Berryman v Murray River Council

NCAT Administrative and Equal Opportunity|2023-03-06

Background

These proceedings concern requests that Kylie Berryman (the applicant) made to Murray River Council (the respondent) on 15 October 2021 and 9 August 2022 for the release of information under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act).

First GIPA request

In the request dated 15 October 2021, the applicant sought access to a "copy of the Centium Report into Council & the Moama Ethanol Plant (known as Murray River Energy)".
On 15 November 2021, the respondent wrote to the applicant, acknowledging receipt of the GIPA request and advising that at its October Meeting, the Council resolved to release the recommendations from the report. It stated: …The release of the information has been temporarily delayed and therefore I am writing to request an extension for the finalising of this application until Monday 29 November 2021…
On 18 November 2021, the applicant sent an email to the respondent, stating relevantly: …Yes, I am aware that resolution 20121 was carried to release the recommendations from the Centium report. I & other ratepayers are very disappointed that the report in its entirety was not voted to be released. Especially since ratepayers funded the cost of $26,244.70 for this report to be commissioned. I would like an explanation as to why the release of the recommendations has been temporarily delayed please. I would also like to know how & where the recommendations will be released for all of the public to read please…

Decision at first instance

On 29 November 2021, the respondent issued a Notice of Decision under the GIPA Act and decided to provide access in part to the information sought under s 58. The decision indicated that the requested information was located in its Record Management System and that it had decided to provide access to a redacted copy of the requested information (comprising Recommendations).
The respondent stated that it applied the public interest test and that it identified the general public interest in favour of disclosure of government information under s 12(1) as the public interest consideration in favour of disclosure. However, it did not state what weight it applied to this consideration.
The respondent stated that no consultation (with third parties) was required in assessing the GIPA request. It identified the following clauses of the table to s 14(2) of the GIPA Act as the public interests against disclosure of the requested information: 1. Clause 1(e) - disclosure could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency; 2. Clause 1(f) - disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions; 3. Clause 1(h) - disclosure could reasonably be expected to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed); and 4. Clause 2(c) - disclosure could reasonably be expected to prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings.
The respondent did not provide any reasons that supported a finding that those clauses (or any of them) applied in this matter and it did not state what weight it applied to them and why. Nevertheless, it asserted that after weighing up the considerations, it decided that there was an overriding public interest against disclosure of the Centium report - with the exception of its recommendations.

Request for external review

On 6 November 2021, the applicant requested an external review by the Information and Privacy Commission (IPC) on the following grounds: Murray River Council has refused to release the Centium review. The Council has cited items 1(e), 1(f), 1(h) and 2(c) to the table in section 14 of the Act for its refusal. It appears that they have mistaken item 2(c) of the table as the text they quote refers to item 3(c) in the table. The agency has stated these items from the table verbatim and has not provided an explanation or justification for their use as to how they apply to the application. It is unclear how the items quoted by the Council affect the issue of the GIPA application. As I understand them they seem to be inferring in some way that releasing the review may have a negative effect on their internal processes and possibly affect or influence some current or future unnamed 'proceedings'. I notice a recent NSW - ICAC investigation where the NSW Government spent $26,000 providing legal assistance to an ex politician being investigated. I notice the sum of money spent is almost exactly the same as the cost to ratepayers of the Murray River Council Centium review. The ICAC proceedings were open to the public and national media. Material released to the public included disclosure of the content of telephone wire taps of personal and private conversations. The NSW Government did not claim the transparency of the ICAC proceedings would interfere with any of its internal processes and, although ICAC has the ability to refer matters directly to the Department of Public Prosecution, there was no mention that the public nature of the disclosures during the hearing would influence any current or future 'proceedings'. Considering - ● The Centium procedure is simply a review and not an investigation ● The comparative levels a Centium review and a full ICAC investigation in terms of the investigatory power of the two organisations and the quality and amount of the information they uncover ● The level of transparency in the above mentioned ICAC process and the information released in the national media ● The far higher pro-rata cost to Murray River Shire ratepayers for the Centium review by comparison with the cost to NSW state taxpayers for the ICAC investigation ● The potential effect the information coming from the ICAC proceedings could have on any functions, deliberations or present/future proceedings legal or otherwise of the NSW state government compared with the potential effect of information within the Centium review on Murray River Council and the potential for any damage to institutional reputation for the NSW State Government coming from the full release of the ICAC investigation compared with a similar consideration for Murray River Council releasing the Centium review ● Information from the ICAC investigation obviously being held as having no affect on the state government or it being held that the public interest outweighs that affect. ● Considering the above example, it is hard to understand the grounds on which council is refusing to release the far less detailed and far less revealing Centium review. At a general meeting on 26/10/2021, council was presented with a petition (see attachment 4), first 2 pages included balance available on request) containing 1055 signatures requesting the public release of the Centium report. These signatures had been collected in only a couple of days prior to that meeting. This is an indicator of the strong public interest in this matter and in the Centium review. As a result of the petition, council released the recommendations contained within the Centium review. This release was via an unannounced posting of that material to the council website. The recommendations provide ratepayers with no real insight into the matter. The ratepayers of Murray Shire Council have a right to know how their council is administering projects and spending their money. They have paid $26,000 to find out. The public interest in this matter as demonstrated by the petition indicates there is an overriding public interest for the disclosure of the information requested. To quote par 1 section 3(1) of the Act, the object of the Act is "to maintain and advance a system of responsible and representative democratic government that is open, accountable, fair and effective." The Act holds that transparency of government is a critical factor within a representative democracy. Transparency is the cornerstone of an informed vote and interactive governance. In consideration of the above I request a review of Murray River Council's Notice of Decision to my GIPA application of the 15/10/2021.
On 17 February 2022, the IPC sent an email to the applicant and requested clarification of her request. On 18 February 2022, the applicant replied with further submissions.
On 3 March 2022, the IPC advised the applicant that it had received all information considered necessary to complete the review and that the review would be completed within 40 working days.
On 16 March 2022, the IPC issued its review report, which concluded that the respondent's decision was not justified. It recommended that the respondent make a new decision by way of internal review. In particular, it noted that there was a lack of findings on any material questions of fact pertaining to the reasons for the respondent's decision, and a lack of reference to the sources of information on which those findings are based. The lack of content fails to assist with an understanding of the reasons for the decision. It was also not clear whether the respondent contemplated the report in full, or whether its decision concerned the portion of the information referred to in the table only. Therefore, the agency had not met its obligations under s 61.

Respondent's internal review decision

On 23 March 2022, the respondent wrote to the applicant, advising inter alia that it had agreed to enact the IPC's recommendation and that it would advise the outcome of the internal review in due course.
On 6 April 2022, the respondent issued a further Notice of Decision, which maintained its previous decision.
The respondent identified the following public interest considerations in favour of disclosure of the information: 1. disclosure could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance; and 2. disclosure could reasonably be expected to ensure effective oversight of the expenditure of public funds. However, as was the case in the initial decision, it did not indicate the weight that was applied to those considerations.
The respondent also identified the following public interest considerations against disclosure, namely that disclosure could reasonably be expected to: 1. Clause 1(e) - reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency; 2. Clause 1(f) - prejudice the effective exercise by an agency of the agency's functions; 3. Clause 1(h) - prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency, by revealing its purpose, conduct or results (whether commercial and whether or not completed); 4. Clause 2(c) - prejudice any court proceedings by revealing a matter prepared for the purposes of or in relation to current or future legal proceedings; and 5. Clause 3(e) - reveal false or unsubstantiated allegations about a person that are defamatory.
The respondent stated that its officers must comply with the resolution made at the council meeting on 23 November 2021, namely: 1. Clarify the information to be released in accordance with Resolution 201021- made at the Ordinary Council meeting on the 26 October 2021 2. Redact parts of the recommendations to ensure that the information released is in line with legislation, commercial-in-confidence principles and does not refer to individuals or businesses.
The respondent stated that it sought legal advice into the risk of legal action against it, in particular regarding defamation, in the event that it released an unredacted copy of the Centium report and that it was advised that there was "a high chance of legal action if the report was released as a whole". It also stated that the report contains the following disclaimer clauses: 1. Confidentiality - This report is confidential, has been prepared solely for the use by your entity and ownership of the report and any attachments lies with your entity; and 2. Third Party Responsibility - This report should not be quoted in whole or in part without our written consent. We disclaim any assumption of responsibility for any reliance on this report to any person other than the management of the entity or for any purpose other than which it was prepared.
The respondent also stated that Centium had objected to the release of the report as a whole.
The respondent stated that it applied the public interest test and decided that there was an overriding public interest against disclosure of some of the information. It therefore decided to produce the "redacted recommendations" to the applicant by way of email.

Respondent's revised decision

On 6 May 2022, the respondent issued a revised notice of decision, but it appears that the only revision was a statement regarding the result of its consultation with Centium. It stated, relevantly: Centium advised that, beyond the release of the summary of recommendations, that were released as per the resolution of the Council, they do not consent to any additional part of the report being released, in whole or redacted, to any party outside of Murray River Council. Centium's report was provided to Council in confidence, and release of the information could result in an action against Centium, to which Council has identified Centium. There is, therefore, a strong public interest against disclosure.

Request for further external review

On 22 June 2022, the applicant sent an email to the IPC seeking a review of the decision dated 6 May 2022.
However, on 22 July 2022, the IPC advised the applicant that it could not accept this request because it was made out of time.

Second GIPA request

On 9 August 2022, the applicant lodged a further application under the GIPA Act, and sought "a redacted version of the full Centium report to the point where Council is protected from legal action as per the legal advice they received."
The respondent acknowledged receipt of this GIPA application on 10 August 2022.

Decision at first instance

On 7 September 2022, the respondent issued a Notice of Decision, which indicated that it had decided to release the requested information, as follows: You will be given a copy of the information that I have decided can be released. As discussed, there is an overriding public interest against disclosure of some but not all of the information. You will therefore find that some of the information has been redacted, as allowed by Section 74 of the GIPA Act. The information has previously been released to you by email - in a different format.

Request for external review

On 21 September 2022, the applicant requested an external review by the IPC, on the grounds that the document provided to her was heavily redacted and only the recommendations (previously disclosed to her) were left. She stated, relevantly: …As you can see all text, aside from the publicly released recommendations has been deleted. There is no possible legal reason to redact the report to this extent. In the absence of a sound legal reason, the only conclusion to draw is the agency would find it embarrassing to release the report. Under section 15 part 2(c) of the GIPA Act, embarrassment to the agency is not a valid reason to withhold information… It appears that council have taken the stance that if this information was released to the public that the information would lead to their demise at the next elections. As long as Murray River Council are permitted to subjectively curate information about their real performance, the community will continue to suffer in ignorance. At some point, information about the administrative activities of this council must be made public. Without that information voters and ratepayers remain in the dark, continually supporting in good faith an agency whose actions may not justify that good faith. Only the full report can supply that information. Specific and limited redactions done in consideration of legal issues should not prevent the report, minus those specific redactions, being released to the public in full. MRC voters and ratepayers have no way of knowing if the millions of dollars they are currently paying in wages and salaries for their councillors and council staff are justified, spent efficiently or spent in their (voters and ratepayers) best interests. Voters and ratepayers have no way of knowing if the operations of MRC in the pursuit of their duties represent best practice. If the current regime of secrecy is allowed to continue they never will. Keeping the information of the Centium report, which was paid for by taxpayers, a secret denies the public information that would provide a meaningful degree of oversight and therefore enough information to make an informed vote…
On 26 October 2022, the IPC wrote to the respondent advising the outcome of its external review of the decision dated 7 September 2022. It stated, relevantly: Recommendation I recommend that the Agency reconsider its decision by way of an internal review.
The IPC considered that the respondent relied heavily on cl 3(e) to the table in s 14(2) of the GIPA Act and it referred to the respondent's statement in the decision that addressed this clause and stated, relevantly: This statement, along with the other statements under considerations 1(e),1(f), 1(h) and 2(c) is insufficient to meet the requirement at section 61(b) of the GIPA Act. Any decision to refuse to provide access to information must include findings and references to probative evidence, to properly demonstrate the applicability of a consideration in section 14 and support any underlying claims of anticipated prejudicial effects. The application of consideration 3(e) In Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254, the Tribunal stated at [59] that '…when considering the evidence on which it is asserted that disclosure could reasonably be expected to have a particular effect, the following principles should be kept in mind: a. a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; b. prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses. If the agency seeks to rely on consideration 3(e), at review the onus is on the agency to identify the allegations and explain how revealing the information may lead to the revelation of unsubstantiated defamatory allegations against a person. It is important to note that the consideration at clause 3(e) requires that the allegation at issue pertain to "a person". I note that clause 3 considerations pertain to "individual rights" in contrast to considerations in clause 4 of the table of section 14 of the GIPA Act, which pertain to "business interests". In undertaking the external review, I have examined the information in issue, and it appears the information redacted under clause 3(e) does not relate to any particular individual. I am of the view that the term "person" for the purpose of the consideration could not refer to private sector organisations, as in the case of Centium. The agency should also consider the Tribunal's findings in the matter of Hurst v Wagga Wagga City Council [2011] NSWADT 307, where the Tribunal accepted (at [83]-[84]) that to satisfy the second element of this clause, the reviewing officer must reach a conclusion about whether the allegations are defamatory to a person according to the general principles of defamation law, that is, in the minds of ordinary reasonable people, to injure the person's reputation by: ● Disparaging him or her; ● Causing others to shun or avoid him or her; or ● Subjecting him or her to hatred, ridicule or contempt. Separately I would also remind the agency of section 15(c) of the GIPA Act… In the light of the above and on the information available, there does not appear to be any evidence put forward by the Agency to support wither the claims of defamation or any other public interest consideration listed in the Notice of Decision. On the information made available, it appears general concerns about the release of the information have informed the decision to restrict access, as opposed to a proper exercise of the public interest test. In any reconsideration, I would encourage the agency to review sections 113 and 115 of the GIPA Act regarding protections against defamation, breach of confidence or personal liability and consider its obligations accordingly. Conclusion For the reasons above, I am not satisfied with your agency's decision to refuse access to the information requested. Your agency's decision does not appear justified when considering legislative requirements and the elements required to demonstrate the application of each individual consideration, particularly consideration 3(e).

Further decision by the respondent

On 7 November 2022, the respondent advised the applicant that it had decided to undertake "a new reviewable decision" in relation to the GIPA request dated 10 August 2022.
On 2 December 2022, the respondent issued a further Notice of Decision, which stated that it had decided to partially release the information requested, as per its resolution dated 23 November 2021, but to refuse to release the balance of the report on the basis that there was an overriding public interest against disclosure.
The respondent also stated that it denied access to the report under s 58(d) as Centium did not authorise its release and the report contained a disclaimer that did not permit the release of the information contained in it. However, Centium agreed to the release of the recommendations in the report.
The respondent identified an additional public interest consideration against disclosure under cl 4(d) of the table to s 14(2) of the GIPA Act, namely that release of the information could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial information.
The respondent stated that it agreed to the disclaimer clauses relating to third party responsibility and confidentiality and that it must comply with the terms of its contract with Centium. It argued that if it breached agreements with its "suppliers", they "will not agree to further contracts" and that it relies upon its relationships with suppliers to undertake functions under the Local Government Act 1983 and other legislation and its ability to effectively exercise its functions would be compromised.
The respondent also asserted that it would void any insurance cover if it knowingly released the Centium report, after receiving legal advice of the substantial risk of legal action against it if it is released.
In relation to clauses 3(c), 3(d) and 3(e) of the table to s 14(2) of the GIPA Act, the respondent asserted that the Centium report was conducted as an internal audit and that not all persons involved in the project were interviewed. If the report was released in full, there is a substantial risk that parties mentioned in the report could bring proceedings against Centium, and as a consequence of it indemnifying Centium, it could face significant costs in any defence by Centium against defamation, or any award.
The respondent also identified an additional public interest consideration against disclosure, namely cl 4(d) to the table in s 14(2) and it argued that if the Centium report was released, Centium could bring action against it for breach of copyright. However, it did not refer to any evidence to support that argument.

Application for administrative review and procedural directions

On 17 November 2022, the Tribunal received the current application for administrative review, which sought a review of the respondent's decision dated 7 September 2022, on the following grounds: I and others have made a number of requests for the release of information, namely the Centium report pertaining to the acquisition of land and monies advanced by the Murray River council to a failed venture by Murray River Energy on land within the Murray River Council municipal district. The grounds on which the Murray River Council had sought to refuse to release the information has been reviewed by IPC on a number of occasions and I have attached copies of all previous GIPA applications and IPC reviews regarding same.
On 15 December 2022, the respondent's solicitors wrote to the Tribunal and the applicant's representative and asserted inter alia: …3.2 We note that the Centium report was conducted without input from third parties referenced in the report, and was speculative, ultimately recommending further investigation. 3.3 Further to the above, Council had given undertakings to Centium that it would indemnify Centium against risk of defamation if the report were released by council. 3.4 Council referred the matter to the Office of Local Government (OLG) who commenced an investigation under section 430 of the Local Government Act 1993 (investigation). 3.5 The OLG's investigation has concluded, and its report was tabled in Parliament on 13 December 2022 (item 3 of the schedule). 3.6 The report thoroughly addresses the matters of public interest raised by the applicant, and as such, council invites the applicant to withdraw its NCAT application. 3.7 In the event that the applicant does not withdraw the application, council submits that the Tribunal should exercise its discretion to refuse to review the decision pursuant to section 109 of the GIPA Act, as the application is now frivolous.
The respondent's solicitor filed and served a copy of the OLG's report under cover of that letter.
On 19 December 2022, Senior Member Higgins conducted a case conference at which Mr Hill appeared for the applicant, Mr McKenzie appeared for the respondent and Mr Wilkins appeared for the IPC. She ordered the respondent to file and serve its evidence, including statements, documents and submissions, by 23 January 2023 and to file an unredacted copy of the Centium report with the Tribunal, on a confidential basis, by 23 January 2023. She also ordered the applicant to file and serve any evidence, documents and submissions by 6 February 2023 and she ordered the IPC to file and serve its submissions by 20 February 2023. She listed the matter for hearing on 6 March 2023 by way of AVL.

The hearing

At the hearing on 6 March 2023, Mr P Hill appeared for the applicant, Mr J McKenzie appeared for the respondent and Ms J Kavanagh appeared for the IPC.
The parties agreed that the reviewable decision is the respondent's decision dated 2 December 2022.
The Tribunal noted that while the respondent filed submissions and lodged a copy of the Centium report on a confidential basis on 23 January 2023, it did not file any evidence in support of its case.
Mr McKenzie stated that the respondent relied upon the documents (including the confidential documents) and its written submissions in the matter. He was unable to provide any reason for the failure to file evidence in accordance with the timetable dated 19 December 2022.
While the respondent filed documents on a confidential basis, which primarily comprised the disputed Centium report, the Tribunal decided that as there was no evidence from the respondent and it had only filed 'open' submissions, it was not appropriate to conduct a confidential hearing pursuant to s 107 of the GIPA Act and s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
I also noted that while the respondent's submissions suggested a claim for legal professional privilege in relation to legal advice provided to it by Maddocks Lawyers, which was lodged with the confidential documents, that advice was outside the scope of the GIPA requests and "legal professional privilege" was not identified as a public interest consideration against disclosure of the Centium report.

Respondent's written submissions

The respondent stated that on 30 April 2021, before it received the Centium report, it sought legal advice from Maddocks Lawyers about whether its release "posed any risk of defamation (or) any other legal action that can be brought against Council". I note that a copy of its email to that law Firm is contained in the confidential documents. It received a response dated 3 May 2021 (also contained in the confidential documents).
The respondent stated that Centium owns the copyright to the report and that it "disclaimed responsibility for republication of the contents of the report to any third party" and "objected to the release of the unredacted report".
Otherwise, the respondent repeated the assertions contained in the Notice of Decision dated 2 December 2022, with respect to the public interest factors in favour and against disclosure of the disputed information.
In relation to cll 1(d), 1(g) and 3(e) of the table to s 14(2) of the GIPA Act, the respondent relied upon the legal advice from Maddocks Lawyers dated 3 May 2021. However, cl 1(g) had not previously been raised as a public interest consideration against disclosure.
The respondent concluded that the dispute between the parties is "narrow", being whether or not it is justified in determining that the public interest considerations against disclosure outweighed the public interest considerations in favour of disclosure, where it has legal advice that disclosure poses a significant risk of liability to itself and a third party. It stated, relevantly: 34. If the Tribunal is satisfied that Council was justified, then Council has satisfied its burden for the purposes of section 105(1) of the GIPA Act and these proceedings should fail. 35. If the Tribunal is not satisfied that Council was justified, then Council accepts that it should provide access to the report to the applicant. 36. Council therefore requests that the Tribunal, in furtherance of the just, quick and cheap resolution of the proceedings with as little formality as possible, consider making its decision on the papers. Orders sought 37. Dismissal of these proceedings. 38. Alternatively, if these proceedings are not dismissed, in light of the copyright held by Centium, an order that Council may comply with its obligations under the GIPA Act by making the report available for inspection by the applicant at Council's premises.

Respondent's oral submissions

Mr McKenzie stated that the respondent concedes that there are public interest considerations in favour of disclosure of the disputed information, but he noted that the applicant had sought this report on multiple occasions. He argued that the confidential documents lodged with the Tribunal support the respondent's position in relation to items 1(d), 1(g), 3(e) and 4(d) of the table to s 14(2) of the GIPA Act.

Applicant's submissions

The applicant relied upon her written submissions dated 18 December 2022 and short further submissions that were filed by Mr Hill on 17 February 2022.
In her submissions dated 18 December 2022, the applicant argued that the respondent's decisions lacked merit and that the Centium report should be released in its entirety because: 1. Dealings concerning Murray River Energy have already been heavily ventilated in the local print media and more broadly in television media in recent days as a consequence of the release of the investigation report by the New South Wales Office of Local Government into the failed Murray River Energy venture. 2. More than 1055 residents of the Murray River Council signed a petition in support of the release of the report. 3. She argued that the respondent's Resolution dated 26 October 2021 should not override the underling purpose of section 12(1) of the GIPA Act, which is to provide public access to government information, save where there is an overriding reason for no disclosure.
The applicant stated that she relied upon the decision of the Tribunal's Appeal Panel in Newcastle City Council v Newcastle Resident Group Ltd (sic) [2018] NSWCATAP 245. However, I note that the decision is properly cited as Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254. She argued that this decision provided that a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient.
The applicant argued that in view of the release of the investigation report by the New South Wales Office of Local Government into the respondent's "gross maladministration and questionable dealings pertaining to the failed Murray River Energy venture", ss 12 (a), (b), (c) & (d) are grounds that warrant the release of a complete and unredacted copy of the Centium report. Just because the release of the report may embarrass, expose examples of gross maladministration or financial mismanagement is not justification for precluding the general public from access to the information.
In his submissions filed on 17 February 2023, Mr Hill argued that the reviewable decision is that dated 22 April 2022 and the decision dated 2 December 2022 should not be considered because the current proceedings were on-foot before it was made.
However, I note that during the hearing Mr Hill agreed that the decision dated 2 December 2022 is the "reviewable decision" in these proceedings.

Applicant's oral submissions

Mr Hill noted that the respondent has not filed any evidence in support of its case and he argued that it has failed to discharge its onus of proving that its decision not to provide access to the disputed information is justified.
However, I note that the applicant did not address the issue of copyright with respect to the Centium report.

Respondent's submissions in reply

Mr McKenzie stated that the respondent would be prepared to provide the applicant to view-only access to the Centium report, but that it required the Tribunal to make a determination before it did so.

IPC's submissions

The IPC filed submissions on 17 February 2023 and Ms Kavanagh relied upon these at the hearing.
I have considered the IPC's submissions, although I have not extracted them in this decision.
I note that with respect to the issue of copyright and forms of access, the IPC referred to s 72(2)(c) of the GIPA Act, which provides that the agency must provide access in the way requested by the applicant unless … to do so would involve an infringement of copyright. It stated: 93. If providing a copy of the report would infringe copyright, the respondent can consider alternative forms of access under s 72(1). This could include allowing the applicant to inspect the report at the office of the respondent during ordinary business hours.

Legal principles

The legal principles under consideration are not in dispute. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".
On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states: 63. Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

The GIPA Act

In respect of access applications, s 9(1) of the GIPA Act relevantly provides: A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
I am satisfied that the Decision dated 2 December 2022 is a reviewable decision for the purposes of s 80 of the GIPA Act and that this is the subject of the current administrative review under s 100 of the GIPA Act.
In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below.
Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".
Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.
In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
Section 14 relevantly provides: 14. Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).
Section 14(2) of the GIPA Act provides: The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
Clause 1 of the table to s 14(2) - "Responsible and effective government" - provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, (f) prejudice the effective exercise by an agency of the agency's functions, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
Clause 3 of the table to s 14(2) - "Individual rights, judicial processes and natural justice" - provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: … (c) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings, (d) prejudice the fair trial of any person, the impartial adjudication of any case or a person's right to procedural fairness, (e) reveal false or unsubstantiated allegations about a person that are defamatory, …
Clause 4 to the table to s 14(2) - "Business interests of agencies and other persons" - provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: … (d) prejudice any person's legitimate business, commercial, professional or financial interests, expose a person to a risk of harm or of serious harassment or serious intimidation, …
Section 61 of the GIPA Act provides: Notice of decision to refuse to provide access Notice of an agency's decision to refuse to provide access to information because there is an overriding public interest against disclosure of the information must state the following - (a) the agency's reasons for its decision, (b) the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based, (c) the general nature and the format of the records held by the agency that contain the information concerned.
Section 72 of the GIPA Act provides: Forms of access (1) 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), (d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format. (2) The agency must provide access in the way requested by the applicant unless - (a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) to do so would be detrimental to the proper preservation of the record, or (c) to do so would involve an infringement of copyright, or (d) there is an overriding public interest against disclosure of the information in the way requested by the applicant. Note - Decisions about how to provide access are reviewable under Part 5.
Section 73 of the GIPA Act provides that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".
Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency 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] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).
Section 113 of the GIPA Act provides: 113 Protection in respect of actions for defamation or breach of confidence (1) If government information is disclosed pursuant to a decision under this Act, and the person by whom the decision is made believes in good faith, when making the decision, that this Act permits or requires the decision to be made - (a) no action for defamation or breach of confidence lies against the Crown, an agency or an officer of an agency by reason of the making of the decision or the disclosure of information, and (b) no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the disclosure of information lies against the author of a record containing the information or any other person by reason of the author or other person having supplied the record to an agency. (2) Neither the giving of access to information pursuant to a decision under this Act nor the making of such a decision constitutes, for the purposes of the law relating to defamation or breach of confidence, an authorisation or approval of the publication of a record containing the information or its contents by the person to whom the information is disclosed.
Section 115 of the GIPA Act provides: Personal liability No matter or thing done by an agency or officer of an agency, or by any person acting under the direction of an agency or officer of an agency, if the matter or thing was done in good faith for the purposes of executing this Act, subjects the officer or person so acting, personally to any action, liability, claim or demand.

The Copyright Act 1968 (Cth)

Although the respondent did not refer to any specific provisions relating to "copyright", it sought to argue that providing the applicant with an unredacted copy of the Centium report would involve an infringement of copyright. It is therefore necessary to consider relevant provisions of the Copyright Act 1968 (Cth) (the Copyright Act).
Copyright includes the exclusive right to reproduce the work in a material form. Section 31(1) of the Copyright Act provides: Nature of copyright in original works (1) For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right: (a) in the case of a literary, dramatic or musical work, to do all or any of the following acts: (i) to reproduce the work in a material form; (ii) to publish the work; (iii) to perform the work in public; (iv) to communicate the work to the public; (vi) to make an adaptation of the work; (vii) to do, in relation to a work that is an adaptation of the first-mentioned work, any of the acts specified in relation to the first-mentioned work in subparagraphs (i) to (iv), inclusive; and (b) in the case of an artistic work, to do all or any of the following acts: (i) to reproduce the work in a material form; (ii) to publish the work; (iii) to communicate the work to the public; and (c) in the case of a literary work (other than a computer program) or a musical or dramatic work, to enter into a commercial rental arrangement in respect of the work reproduced in a sound recording; and (d) in the case of a computer program, to enter into a commercial rental arrangement in respect of the program.
Section 32 of the Copyright Act provides, relevantly: Original works in which copyright subsists (1) Subject to this Act, copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished and of which the author: (a) was a qualified person at the time when the work was made; or (b) if the making of the work extended over a period--was a qualified person for a substantial part of that period. (2) Subject to this Act, where an original literary, dramatic, musical or artistic work has been published: (a) copyright subsists in the work; or (b) if copyright in the work subsisted immediately before its first publication--copyright continues to subsist in the work; if, but only if: (c) the first publication of the work took place in Australia; (d) the author of the work was a qualified person at the time when the work was first published; or (e) the author died before that time but was a qualified person immediately before his or her death. … (4) In this section, qualified person means an Australian citizen or a person resident in Australia.
The words "literary work" include a work which is expressed in print or writing: University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 1, 609. The adjective "literary" does not mean that the work must be of any particular standard or literary style or merit: Computer Edge Pty Ltd v Apple Computer Inc (1986) 65 ALR 33, 53-4. It is sufficient that the work provides information or instruction: Hollinrake v Truswell [1894] 3 Ch 420, 428. Product instructions have been specifically held to constitute "a literary work": MJA Scientifics International Pty Ltd v SC Johnson & Son Pty Ltd (1998) 43 IPR 287.
Section 10 of the Copyright Act also provides that a "literary work" includes: (a) a table, or compilation, expressed in words, figures or symbols; and (b) a computer program or compilation of computer programs.
The Tribunal considered the meaning of an "original" literary or artistic work in Sandy v Kiama Municipal Council [2019] NSWCATAD 49 (Sandy) at [24]: For copyright to subsist in a literary or artistic work, it must be original (Copyright Act s 32(1) and (2)). The concept of "originality" is not defined in the Act. The law on this topic indicates that "originality" means that the creation or production of the work required some independent intellectual effort, but novelty or inventiveness is not required. The work must have originated "with an author or joint authors from some independent intellectual effort" (IceTV Pty Limited v Nine Network Australia Pty Limited (2009) AIPC 92-335 per French CJ, Crennan and Kiefel JJ). The work must originate with the author and be more than a copy of other material, as stated by Dixon CJ in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor & Ors (1937) 58 CLR 479 at 511…
In Sandy, the Tribunal referred to the Federal Court's decision in University v Moorhouse (1974) 133 CLR 1, where the Tribunal ultimately conceded that the agency's copying of the relevant document would be tantamount to a breach of copyright. The Tribunal stated (at [29]): Copyright is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia or authorises the doing in Australia of any act comprised in the copyright. Reproducing a work in a material form is an act comprised in the copyright. Therefore, reproducing or copying the work, or authorising such an act, will infringe the copyright unless an exception applies.
Section 36 of the Copyright Act provides: Infringement by doing acts comprised in the copyright (1) Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright. (1A) In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in the copyright in a work, without the licence of the owner of the copyright, the matters that must be taken into account include the following: (a) the extent (if any) of the person's power to prevent the doing of the act concerned; (b) the nature of any relationship existing between the person and the person who did the act concerned; (c) whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice. (2) The next three succeeding sections do not affect the generality of this section.
In Amos v Central Coast Council [2018] NSWCATAD 101 (Amos), Senior Member Lucy stated (at [70]): The Tribunal's task is to determine whether to provide access to the information in the reports in the way requested by the applicants "would involve an infringement of copyright." Under s 36(1) of the Copyright Act, copyright is infringed by a person, who, not being the owner of copyright, without licence, does or authorizes the doing of any act comprised in the copyright. However, s 36(1) is expressed to be "subject to this Act."…
In this matter, neither party referred to any of the exceptions to infringement set out in the Copyright Act, namely: s 40 - "fair dealing for the purpose of research or study", s 41 - "fair dealing for the purpose of criticism and review", s 42 - "fair dealing for the purpose of reporting news" or s 43 - "reproduction for the purpose of judicial proceedings or professional advice".
However, I note that in Amos, Senior Member Lucy considered the application for the fair dealing exception in s 41 of the Copyright Act within the context of the GIPA Act and stated (at [75]): The Council further submits that the "fair dealing" provision in s 41 would not apply to the Council, even if it applied to the applicants, should the Council copy the material for the applicants. I accept that it is the Council's purpose in copying the documents which is relevant, not the applicants' purpose. If it were otherwise, an agency would have to make determinations in every case as to an applicant's purpose for seeking access to information, and could be liable for infringing copyright if it was incorrect about that purpose. The Council's purpose in copying the reports for the applicants, were it to do so, would be to fulfil its obligations under the GIPA Act. This is not a purpose which attracts s 41 of the Copyright Act.
In Amos, the Tribunal considered whether the fair dealing exception in s 41 of the Copyright act permitted the respondent to provide a copy of the information applied for in the manner requested by the applicant. The respondent argued that the same principles apply with respect to the applicant's reliance on s 40.
Based on the decision in Amos, I note that in determining whether providing access to the information in the manner requested by the applicant would involve an infringement of copyright, the Tribunal must look at the respondent's purpose for copying and providing the report to the applicant.
In this matter, I am satisfied that the respondent's only purpose would be to fulfil its obligations under the GIPA Act and that this is not a fair-dealing exception to the Copyright Act.
In the following matters, the Tribunal decided that it is appropriate to provide view-only access to information sought pursuant to s 72(2)(c) of the GIPA Act: 1. In Webb v Port Stephens Council [2022] NSWCATAD 404, the decision to allow view-only access to training materials (protected as literary works) was affirmed. 2. In Sandy, the decision to provide view-only access to architectural plans (in that case protected as artistic work) was affirmed; 3. In Amos, the decision to provide view only access to technical reports was affirmed; and 4. See also: Hoggett v Campbelltown City Council [2019] NSWCATAD 258 and Walker v Gosford City Council [2016] NSWCATAD 207.
On that basis, I am satisfied that the Centium report is protected by copyright and it is therefore necessary to consider whether releasing the information in the form requested by the applicant would involve an infringement of copyright.
I am also required to consider the public interest considerations in favour of disclosure of the information and those against its disclosure and to balance the public interest in accordance with the decision in Flack.

Public interest considerations in favour of disclosure

I am satisfied that the respondent correctly identified the relevant public interest considerations in favour of disclosure as follows: 1. Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance; and 2. Disclosure of the information could reasonably be expected to ensure reasonable oversight of the expenditure of public funds.
However, the respondent did not state what weight it applied to these considerations and I am satisfied that it did not properly apply the public interest test.
In my view, these considerations should be given significant weight.
The respondent did not identify any personal factors of the applicant.
Based upon the information before me, I am satisfied that there are no personal factors to be considered.

Public interest considerations against disclosure

The respondent sought to rely upon cll 1(d), 1(e), 1(f), 1(g), 1(h), 3(c), 3(d) and 4(d) of the Table to s 14(2) of the GIPA Act. It appears that its decision was based upon Centium's objections to the release of the report and the legal advice received from Maddocks Lawyers in 2021 regarding the risks of litigation if the report were released.
In my view, the respondent's statements regarding the risk of legal action against it, particularly with respect to defamation, does not satisfy the requirements of s 61(b) of the GIPA Act as it has not set out any findings on any material questions of fact underlying its reasons and it has not referred to the sources of information on which its findings are based. Based on the decision in Newcastle City Council v Newcastle East Residents Action Group Inc, a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient.
In this matter, there is no evidence before me to support that there are any claims of defamation or that any of the public interest considerations against disclosure in cll 1(d), 1(e), 1(f), 1(g), 1(h), 3(c) and 3(d) of the Table to s 14(2) of the GIPA Act have been established.
The respondent has also not addressed the matters raised in ss 113 or 115 of the GIPA Act, despite the OPC's recommendation that it should do so.
Further, I note that the respondent did not state what weight it attributed to any of the identified considerations and I am satisfied that it did not properly apply the public interest test.
Given the absence of supporting evidence, I have decided that these considerations should be given some weight.
With respect to the respondent's reliance on cl 4(d) to the Table to s 14(2) of the GIPA Act, I am satisfied that Centium owns the copyright to the disputed report.
Further, based on the limited information that is before me, I am satisfied that Centium has not authorised or otherwise licenced the respondent to provide a copy of the report to the applicant.
Neither party has sought to rely upon a "fair dealing exception" under ss 41 or 43 of the Copyright Act. However, based upon the Tribunal's decisions in Sandy and Amos, if the respondent decided to provide a copy of the Centium report to the applicant, its sole purpose for doing so would be to fulfil its obligations under the GIPA Act. As this does not satisfy a "fair dealing" exception under s 41 of the Copyright Act, that decision could leave it liable for breach of copyright.
The respondent did not state what weight it applied to this consideration. In my view, this should be given significant weight.

Balancing the public interest test

In balancing the public interest considerations, I have decided that there is an overriding public interest against disclosing the Centium report to the applicant in the form that she has requested.
However, there is no overriding public interest against disclosure to the applicant by providing her with view-only access under s 72(1)(a) of the GIPA Act.

Conclusion

For the reasons set out above, I am satisfied that the correct and preferable decision is to set aside the respondent's decision dated 2 December 2022 and to make the following decision in substitution: 1. The respondent is to provide the applicant with view-only access to the Centium report pursuant to s 72(1)(a) of the GIPA Act.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2023

Government Information (Public Information) Act 2009(NSW)

At a glance

Court

Decision date

Source

Judgment (27 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (21)