Yarralumla Residents Association v Land Development Agency (Administrative Review)
[2014] ACAT 77
•17 December 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
YARRALUMLA RESIDENTS ASSOCIATION v LAND DEVELOPMENT AGENCY (Administrative Review) [2014] ACAT 77
AT 14/47
Catchwords: ADMINISTRATIVE REVIEW – Freedom of Information – request for access to documents relating to development of Yarralumla Brickworks and environs – review of decision to withhold 3 documents and partially withhold 2 documents - merits review process - tribunal’s role to arrive at the correct decision based on material before it –- documents submitted to Cabinet are exempt Executive documents – document containing projections and assumptions does not contain purely factual material – public interest is generally best served by successful ventures undertaken by respondent – lower return to government from a commercial enterprise conducted by respondent not in public interest - exemption will apply when agency of government engaged in competitive activity in respect to government owned property where access to sensitive information would result in a substantial adverse effect on value – document exempt when information could prejudice commercial viability of a project – a keen interest in a process does not satisfy the public interest test – factors against disclosure – documents fall in fact and law within the exemptions provided for in FOI Act - documents examined by Tribunal – satisfied that exemptions claimed are valid
Legislation Cited: Freedom of Information Act 1989 (ACT) ss 2, 8, 14, 22, 35,
35(1)(a), 35(1)(d), 36, 39, 39(1), 42, 43, 43(1), 59, 60(1),60(2),
62, 71
ACT Civil and Administrative Tribunal Act 2008 ss 7, 26, 68,
Cases Cited: Re Connolly and Department of Finance (1994) 34 ALD
655
Re McKinnon and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2008] AATA 161
Re Howard v Treasurer (1985) 7 ALD 626
Re Porter and the Department of Community Services and Health 14 ALD 403;
Re Aldred andDepartment of Foreign Affairs and Trade 20 ALD 264;
Re Fewster and the Department of Prime Minister and Cabinet (No 2) 13 ALD 139
Harris v Australian Broadcasting Corporation (1983) 51 ALR 581
Whitlam v Australian Consolidated Press (1985) 76 FLR
Texts Cited: Administrative Law, Douglas and Jones 2002, 4th edition
Oxford English Dictionary Online
Tribunal: Ms L. Donohoe SC – Senior Member
Date of Orders: 17 December 2014
Date of Reasons for Decision: 17 December 2014
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 14/47
BETWEEN:
YARRALUMLA RESIDENTS ASSOCIATION
Applicant
AND:
LAND DEVELOPMENT AGENCY
Respondent
TRIBUNAL: Ms L. Donohoe SC – Senior Member
DATE: 17 December 2014
ORDER
The Tribunal Orders that:
The decision of Mr Chris Reynolds dated 23 June 2014 made on behalf of the respondent is confirmed.
………………………………..
Ms L. Crebbin, General President
For and on behalf of
Ms. L. Donohoe SC
Senior Member
REASONS FOR DECISION
This is an application for review of a decision (the ‘Application’), filed 9 July 2014. It was made on behalf of the applicant, the Yarralumla Residents Association. (‘YRA’) by Dr Dianna Wright, who is the applicant’s public officer. YRA is an incorporated association incorporated in 2011 under the Associations Act 1991. The Application was made pursuant to sections 60(1) and (2) of the Freedom of Information Act 1989 (ACT) (the ‘FOI Act’). The respondent is the Land Development Agency. The application was heard on 16 October 2014.
Relevant History
On 12 March 2014, Ms Marea Fatseas, who is the president of the YRA made a request on its behalf under the FOI Act requesting access to documents described thus:
Documents produced form 1 March 2011 until the present relating to development of the Yarralumla Brickworks and environs in Yarralumla including, but not limited to:
· Reports on Public consultations;
· Development plans and options, any proposed subdivisions, and any evaluation of such plans and options;
· Feasibility studies and cost/benefit analyses. This should include, amongst others, the Canberra Brickworks (Yarralumla) Mixed Use Feasibility Study prepared by consultants MacroPlan Dimasi;
· Studies/reports on traffic impacts and traffic calming measures;
· Contamination and remediation studies; and
· Correspondence with, and responses from, external bodies, specifically the ACT Heritage Council, ACTPLA, and the national Capital Authority.[1]
[1] Tribunal Document T3.
On 16 May 2014, Mr Paul Lewis, the decision maker authorised pursuant to section 22 of the FOI Act, provided the Applicant with a notice of decision.[2] He advised the applicant that he had identified a number of documents within the ambit of the request that were exempt documents pursuant to sections 35, 36 and 42 of the FOI Act and were therefore withheld from access. He provided the applicants with a detailed schedule, which identified the exempt documents and provided reasons for their exemption.[3]
[2] Tribunal Document T4.
[3] Tribunal Documents T4 and T5.
On 8 June 2014, the applicant, pursuant to section 59 of the FOI Act, requested an internal review of Mr Lewis’s original decision. In particular, the applicant requested that reconsideration be given to the decision to withhold access to some exempt documents pursuant to sections 35 and 36 of the FOI Act.[4]
[4] Tribunal Document T7.
Mr Chris Reynolds, the person authorised pursuant to section 22 of the FOI Act conducted an internal review of the original decision in accordance with section 59 of the Act. He communicated his decision in relation to the internal review to the applicants on 23 June 2014. Mr Reynolds informed the applicants by formal notice that he had determined that some of the documents originally withheld from access would be released, but that he would uphold the original decision in respect of three identified documents pursuant to section 35 and 36 of the FOI Act and would provide redacted copies of a further two documents pursuant to section 43 of the Act. His internal decision provided the applicant with a schedule, which detailed the released documents and the five exempt and partially exempt documents and provided reasons for their exemption or partial exemption.[5]
[5] Tribunal Documents T8 and T9.
The internal decision of Mr Reynolds, dated 23 June 2014 is the decision before the Tribunal. The Tribunal has had the benefit of comprehensive written statements of facts and contentions from both the applicant and the respondent. It has also had the benefit of hearing the oral evidence in chief and the cross-examination of Ms Jorgenson, who is an employee of the respondent. Finally, the Tribunal heard oral submissions made by the representatives of both the applicant and the respondent.
The Relevant Statutory Provisions
The FOI Act 1989
Section 2 of the FOI Act deals with the object of the Act and provides:
2Object
(1)The object of this Act is to extend as far as possible the right of the Australian community and, in particular, the citizens of the Territory, to access to information in the possession of the Territory by—
(a)making available to the public information about the operations of agencies and, in particular, ensuring that rules and practices affecting members of the public in their dealings with agencies are readily available to persons affected by those rules and practices; and
(b)creating a general right of access to information in documentary form in the possession of Ministers and agencies, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.
(2)The provisions of this Act shall be interpreted so as to further the objects set out in subsection (1) and to ensure that discretions conferred by this Act are exercised as far as possible to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
Section 8 of the FOI Act deals generally with documents, which are to be released and provides:
8Certain documents to be available for inspection and purchase
(1)This section applies, in respect of an agency, to documents that are provided by the agency for the use of, or are used by, the agency or its officers in making decisions or recommendations for the purposes of an enactment or scheme administered by the agency, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which persons are or may be entitled or subject, being—
(a)manuals or other documents containing interpretations, rules, guidelines, practices or precedents including precedents in the nature of letters of advice providing information to bodies or persons outside the Territory administration; or
(b)documents containing particulars of such a scheme, not being particulars contained in an enactment as published apart from this Act; or
(c)documents containing statements of the manner, or intended manner, of administration or enforcement of such an enactment or scheme; or
(d)documents describing the procedures to be followed in investigating breaches or evasions or possible breaches or evasions of such an enactment or of the law relating to such a scheme;
but not including documents that are available to the public as published otherwise than by an agency or as published by another agency.
(2)The principal officer of an agency shall—
(a)cause copies of all documents to which this section applies in respect of the agency that are in use from time to time to be made available for inspection and for purchase by members of the public; and
(b)cause to be prepared, and as soon as practicable after preparation to be made available, for inspection and for purchase by members of the public, a statement (which may take the form of an index) specifying the documents copies of which are, at the time of preparation of the statement, available in accordance with paragraph (a) and the place or places where copies may be inspected and may be purchased; and
(c)cause to be prepared, if possible within 3 months, and in any case not later than 12 months, after the preparation of the last preceding statement prepared in accordance with paragraph (b) or this paragraph, and as soon as practicable after the preparation to be made available, for inspection and for purchase by members of the public, a statement bringing up-to-date the information contained in that last preceding statement.
(3)The principal officer is not required to comply fully with subsection (2) (a) within the period of 12 months after the agency comes into existence, but shall, within that period, comply with that paragraph as far as is practicable.
(4)This section does not require a document of the kind referred to in subsection (1) containing exempt matter to be made available in accordance with subsection (2), but, if such a document is not so made available, the principal officer of the agency shall, if practicable, cause to be prepared a corresponding document, altered only to the extent necessary to exclude the exempt matter, and cause the document so prepared to be dealt with in accordance with subsection (2).
(5)A report of a responsible Minister under section 79 (2) in respect of a year shall include a statement concerning compliance by each agency for which that Minister has responsibility with the requirements of this section during that year.
(6)Where a person makes a request to inspect or to purchase a document of an agency concerning a particular enactment or scheme, being a document of a kind to which this section applies, the principal officer of the agency shall take all reasonable steps to ensure that the attention of that person is drawn to any document of the agency concerning that enactment or scheme that is relevant to the request and has become a document to which this section applies since the last occasion on which a statement in respect of documents of the agency was prepared and made available in accordance with subsection (2).
Section 14 of the FOI Act deals with requests for access to documents and provides:
14Requests for access
(1)A person who wishes to obtain access to a document of an agency or an official document of a Minister may, by application in writing to the agency or Minister, request access to the document.
NoteA fee may be determined under s 80 (Determination of fees and charges) for this section.
(2)A request shall provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, as the case may be, to identify the document.
(3)Where a person—
(a)wishes to make a request to an agency; or
(b)has made a request to an agency that does not comply with this section;
it is the duty of the agency to take reasonable steps to assist the person to make the request in a manner that complies with this section.
(4)Where a person has directed to an agency a request that should have been directed to another agency or to a Minister, it is the duty of the firstmentioned agency to take reasonable steps to assist the person to direct the request to the appropriate agency or Minister.
(5)Where—
(a)a person requests access to a document under this section; and
(b)an application fee is determined under section 80 (Determination of fees and charges) for the request; and
(c)the request is not accompanied by the application fee, but is accompanied by an application for remission under section 30 (Remission of application fees) of the application fee;
the request for access is to be taken to be in accordance with this section unless and until the agency has taken all reasonable steps to notify the applicant that the fee is not to be remitted in full.
Section 22 of the FOI Act deals with who may deal with requests for access to documents and provides:
22Decisions to be made by authorised persons
A decision in respect of a request made to an agency may be made, on behalf of the agency, by the responsible Minister or the principal officer of the agency or, subject to the regulations, by an officer of the agency acting within the scope of authority exercisable by the officer in accordance with arrangements approved by the responsible Minister or the principal officer of the agency.
Section 35 of the FOI Act defines a category of exempt documents described as executive documents and provides:
35Executive documents
(1)A document is an exempt document if it is—
(a)a document that has been submitted to the Executive for its consideration or is proposed by a Minister to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by the Executive; or
(b)an official record of the Executive; or
(c)a document that is a copy of, or of a part of, or contains an extract from, a document referred to in paragraph (a) or (b); or
(d)a document the disclosure of which would involve the disclosure of any deliberation or decision of the Executive, other than a document by which a decision of the Executive was officially published.
NoteAccess to the Cabinet notebook is excluded under s 11 (2).
(2)This section does not apply to a document (a relevant document)—
(a)that is referred to in subsection (1) (a); or
(b)that is referred to in subsection (1) (b) or (c) and is a copy of, or of part of, or contains an extract from, a document that is referred to in subsection (1) (a);
to the extent that the relevant document contains purely factual material unless—
(c)the disclosure under this Act of that document would involve the disclosure of any deliberation or decision of the Executive; and
(d)the fact of that deliberation or decision has not been officially published.
(3)A reference in this section to the Executive includes a reference to a committee of the Executive.
Section 36 of the FOI Act defines a category of exempt documents described as internal working documents and provides:
36Internal working documents
(1)Subject to this section, a document is an exempt document if its disclosure under this Act—
(a)would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Territory; and
(b)would be contrary to the public interest.
(2)In the case of a document of the kind referred to in section 8 (1), the matter referred to in subsection (1) (a) of this section does not include matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in section 8 (1).
(3)This section does not apply to a document only because of purely factual material contained in the document.
(4)This section does not apply to—
(a)reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters; or
(b)reports of a prescribed body or organisation established within an agency; or
(c)the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.
(5)Where a decision is made under part 3 that an applicant is not entitled to access to a document because of this section, the notice under section 25 shall state the ground of public interest on which the decision is based.
Section 39 of the FOI Act defines a category of exempt documents described as documents affecting financial or property interests of the Territory and provides:
39Documents affecting financial or property interests of the Territory
(1)Subject to subsection (2), a document is an exempt document if its disclosure under this Act would have a substantial adverse effect on the financial or property interests of the Territory or of an agency.
(2)This section does not apply to a document the disclosure of matter in which under this Act would, on balance, be in the public interest.
Section 43 of the Act defines a category of exempt documents described as documents relating to business affairs and provides:
43Documents relating to business affairs etc
(1)A document is an exempt document if its disclosure under this Act would disclose—
(a)trade secrets; or
(b)any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or
(c)information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, being information—
(i)the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or
(ii)the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Territory or an agency for the purpose of the administration of a law or the administration of matters administered by an agency.
(2)Subsection (1) does not apply to a request by a person for access to a document—
(a)only because of the inclusion in the document of information concerning that person in respect of his or her business or professional affairs; or
(b)only because of the inclusion in the document of information concerning the business, commercial or financial affairs of an undertaking where the person making the request is the proprietor of the undertaking or a person acting on behalf of the proprietor; or
(c)only because of the inclusion in the document of information concerning the business, commercial or financial affairs of an organisation where the person making the request is the organisation or a person acting on behalf of the organisation.
(3)A reference in this section to an undertaking includes a reference to an undertaking that is carried on by, or by an authority of, the Territory, the Commonwealth, a State or by a local government authority.
Section 59 of the Act deals with the internal review of a decision made by an original decision maker and provides:
59Internal review
(1)Where a decision has been made in relation to a request to an agency otherwise than by the responsible Minister or principal officer of the agency, being—
(a)a decision refusing to grant access to a document in accordance with a request or deferring the provision of access to a document; or
(b)a decision, in relation to a charge (not being an application fee) in respect of a request for access to a document or in respect of the provision of access to a document—
(i)that the applicant is liable to pay the charge; or
(ii)as to the amount of the charge; or
(iii)not to remit all or part of the charge; or
(c)a decision not to remit all or part of an application fee in respect of an application under section 14 (1) or under this subsection;
the applicant may, within 28 days after the day on which that decision is notified to the applicant or within such further period as the principal officer of the agency allows, by application in writing to the principal officer of the agency, request a review of the decision in accordance with this section.
NoteA fee may be determined under s 80 (Determination of fees and charges) for this section.
(2)Subject to subsection (3), where an application for a review of a decision is made to the principal officer in accordance with subsection (1), the officer shall as soon as possible arrange for himself or herself or a person (not being the person who made the decision) authorised by the officer to conduct such reviews to review the decision and make a fresh decision.
(3)Subsection (1) does not apply to—
(a)a decision made on a review under this section; or
(b)a decision in relation to the provision of access to a document upon a request that is, under section 61 (1) or (3), to be taken to have been given.
(4)Section 25 applies to a decision made under this section.
(5)Where—
(a)a person requests a review of a decision in accordance with this section; and
(b)an application fee is determined under section 80 (Determination of fees and charges) for the request; and
(c)the request is not accompanied by the application fee, but is accompanied by an application for remission under section 30 (Remission of application fees) of the application fee;
the request for review is to be taken to be in accordance with this section unless and until the agency has taken all reasonable steps to notify the applicant that the fee is not to be remitted in full.
Section 60 of the FOI Act deals with applications to the ACAT in respect of decisions made pursuant to section 59 of the Act and provides:
60Applications to ACAT
(1)Subject to this section, an application may be made to the ACAT for review of—
(a)a decision refusing to grant access to a document in accordance with a request, not being a decision under section 33, or a decision deferring the provision of access to a document; or
(b)a decision refusing to allow a further period for making an application under section 59 (1) for a review of a decision; or
(c)a decision of the kind referred to in section 59 (1) (b) or (c).
(2)Subject to subsection (3), where, in relation to a decision referred to in subsection (1) (a) or (c), a person is or has been entitled to apply under section 59 for a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on the review.
(3)Subsection (2) does not prevent an application to the ACAT in respect of a decision where—
(a)the person concerned has applied under section 59 for a review of the decision; and
(b)a period of 14 days has elapsed since the day on which that application was received by or on behalf of the agency concerned; and
(c)the person has not been informed of the result of the review;
and such an application to the ACAT may be treated by the ACAT as having been made within the time allowed by subsection (4) if it appears to the ACAT that there was no unreasonable delay in making the application.
(4)Despite the ACT Civil and Administrative Tribunal Act 2008, section 10 (d), and subject to any extension of time granted by the ACAT, an applicant may make an application under subsection (1) in relation to a decision under section 54 (3) within 28 days after the day the ombudsman informs the applicant under section 54 (3).
Section 62 of the FOI Act deals with the powers of the ACAT in respect of section 60 applications and provides:
62Powers of ACAT
(1)Subject to this section, in proceedings under this part, the ACAT has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been, or could be, decided by an agency or Minister, and any decision of the ACAT under this section has the same effect as a decision of the agency or Minister.
(2)Where, in proceedings under this Act, it is established that a document is an exempt document, the ACAT does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.
(3)Where a certificate under section 37A is in force in respect of a document, the powers of the ACAT do not extend to reviewing the decision to give the certificate but the ACAT, constituted in accordance with section 64, may determine such question in relation to that certificate as is provided for in whichever of subsections (4) and (5) applies to that certificate.
(4)Where an application is made to the ACAT for the review of a decision refusing to grant access to a document in accordance with a request, being a document that is claimed to be an exempt document under section 37A and in respect of which a certificate (other than a certificate of a kind referred to in subsection (5)) is in force under that section, the ACAT shall, if the applicant so requests, determine the question whether reasonable grounds exist for that claim.
(5)If application is made to the ACAT for review of a decision refusing to grant access to a document in relation to which a certificate is in force under section 37A (4), the ACAT must, if the applicant requests, determine whether reasonable grounds exist for the claim that information about the existence or non-existence of the document would cause the document to be an exempt document under section 37A (1).
(6)The powers of the ACAT under this section extend to matters relating to charges payable under this Act in relation to a request.
(7)Where—
(a)application is made to the ACAT for review of a decision refusing to grant a person access to a document in accordance with a request; and
(b)the agency to which or the Minister to whom the request was made—
(i)has given to the applicant a notice under this Act of the decision, being a notice that does not include a statement to the effect that access to the document is being refused because of the operation of section 11 (3) or of that subsection as modified by regulations under section 11 (4); or
(ii)informs the ACAT, either before or in the course of the proceeding for the review of the decision, that the agency or the Minister does not intend, or does not any longer intend, to refuse access to the document for the reason referred to in subparagraph (i);
then, for the review by the ACAT of that decision, section 11 (3) and (4) shall be disregarded.
Section 71 of the FOI Act deals with the onus of proof and provides:
71Onus
In proceedings under this part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the ACAT should give a decision adverse to the applicant.
The ACT Civil and Administrative Tribunal Act 2008 (the ‘ACAT Act’)
Section 68 of the ACAT Act deals with review of decisions. It provides:
68Review of decisions
(1)This section applies if the tribunal reviews a decision by an entity.
(2)The tribunal may exercise any function given by an Act to the entity for making the decision.
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).
(3)The tribunal must, by order—
(a)confirm the decision; or
(b)vary the decision; or
(c)set aside the decision and—
(i)make a substitute decision; or
(ii)remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.
The Role of the Tribunal
The Tribunal’s role in reviewing the decision is in the nature of a merits review. In other words the Tribunal conducts its own inquiry, which is, by definition, a completely fresh enquiry.[6] Consequently, there is no presumption in favour of the primary decision maker. No consideration of the legal justification or the reasons supporting the decision maker’s decision is necessary or, indeed permissible, according to the statutory warrant. The Tribunal’s role is to arrive at a correct decision based on the material before it.
The Evidence
[6] Administrative Law, Douglas and Jones, 2002 4th ed, p262.
Apart from oral evidence from one witness with which the Tribunal will deal more fully below, the evidence before the Tribunal consisted of the material contained in the Tribunal documents (T documents) and exhibit R1 which were the disputed documents the subject of the Application The exhibit R1 documents were made available to the Tribunal by the respondent at the conclusion of the hearing. The contents were not disclosed to the applicant.
The Evidence of Ms Kristi Jorgenson
Ms Jorgenson is the project manager for the Canberra Brickworks. She is an employee of the respondent. The respondent called her to give evidence. No witness statement of hers was filed. Indeed, no notice of her evidence was given to the applicant or to the Tribunal until the morning of the hearing.[7]
[7] Transcript p5.40.
It was submitted on behalf of the respondent that Ms Jorgenson’s evidence would be of assistance, not only to the Tribunal, but also to the applicant in terms of understanding the evidence. It was submitted by the respondent that such oral testimony would not hinder the applicant’s case, but rather, it would ‘flesh out the skeleton which is the submissions that have been put.’ It would, it was further submitted be helpful to the Tribunal and the applicant if evidence was given by a person with direct and personal knowledge of the facts.[8]
[8] Transcript p6.0; p6.35; p6.40-45.
To summarise, it was submitted by the respondent that:
The evidence would assist you to join in the dots, I suppose.
I'm making submission as to matters of law. The evidence will assist you in being able to join those assertions of law with the facts as they stood. So the sort of things I'd be asking Ms Jorgensen to elaborate on, I suppose, or illuminate the tribunal about are the nature of the respondent and its business and the context within which the documents in dispute were produced, what they've been used and the current status of the project within which they arise. That's it. Essentially I'm not seeking to go any further in terms of legal arguments: that will remain the same. What I suppose I am seeking to do is to assist the tribunal in being able to be more satisfied based on the evidence before it. Given that this is a fresh inquiry the tribunal is required to make its own fresh decision without needing to have recourse to the original decisions that it would assist the tribunal in illuminating and to giving context between that.[9][9] Transcript p7.10 – p7.25.
The Tribunal understood those submissions to amount to this; that the oral testimony of a senior employee of the respondent with direct and personal knowledge of the provenance, context and content of the disputed documents would be to make what otherwise might be regarded as arid and legalistic submissions rather more comprehensible and illuminating.
In determining whether or not to allow the testimony to be adduced, the Tribunal had regard to the competing principles contained in sections 7 and 26 of the ACAT Act 2008.
Quite understandably, the applicant was taken by surprise.[10] The applicant expressed the view that it was clearly ‘uncomfortable’ with that approach.[11] The Tribunal invited submissions from the applicant as to the prejudice they might suffer if the oral testimony of Ms Jorgenson was permitted to be adduced. The respondent contended that it was difficult to do so without knowing what the evidence would be.[12]
[10] Transcript p6.5.
[11] Transcript p8.5.
[12] Transcript p6.30.
Therefore, the Tribunal determined that it would hear Ms Jorgenson’s evidence in chief and then adjourn to permit the applicant sufficient time to determine first, whether it was in a position to deal with Ms Jorgenson’s oral testimony in cross-examination immediately and to gather any material that might assist it in that task that day or secondly, whether the matter needed to be adjourned to another day to be fixed to enable the respondent to deal with that evidence. The Tribunal adjourned for approximately three hours by which time the respondent informed the Tribunal that it was in a position to continue and indeed wished to continue with the hearing, including dealing with Ms Jorgenson’s oral testimony that day.[13]
A Summary of Ms Jorgenson’s Evidence in Chief
[13] Transcript p17.30 – p18.45.
Ms Jorgensen’s oral testimony can be conveniently summarised thus:
·The applicant is a discrete commercial entity within Government, having a governing Board.
·While being a unique entity because of its structure and commercial enterprise activities, it does however, sit within the Chief Minister’s Treasury and Economic Directorate.
·It is in the business of land development in the Territory to accommodate the current and future populations of Canberra.
·Government does not fund it. It earns income for the Territory and it pays its own outgoings. In other words, it has its own budgetary considerations and constraints, like any other land commercial land development organisation, which are plainly tied to its specific commercial enterprise in the Territory.
·It is answerable to not only its own governing Board, but also to the Executive of Government.
·Its construction and development activities are generally conducted through the public tender process.
·It has competitors in the field of land development.
·By definition that public tender process is a competitive process.
·Its charter is to act commercially on behalf of the Government.
·In discharging its charter in relation to proposed developments of land, it is required to commission reports from appropriately qualified consultants which contain information which is commercially sensitive.
·It is obliged to include, inter alia, such consultant’s reports in submissions put before or to be put before the Executive for its consideration and deliberation – they form part of Cabinet submissions.
·The disputed documents were fundamental to supporting the respondent Board’s deliberations and obtaining the Board’s support in principle to continue to progress the Yarralumla Brickworks Project.
·The disputed documents contain sensitive commercial information, which, if made public could threaten or diminish the projected financial outcomes of projects it undertakes, particularly the Yarralumla Brickworks and Environs Project.
·The respondent Board’s deliberations in relation to the Yarralumla Brickworks and Environs Project are ongoing.
·The respondent has not made any final decision either way in relation to the Yarralumla Brickworks and Environs Project and in that respect, it is a deliberative work in progress or a ‘moving feast’.
It is helpful to set out in full some of Ms Jorgenson’s oral testimony given in examination-in-chief:
Q: Right?
A: They contain information that is commercial in confidence to cabinet, but also to our governing board who has yet, as I said, to make a decision on this project. They contain very detailed financial modeling, which is detrimental if it was in the public domain. Simply coming back to that discussion about the value for money and the fact that we go
through competitive tender processes. The level of detail in there would
essentially put us in a compromised position when we were to publicly tender for those competitive processes to deliver estates and those sorts of construction work.Q: Would you explain that a little bit more slowly. So the information in the reports, if that was publicised, how do you say that that could compromise processes for the LDA down the line in its operations?
A: Essentially, it allows a potential contractor to the LDA to know how much money we have to spend on a particular item, which therefore negates my ability to say that that's value for money, because they know automatically how much we could spend. We could actually get a bid that may be millions of dollars less and save the territory money that could then be returned back to government.
Q: Right, so the document, both of those reports contain financial – projected figures, what those things might cost?
A: That’s correct.[14]
[14] Transcript p14.15-p14.35.
Q: Can you describe your involvement or knowledge of the cabinet submission process with respect to the two Macroplan Dimasi reports? So how did they find their way into cabinet?
A: The cabinet submission that we put up earlier this year was essentially about requesting from government that we can commence
statutory processes, that they supported the master plan, noting that we wanted to engage in an informal community engagement process before that occurred. In order to substantiate that request, we wanted to ensure that cabinet were comfortable that we were putting forward a commercially viable project, so in order to substantiate that, we attached reports that lends the commercial feasibility of the estate.Q: Sure, so those reports would you say important or crucial to being able to obtain that support from the government …
A: Yes, absolutely. We are here to act commercially on behalf of the ACT government and we would not be putting up a project that we knew could not pay for itself and would not return the required dividends to government that we need to deliver.
Q: Right?
A: So we need to support that position to cabinet, otherwise essentially
we are asking them to approve a project that we know we can't deliver.Q: Sure, and that was the primary purpose, would you say, or (indistinct) purpose of commissioning those reports?
A: Yes, and also to inform our board in making a decision when they come to make it.[15]
[15] Transcript p14.40-p15.15.
Q: All right then, just backtracking, in your own words why was
the report commissioned? What was its main purpose, or what were its main purposes in the context of what we talked about, cabinet report?A: It was commissioned in order to support a decision by cabinet to progress the development.
Q: Sure, that's an answer; and in relation to the board?
A: And similarly our board. They are the governing board and we have to follow their instruction and we provide recommendations to them supported by expert knowledge that we commission from our consultants.
Q: Sure. Thank you. I think you have already answered what was going to be my final question, which is what do you see as being a potential outcome if the reports were publicised, if they were publicly available, and you can say as many answers to that as you like?
A: I guess it comes back to what I said about competitive tender processes, also recognise the fact that through the cabinet submission process these documents were listed as not to be released to the public. Similarly, business planning and financial planning that we put to the LDA board is not public, because we do act commercially. That's the nature of the LDA. I think I probably covered it in my previous answers.[16]
Ms Jorgenson’s Evidence in Cross-Examination
[16] Transcript p15.35-p16.10.
Much of the cross-examination of Ms Jorgenson strayed into areas which were either irrelevant to the matter before the Tribunal or were in the nature of submissions. However, the cross-examiner elicited the following testimony:
Q: … In your evidence earlier, you stepped us through the process of consideration by the proposal that was put out into the public domain, which I think you called the master plan. It went through the LDA board and through cabinet, and you said that you received approval to go out and consult, and that was the intention of going to cabinet to consult on the master plan? Is that correct?
A: Yes, that's correct.
Q: Right?
A: Yes.
Q: Is it also correct that the information that the LDA on its website at the time of the May, June 2014 consultations state that the ACT government has provided in-principal support for the development of the current strategy. Is that the strategy you went out and consulted on?
A: Yes. Yes, that was attached to the cabinet submission. Correct.
Q: So, from that I conclude that the government had given its full support for the proposal that was put forward with the attachments that were supplied to support it?
A: The exact wording of the recommendations doesn't come to mind, but essentially it was about, the approval from cabinet was to commence statutory processes to facilitate development of the land defined by the study area of the Canberra Brickworks and environments.
Q: On the website it's reflected as, and I have the papers supplied to ACAT, the government provides in-principal support defined in the current strategy, so I think that we are in agreement there. Now, you also covered the government structure of the LDA and I just wanted to step through some of my understanding. You talked about the commercial nature of the LDA in returning (indistinct) money to government. My understanding is, and this is derived from publicly available papers like the 2014/15 statement of intent, but the LDA every year puts out a public statement of intent, and in that is included it's returns on land sales to government. I believe it's currently around 20 per cent. Is that so?
A: That's so.
Q: So am I correct that it's a target that is set, and it's not only signed off by the LDA board, but also in this case Minister Barr?
A: Yes. Yes, they both signed the statement of intention.
Q: So it's a high level target. Is it also, just going to the commercial nature because this is important in terms of public interest and value for money, that in the most recent budget for the ACT government the land sales revenue for the LDA was significantly reduced and that it did not meet its target for the last financial year and for the years that it was reduced by something like 200 million per annum. Are you aware of that?
A: I'm aware that there have been movements and that but that level of - yes, high level of financial information is not something that I am specifically involved in as a project director for a specific project.[17]
[17] Transcript p19.40-p20.44.
Then further on:
Q: So could you just give some insight as to how this relates to the decision to withhold the documentation relating to this, given that you're specifically tabling in the public domain that these reports exist and giving the conclusions of the report but not giving the public access to any details to support those conclusions. Could you sort of shed some light as to how and why this statement is there but there's no information being provided and it relates to the Brickworks being a fundamental component of the proposal. I'm just at a loss in terms of the technical reasons for its suit and how we can say, "It's an internal working document. Let's cite it and cite some of its conclusions in the public domain"?
A: That's the conclusion or reporters as you highlight but the workings and the numbers attached to that, that's really what we are contending; that the numbers that allow us to reach that conclusion are not appropriate to be in the public domain which is why the document was withheld.[18]
33.Then finally and critically:
Q: Just to go back to the concerns that the LDA has about the detail of the Macroplan Dimasi report impacting on the market. I have no basis to be (indistinct) The release of these reports now and the details, given that there is a long way to go in the process and I would assume further information will be analysed, why is there a concern at this point in time? You've talked about – I think it was a 24-month process still to go, so this is information that was with analysts' reports undertaken in 20/12/13 with many steps in the process to go, with many variations to do with scale and density and contamination. Could you give some insight into why there are concerns that this report which is - relevance is important to the community now but it may not be later. Why is there this concern now when so much more has to change and happen?
A: Because these reports that are being withheld go directly to the
commerciality of the project. The LDA is a commercial entity and it leads back to what I said previously when I gave evidence, which is the fact that we have to run competitive tender processes to ensure we're getting value for money for the government and for the community. Releasing these sorts of figures and data in advance of those tender processes is not appropriate.Q: But my point was: won't the tender process be on a different basis because by that time we will have a different proposal?
A: Potentially but for the information that sits within these documents it has helped support cabinet make a decision and the LDA board. Those are commercial figures and I would be incredibly interested to understand any private developer or another government land organisation that releases those sorts of figures into the public domain.[19]
[18] Transcript p23.15-p23.30.
[19] Transcript p24.40-p25.20.
The evidence elicited on cross-examination did not assist the applicant’s case.
The Respondent’s Submissions both written and oral
The respondent claims that all five (5) documents in dispute call to be assessed variously pursuant to sections 35(1)(a) (Executive documents), 35(1)(d) (deliberation or decision of the Executive), 36(1) (internal working documents), 39(1) (documents affecting financial interests of the Territory), 43(1) (documents relating to business affairs) of the FOI Act. To be successful in withholding those documents, the respondent need only be successful in respect of one of those provisions.
The respondent submitted that the Tribunal should affirm the decision of Mr Reynolds made on 23 June 2014.
Document 1
The respondent relies on all of the statutory provisions referred to above.
Section 35(1)(a) and 35(1)(d) – Executive Documents and Deliberations and Decisions of the Executive
The respondent submitted that this was an executive document. Reliance was placed on Whitlam v Australian Consolidated Press[20] where his Honour Blackburn CJ articulated the principle since adopted in section 35 of the FOI Act that to maintain the confidentiality necessary for the functioning of the Executive Government, deliberations and processes of the Executive, including Cabinet, are protected from mandatory disclosure under the Act.
[20] (1985) 76 FLR
What the learned Chief Justice said in that case could hardly be described, as it was by the applicant,[21] as ‘motherhood statements’. His Honour’s remarks were, and remain, the authoritative rationale for statutory provisions that protect Cabinet secrecy.
[21] Paragraph 59 of the applicant’s statement of facts and contentions, 7 October 2014.
The respondent submitted that section 35(1)(a) should be construed as follows. Documents in fact submitted to the Executive for consideration are, by definition, Executive documents and are automatically exempt, whereas documents as yet only proposed for a submission (a proposal which may never eventuate) must satisfy the higher standard of having been expressly and exclusively created for that purpose in order be exempt documents. The Tribunal regards that construction as correct and well supported by authority.[22]
[22] Re Porter and the Department of Community Services and Health 14 ALD 403; Re Aldred andDepartment of Foreign Affairs and Trade 20 ALD 264; Re Fewster and the Department of Prime Minister and Cabinet (No 2) 13 ALD 139.
Document 1 was submitted to Cabinet for consideration on 18 February 2014 as part of a Cabinet Submission 13/556. It appears to the Tribunal that, prima facie, this document falls within the exemption provided for in section 35(1)(a).
The respondent also argues that the document is exempt pursuant to section 35(1)(d) – disclosure of any deliberation or decision of the Executive. This document was prepared specifically for the consideration by the Executive (Cabinet) and the respondent’s Board. According to the evidence of Ms Jorgenson, it was a working paper or a work in progress. The character of such a document submitted to the Executive, clearly suggests that it was a document, the contents of which were meant for the Executive to digest, discuss, debate and, perhaps, form a view as to the progress of its subject matter. The Tribunal is in no doubt that this document is also protected under section 35(1)(d) of the FOI Act.
Section 35(2) – Excluding the Exemption
A document that contains projections and assumptions (obviously, as the language suggests, relating to matters in the future) could not be considered to be ‘purely factual material’. True it might be that some factual material may, or may not, be contained in the document and may possibly form the bases of the predictions, those facts alone do not make the conclusions or projections contained in the document ‘purely factual material’. The Tribunal regards the submission made by the respondent as being sound and is persuaded by it.
Section 36 - Internal Working Documents
It is submitted by the respondent that the subject document was produced for the primary purpose of assisting the respondent’s Board in its deliberations regarding the future and preferred development options or approaches to the Project. The submission that the document is ‘deliberative’ in nature is an unremarkable conclusion. It was a document that, by its nature, required deliberation, consultation and, perhaps, recommendations prior to any decision by the respondent to submit it further.
The respondent makes submissions relating to the matter of disclosure in the public interest. The Tribunal deals with that issue below.
Section 39 – Documents affecting the financial or property interests of the Territory
The respondent submits that document 1 contains a number of projections and financial forecasts. In oral testimony, Ms Jorgenson was at pains to emphasise the fact that the respondent is a discreet commercial entity within government carrying on the business of developing land for sale in the open market and returning income from such enterprises to government.
It appears to the Tribunal that it is an unremarkable proposition that, on balance, the public interest is generally best served by successful ventures undertaken by the respondent.
Ms Jorgenson emphasised the commercially sensitive nature of the content of this document. The respondent submitted that, if this document was disclosed to the public who include potential buyers or competitors in the land development field, there would a real risk that that such commercially sensitive information could influence the amount earned by the respondent.
On any view of it, that would result in a substantial adverse effect on property interests of the Territory or of an agency. Moreover, it is the Tribunal’s view that a lower return to government from a commercial enterprise conducted by the respondent could not reasonably, or realistically, be considered to be in the public interest.
Additionally, there is authority for the proposition that where an agency of government is engaged in a competitive activity in respect to government owned property and where access to such sensitive information would result in a substantial adverse effect on the value of the property, which was the unchallenged effect of Ms Jorgenson’s evidence, the exemption will apply.[23]
Section 43(1)(b) - Documents Relating to Business Affairs
[23] Re Connolly and the Department of Finance (1994) 34 ALD 655.
The respondent argues, in the alternative to section 39, that the exemption contained in section 43(1)(b) is equally applicable. If disclosed to the public who must include potential investors and competitors in the field, information contained in this document could prejudice the commercial viability of the Project. The Tribunal is persuaded by that submission.
Documents 2 and 3 - Section 43(1)(b)
These documents were released in part to the applicant. Sensitive information relating to the projected financial affairs of the respondent and associated financial project risks, was excised from the documents. The respondent submits that the same rationale in the foregoing paragraph for withholding that excised sensitive commercial information, which was supported by Ms Jorgenson in her unchallenged testimony, applies equally to these documents. Maximising the land sale prices would be threatened, and or diminished, by the release of the excised content.
Document 4 – Section 35(1)(a) and (d)
Document 4 together with, inter alia, documents 1 and 5 was submitted to Cabinet for its consideration on 18 February 2014. They formed part of Cabinet Submission 13/556. Even if this document could be described as containing purely factual material, disclosure of it would nevertheless be caught by section 35(2)(c). For those reasons the Tribunal accepts the respondent’s submission that this document is exempt from disclosure.
Document 5 – Section 35(1)(a) and (d)
In oral submissions, the respondent submitted that this document, however it was formally described, is a supplementary report created by the same consultants who prepared document 1.[24] It is the content of the document that is critical in the case of this document. It is an optimizing analysis of the contents of document 1 which, amongst other things, canvassed a range of options.[25]
[24] Transcript p48.35 -Transcript p49.5.
[25] Transcript p49.1 – Transcript p49.10.
Moreover, the respondent submitted that, unlike document 1, this document was produced expressly and exclusively for submissions to, and the consideration of, Cabinet at the request of the Cabinet Office. For those reasons, the Tribunal is persuaded by that submission.
The Applicant’s submissions both Written and Oral
To bring itself within the ambit of the statutory exceptions for the five (5) documents claimed to be exempt documents, the applicant must adduce evidence, or rely on authority articulated in submissions, both written and oral, as to why and how it asserts that:
·one or all of the disputed documents are ‘relevant documents’ referred to in section 35(1)(a) to the extent that they contain purely factual material (section 35(2)(a). However, the applicant then must contend with the caveats to section 35(2)(a) contained in sub-sections (2)(c) and (d);
·disclosure of one or all of the disputed documents is not contrary to the public interest (section 36(1)(b) or that one or all of the disputed documents answers the description of the documents referred to in sub-section (4);
·disclosure of one or all of the disputed documents is in the public interest (section 39(2); and
·one or all of the disputed documents do not fall to be considered pursuant to section 43(1)(b).
Those are the only relevant considerations for the Tribunal. In other words, these are the only ways that the applicant can defeat the existence of a legitimate ground for exemption of the disputed documents.
The Tribunal cannot have regard to, or give any weight to, relevantly extraneous matters. However, when undertaking a first instance review on the merits pursuant to the statutory warrant contained in section 68 of the ACAT Act, the Tribunal must give effect to the object of the FOI Act contained in section 2 of the FOI Act.
In paragraph 14 of its statement of facts and contentions, the applicant commences it argument on an erroneous premise; namely, that the Tribunal must carefully examine the decision of Mr Reynolds of 23 June 2014. For emphasis, what this Tribunal undertakes is a first instance review on the merits and not an examination of the decision maker’s reasons. In paragraphs 15 to 17, 20, 22, 23 and 24, the applicant deals with what can be described as extraneous material, which is not relevant to the way this Tribunal must deal with the Application.
Paragraph 18 contains a submission in relation to section 2 of the FOI Act, which is, in the view of the Tribunal, wrong. Trends towards transparency and greater accountability in government do not render section 2 ‘in essence, the ‘default position’ in regard to requests for access to information’. As a fundamental tenet of construction of statutes, which must be construed as a whole, such a construction would give the provisions dealing with exempt documents no work to do. Moreover, that submission ignores the exceptions contained within those provisions.
True it is that section 71 of the FOI Act places the onus on the respondent to either establish that the relevant decision was justified, or that this Tribunal should give a decision adverse to the applicant. However, the submission made by the applicant in paragraph 25 is misguided. Provisions dealing with onus in statutes are not uncommon. They generally have no role to play in construing the objects of an Act. The submission that the onus provision ‘further reinforces the default-access position’ advanced by the applicant is rejected.
Paragraphs 27 to 55 deal with document 1, the MacroPlan Dimasi. In paragraphs 27 to 29, the applicant takes issue with the expanded exemptions claimed by the respondent in its statement of facts and contentions. The applicant asserts that the respondent should be held to its original claim of exemption pursuant to section 36 of the FOI Act. The Tribunal does not accept this submission. This is a legitimate approach to a merits review at first instance. The respondent is entitled to augment its basis for arguing exemption pursuant to the FOI Act. So much is plain from the language of section 71 of the FOI Act.
In paragraph 33, the applicant appears to treat an acknowledgement made by the respondent that there might be a dispute as to whether disclosure of document 1 would be contrary to the public interest within the meaning of the second limb of section 36, as a concession that disclosure would be contrary to the public interest. That is not the case. Public interest will be dealt with in greater depth in due course.
In paragraph 37, the applicant deals with the fact that some material of a summary nature has already been published on the respondent’s website and, for that reason, the release of document one would not reveal the deliberations of government. Ms Jorgenson effectively put that submission to rest in cross-examination.[26]
[26] Transcript p23.15-p23.30; Transcript p24.40-p25.20.
In paragraphs 38 to 49, the applicant deals with the public interest issue of section 36(1) of the FOI Act. The tenor of those submissions indicates to the Tribunal that there is a keen interest in the Yarralumla community and the wider community to know more about the planned Yarralumla Brickworks and Environs Project. However, a keen interest will not satisfy the relevant test.
The Tribunal is cognisant of the well-understood and established factors favouring disclosure in the public interest. For the most part, they are generalised and non-specific. Two factors are however more specific and require closer examination in the context of this Application.
They are first, where a document gives an explanation for a final government decision and secondly, where some material is in the public domain and release of further material would complete the picture of what is known. Although not crisply expressed, the Tribunal apprehends that this is the gravamen of the applicant’s public interest argument.
The unchallenged evidence of Ms Jorgenson dealt decisively with both issues. Her evidence was that no final decision had been made by the respondent Board, let alone the Executive as to the future of the Yarralumla Brickworks and Environs Project. The deliberations in that respect were a work in progress.
She conceded that some material relating to the five documents had been placed on the website, but that information was essentially skeletal in nature and that what was being withheld were the ‘workings’ and the ‘numbers’. Those, she said unchallenged, were not appropriate to be in the public domain. The Tribunal infers from her evidence in that respect that first, the material withheld was in the nature of projections in relation to the Project, which may or may not go ahead and secondly, it was commercially sensitive material.
The general factors favouring disclosure (the public interest argument) notwithstanding, it appears to the Tribunal that certain documents demand a contrary approach.
There are well-established propositions in relation to factors against disclosure.[27] They are as follows:
·disclosure of communications made in the course of development and subsequent promulgation of policy tends not to be in the public interest;
· disclosure which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest; and
·disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken maybe unfair to a decision maker and may prejudice the integrity of the decision-making process. (emphasis added)
[27] Re Howard v Treasurer (1985) 7 ALD 626
There is authority for the following propositions dealing generally against disclosure. They include:
·where a document is incomplete or misleading and would create an unfair impression of the facts;
·where the document concerns matters that are not settled or recommendations that were not ultimately adopted such that the release of the document would not make a valuable contribution to public debate;[28] and
·where disclosure would prejudice an ongoing deliberative process.
[28] Re McKinnon and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2008] AATA 161.
Having regard to the unchallenged evidence of Ms Jorgenson, the public interest argument which was essentially put on two bases by the applicant is not made out. On balance, the Tribunal finds that:
·disclosure could lead to confusion and unnecessary debate resulting from disclosure of possibilities considered;
·document 1 concerns matters that are not settled, or recommendations that may not ultimately be adopted, such that the release of the document would not make a valuable contribution to public debate29; and
·disclosure would prejudice an ongoing deliberative process, which is plainly the case with this Project.
Those factors, which are supported by Ms Jorgenson’s evidence, militate against disclosure.
In paragraphs 50 to 55, the applicant deals with sections 36(3) and (4). The word ‘factual’ is an adjective and means something that is actually the case.[29] The use of the word ‘purely’ before it emphasises the intent of the phrase. It means that the material must be truthful, true and or accurate. It is difficult to see how a document containing projections and estimates and is described as a ‘working document’ could reasonably come within the exception provided for in section 36(3) of the FOI Act. The Tribunal is of the view that this exception to the exemption contained in section 36(1) is not applicable to the circumstances of this Application.
[29] Oxford English Dictionary Online.
In paragraphs 52 to 55, the applicant deals with the exception contained in section 36(4) of the FOI Act. Harris v Australian Broadcasting Corporation[30] is the leading case on this provision. Until such time that a higher court reverses it, it remains good law. The Tribunal therefore rejects the submissions contained in those paragraphs.
[30] (1983) 51 ALR 581.
In paragraphs 56 to 92, the applicant deals with the exemptions contained in sections 35, 39 and 43. They are substantially responsive to the respondent’s submissions contained in its statement of facts and contentions.
The applicant’s oral submissions substantially failed to address relevant matters. Not only were they irrelevant in many respects,[31] but also facts were exaggerated[32] both in oral and written submissions, which was not helpful.
[31] Transcript p35.35 – Transcript 35.40. A submission asserting that ‘strong precedents’ for release of documents (past years) somehow should be considered as well as petitions, notwithstanding that there is no support for such a consideration in the FOI Act or authorities on the subject, even dealing with authorities on what constitutes ‘public interest’
[32] Transcript p9.10 – Transcript 9.15. ‘…it doubles, more than doubles the size of the suburb…’; paragraph 41 of statement of facts and contentions, 7 October 2014.
Even bearing in mind the objects of the FOI Act contained in section 2, the public does not have a right to know[33] if the documents sought to be released fall, in fact and law, within the exemptions provided for in the FOI Act.
[33] Transcript p35.30.
The Tribunal was not assisted by the applicant’s oral submissions because, for the most part, they did not address, or traverse, the submissions made by the respondent on the critical question of the exemptions.
Exhibit R1
During the course of the hearing, it became apparent that the applicant had misgivings about what were described as ‘assertions’ made by the respondent as to the status of the disputed documents in the absence of what was described as ‘evidence’ to support the assertion.[34]
[34] Transcript p46.25; Transcript p51.15 – Transcript p51.20.
The applicant submitted that what was needed was someone (referring to the Tribunal) ‘to have oversight of these documents and form a view as to their nature.’[35]
[35] Transcript p51.7.
The Tribunal accepts the submission made by the respondent in this respect where it said:
Certainly, the Tribunal has power to enact an order of that nature. The condition precedent to making that order though is that ACAT is not satisfied by evidence on affidavit or otherwise, so I would just submit that the tribunal would need to be unsatisfied, or fail to be satisfied based on the evidence before you as to the nature of the document.[36]
[36] Transcript 51.10 – Transcript p51.15.
However, whilst the Tribunal has found the evidence and submissions made by the respondent in relation to the exemption of the disputed documents, to be persuasive, it nonetheless, made an order that the disputed documents be produced to the Tribunal.
That was done so that the applicant could be satisfied that the Tribunal had independently informed itself in relation to the exemptions claimed by the respondent by a careful examination of the disputed documents.
The Tribunal conducted a thorough examination of the disputed documents and concluded that all of the exemptions claimed in respect of them by the respondent were valid and caught by the relevant provisions of the FOI Act relied upon.
………………………………..
Ms L. Crebbin, General President
For and on behalf of
Ms L. Donohoe SC, Senior Member
HEARING DETAILS
FILE NUMBER: | AT14/47 |
PARTIES, APPLICANT: | Yarralumla Residents Association |
PARTIES, RESPONDENT: | Land Development Agency |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | Ms Sexton ACT Government Solicitor |
TRIBUNAL MEMBERS: | Ms L. Donohoe SC |
DATES OF HEARING: | 16 October 2014 |
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