affected Mr Thompson’s family business, Independent Taxis’ ability to compete because it is not viable to lease taxi licenses at the revised monthly licence fee. Mr Thompson is entitled to understand the circumstances surrounding the three sales that founded the decision to increase his licence fees. It is precisely this sort of situation that provides the rationale for the FOI Act.
The Respondent’s Submissions
25 The Respondent relies on the business affairs exemption set out in cl 7. Ms Shirm said the documents in issue are intrinsically of a commercial, business and financial nature, created in the course of a commercial transaction between two private parties. They contain details of the amount for which the taxi licenses were sold, the terms of the sales and the purchasers’ business structures, and are not documents that would ordinarily be in the public domain, having been supplied only to facilitate the operation of s 44 of the PTA and the calculation of duty payable on the transactions.
26 Ms Shirm noted that the Applicants do not dispute that disclosure of the documents would disclose information concerning the third parties’ business affairs (cl 7(1)(c)(i)). The focus, therefore, is on whether disclosure could reasonably be expected to have an unreasonable adverse effect on those affairs (cl 7(1)(c)(ii)). Ms Shirm noted that the affairs of the Applicants are not relevant to this issue and there is no public interest aspect. It is not for the Tribunal to determine whether the three taxi licence sales in Broken Hill in 2007 were at arms length. There are other avenues for the Applicants to appeal against the 12 month short-term licence fee, for example, pursuant to s 52 of the PTA. However, Ms Shirm noted Mr Tooze’s evidence of recent taxi licence sales in country NSW and that there is not necessarily any correlation between the size of a town and the price of a taxi licence. His evidence indicates that the price at which the Broken Hill licenses were sold is in the same ‘ballpark’ as those sold elsewhere in NSW.
27 The Respondent submits that disclosure of the documents would have an unreasonable adverse effect on the third parties’ business affairs. Where documents are disclosed under FOI, there is no restriction on the disclosure, which, in this case, would reveal information to competitors that could be used to adversely affect the third parties’ business, and their ability to obtain a favourable price if the licenses were sold at a later date. While the FOI Act allows a right of access to documents, this needs to be weighed against the rights of third parties to confidentiality for their documents.
28 With regard to the residual discretion, Ms Shirm submitted there are no ‘special, overriding or strong’ considerations warranting disclosure of the documents in this case. She referred to the decision of the Tribunal in Ranier Pty Ltd v NSW Casino Control Authority [2007] NSWADT 118 (‘Ranier’), at [77], where the Tribunal considered it “difficult to envisage circumstances in which the disclosure might be appropriate” where documents had been found to be exempt under cl 7(1)(c) because of the matters required to be demonstrated before the exemption is available.
Consideration
29 I have reviewed the six documents claimed by the Respondent to be exempt pursuant to the business affairs exemption in cl 7 of Sch 1 of the FOI Act. As indicated above, there are two documents in respect of each of the three taxi licence sales: an application to the Respondent for transfer of the licence from one person to another, and a copy of the ‘Agreement for Sale’ of the licence.
30 For a document to be exempt under cl 7(1)(c), first, the document must contain information concerning the business, professional, commercial or financial affairs of any agency or other person (cl 7(1)(c)(i), as to which see, for example, Fulham v Director-General, Department of Environment and Conservation [2005] NSWADT 88, at [29], and Young v Wicks (1986) 79 ALR 448, at [453]). Secondly, disclosure of the information “could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency” (cl 7(1)(c)(ii)).
31 There is no dispute that the documents in issue contain information concerning the business affairs of third parties to the present proceedings. With regard to whether disclosure of the information could reasonably be expected to have an unreasonable adverse effect on those affairs, the Tribunal must adopt an objective approach and the expectation must be more than a mere risk: Vincent Neary v State Rail Authority [1999] NSWADT 107, at [35], discussed in Lawrence v Port Stephens Council [2008] NSWADT 243, at [27].
32 The Respondent submits that disclosure of the documents could reasonably be expected to have an unreasonable adverse effect on the business affairs of the third parties. In her statement, Ms Ross said that two third parties were identified and consulted in relation to an application for access to the same class of documents made by the Applicants in July 2007, and attached their responses to her statement. Those third parties – Brandon Buyrn of Kedai Bunit Susu Investment Pty Ltd, and Terry Capper – both objected to the release of the documents.
33 I note that the Agreements for Sale of the three licenses were provided to the Respondent for the purpose of providing evidence of the amount paid for the licence, thereby facilitating the calculation of the tax payable on the transfer of the licence which, pursuant to s 44(1) of the PTA, is 2.5% of the “current market value” of the licence.
34 The ‘Application for Transfer of Taxi-Cab Licence or Private Hire Vehicle Licence’ form is a two page document, Part A being completed by the present owner, in this case, of the taxi-cab licence, and Part B by the proposed new owner. Bearing in mind the information already disclosed by the Respondent (the amount paid for the licenses) or publicly available (for example, as a result of a Business Names search), apart from including the licence details and the names, addresses and witnessed signatures of those involved and the amount paid for the licence, I am not satisfied that there is any information in the form the disclosure of which could reasonably be expected to have an adverse effect on the business affairs of the parties involved in the transaction. Thus, I am not satisfied that the three ‘Application for Transfer’ forms are exempt documents pursuant to cl 7(1)(c) of the FOI Act.
35 With regard to the ‘Agreement for Sale of Taxi Licence’ for each of the three licenses, all three appear to be similar in their form and terms. In my view, the agreements do contain information pertaining to the business affairs of the parties, in particular as to the arrangements between the parties for the financing of the transactions. The question is whether disclosure of that information would have an unreasonable adverse effect on their business affairs. As the Respondent pointed out in its submissions, an adverse effect for these purposes “is almost inevitably of a financial nature” (submissions at [13]). And as stated above, in considering this question, an objective approach must be adopted and the expectation must be more than a mere risk.
36 In my view, a relevant matter is the circumstances in which taxi operators conduct their businesses in Broken Hill. The evidence is that there are two taxi operators in Broken Hill, Broken Hill Yellow Radio Cabs, utilising 19 taxi licenses, and Independent Taxis, utilising one taxi licence and two short-term licenses. Given that the Applicants in these proceedings are the holders of the licenses utilised by Independent Taxis, which is a relatively small operator by comparison with Broken Hill Yellow Radio Cabs, I am not satisfied from the evidence presented by the Respondent that disclosing the Agreements for Sale could lead to competitors targeting the third parties’ businesses, to competitors arranging their business to adversely impact on the third parties’ businesses, or to competitors hampering the ability of the third parties to obtain a favourable price or terms when on-selling or assigning their licenses.
37 The Respondent has not, in my view, established that disclosure of the Agreements would have an unreasonable adverse effect on the third parties’ business affairs or, in particular, on their financial affairs. While the information that will be disclosed on release of these documents may well be considered private financial information, that in itself is not sufficient to justify relying on the exemption in cl 7(1)(c). Thus, I am not satisfied that the three ‘Agreements for Sale’ are exempt documents pursuant to cl 7(1)(c) of the FOI Act.
38 Even if I am wrong in so determining, this is a case in which, in my view, there are strong grounds for exercise of the residual discretion. By virtue of s 63(2) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) and s 25(1)(a) of the FOI Act, the Tribunal has a residual discretion to release documents otherwise found to be exempt pursuant to Sch 1 of the FOI Act, and, in such a case, must consider whether to exercise its discretion to do so: University of NSW v McGuirk [2006] NSWSC 1362, at [102] (per Nicholas J).
39 In Cianfrano v Director General, Premier’s Department [2007] NSWADT 216, at [24], O’Connor P summarised the relevant principles:
“the following principles to guide the exercise of the discretion have emerged:
(1) The Tribunal must first ascertain whether the matter is exempt matter.
(2) The Tribunal should only exercise the power to decline to refuse disclosing exempt matter where there are strong grounds justifying the overriding of the exemption.
(3) The question of whether there are strong grounds should take account of the objects of the FOI Act as expressed in section 5.
(4) ...
(5) ...”
40 The President noted that the objects clause of the Act (s 5) now has a greater degree of prominence than previously in Tribunal decisions. He said, at [27]:
“Practical circumstances that might influence the Tribunal to exercise the discretion include:
- whether the exempt matter was, by other means, in the public domain
- whether the circumstances that had made the exempt matter sensitive at the time it was refused remain current or significant
- the nature of the government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity
- the public interest in an informed debate on issues of significance to the community
- whether there were adverse consequences for the proper administration of government, and their extent
- whether any adverse consequence is remote or innocuous.”
41 In University of NSW v McGuirk (No 2) [2008] NSWADTAP 8, at [18], the Appeal Panel said:
“As with most discretionary powers, the decision maker must identify and weigh relevant considerations before making a decision. The FOI Act requires discretions be exercised, as far as possible, so as to facilitate the disclosure of information: section 5(3)(b). Consistently with the objects of the FOI Act , and the means by which those objects are to be achieved, it can be assumed that the exemptions were included because parliament considered that they were "reasonably necessary for the proper administration of the Government". In that sense, the balancing exercise between competing public interest considerations has already been undertaken. Nevertheless, a relevant consideration when exercising the discretion is whether there is a reason, particular to the circumstances of the case, for giving access to such documents. That reason needs to be sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of Government. In that sense, it may be described as special, overriding or strong: See Department of Premier and Cabinet v Hulls [1999] VSCA 117; Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55.)”
42 Ms Shirm referred to the decision of the Tribunal in Ranier, at [77], where Pearson JM considered it “difficult to envisage circumstances in which the disclosure might be appropriate” where documents had been found to be exempt under cl 7(1)(c) because of the matters required to be demonstrated before the exemption is available. A reading of that decision, which also addressed exemptions claimed under Sch 1, cl 13(b) in respect of documents containing information obtained in confidence (for which public interest is a relevant consideration), indicates, however, that the focus in that case, in relation to the exemption claimed under cl 7(1)(c), was on whether the disclosure of the documents in issue could reasonably be expected “to prejudice the future supply of such information to the Government or to an agency”. In my view, the Judicial Member’s comment at [77] must be read in the context of the evidence and exemptions claimed in that case which were materially different from those in the present matter.
43 Turning then to the facts of the present case, and bearing in mind the objects of the FOI Act stated in s 5, I am satisfied that there are special or strong grounds justifying overriding the cl 7(1)(c) exemption. Clearly, there is a public interest in having a competitive market for taxi services in Broken Hill. Thus, in my view, there is a public interest in relevant information affecting that market, such as information taken into account in the determination of short-term licence fees, being available to the public on request in the interests of openness and accountability. I note Ms Shirm’s comment that the purchase price for the three Broken Hill taxi licenses was in the ‘ballpark’ of prices in other NSW country towns. However, as she pointed out, it is not my role to comment on whether or not that is the case. My role is to undertake a review of a decision made on a FOI request for access to documents.
44 In this case, the Applicants are concerned that the purchases of the three taxi licenses were not arms length transactions, with the consequence that those prices do not reflect a true market value. The effect of this would be that the data used by the Respondent to determine the short-term licence fees was flawed. In these circumstances, I am satisfied that the Agreements for Sale of the Taxi Licenses, which contain particulars of the purchase price, contain relevant information affecting the competitive market for taxi services in Broken Hill. Given that the Agreements for Sale of the Taxi Licenses were produced to the Respondent for the purpose of facilitating the determination of the tax payable on the transfer of the taxi licenses as required by law pursuant to s 44(1) of the PTA, I am not satisfied that disclosure of the documents would have adverse consequences for the proper administration of government.
Decision
45 The decision under review is set aside and the Tribunal orders the Respondent to release the documents in dispute to the Applicants.
7
3