Viva Energy Australia Ltd v Northern Sydney Local Health District

[2016] NSWCATAD 72

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Viva Energy Australia Ltd v Northern Sydney Local Health District [2016] NSWCATAD 72
Hearing dates:	On the papers
Date of orders:	18 April 2016
Decision date:	18 April 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	1   The application is dismissed; and 2   The Decision under review is affirmed.
Catchwords:	Government information - access application - whether public interest considerations against disclosure out weight the public interest considerations in favour of disclosure - prejudice a deliberative process of government - prejudice legitimate business and commercial interests
Legislation Cited:	Government Information (Public Access) Act 2009 Civil and Administrative Tribunal Act 2013
Category:	Principal judgment
Parties:	Viva Energy Australia Ltd (Applicant) Northern Sydney Local Health District (Respondent)
Representation:	Solicitors: Ashurst Australia (Applicant) Hicksons Lawyers (Respondent)
File Number(s):	1510283

Reasons for decision

Background

1. An access application was made under the Government Information (Public Access) Act 2009 (“the GIPA Act”) to the Northern Sydney Local Health District (“the NSLHD”) on behalf of the Friends of Gore Bay. The access application sought:

Any document (or attachment thereto) provided to the Department of Health by or on behalf of Shell Australia in relation to the Human Health Risk Assessment at the Shell Gore Bay Terminal since 16 March 2012

Health and Exposure Study Gore Bay Terminal Final Report by Tim Driscoll, Elmatom Pty Ltd, Nov 2008

Report of Stephenson Environment Management Australia dated 16 December 2011 entitled Ambient Air Quality Monitoring Program Project No 4840/S19296/11

2. Viva Energy operates a petroleum product importation and distribution network in NSW. The Gore Bay Terminal, located in the suburb of Greenwich, is a facility operated by Viva Energy. The Gore Bay Terminal receives petroleum products by ships which are unloaded and sometimes stored at the terminal before being transported further downstream by pipeline. The Gore Bay Terminal has operated continuously for more than a century.

3. At the time of the NSLHD decision which is the subject of these proceedings, Viva Energy was the proponent of the Gore Bay Terminal Modification State Significant Development (“SSD”) Project. In May 2015, Viva Energy gave notice that it had decided not to progress its SSD Project. That notice does not preclude Viva from reviving its SSD project at some time in the future.

4. Some residents are opposed to the Gore Bay Terminal and to Viva Energy's proposed project. This opposition centres around the Friends of Gore Bay (“FOGB”). The access applicant is an officer of FOGB and made the access application in that capacity.

5. In response to the access application the NSLHD identified a number of documents as falling within the scope of the request. The NSLHD decided to release some information and decided to refuse access to other information. The NSLHD decision was to release the information identified in relation to points two and three of the access application and to refuse access to information identified in relation to point one of the access application.

6. An application was made to the Information Commissioner seeking review NSLHD's decision to refuse access to documents identified as documents numbered 1, 2, 4, 5, and 18 in the schedule to the NSLHD decision. The Information Commissioner’s report recommended that the NSLHD make a new decision having regard to matters raised and guidance given in the report. After taking account of views expressed by the Commissioner, NSLHD took the decision to release documents 1, 2, 4, 5, and 18 (“the Documents” or “the Subject Documents”).

7. The NSLHD advised Viva Energy Australia Ltd (“Viva Energy”) of the decision to release the Documents. Viva Energy objected to the release of the documents and requested a review of NSLHD's decision. It objected to the release of the documents on the following basis:

1. for the purposes of clauses 1(e) and (f) of the table to section 14 of the GIPA Act, the premature disclosure of the Documents would reveal a deliberation and consultation in such a way as to prejudice a deliberative process of government; and

2. for the purposes of clause 4(d) of the table to section 14 of the GIPA Act, the disclosure of the Documents would prejudice Viva Energy's legitimate business and commercial interests.

8. The NSLHD decided to release the documents notwithstanding Viva Energy's objections.

9. Viva Energy has sought external review of the determination pursuant to section 100 of the GIPA Act as a person aggrieved by the NSLHD's decision.

10. It seems that Documents 1 and 5 have already been released. The NSLHD explained the circumstances of that release in its written submissions. Viva Energy has identified the documents in issue as:

(a)   An email of 21 May 2013 from Lesley Randall at Aecom (a firm of environmental consultants retained by Viva Energy) to Michael Staff of NSLHD, and an attached letter of 17 May 2013 from Aecom to Michael Staff, subject: "Gore Bay Terminal Modification - Human Health Risk Assessment Response to Ministry of Health Comments" (“Document 2”).

(b)   Aecom briefing notes dated 26 March 2013, subject: "Human Health Risk Assessment (HHRA)" (“Document 4”)

(c)   An Aecom document dated 23 April 2013 labelled "DRAFT" and titled "Gore Bay Terminal Modification Human Health Risk Assessment, Greenwich, NSW" (“Document 18”)

11. Each of the parties has lodged written submissions in support of their case. I also have two volumes of material filed by the NSLHD comprising copies of all the NSLHD's documents relating to decision. The Documents in dispute are included in that material.

The Tribunal's task is to make the correct and preferable decision in this matter having regard to all the material before it. The Tribunal is not limited to the information that was available to the decision maker at the relevant time. It may decide to:

(a)   affirm the NSLHD's Decision; or

(b)   vary the NSLHD's Decision; or

(c)   set aside the NSLHD's Decision and substitute a different decision; or

(d)    set aside the NSLHD's Decision and remit the matter for reconsideration by the NSLHD in accordance with any directions or recommendations of the Tribunal.

12. I was satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other material provided to the Tribunal. Accordingly, an order has been made dispensing with a hearing pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013 and the matter is to be determined on the basis of the material filed.

Applicable legislation

13. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. An access applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: section 9(1) of the GIPA Act.

14. Section 12 of the GIPA Act sets out the general public interest consideration in favour of access to government information. Section 12(1) of the GIPA Act sets out a general public interest in favour of disclosing government information. Section 12(2) provides that the agency may take into account any other considerations in favour of disclosure which may be relevant.

15. Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure. Before deciding whether to release or withhold information, an agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists in regard to the information sought. Section 13 requires the decision maker to:

a.    identify relevant public interest considerations in favour of disclosure,

b.   identify relevant public interest considerations against disclosure,

c.   attribute weight to each consideration for and against disclosure, and

d.   determine whether the balance of the public interest lies in favour of or against disclosure of the government information.

16. The Agency must apply the public interest test in accordance with the principles set out in section 15 of the GIPA Act:

a.    agencies must exercise their functions so as to promote the object of this Act.

b.    agencies must have regard to any relevant guidelines issued by the Information Commissioner.

c.    the fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

d.    the fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

e.    In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

Public interest considerations in favour of disclosure

17. Section 12 of the GIPA Act provides some examples of public interest considerations in favour of disclosure of information. In its notice of decision, the NSLHD identified two of those considerations as in favour of disclosure of the information in issue:

a.   Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

b.   Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

18. In its submissions the NSLHD also identified the following public interest consideration in favour of disclosure of the information:

c.   In addition to these public interest considerations in favour of disclosure, it is important that the public understand and have faith in public health risk assessments performed by government agencies. Being able to access the information used by a government agency for that purpose encourages that understanding and is another public interest consideration in favour of disclosure.

Public interest considerations against disclosure

19. The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act. This includes considerations set out in schedule 1 to the GIPA Act.

20. Considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the effect outlined in the table to section 14 of the GIPA Act.

21. In its notice of decision, the NSLHD identified the following public interest consideration against disclosure of the information:

release of this information could reasonably be expected to 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.

22. The table to section 14 of the GIPA Act relevantly 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):

(a) …

(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

….

4 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) …

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

...

Viva Energy's submissions

23. In its application to the Tribunal, Viva Energy asserted the following public interest considerations against disclosure of the information:

a.   disclosure of the Documents would prejudice a deliberative process of government; and

b.   disclosure of the Documents would prejudice legitimate business and commercial interests.

24. In support of that position it argued:

Consideration 1 - Prejudice to a deliberative process of government

The relevant deliberation by government which would be prejudiced by the Disclosure of the Subject Documents is the consultation process for the Environmental Impact Statement which Viva is preparing in order to apply for development consent for the Gore Bay Terminal Modification Project (the Project).

The consultation process is complex and multifaceted. A crucial element of the process is for a range of specialist government agencies to be consulted and to provide advice on technical elements of the Project which fall within their expertise. In the case of NSLHD, its advice will be important in assessing any public health impacts of the Project. Viva's position is that the public disclosure of the Subject Documents at this time would amount to a premature, piecemeal disclosure of a small part of the documentary picture that NSLHD will ultimately take into account in providing advice on the public health impacts of the Project.

Such premature disclosure is intrinsically likely to prejudice the orderly, measured consideration of the relevant issues by NSLHD, because, upon disclosure, the opponents of the Project will make submissions to NSLHD which force it to focus on the Subject Documents in isolation, rather than as part of the complete documentary picture. For that reason, Viva submits that the Tribunal would be satisfied, for the purposes of clause 1(e) of the table to s 14 of the GIPA Act, that disclosure of the Subject Documents would prejudice a deliberative process of government.

It follows as a necessary corollary that the disclosure would also prejudice the effective exercise of NSHLD's functions for the purposes of clause 1 (f) of the table to s 14 of the GIPA Act.

Consideration 2 - Prejudice to Viva Energy's legitimate business and commercial interests

The Project has been the subject of a well-organised campaign of opposition, centred around the group Friends of Gore Bay, of which the access applicant under the GIPA Act is a member. The disclosure of the Subject Documents would provide an opportunity for the opponents of the Project to selectively quote the Subject Documents, including quotation from passages containing out-of-date information, to create a misleading impression about any environmental impacts which the Project may have.

That tactic, if successful, would prejudice Viva Energy's legitimate commercial interest in having any application for development consent for the Project considered objectively and empirically.

Viva acknowledges that under s 15(d) of the GIPA Act, the fact that the information in the Subject Documents might be misinterpreted or misunderstood is not a relevant factor to take into account when deciding this application.

However, in Viva's submission, it is appropriate for the Tribunal to make a distinction in this case between:

a.   the possibility that information might be misunderstood (which is not a relevant consideration); and

b.   the possibility that information might be deliberately misused to damage Viva's legitimate business interests (which is a relevant consideration).

These are two distinct concepts and should be approached as such.

25. Viva Energy disputes the factors that NSLHD as identified considerations as in favour of disclosure of the information in issue. Viva Energy accepts that the redevelopment is a matter of public affairs, but it rejects the contention that more information about those public affairs must promote open discussion as no more than a general proposition that does not apply in this case.

26. Firstly, it contends that disclosure of the documents could not reasonably be expected to promote open discussion of public affairs, to enhance Government accountability, or to contribute to a positive and informed debate on issues of public importance. It argues that on the contrary, the disclosure would:

(a)   tend to hamper the open discussion of the merits of SSD projects in general (and Viva Energy's Gore Bay Terminal modification SSD project in particular) because it would undermine the process for consultation with specialist government agencies on SSD projects, and public involvement in that process, established under the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). In essence, the disclosure of the Documents would create a precedent that would discourage specialist government agencies from being frank in their preliminary comments to proponents of SSD projects on the merits of a project, which would in turn detract from the quality of the finalised comments by specialist government agencies on an SSD project;

(b)   do nothing to enhance government accountability; and

(c)   diminish the quality of public debate about the merits of SSD projects generally, and Viva Energy's SSD project in particular, by:

(i)    discouraging frank preliminary comments from specialist agencies in the manner described above in subparagraph (a); and

(ii) focussing public debate about the potential impacts of SSD projects on comments from specialist government agencies made extemporaneously and without the benefit of full reflection, or any response from the project proponent's consultant experts. In contrast, the quality of public debate about the potential impacts of an SSD project would be lifted by deferring the opportunity for public engagement with the technical input from specialist government agencies, until that input is in final form and submitted to the Minister administering the EP&A Act.

27. Secondly, and in the alternative, even if the Tribunal is satisfied that this consideration is established, the degree to which to the disclosure would promote discussion, accountability, and debate is so minor, that this factor should be accorded minimal weight when balanced against the public interest considerations against disclosure.

28. Viva Energy also rejects the proposition that the disclosure of the Documents would inform the public about NSLHD's operations, policies, and practices for the simple reason that the Documents do not contain information about NSLHD's operations, policies, and practices.

29. In relation to its contention that disclosure of the Documents could prejudice a deliberative process of Government, Viva Energy provided an outline of the SSD determination process - the category of development under the EP&A Act which it says is relevant in this case. This process provides for broad consultation, including opportunities for public and agency involvement and consultation and avenues to appeal decisions in respect of a SSD project.

30. Viva Energy says that each of the Documents is closely related to the deliberative process. Each is part of the process of consultation. It submits that the scheme for extensive public involvement in the SSD application process is not haphazard; it is a carefully arranged process under which public comment is encouraged, but only at the appropriate stages in the process. It submits that this process would be prejudiced if the Documents are disclosed.

31. Viva Energy says that a document like Document 18 will often need to be refined by back-and-forth discussions between a project proponent and an agency before it is fit for the purpose of enabling the agency to provide comments on its area of specialist expertise to the Minister. Further, it is essential that this back-and-forth process be allowed to run its course without the consultant experts' and agency's preliminary views becoming part of the public domain.

27. Viva Energy submits that if such a scheme is allowed to be compromised by the GIPA Act, agencies will be discouraged from providing frank feedback to project proponents, agencies will be more reluctant to reduce preliminary views to writing, and agencies will be prone to delay providing feedback to project proponents until they have thoroughly checked that their preliminary views will not expose the agency to public criticism, which will delay important projects. Further, it argues that the disclosure of the records of the back-and-forth process of consultation is liable to prejudice the quality of projects ultimately put forward for approval.

28. It says that it is right and proper that the public should have the opportunity to scrutinize the available information of any potential public health impacts of Viva Energy's SSD project. However, it submits that the public interest would not be served by the release of the Documents at this time. It says that premature disclosure is intrinsically likely to prejudice the orderly, measured consideration of the relevant issues by NSLHD, because, upon disclosure, the opponents of the Viva Energy's project will make submissions to NSLHD which force it to focus on the Documents in isolation, rather than as part of the complete documentary picture which would emerge from NSLHD's finalised submission to the Minister. Viva Energy says that in such circumstances the task of refocusing the debate will often be far from easy.

29. In Viva Energy's submission, this is a factor that should be decisive when the Tribunal comes to consider whether there is an overriding public interest against disclosure in this case.

30. Viva Energy further submits that the release of the Documents would prejudice its legitimate business and commercial interests. It argues that the disclosure would provide an opportunity for the opponents of the project to selectively quote the Documents, including quotation from passages containing out-of-date information, to create a misleading impression about any environmental impacts which the project may have. In Viva Energy's submission, that tactic, if it was successful, would prejudice Viva Energy's legitimate commercial interest in having any future application for development consent for its SSD project considered objectively and empirically.

31. Viva Energy agrees that the public interest is served by promoting understanding of, and public faith in, public health risk assessments performed by government agencies. However, it submits that that objective would not be served by the disclosure of the Documents.

32. It is not in dispute that Viva Energy has withdrawn its SSD DA for the Gore Bay Modification SSD project. However, it noted that it has reserved its right to lodge a fresh SSD DA in respect of modifying its project at Gore Bay Terminal. It submits if it did so, that the disclosure of the Documents would diminish the quality of public debate about that process. It submits that the fact that it has withdrawn its SSD DA should not be viewed as bolstering any public interest in the disclosure of the Documents, or as reducing the force of its submission that there is an overriding public interest against the disclosure of the Documents.

33. To the contrary, it submits that the comprehensive process for public involvement in the SSD DA process is calculated to bolster understanding of, and faith in, the strength of the specialist input into the EIS process. By interfering with that process, the disclosure of the Documents would diminish understanding of, and faith in, the public health risk assessment.

NSLHD's submissions

39. The NSLHD disagrees with Viva Energy's contention that release of the Documents would discourage specialist government agencies from being frank. NSLHD disputes that there is any risk that the disclosure of any of these documents could create a precedent that would discourage specialist government agencies from being frank in their preliminary comments.

40. The NSLHD notes that in making its determination it consulted with the Ministry of Health and the Environmental Protection Authority neither of whom raised any objections to disclosing the Documents. NSLHD maintains that in the present circumstances this is not a relevant consideration. It says that it is even less relevant now that Viva Energy has withdrawn its SSD DA and there will be no further consultation on it.

41. The NSLHD submits that the proposed redevelopment of Gore Bay and the associated human health risk is very much a matter of public affairs and that more information about those public affairs must promote open discussion. It notes the Friends of Gore Bay have already obtained access to other documents and that these Documents may be very useful in assisting the Friends of Gore Bay to fill in any gaps that may have been left by those other documents.

42. The NSLHD maintains that making information available to the public enhances accountability because it informs the public of the basis on which government decisions are made.

43. In relation to Viva Energy’s contention that disclosure would "[focus] public debate about the potential impacts of SSD projects on comments from specialist government agencies made extemporaneously and without the benefit of full reflection, or any response from the project proponent's consultant experts" the NSLHD submits that if this were to occur the easiest way to refocus public debate would be to point out that issue. Again, the NSLHD submits that this is not a relevant consideration in the circumstances of this matter.

44. In relation to Viva Energy’s contention that the relevant process of government is the SSD DA process, the NSLHD submits that even if that is correct, Viva Energy has not explained how the disclosure of the Documents could prejudice that process. The NSLHD further submits that the Documents are essentially factual in nature and any attempt to misuse them should be readily apparent and easily corrected.

45. The NSLHD rejects Viva Energy’s claim that its experts could be forced to "focus on the Subject Documents in isolation" in these circumstances. It says that Viva Energy has no basis for making that claim. In any event, the NSLHD submits that as Viva Energy has withdrawn its SSD DA the processes of government relating to it have been concluded and cannot be prejudiced by the release of the Documents.

46. In relation to Viva Energy’s contention that there is potential for prejudice to its business and commercial interests, the NSLHD concedes that it may be possible for an opponent of the project to selectively quote from the Documents to create a misleading impression but maintains that the risk of that happening is minimal because it would be very easy for Viva Energy to point out that they were selectively quoting and that Viva Energy is not proceeding with the Project. Further, given the rigours of the SSD DA process it seems barely possible that such misuse could cause any future application by Viva Energy not to be considered objectively and empirically.

47. In conclusion the NSLHD submits that it has established three strong public interest considerations in favour of disclosure. It concedes that in the right circumstances the factors referred to by Viva Energy may be valid public interest considerations against disclosure. However, it submits that those circumstances do not exist here.

48. Further, the fact that Viva Energy has withdrawn its SSD DA vitiates those considerations against disclosure and any objections to releasing the Documents. It submits that on balance, the public interest considerations in favour of disclosure heavily outweigh the public interest considerations against disclosure.

Consideration

49. I agree that the factors identified by the NSLHD are relevant public interest considerations in favour of disclosure. I also agree with the NSLHD that each of these is a strong consideration in favour of disclosure.

50. I agree that the disclosure of the Documents has the potential to contribute to positive and informed debate would diminish the quality of public debate on issues of public importance.

51. I disagree that the content of the Documents could not contribute to the information available to the public about the operations of agencies. As the NSLHD has noted, these Documents may be very useful in assisting the Friends of Gore Bay to fill in any gaps that may have been left by other documents that have been released.

52. Similarly, I agree that the disclosure of the Documents can contribute to the information available to the public about the public health risk assessments performed by government agencies and the understanding of, and faith in, the public health risk assessment.

53. In contrast, I do not agree with Viva Energy’s contention that the factors it has identified are decisive. In my view, those factors are to be given little weight. In reaching this view I am in general agreement with the arguments presented by the NSLHD.

54. I accept Viva Energy’s outline of the State Significant Development determination process. However, I do not accept its arguments in regard to how that process might be affected if the Documents were released. The Viva Energy argument focuses on the back-and-forth discussions between a project proponent and an agency and it contends that it is essential that this back-and-forth process be allowed to run its course. It argues that the disclosure of the records of the back-and-forth process of consultation is liable to prejudice the quality of projects ultimately put forward for approval. I accept that in some circumstances that might be the case.

55. However, I also am not persuaded by Viva Energy’s contention that there is potential for the information contained within the Documents to be used to focus public debate away from the proper consideration of SSD DA process. I agree with the NSLHD that this is improbable given the rigours of the SSD DA process.

56. In any event, in this particular matter that process has been brought to an end by Viva Energy’s withdrawal of its SSD DA. Put simply, there is no longer any deliberative process of government that could be prejudiced by release of the Documents.

57. Should Viva Energy exercise its right to lodge a fresh SSD DA in respect of modifying its project at Gore Bay Terminal, new documentation will need to be prepared and a new consultation process will commence. In my view it is unlikely that the disclosure of the Documents sought in this matter would impact on that process to any significant degree.

58. In the circumstances, I do not accept that disclosure of the Documents would prejudice a deliberative process of government or prejudice the effective exercise by an agency of the agency’s functions.

59. Nor am I persuaded by Viva Energy’s contention that there is potential for prejudice to its business and commercial interests. In my view, any risk that might have arisen as the result of deliberate misuse of the information contained in the Documents has been significantly reduced by Viva Energy’s withdrawal of its SSD DA. Any potential prejudice to Viva Energy's legitimate commercial interest in regard to any future application for development consent for its SSD project is purely speculative. In circumstances where there is no application it could not be said that disclosure of the information could reasonably be expected to have the outcome asserted. Put at its highest, it is no more than a possibility.

60. In the circumstances, it is my view that this factor is to be regarded as no more than a minor consideration against disclosure.

61. On balance, the public interest considerations in favour of disclosure heavily outweigh the public interest considerations against disclosure.

62. It follows that Viva Energy’s application should be dismissed and the decision to release the Documents affirmed.

Orders

1. 1   The application is dismissed; and

2. 2   The decision under review is affirmed.

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

Amendments

20 April 2016 - Corrected ‘Friends of Gore Hill’ to ‘Friends of Gore Bay’ in paragraphs 1, 4, 41 and 51.

Decision last updated: 20 April 2016