Webb v Port Stephens Council

[2022] NSWCATAD 404

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Webb v Port Stephens Council [2022] NSWCATAD 404

Hearing dates:

31 October 2022

Date of orders:

20 December 2022

Decision date:

20 December 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Levine, Senior Member

Decision:

(1) The Decision under review is affirmed.

(2) Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the material filed by the Respondent on a confidential basis is prohibited. That material is not to be released to the Applicant or the public.

Catchwords:

ADMINISTRATIVE LAW – access to government information – interested party – request for access to portions of documents – whether disclosure would reveal personal information – whether disclosure would undermine competitive neutrality of an agency or place it at a disadvantage in any market – whether disclosure would diminish competitive commercial value of information – whether disclosure would prejudice a person’s legitimate business, commercial, professional or financial interests – whether form of access requested would involve an infringement of copyright

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Copyright Act 1968 (Cth)

Government Information (Public Access) Act 2009 (NSW)

Legal Profession Uniform Law Application Act 2014 (NSW)

Cases Cited:

Amos v Central Coast Council [2018] NSWCATAD 101

CH Real Estate Pty Limited (t/a Raine & Horne Commercial, Penrith) v Penrith City Council [2005] NSWADT 147

Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19

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

Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Leech v Sydney Water Corporation [2010] NSWADT 298

McKinnon v Blacktown City Council [2012] NSWADT 44

Sandy v Kiama Municipal Council [2019] NSWCATAD 49

Transport for NSW v Searle [2018] NSWCATAP 93

YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

Information and Privacy Commission New South Wales, “Fact Sheet – The GIPA Act and Copyright” (2019)

Category:

Principal judgment

Parties:

Telina Webb (Applicant)
Port Stephens Council (Respondent)
Also heard:
Crown Solicitor (see s104(1), Government Information (Public Access) Act 2009)

Representation:

Applicant (Self Represented)
Lindsay Taylor Lawyers (Respondent)
Crown Solicitor (Self Represented)

File Number(s):

2022/00138219

Publication restriction:

Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the material filed by the Respondent on a confidential basis is prohibited. That material is not to be released to either the Applicant or the public.

REASONS FOR DECISION

Introduction

1. Ms Telina Webb (“Applicant”) has applied to the New South Wales Civil and Appeals Tribunal (“Tribunal” or “NCAT”) for administrative review of a decision made on 6 January 2022 (“Decision”) by the Port Stephens Council (“Council” or “Respondent”) under the Government Information (Public Access) Act 2009 (“GIPA Act”) refusing her access to some of the information she had requested on 17 November 2021 (“Access Application”).

2. The Access Application was for six categories of documents connected with GIPA Act training sessions provided to Council staff by the Crown Solicitor’s Office (“CSO”). The Council identified 40 responsive documents. The Council provided Ms Webb with full access to some documents, refused access to some portions of documents, and decided to provide view-only access to one document. The Council’s reasoned that some documents contained information that was personal or outside the scope of the Access Application, that disclosure of some information prejudice the CSO’s interests, and that for one document, access in the form requested might infringe copyright.

3. The Applicant did not agree with the bases for the Council’s Decision. She sought external review through the Information Privacy Commission (“IPC”), who concluded on 14 April 2022 that the Council’s decisions were justified.

4. The Applicant requests the Tribunal to overturn the Decision with respect to documents numbered 34 to 38. The Respondent submits that the Decision should be affirmed in its totality, as the public interest considerations in favour of release are outweighed by those against release. The CSO, as an interested party, also submits that the Decision should be affirmed.

5. For the reasons that follow, and having considered all the circumstances, I find that the Council’s Decision should be affirmed. The application of Ms Webb should accordingly be dismissed.

Background

Ms Webb’s Access Application

6. In her Access Application of 17 November 2021, Ms Webb sought access to:

a. a full and unredacted copy of Council’s internal GIPA training documentation, inclusive of trainer information, documentation to include blank/clean workbooks and case study notes provided to the attendees.

b. a full and unredacted copy of all external, third party, GIPA training documentation, inclusive of training information, documentation to include blank/clean workbooks in case study notes provided to the attendees.

c. a full and unredacted copy of GIPA training provided by Port Stephens Council to third party agencies, documentation to include blank/clean workbooks and case study notes provided to the attendees.

d.   a full and unredacted copy of each keeper training session attendance sheet for internal training, inclusive of name and position within Council.

e. a full and unredacted copy of each GIPA training session attendance sheet, for internal training provided by a third party, inclusive of name and position within Council.

f. a full and unredacted copy of each GIPA training session attendance sheet, provided by Port Stephens Council to third party agencies.

Council’s Decision and the Documents Provided

7. The Council issued its notice of determination on 6 January 2022, identifying 40 documents in response to the Access Application. The Council provided full access to some documents, and only partial access to some documents on the basis of overriding public interest against disclosure of some information contained in those documents. For each document, the Council set out the considerations for and against disclosure which it had taken into account.

8. The Council noted that because the Applicant had requested business information of another agency, it had consulted with the CSO under section 54 of the GIPA Act. The CSO had raised an objection to the release of the information, which the Council was obliged to consider in applying and balancing the public interest test under the GIPA Act.

9. The Council identified 40 documents in its Decision as responsive to the Access Application and decided on their disclosure as follows:

• Document 1 – PowerPoint slides by the CSO from 2010 training session. This document was disclosed with consent of the CSO. The considerations in favour included being privy to the training material provided to recipients of training undertaken by an agency, that would assist in application of the GIPA Act for GIPA professionals as well as promote the enforceable rights in section 5 of the GIPA Act.

• Document 2 – Booklet on GIPA Legislation by the CSO. This was also disclosed with consent by the CSO for same reasons as Document 1.

• Documents 3, 4, 5 and 6 – Records of training undertaken by four Council staff members. These were produced as it was considered favourable to release in order to demonstrate Council staff training undertaken. Some material that was out of the scope of the Access Application was removed as permitted by section 74 of the GIPA Act.

• Documents 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 – Learning Certificates, organisational emails, and PowerPoint slides from presentations prepared by Council for staff induction and training sessions on the GIPA Act held in 2010 and 2016. The Council produced these documents because their release was considered favourable (i) in order to demonstrate Council staff training undertaken, and (ii) due to the general presumption in favour of release of government information.

• Documents 17, 18, 19, 20 – Attendance lists for Council training sessions on the GIPA Act in 2016. These were produced for the same considerations as Document 7.

• Documents 21 and 22 – Attendance lists for Council training sessions on the GIPA Act in 2010 and 2013. These were produced in part, for the same considerations as Document 7. Some portions were redacted pursuant to section 74 of the GIPA Act, for reasons found under Section 14, Table clause (3)(a), insofar as they revealed the signatures of Council staff, considered to be an individual’s personal information.

• Documents 23, 24 and 25 – Attendance lists for, and synopsis of, Council training sessions on GIPA in 2013. These were produced for the same considerations as Document 7.

• Documents 26 and 27 – Attendance lists for Council training sessions on the GIPA Act in 2013. These were produced in part, and redacted in part (including the signatures of attendees), for the same considerations as for Documents 21 and 22.

• Document 28 – Email from Lindsay Taylor Lawyers following their training session to the Council in 2021. This was produced for the same considerations as Document 7.

• Documents 29, 30, 31, 32 – Training records for four Council staff members. These were produced in part, and redacted in part, for the reason that some information was outside the scope of the request.

• Document 33 – Snapshot of GIPA Act training from 2016. This was produced for the same considerations as Document 7.

• Document 34 – Workbook from CSO training session provided to the Council in 2021. The Council consulted with the CSO in respect of this document, and received an objection to disclosure on the basis of considerations set out in clauses 4(a) and (c) of Table in section 14 of the GIPA Act. The CSO did consent to release of the index and title page of the Workbook, which the Council disclosed to the Applicant.

• Documents 35 and 36 – Advanced training materials provided to the Council from the CSO in 2015 and 2017. The Council consulted with the CSO in respect of this document, and received an objection to disclosure on the basis of considerations set out in clauses 4(a) and (c) of Table in section 14 of the GIPA Act. The CSO did consent to release of the index and title page of the Advanced training materials, which the Council disclosed to the Applicant.

• Document 37 – Introductory training materials provided by the CSO to the Council in 2017. The Council consulted with the CSO in respect of this document, and received an objection to disclosure on the basis of considerations set out in clauses 4(a) and (c) of Table to section n14 of the GIPA Act. The CSO did consent to release of the index and title page of the Introductory training materials, which the Council disclosed to the Applicant.

• Document 38 – IPC PowerPoints from 2012. The Council noted that considerations in favour of disclosure included that it demonstrated resources that industry leaders and governmental bodies were providing to agencies to assist in their duties and the general presumption in favour of disclosure of government information. The Council noted as considerations against disclosure the fact that the record was created by the IPC for use and distribution as they considered fit and necessary and that it was copyrighted material, the release of which without IPC consent would contravene the Copyright Act. The Council also noted the business interests of the IPC and decided, on balance, to release the document to the Applicant by inspection only.

• Documents 39 and 40 – Training notes by Council officer and email of 17 October 2017 about training sessions. These were produced for the same considerations as Document 7.

10. Ms Webb then applied for an external review of the Decision through the IPC.

IPC Review

11. The IPC, acting pursuant to section 89 of the GIPA Act, concluded that the Council’s Decision was justified in relation both to providing access to information in a particular way under section 58(1)(a); and to refusing access to information due to overriding public interest against disclosure. It consulted the CSO as part of that process.

12. The IPC was satisfied that Documents 21, 22, 26 and 27 were appropriately redacted in accordance with consideration 3(a) in the Table in section 14 of the GIPA Act. That is because the redactions protected signatures of attendees, and signatures are considered personal information.

13. The IPC was also satisfied that documents 34, 35, 36, and 37 were appropriately withheld in light of the CSO’s objection and on the basis of considerations in clause 4(a) (disadvantage to the CSO’s competitive market), 4(c) (diminishment of the competitive commercial value of the CSO’s information), and 4(d) (prejudice to the CSO’s legitimate business, commercial, professional or financial interests, including also copyright).

14. The IPC considered the view-only form in which the Applicant was given access to Document 38 and noted the Applicant’s concerns, but ultimately concluded the Council’s decision was justified.

15. The IPC also confirmed that redactions in documents 3, 4, 5, 6, 29, 30, 31 and 32 were appropriate in that they were not relevant or within the scope of the Access Application.

Application to the Tribunal

16. The Applicant then applied, on 13 May 2022, to the Tribunal for review of the Council’s Decision. In her application form, she gave as her reasons simply that she does “not agree with the agency’s decision and consider[s] the bases of refusal of access misconceived”.

17. On 1 June 2022, the IPC indicated that it did not intend to appear before the Tribunal in this matter.

18. On 27 June 2022, the Tribunal directed that the application could be determined on the papers, but allowed the Applicant to apply for the matter to be listed for hearing should the need arise.

19. On 26 July 2022, the Tribunal recorded that the CSO sought to appear and be heard in the proceedings, and that both Parties had consented.

20. On 29 August 2022, the Respondent and the CSO expressed the view that a hearing could be dispensed with pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”), but the Applicant applied for a hearing not to be dispensed with, so that she might cross-examine the witness from the CSO.

21. On 6 September 2022, the proceeding was listed for hearing on 31 October 2022 and Ms Webb advised that she would not be submitting any further evidence but wished to make oral submissions in the hearing.

Material before the Tribunal

22. The Tribunal has had regard to the following material provided by the parties.

23. The documentary material from the Applicant comprised:

1. NCAT Application of 13 May 2022, stating that the Applicant does not agree with the Council’s Decision and that she considers the bases of refusal of access misconceived. The NCAT Application attached:

1. the Council’s Decision of 6 January 2022;

2. the IPC Review report dated 14 April 2022.

2. The Applicant’s Reply Submissions of 26 August 2022, in which she stated she wished to make closing comments at the hearing and for the CSO’s representative Ms Kiri Mattes to be cross-examined on her affidavit.

3. The Applicant’s written notes from the hearing held before the Tribunal on 31 October 2022, which she agreed to provide to the Tribunal, the Respondent, and the CSO later that day.

24. The documentary material from the Respondent comprised:

1. Materials filed on 27 June 2022:

1. NCAT/GIPA Review Sheet;

2. bundle of documents (some redacted) as released to the Applicant under the Council’s Notice of Decision;

3. the same documents as (b) in unredacted form, which were provided to the Tribunal under confidential cover.

2. The Respondent’s Submissions of 9 August 2022, which identified as public interest considerations against disclosure of some documents those set out in clauses 3(a), 3(b), 4(a), 4(c), 4(d) of the Table in section 14 of the GIPA Act, and sections 55 and 74 of the GIPA Act).

3. Evidence attached to the Respondent’s Submissions of 9 August 2022:

1. The Access Application, the letter from the CSO responding to consultation about the Access Application; the Council’s Decision; and the IPC Review.

2. Documents considered by the Respondent to be subject to public interest against disclosure (provided to the Tribunal confidentially and not to be released to the Applicant), including Documents 3‑6, 21-22, 26-28, 29-32, and 34-38.

3. Materials referred to in the submissions, including a 2019 IPC fact sheet and an extract from the Applicant’s website.

25. The CSO exercised the right to appear and be heard pursuant to section 104(3) of the GIPA Act and on 1 August 2022 it filed the following materials:

1. Written submissions of 1 August 2022, arguing that the public interests in favour of disclosure were outweighed by the public interest considerations against disclosure, including that the CSO would be placed at a competitive disadvantage in the market, that disclosure would diminish the competitive commercial value of the CSO’s information, and that disclosure would prejudice the CSO’s legitimate business, commercial, professional or financial interests.

2. An affidavit of CSO solicitor Ms Kiri Mattes dated 1 August 2022 describing the specialised training offered by the CSO on the GIPA Act, the development of the training materials, and the value of the CSO’s GIPA Act training sessions not only for the modest revenue they directly produce, but for their role in marketing the CSO as a legal service provider, as to which it competes with the private sector to deliver non-core legal work to government agencies. Attached to the affidavit were:

1. the initial third party consultation request from the Council, dated 15 December 2021; and

2. the CSO’s response to the Council’s request, dated 22 December 2021.

26. All of the above-referenced documents were admitted to the record, without objection from any party.

27. At the hearing on 31 December 2022, the Applicant appeared for herself via video. The Respondent appeared via video, represented by Carlo Zoppo of Lindsay Taylor Lawyers. Ms Kiri Mattes appeared for the CSO, accompanied by a colleague for the duration of her testimony. Ms Mattes noted for the record that she had met the Tribunal Senior Member over a decade ago in a social setting. The Senior Member confirmed this recollection and that she had not contact with Ms Mattes in over a decade, and stated her belief that it did not affect her capacity to decide the matter fairly and impartially. No party raised any objection to proceeding in the circumstances.

28. Ms Mattes made herself available for cross-examination, which was conducted by the Applicant, followed by some questions from the Tribunal.

29. The Applicant herself also responded to questions from the Tribunal. As noted above, although the Applicant did not file written submissions in advance of the hearing, she made reference to notes in her closing submissions and agreed to share her notes with the Tribunal, the Respondent and the CSO.

30. The Tribunal pointed out that under section 64 of the CATAct, the material filed by the Council on a confidential basis is not to be released to either the Applicant or to the public. That said, although there were confidential documents in the case file, the Tribunal said did not expect it would be necessary to conduct any of the hearing in private session pursuant to section 49(2) of the CAT Act or section 107 of the GIPA Act. It has also not been necessary to cite to any specific portions of the confidential documents within these reasons for decision. Accordingly, there is one single version of this decision available both to the parties and the public.

Relevant Legislation and Jurisdiction

31. The object of the GIPA Act, as set out in section 3, is to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.

32. The parties do not dispute that the information the subject of this application is government information that is held by an agency within the meaning of section 4(1) of the GIPA Act.

33. Section 5 of the GIPA Act contains a presumption in favour of the disclosure of government information unless there is an “overriding public interest against disclosure”.

34. There is a general public interest in favour of disclosure of government information, as set out in section 12(1) of the GIPA Act. Examples of public interest considerations in favour of disclosure, which are not limited, are provided in a Note to section 12, as follows:

The following examples of public interest considerations in favour of disclosure of information:

(a)   Disclosure of the information could reasonably be expected to promote open 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.

(c)   Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d)   The information is personal information of the person to whom it is to be disclosed.

(e)   Disclosure of the information could reasonably be expected to reveal of substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

35. The term “personal information” is defined in clause 4 of Schedule 4 to the GIPA Act in the following terms:

(1)    In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion…

36. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure:

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.

37. The public interest considerations against disclosure are limited to those set out in the Table in section 14 of the GIPA Act. The relevant considerations for this review are clauses 3(a), 3(b), 4(a), 4(c) and 4 (d) of the Table, which are:

3 Individual rights, judicial processes and natural justice

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)    reveal an individual’s personal information,

(b)   contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002…

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)     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,

…

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

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

38. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in section 15 of the GIPA Act which provides as follows:

15. Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(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.

39. Section 54 of the GIPA Act provides for consultations on public interest considerations with other persons (including other agencies) as follows:

(1)     An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that—

(a)     the information is of a kind that requires consultation under this section, and

(b)     the person may reasonably be expected to have concerns about the disclosure of the information, and

(c)     those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.

(2)     Information relating to a person is of a kind that requires consultation under this section if the information—

(a)     includes personal information about the person, or

(b)     concerns the person’s business, commercial, professional or financial interests, or

…

Note—

The requirement to consult extends to consultation with other agencies and other governments. See the definition of person in Schedule 4.

…

(4)     The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection.

(5)    The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information.

…

40. Under section 55 of the GIPA Act, the personal factors of the application, being an applicant’s identity and relationship with any other person, their motives for making the access application, and any other factors particular to the applicant, may be taken into account. Such personal factors might factor in favour of providing an applicant with access to information (section 55(2)), or might factor against access, if relevant to a consideration referred to in clauses 2-5 of the Table to section 14 (section 55(3)).

41. Section 58 of the GIPA Act provides that any agency may decide an access application, including by (a) providing access to the information, and (d) refusing to provide access to the information because there is an overriding public interest against disclosure of the information.

42. Section 72(1) of the GIPA Act states that access to government information in response to an access application may be provided in any of the following ways:

(a)     by providing a reasonable opportunity to inspect a record containing the information,

(b)     by providing a copy of a record containing the information,

(c)     by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned)…

43. Section 72(2)(c) of the GIPA Act states that an agency “must provide access in the way requested by the applicant unless … to do so would involve an infringement of copyright.” Decisions under Section 72 of the GIPA Act are reviewable decisions.

44. Section 74 of the GIPA Act permits an agency to delete information from the copy of a record to be accessed “either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.”

45. A decision to refuse access is a “reviewable decision” under the terms of section 80(d) of the GIPA Act.

46. According to section 9 of the Administrative Decisions Review Act 1997 (NSW) (“ADR Act”) and sections 28 and 30 of the CAT Act, the Tribunal has jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. Section 100 of the GIPA Act gives this Tribunal jurisdiction, as it allows “a person who is aggrieved by a reviewable decision of an agency” to “apply to NCAT for an administrative review under the ADR Act of the decision”.

47. Section 104(3) of the GIPA Act provides that any person “who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review.” That is relevant to the CSO’s appearance in this matter, and the Tribunal notes that both the Applicant and the Respondent consented to the CSO being heard in these proceedings.

48. The onus of establishing that an agency’s decision is justified lies on the agency, as stated in section 105(1) of the GIPA Act. The Council is not limited to defending or justifying its Decision on the same grounds as the original decision-maker (Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10]).

49. In determining an application for administrative review, section 63 of the ADR Act provides that this Tribunal is to decide what “the correct and preferable decision” is having regard to “any relevant factual material, and any applicable written or unwritten law”. The time at which the determination is to be made as to the correct and preferable decision is the date and time that the Tribunal makes its decision (YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]).

50. The Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution, or remit the matter for reconsideration by the administrator (ADR Act, s 63(3)).

51. Under section 38(2) of the CAT Act, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The Tribunal has to consider all of the evidence in the exercise of its discretion.

52. Finally, section 64 of the CAT Act provides that if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence, it may make an order prohibiting or restricting the publication or the disclosure of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence, in relation to the proceedings.

Documents in Dispute and Issues to be Determined

53. At the hearing, Ms Webb stated that she was only pressing review of the Council’s Decision with respect to Documents 34 to 38. This was also reflected in her written notes circulated after the hearing.

54. Accordingly, the Applicant no longer maintains a request to review the Council Decision insofar as it concerns Documents 21, 22, 26 and 27. Those documents were attendance lists from GIPA training sessions. They were provided to Ms Webb with redactions of individual staff members’ signatures. Signatures constitute personal information within the definition of Schedule 4 clause 4(1) of the GIPA Act. Disclosure to the public at large of those signatures would serve no public interest. The disclosure of the unredacted portions of Documents 21, 22, 26 and 27 would thus be outweighed by the public interest considerations set out in clauses 3(a) and 3(b) of the Table in Section 14 of the GIPA Act. The Tribunal need not address further the application of these considerations to Documents 21, 22, 26 and 27 as they are no longer in contention.

55. Similarly, the Applicant has not pressed for review of the Council’s Decision insofar as it concerns Documents 3, 4, 5, 6, 29, 30, 31, and 32. Each of those documents had been provided to Ms Webb with some redactions of material considered by the Council to be outside of the scope of the Access Application. The Tribunal has reviewed the unredacted portions of those documents and confirms that they are irrelevant to the Access Application as they contain information that has nothing to do with GIPA Act training. They were therefore appropriately redacted pursuant to section 74 of the GIPA Act, and the Applicant appears to accept that. It is thus unnecessary for the Tribunal to address further any issues related to Documents 3 to 6 and 29 to 32.

56. That leaves in dispute whether the Council’s decisions with respect to Documents 34 to 37 (disclosure of only the title and contents pages of recent CSO training materials ) and Document 38 (disclosure via view-only access of IPC 2012 training presentations) are the correct and preferable decisions.

57. Documents 34, 35, 36 and 37 are training materials from the CSO. As noted by Ms Mattes in her affidavit and oral testimony, the CSO is a public service executive agency related to the Department of Communities and Justice. The Crown Solicitor is the sole provider of legal services in matters regarded as “core legal work” as provided for in Premier’s Memorandum M2016-04 “NSW Government Core Legal Work Guidelines”. However, for non-core legal work, the Crown Solicitor competes with the private sector to deliver services to government agencies. That includes services with respect to the GIPA Act and privacy legislation. (Mattes Affidavit at [4]).

58. The CSO has been offering specialised training regarding the GIPA Act since 2010. Ms Mattes has been the solicitor with primary responsibility for delivering that training since 2014. (Mattes Affidavit at [12]) There are two courses currently offered by the CSO to the staff of public sector agencies, local councils and other entities that have obligations under the Act. These are “Introduction to the GIPA Act” and “Advanced GIPA Act Training”. The courses are conducted over the course of a day. The courses are usually offered about 3 or 4 times a year. (Mattes Affidavit at [13]-[14])

59. The CSO charges $400 plus GST per participant attending, and each in-person course is for around 20 participants. The courses are fully booked out in 2022. Ms Mattes acknowledges that the “revenue generated by the provision of training forms only a small part of the overall revenue of the CSO.” (Mattes Affidavit at [15]-[16]. Nevertheless, the CSO considers the provision of training to be one of its primary means of marketing the CSO as a legal service provider, and in particular, an expert in dealing with matters involving the GIPA Act. In the view of Ms Mattes, the training courses are an extremely effective means of promoting the CSO and participation of individuals in the training courses “frequently serves as a gateway to those individuals and their agencies instructing the CSO to provide legal advice and services in matters involving the GIPA Act.” (Mattes Affidavit at [16]).

60. The CSO provides participants with training materials for each course, which set out and explain the various legal principles that are addressed in the trainings. They contain unique illustrative case studies that have been devised by the CSO. The Advanced course also includes extensive commentary on the GIPA Act and case law. The material is intended to be a valuable reference resource to course participants going forward (Mattes at [17]). Substantial time and effort is devoted to preparing (and then updating) the training material by senior lawyers in the administrative law team of the CSO. (Mattes at [18]-[22]). The training materials are only distributed at the training sessions in hard copy on the day of the training course, they are not published on the CSO’s website or any other publicly available forum. (Mattes at [23]).

61. A number of other entities offer and provide training on the GIPA Act for a fee. These include Local Government NSW, Youngman Consultancy, Megan Carter Training and Lindsay Taylor Lawyers (who happen to be the representatives of the Respondent in the present proceeding).

62. Document 34 is a workbook for participants in the 2021 “Introduction to the GIPA Act” course for 2021. It is substantially the same as that still used for 2022 trainings. Document 35 is the course book distributed for the Advanced GIPA Act training course in 2015. While it has been revised, it still materially reflects more recent versions of the advanced training materials. Documents 36 and 37 were course booklets used in 2017 which are also materially reflected in the more recent versions of the training booklets (Mattes Affidavit at [26]-[28]).

63. As noted above, the Respondent, having consulted the CSO, only disclosed to the Applicant the cover page and indexes of Documents 34, 35, 36 and 37 and refused to disclose the rest of those documents.

64. In order to establish the correct and preferable decision on disclosure of the remaining contested documents, the Tribunal must determine:

1. what public interest considerations favour disclosure of the information;

2. whether the information in issue, if released, would give rise to a public interest against disclosure on that grounds that its release could reasonably be expected to have the effects as contended by the Respondent, namely:

1. undermine competitive neutrality of an agency, here the CSO (clause 4(a) of Table in Section 14)

2. diminish the competitive commercial value of any information to any person, here the CSO (clause 4(c) of Table in Section 14);

3. prejudice any person’s (here the CSO’s) legitimate business, commercial, professional or financial interests (clause 4(d) of Table in Section 14);

3. where the balance lies between the public interest considerations in favour of disclosure and those against disclosure, having attributed weight to each consideration, and taking into account any personal factors identified under section 55.

65. As for Document 38, this comprised two IPC PowerPoints of training sessions provided to Council staff in 2012. The Council actually did disclose all of Document 38 to the Applicant, noting that considerations in favour of disclosure included that it “demonstrated resources that industry leaders and governmental bodies were providing to agencies to assist in their duties and the general presumption in favour of disclosure of government information.” The Council noted as considerations against disclosure the fact that the record was created by the IPC for use and distribution as they considered fit and necessary and that it was copyrighted material, the release of which without IPC consent would contravene the Copyright Act.” The Council decided, on balance, to release the document to the Applicant by inspection only. Ms Webb inspected the document at an assigned time at the Council’s offices.

66. With respect to Document 38, the Tribunal must consider whether access provided by view-only inspection is the correct and preferable form of access in order to avoid an infringement of copyright in light of section 72(2)(a)(c) of the GIPA Act.

65. In the sections that follow, the Tribunal will consider Documents 34 to 37 as a group, followed by Document 38.

Discussion and Findings

68. In accordance with the principles established in Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19, in determining Ms Webb’s application with respect to Documents 34 to 37, the Tribunal is required to:

(1)    Identify the public interest considerations in favour of disclosure of the information;

(2)    Consider whether the information in issue, if released, would give rise to a public interest against disclosure on the grounds that release of the information could reasonably be expected to have the effect as contended by the respondent; and

(3) If so satisfied, consider where the balance lies between the public interest considerations in favour of disclosure and those against disclosure, having attributed weight to each consideration, and taking into account the personal factors identified under, and as permitted by s.55.

69. In Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [94], the Tribunal stated that the balancing of competing interests is a “question of fact and degree, requiring weighing of competing matters, and is a task that is not amenable to mathematical calculation.” While the balancing process requires a broad value judgment to be made, it is not made in a vacuum, but having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in section 15 of the GIPA Act (Transport for NSW v Searle [2018] NSWCATAP 93 (“Searle”) at [104].

70. The Tribunal will now apply these principles to the question of whether the Council should disclose the remaining portions of Documents 34 to 37.

Public interest considerations in favour of disclosure

71. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (section 5).

72. In its Decision, the Council identified the following public interest considerations in favour of disclosure as relevant to Ms Webb’s application:

Section 5 of the GIPA Act provides that there is a general presumption in favour of the release of government held information. This promotes the objectives of the GIPA Act and seeks to provide an enforceable right for members of the public to access information held by Council which I consider to carry great weight in favour of disclosure.

The requested information will demonstrate what documents, training and information has been provided to staff at Port Stephens Council in respect of GIPA application and history. This will provide insight onto the information and material that was used to form understanding in terms of the application of the GIPA Act to complement working knowledge or the backgrounds of individual professionals.

The external training material will also demonstrate what information is considered fundamental to a GIPA officer role and how the Act can be interpreted.

73. In its submissions before the Tribunal, the Respondent agreed that, in respect of all of the information sought by Ms Webb, there is a general public interest in favour of disclosure under section 12 of the GIPA Act.

74. At the hearing the CSO noted that public interest considerations in favour of disclosure included transparency about training, and in allowing the public to understand what officers are trained in. The CSO submitted however that those interests were met with the materials that were already disclosed.

75. Ms Webb did not expressly articulate specific public interest considerations in favour of disclosure in any written submissions before the hearing. During the hearing, she did suggest that members of the public should have access to the same training information as government agencies funded by the public. The Tribunal understands from the Applicant’s closing remarks that, in her submission, it is in the public interest to avoid excluding members of the public from CSO training sessions. In the Applicant’s view, disclosure of the CSO’s full training materials would better inform the public, and thus serve to diminish any control or knowledge disadvantage that unrepresented members of the public face when they are parties before the Tribunal in GIPA Act matters.

76. The Tribunal accepts that the matters identified by the Council and CSO are relevant public interest considerations in favour of disclosure. Disclosure of the documents could reasonably be expected to inform the public about the operations of agencies, in particular the Council, when it comes to the way they implement and interpret the GIPA Act and what information is considered important to a GIPA officer role in fulfilling their duties. To an extent, disclosure of the information about training courses could also be reasonably expected to ensure effective oversight of the expenditure of public funds and that an agency is implementing its duties properly when it comes to the GIPA Act.

77. The Tribunal finds, however that those considerations have largely been met by the release of 35 documents to the Applicant already. The documents disclosed to Ms Webb include (i) complete internal Council training materials, (ii) complete training materials from a 2010 course provided to the Council by the CSO, as well as (iii) the indexes to each of Documents 34, 35, 36 and 37 which show the list of topics that were considered and dealt with in the most recent external training provided to Council officers by the CSO.

78. In this review proceeding, the Tribunal thus only needs to determine how any public interest factors in favour of disclosure of the undisclosed portions of the few remaining documents are to be balanced with the public interest considerations against disclosure. It is to those considerations that the Tribunal next turns.

Public interest considerations against disclosure

79. The public interest considerations against disclosure on which the Council relies are framed in terms of whether disclosure of the information “could reasonably be expected” to have the relevant effect. The principles to be applied in considering that test were summarised as follows in Searle at [68] (see also Leech v Sydney Water Corporation [2010] NSWADT 298):

The words “could reasonably be expected” are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect…

In order to discharge the onus, [the agency] needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds…

It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way...

“Prejudice” is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from…

80. The Tribunal now applies these principles to each of the relevant effects claimed by the Respondent and the CSO.

Clause 4(a) – whether disclosure could reasonably be expected to undermine the CSO’s competitive neutrality or put the CSO at a market disadvantage

81. Clause 4 of the Table to section 14 of the GIPA Act provides in paragraph (a) that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to “place an agency at a competitive disadvantage in any market”. The CSO submits (and the Respondent adopts the CSO’s position) that disclosure of Documents 34 to 37 would place the CSO at a competitive disadvantage in the market for the provision of training relating to the GIPA Act.

82. As Ms Mattes deposed (at [25]), the CSO provides training regarding the GIPA Act for a fee. In this field it competes against at least three other training providers. As such, the CSO operates in a competitive market for the provision of professional training to government agencies and other entities subject to the GIPA Act (as well as for other areas like privacy legislation). The CSO and the Respondent point out that none of the other competitor training providers are public sector agencies or otherwise subject to the requirements of the GIPA Act. They submit that the CSO would be placed at a significant disadvantage, relative to its competitors, if required to disclose the training materials that have been prepared for the provision of training to clients under the GIPA Act. That is because the value of the training that is offered to clients would be substantially diminished in circumstances where the course materials provided to participants were otherwise freely available under the GIPA Act. Disclosure would also allow competitors in the market or potential competitors, access to training material that has been developed over several years by the CSO, which could be used by those competitors to develop their own material.

83. The CSO and the Respondent emphasise that disclosure under the GIPA Act is unconditional, that is, there are no limitations or conditions as to the manner in which information released may be used or disclosed (GIPA Act, sections 15(e) and 73). Release of the CSO’s training material under the GIPA Act would, for all intents and purposes, be a release “to the world at large”.

84. Ms Webb’s response to this clause (a) argument was to narrow the number of competitors to just one other provider, Lindsay Taylor Lawyers on the basis that they are the only other competitor identified that also provides legal services. The Tribunal does not accept that argument as logical or relevant to classifying the other providers as competitors in the market of GIPA Act training.

85. Ms Webb added that any competitive advantage the CSO had against their (allegedly) sole competitor has now been compromised, because Lindsay Taylor Lawyers are acting for the Respondent. In that capacity, Lindsay Taylor Lawyers have had access to the unredacted versions of the training materials. In the Applicant’s view, the CSO should be less concerned by the risks posed by her, as a member of the public, having access to the training materials, than its sole competitor having access.

86. The Tribunal rejects the logic of the Applicant’s argument. For one, the disclosure by the CSO of the unredacted documents to the Council was done before it knew Lindsay Tanner Lawyers had been engaged by the Council for this matter. Nothing can be read into their actions as a voluntary and deliberate disclosure to its competitor. Secondly, Lindsay Tanner Lawyers are acting in this particular matter in the capacity as the professional legal representatives of the Council. They are bound by professional obligations of confidentiality with respect to the materials in the context in which they were received. The Tribunal has no reason to doubt that they would comply with those professional obligations or improperly cross a line between their legal representation of a client in proceedings before this Tribunal and their separate function in offering training sessions commercially. Mr Zoppo was even prepared to make a positive undertaking in that regard, but the Tribunal (and the CSO) trusted that this was unnecessary.

87. The Tribunal also regards as irrelevant Ms Webb’s point that that Ms Mattes does not have “accreditation” or “registration” as a GIPA Act trainer. Indeed, it was established that no such accreditation or registration scheme exists in New South Wales, and the CSO never portrayed themselves as having any kind of formal accreditation in the subject matter.

88. It is not disputed that the CSO is an “agency” within the meaning of clause 4(a). It operates training on the GIPA Act for a fee. It does so in a competitive market. The CSO is enjoying a successful position within that market with sold out training courses on GIPA Act training. As Ms Mattes said at the hearing, the ongoing demand exceeds supply. In the Tribunal’s view, the relatively small number of players in that market is immaterial, as is the amount of revenue generated by the training activity as a proportion of the organisation’s budget. Substantial effort, expertise and creativity goes into development of the training materials and the Tribunal finds that disclosure of those materials such that they would be widely available free of charge would create a disadvantage to the CSO within the market for GIPA Act related training. Free accessibility of the CSO’s training materials would naturally disincentivise individuals or agencies from paying to do the course in order to access those materials. That is sufficient to find the consideration in clause 4(a) enlivened in this case.

89. Furthermore, the Tribunal is satisfied that disclosure of the training materials would also place the CSO at a disadvantage in the market of provision of legal services related to the GIPA Act. As noted by Ms Mattes, GIPA Act work is not “core legal work” for which the CSO is the sole provider of legal services. Rather, the CSO has to compete with the private sector to deliver services to government agencies, including with respect to the GIPA Act. The Tribunal accepts Ms Mattes’ evidence that the training sessions provide a valuable opportunity to showcase the CSO’s knowledge and expertise and frequently lead to the provision of legal services. In that sense, disclosure of the training material could result in diminishing the prospects for generating a competitive advantage in the market not only for training itself, but for developing business in provision of legal services. This is relevant not only to clause 4(a), but also to clauses 4(c) and (d), as discussed in the following sections.

Clause 4(c) – whether disclosure could reasonably be expected to diminish the competitive commercial value of any information

90. Clause 4 of the Table in section 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could, under clause (c) “diminish the competitive commercial value of any information to any person”.

91. The CSO submitted (and the Respondent adopted the position of the CSO) that the release of Documents 34 to 37 would diminish the competitive commercial value of the training material that has been developed by the CSO.

92. The Tribunal has found that information will have “commercial value” if the information is valuable for the purposes of carrying on the commercial activity in which the entity is engaged, or if a genuine arms-length buyer is prepared to pay to obtain the information, such that the market value of the information would be destroyed or diminished if it could be obtained under the GIPA Act from an agency that has possession of it (McKinnon v Blacktown City Council [2012] NSW ADT 44 at [77]-[78]; Australians for Sustainable Development Inc. v Barangaroo Delivery Authority [2013] NSWADT 252 at [74]). The Tribunal has also found that information has commercial value when there was evidence that an entity had invested substantial effort and staff time in building a work product from publicly available information) (CH Real Estate Pty Limited (t/a Raine & Horne Commercial, Penrith) v Penrith City Council [2005] NSWADT 147).

93. 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 at [79]-[80], see also Elf Farm Supplies Pty Ltd v Department of Planning and Environment [2018] NSWCATAD 277, confirming “competitive information” can relate to the competitive purchase and provision of government services). The use of the descriptor “competitive” has been held to imply that the information would need to provide the person with a competitive edge: Nature Conservation Council v Department of Trade and Investment, Regional Infrastructure and Services (NSW) [2012] NSWADT 195, at [160].

94. In the present case, as noted above, genuine arms-length buyers of training courses are prepared to pay (albeit modest) fees for the CSO’s GIPA Act offerings. The Council also points out that it paid for its staff to attend the training sessions and acquire the materials. Additionally, the materials are developed by the CSO with a substantial amount of effort and accumulated staff hours (Mattes Affidavit at [18]-[22]). These factors satisfy the Tribunal that the training materials constitute information with competitive commercial value to the CSO within the meaning of clause 4(c).

95. The competitive commercial value for the CSO extends beyond the immediate training revenue. As noted above with respect to clause 4(a), the Tribunal accepts that the courses are a valuable tool for the CSO in reaching potential clients for delivery of legal services in non-core legal work, for which it needs to compete with the private sector. Against this background, the Tribunal does not agree with the Applicant’s suggestion that, in order to have “competitive commercial value” the sums of revenue from the training courses need to be large, either objectively or by reference to the CSO’s overall annual budget. Ms Webb’s submissions about the relative size of the training revenue to the organisation’s budget are therefore not persuasive.

96. The Tribunal also rejects Ms Webb’s submission that the CSO training materials did not offer a competitive edge because they simply summarised publicly available legislation and case law. The written and oral testimony of Ms Mattes, as well as the Tribunal’s review of the CSO workbooks and materials themselves, contradicts Ms Webb’s characterisation. Compilation of such training materials does not simply involve relaying legislative provisions and case law from the public domain, but expert identification and synthesis of relevant provisions and decisions, and creative design of case scenarios for illustrating how the rules work in practice in a way that is relevant for the officers whose job it is to apply the rules. The Tribunal notes that the CSO asserts copyright to the materials themselves as literary works.

97. At the hearing, Ms Webb suggested that the CSO is already giving away similar material by frequently speaking to the NSW Right to Information and Privacy Practitioners Network. However, Ms Mattes explained that the oral briefings about recent case law given at Network meetings are quite distinct from the written materials prepared for training sessions, noting in particular the extensive GIPA Act commentary that forms part of the Advanced training materials.

98. In the circumstances, the Tribunal accepts the CSO’s submissions that:

a. The training material has been developed for the purpose of providing training regarding the GIPA Act for a fee;

b. In providing this training, the CSO forms part of a competitive market for the provision of professional training, in particular with respect to the GIPA Act;

c. There are ‘genuine arms-length buyers’ prepared to pay for access to the training material, it being a key component of the resources and training provided as part of the GIPA Act training courses;

d. The training material has been developed on an ongoing basis, over the course of more than 10 years, by senior lawyers of the CSO who have particular expertise and specialist knowledge regarding the GIPA Act; and

e. The material is unique to the CSO and give it a competitive edge in the market for the provisions of training regarding the GIPA Act.

99. In the Tribunal’s view, it is reasonable to expect the competitive commercial value of the training materials would be diminished if the training materials were disclosed to the world at large under the GIPA Act and effectively made freely available. The Tribunal also finds that it is also reasonable to expect that clients would be less willing to pay a fee to participate in training conducted by the CSO if the training material could be obtained free of charge, because it has been released into the public domain under the GIPA Act, or was susceptible to such release. Indeed, disclosure could reasonably prejudice the CSO not merely by diminishing the value of the direct training revenue, but also by diminishing the value the courses offer as a tool for business development.

Clause 4(d) – whether disclosure could reasonably be expected to prejudice any person’s legitimate business, commercial, professional or financial interests

100. Clause 4 of the Table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could, under clause (d), “prejudice any person’s legitimate business, commercial, professional or financial interests.”

101. The CSO submitted (and the Respondent adopted the position of the CSO), that, by placing the Crown Solicitor at a competitive disadvantage in the market for providing professional training, and by diminishing the competitive commercial value of the training material, disclosure of the training material under the GIPA Act would prejudice the CSO’s legitimate business and commercial interests.

102. The CSO reiterated that:

if disclosure had the effect that clients were less willing to participate in the CSO’s training, this would have a detrimental impact on the effectiveness of training as a means of marketing the CSO as a preferred provider of legal services relating to the GIPA Act.

103. The CSO pointed to Ms Mattes’ evidence that the CSO “considers the provision of training to clients as one of its primary means of marketing the Office as a legal service provider and, in particular, an expert in dealing with matters involving the GIPA Act (Mattes Affidavit at [16])”. This, according to the CSO, “would serve to have a further detrimental impact on the business and commercial interests of the CSO in circumstances where it is competing with private sector firms for non-core legal work.”

104. For the reasons outlined above with respect to clause 4(a) and (c), the Tribunal finds that full disclosure of Documents 34 to 37 could reasonably be expected to cause detriment to the legitimate business, commercial, professional or financial interests of the CSO.

Personal factors

105. The Tribunal now considers what personal factors could be relevant to the balance of public interest considerations for and against disclosure. Personal factors are defined in section 55(1) of the GIPA Act to be (a) the applicant’s identity and relationship with any other person, (b) the applicant’s motives for making the access application, (c) any other factors particular to the applicant.

106. Section 55(2) of the GIPA Act provides that personal factors of the application can “be taken into account as factors in favour of providing the applicant with access to the information”.

107. Ms Webb did not refer the Tribunal to any personal factors particular to her which would favour disclosure. The CSO noted in its written submissions that it was “not aware of any personal considerations of the Applicant that would favour the release of information to the Applicant in this matter.” At the hearing, the Respondent and the CSO both remarked that Ms Webb had put on no evidence, and had never articulated her motives for wanting the undisclosed portions of Documents 34 to 37.

108. Rather, the Applicant’s arguments have focused more on broader gains from providing members of the public access to training materials currently only available to clients or potential clients of the CSO.

109. In the absence of any evidence or submission from the Applicant on this point, the Tribunal finds there to be no relevant personal factors in favour of disclosure of the remaining disputed documents in this case. It now considers personal factors against disclosure.

110. Section 55(3) of the GIPA Act provides:

The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the facts referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.

111. The Respondent and the CSO submitted that the Tribunal should have regard to the fact that the Applicant has her own website, within which she refers to herself as a “Freedom of Information Advocate’ and offers to ‘act in the supporting role of a McKenzie Friend to a self-represented party to NCAT proceedings’.

112. The Respondent further submitted that the Tribunal should have regard to the fact that the Applicant “has a history of publishing on her website material disclosed by the Council under the GIPA Act” and that “it could reasonably be expected that she will publish the documents if they are disclosed”. The Council said that this makes it more likely that the documents will be available to the public, meaning that the CSO’s competitive commercial value will be diminished and that the prejudice to their interests is increased. To substantiate these concerns, the Council pointed to an article published on the Applicant’s website in which she posted information in May 2022 about a Council staff member and the training provided by the CSO. She stated in the article that “The public should be asking whether or not the training provided by the NSW Crown Solicitor has any value”. The Council submitted that, when regard is had to the serious risks associated with the disclosure of the information, and the questionable benefit from its release, there is a clear overriding public interest against disclosure of the documents.”

113. The CSO also pointed to the possibility that “the personal considerations of the application in this case support a finding that clause 4(c) applies as a consideration against disclosure and that it should be given considerable weight. On the Applicant’s website, she publishes commentary about various provisions of the GIPA Act and related issues. While the CSO said it is not aware of the applicant’s motivation for seeking Documents 34 to 37, the CSO submitted “there is a reasonable basis for expecting that the applicant might seek to publish some or all of the material once it has been disclosed to her, or discuss the contents of the material at length, on the NSW Freedom of Information website. The applicant might also seek to use the material as a means of boosting her own credentials for the provision of services regarding the GIPA Act.”

114. At the hearing, Ms Webb did not deny the possibility of publishing or commenting on the materials on her website if the Council were ordered to disclose them.

Whether the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure, taking account also of section 55 personal factors

115. The Respondent submits that when the competing considerations are weighed, the public interest considerations against release of the information relating to the information in Documents 34 to 37 outweigh the public interest considerations in favour of release. Accordingly, the Respondent submits that the Council’s Decision concerning Documents 34 to 37 should be affirmed.

116. The CSO is of the same view. While acknowledging the public interest favouring disclosure of the training information, the CSO submits that the public interest has been, to a substantial degree, met by the disclosure of the indexes to the training material, as they reveal the topics and issues that are covered in training. It is not clear to the CSO what public interest might be served by the disclosure of material beyond that. In contrast, the public interest considerations at clauses 4(a)(c) and (d) apply, and should be given significant weight. The CSO says: “Disclosure of the training material under the GIPA Act would have the impact of substantially undermining the position of the CSO as a trainer of choice with respect to the GIPA Act. It would have the effect of releasing material that has been developed over a number of years, by senior lawyers with significant knowledge and expertise, into the public domain and, in doing so, would substantially diminish the commercial value of that work.” The CSO thus submit that this is a “clear case where the public interest against disclosure far outweighs the public interest favouring disclosure, such that there is an overriding public interest against disclosure of the training material.”

117. At the hearing, Ms Webb, having put on no evidence or advance written submissions, was invited to articulate the public interest considerations in favour of disclosure. She stated that it is important that the public understands the methodology of the GIPA Act principles, legislation and case law and has a greater understanding of the agencies’ mindset and processes in applying the GIPA Act. She said it would greatly assist the public to understand these processes and specially to have the CSO training materials to gain the perspective of the agencies. She also expressed a concern that the public is paying for those agencies who are in turn paying to receive training from the CSO for what is, in effect a vehicle for marketing of CSO legal services.

118. In her view, there is a lack of equity in that members of the public have no access to training. With respect to this apparent knowledge and power imbalance, Ms Webb referred to an extract from the case of Commercial Bank of Australia v Amadio [1983] HCA 14. It was unclear to the Respondent, and is unclear to the Tribunal, how a case about a contract being set aside due to unconscionable conduct can have a bearing on this administrative review application under the GIPA Act. The Tribunal has still noted Ms Webb’s observation about the difference between knowledge of GIPA processes amongst members of the public and those at agencies who received specialised training. Nevertheless, the Tribunal is not persuaded that this concern outweighs the three considerations against disclosure that have been discussed above.

119. In any event, the Tribunal is not persuaded that the CSO should be concerned with disseminating information about the GIPA Act to members of the public. At the hearing, Ms Mattes reminded the Tribunal that the CSO limits its course to agencies because the CSO can only provide services to those types of entities under the Legal Profession Uniform Law Application Act 2014 (NSW). The CSO therefore cannot provide legal services to anyone who falls outside the categories set out in section 44 of that Act. That is the reason the CSO’s trainings are targeted to agencies. The CSO is a law firm that provides services to clients, who are not general members of the public. It is simply not part of the mandate of the CSO to improve the public’s general understanding of the GIPA Act. She submitted that was rather the job of the IPC. Accordingly, while there is a general public interest in generating understanding of the GIPA Act, it needs to be balanced against the public interest considerations against disclosure in the present case.

120. The Tribunal is satisfied that the overriding public interest considerations against disclosure of the portions of Documents 34-37 that were not already produced outweigh those in favour of disclosure. The Council has thus satisfied the burden placed on it by section 105 of the GIPA Act. The Council’s Decision in respect of Documents 34 to 37 should be affirmed.

Copyright breach

121. As noted above at paragraph 9, the Council provided view-only access to Document 38, the IPC presentation, via inspection of hard copies by appointment at the Council office.

122. Section 72(2) of the GIPA Act states:

a. The agency must provide access in the way requested by the applicant unless—

(c) to do so would involve an infringement of copyright.

123. The Copyright Act 1968 (Cth) (“Copyright Act”) recognises categories of copyright. The IPC documents would fall into the category of ‘literary works’ as they are original expressions of work. Ms Webb pointed out that when she inspected Document 38 she did not notice a copyright symbol or claim on the materials. However, under the Copyright Act, there is no requirement to register copyright protection or include the copyright symbol for a work to attract copyright. Ms Webb does not in any event appear to question that the materials in Document 38 are literary works in which copyright subsists (Copyright Act 1968, section 10 and 32(2)). At one point in her closing submissions, Ms Webb referred to the “relationship between the copyright in the work and the nexus with criticism and review, parody and satire” as exceptions to infringement. She did not, however, develop this further or proffer any evidence on which the Tribunal could (even assuming jurisdiction to do so) base a finding of an exception to infringement under part 3 Division 3 of the Copyright Act.

124. Section 31(1)(a) of the Copyright Act provides a holder of copyright in a literary work the “exclusive right” to “(i) reproduce the work in material form; (ii) publish the works, [and] (iv) … communicate the work to the public.”

125. There are no conditions on disclosure under the GIPA Act. Section 15(e) of the GIPA Act provides that “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.” Thus, were the Council to give a hard copy or electronic version of Document 38 to the Applicant, this would effectively constitute disclosure to the ‘world at large’. There would be no limit on dissemination of the material, and it would amount to a breach of the IPC’s exclusive right to publish the work or communicate it to the public.

126. The Tribunal finds that the Council’s method of arranging the Applicant to access the IPC information via view-only inspection, was a permissible exercise of the exception in section 72(2)(c) of the GIPA Act. A similar method of access was affirmed in Sandy v Kiama Municipal Council [2019] NSWCATAD 49 with respect to view-only inspection of architectural plans (in that case protected as artistic work) and in Amos v Central Coast Council [2018] NSWCATAD 101 (in that case technical reports were protected as literary work).

127. The manner in which the Council offered Ms Webb access to Document 38 is also consistent with the IPC’s Fact Sheet on “The GIPA Act and Copyright” (2019) which states that:

Making open access information available for inspection free of charge by any person at the office of the local authority during ordinary office hours may also provide another form of access that can be taken to ensure that copyright is not infringed.

Similarly, providing a reasonable opportunity to inspect a record containing the information the subject of a formal access application is also a practical step agencies can take to ensure access to information that is subject to copyright.

Providing access in these ways may not infringe copyright because access by inspection does not involve reproduction of a copyrighted work. The provision of access in these ways aligns with the open access object of the GIPA Act in which proactive public release of government information is promoted.

128. The public interest was fulfilled by providing Ms Webb with access in the manner in which the Council did. There was also no evidence of any time limit being placed on her. The Tribunal notes that the Council did not initially consult the IPC on the original Access Application but the IPC did since find, in the context of its review, that the Council’s Decision was justified.

129. In view of the considerations set out above, the Tribunal dismisses the application for review of the Council’s Decision with respect to Document 38.

Conclusion

130. Based on all the considerations set out above, and having regard to the material before me, I am satisfied that the correct and preferable decision is to affirm the Respondent’s Decision of 6 January 2022.

Orders

131. The Tribunal makes the following orders:

1. The Decision under review is affirmed.

2. Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the material filed by the Respondent on a confidential basis, is prohibited. That material is not to be released to the Applicant or the public.

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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: 20 December 2022