Mr Brazel states that the redactions made to the third party submissions to which he seeks access constitute information which has previously been disclosed and, as he and his dispute with the Strata committee are the subject of the submissions, the information is in fact his personal information.
Mr Brazel argues that Sydney Water has misapplied the decision of Senior Member Montgomery which he states required only that personal contact details of the submission writers be redacted. He also claims that non-personal information has been redacted, contrary to the decision.
Mr Brazel submits that, as he is the subject of the submissions and information and opinions about him are contained in the documents, the opinions constitute his personal information and are therefore not confidential. He states that the issues relate to a public dispute concerning the strata scheme.
Mr Brazel further submits that the names have previously been disclosed to him. In support of this contention he refers to a decision of Sydney Water made on 16 September 2016 in GIPA Application 9177 which mentioned the names of two people, one of whom was Mr Scott and the other, Colin Grace, who was the lawyer acting for the owners corporation in the dispute. Mr Brazel also refers to a number of other documents attached to his May submissions which he states disclose the names of the third party objectors.
Mr Brazel submits that Sydney Water has provided no evidence that the communications between Sydney Water and the objectors were provided in confidence or subject to any sort of confidentiality. He repeats that the information has previously been disclosed in strata meetings, in other correspondence, in other NCAT proceedings and in matters taken to NSW Fair Trading.
Mr Brazel refers to a document in his March submissions, two versions of which he titles AA and AB, and states that information in this document was previously disclosed.
In his submissions Mr Brazel acknowledges that the matters he raises in this application were also put before Senior Member Montgomery in the previous proceedings. As with Sydney Water, Mr Brazel's submissions in relation to the clauses in the Table to s 14 of the GIPA Act are referred to as relevant below.
[2]
Is there an overriding public interest against disclosure of the information?
Having decided that Sydney Water was correct in not dealing with the current application in so far as Mr Brazel seeks access to the information with which he has not so far been provided in GIPA Application 1977, the consideration of whether there is an overriding public interest against disclosure relates only to the third party submissions made in GIPA Applications 9255 and 9412. It is worth noting that Mr Brazel has been provided with the bulk of information relevant to those matters. At issue are a small number of reductions.
In my view, disclosure of the information sought in relation GIPA Applications 9255 and 9412 could reasonably be expected to promote open discussion of public affairs and enhance Government accountability. Disclosure could also reasonably be expected to inform the public about the operations of Sydney Water and, in particular, its policies and practices for dealing with members of the public.
As set out above, Sydney Water submits that there are a number of public interest considerations against disclosure. Further details are set out below and each of these considerations, if found to be applicable, must be weighed against the considerations in favour of release.
[3]
Clause 1(d) - prejudice the supply of confidential information
Clause 1(d) to the Table to s 14 provides that there is a public interest consideration against disclosure, if disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions. This requires an initial consideration of whether the information was obtained in confidence: see Collins v Department of Finance, Service and Innovation (2018) NSWCATAD 60. This is a question of fact.
The evidence of Mr Chudasama in this matter sets out how Sydney Water goes about obtaining and handling submissions from third parties in GIPA applications. It is almost identical to that given by a different Sydney Water officer in the previous Tribunal matter. In that matter Senior Montgomery also heard evidence from two of the objectors. All of the evidence presented in that matter was to the effect that the understanding of both the objectors and Sydney Water was that the responses would be kept confidential. The objectors stated that a different no response would have been provided to Sydney Water if they knew the responses could be disclosed.
The objectors in the current matter are generally the same as those in the matter before Senior Member Montgomery. While they have not given evidence directly in these proceedings, their views are a matter of public record.
Mr Brazel argues that the information, which in essence is personal information about the objectors, was not supplied in confidence. He appears to base this upon the fact that he believes he knows the identity of the objectors. This would appear to be for two reasons. The first is that the terms of his substantive access request were for correspondence between Mr Scott and Grace Lawyers, the lawyers acting for the owners corporation. The second is that he assumes that the people involved are the same people he has dealt with over the years in relation to his dispute with the owners corporation. As noted above, he refers to some documents which he states disclose the names of the third party objectors. These documents, however, are generally not the third party submissions themselves but communications relevant to the substantive dispute between Mr Brazel and the owners corporation.
I accept that Mr Brazel may have some inkling of the identity of the objectors through other events and correspondence over the course of his dealings and dispute with the strata committee. That does not mean, however, that the responses of the objectors were not provided in confidence to Sydney Water.
Mr Brazel also refers to the review report of the IPC dated 8 July 2020 in relation to this application. I note that at this time all of the information contained in the third party objections had been withheld. In that report, the IPC was not satisfied that Sydney Water had adequately established that the submissions were made in confidence. This statement was based on the general evidence provided to the IPC by Sydney Water. The IPC stated that Sydney Water should provide further evidence to establish confidentiality in relation to the information at issue.
The Tribunal is not bound, as indeed an agency is not bound, by any review by the IPC. Any review by the IPC can only be based on the evidence before it at the time it conducted the review. Such a review is not evidence that the information in question was not provided in confidence: see Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission [2000] AATA 1144 at [72]. As noted above the Tribunal's role is to make a new decision based on the evidence before it.
Based on the information before me as set out above, I am satisfied that the withheld information was obtained in confidence.
It is then necessary to consider whether disclosure could reasonably be expected to prejudice the supply of confidential information to Sydney Water. The information sought by Mr Brazel contains information relevant to the handling of third party consultations with respect to his GIPA applications. Mr Brazel's submissions focus on the particular individuals who made the third party submissions. However, the test in relation to cl 1(d) is not whether a particular person whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in future, but whether Sydney Water will be able to obtain such information in future if trust and confidence in it has been eroded: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [38].
Sydney Water is concerned that third parties may be inhibited in their preparation of responses to requests if such responses are routinely released. This would then have a negative effect upon the way Sydney Water is able to discharge its functions under the GIPA Act. The question as to prejudice to future supply is not to be determined by reference to the particulars of each particular situation but at a "broader operational level". It is not necessary to show that it could reasonably be expected to occur on every occasion: Camilleri at [21], [22] and [26]."
I am satisfied that a third party responding to a request for information in the future may be reluctant to provide that information or would not provide a fulsome response if they were aware their response and identity might be released to the public. As a result, there would be a prejudice to the supply of information to Sydney Water in the future. I am satisfied that this would have a deleterious impact upon the ability of Sydney Water to perform its functions effectively in assessing and determining applications for access to information under the GIPA Act.
I am therefore satisfied that this consideration against the disclosure of the third party submissions made in GIPA Applications 9255 and 9412 should be given significant weight.
[4]
Clause 1(e) - reveal a deliberation or consultation
[5]
Clause 1(f) - prejudice to the effective exercise of functions
Clause 1(e) of the Table in s 14 provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of an agency. Clause 1(f) provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions.
There is no doubt that consultation with third parties where relevant is an important aspect leading to a decision whether or not access is to be given to government information. I agree with the submissions of Sydney Water, largely for the reasons expressed in relation to cl 1(d), that third parties may be inhibited in providing full and frank information and may decline to do so if their identity was publicly released. This would impede Sydney Water's deliberative processes in assessing GIPA applications.
While not one of its central functions, dealing with access applications is a function of Sydney Water as it is of other government agencies. I am also satisfied that the disclosure of the identity of third party objections could reasonably be expected to prejudice the effective exercise of its functions under the GIPA Act.
[6]
Clause 1(g) - disclosure of information provided in confidence
Clause 1(g) provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably expected to result in the disclosure of information provided to an agency confidence.
For the reasons set out above in relation to clause 1(d), I am satisfied that the information was provided to Sydney Water in confidence. The disclosure of the identity of the objectors would therefore result in the disclosure of information provided in confidence.
[7]
Clause 3 - personal information
Clauses 3(a) and (b) respectively provide that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to reveal an individual's personal information or contravene an information protection principle under the Privacy and Personal Information Protection Act 1998.
There is no doubt that the third party submissions contain the personal information of the writers. Mr Brazel argues that as the third party submissions are about him is his personal information that is the subject of the objections. While it is true that the relevant documents to refer to Mr Brazel, they also contain the names and other identifying information of the objectors and others involved in the strata dispute.
[8]
Summary of public interest considerations against disclosure
In relation to the third party submissions in GIPA Applications 9255 and 9412 I have found that cll 1(d) and 1(d) of the Table in s 14 apply as the submissions were obtained in confidence. I have also found that disclosure of the identity of the third party objectors would prejudice the effective exercise by Sydney Water of its functions under the GIPA Act (cl 1(c)) and would reveal a consultation and prejudice its deliberative processes in that regard (cl 1(e)). I've also found that the submissions contain the personal information of the objectors (cl 3).
In my view these considerations should be given considerable weight in determining whether the information should be released to Mr Brazel.
[9]
Conclusions
Mr Brazel, as noted above, states that the personal information of the third party objectors has previously been disclosed and should therefore be released. For the reasons set out above I do not agree. I also note that the Appeal Panel in its decision addressed the same submission at [74] and concluded that the Tribunal had not erred in its identification of personal information.
Overall, I am satisfied that in this matter, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of the disclosure and that the personal information of the third party objectors should not be released.
Mr Brazel states that only the names and personal contact details of the third-parties should be redacted, if at all. Personal information does not only include such information, but as can be seen from the definition of personal information set out above, includes information about an individual whose identity is apparent or can be reasonably ascertained from the information. This includes statements or facts which would allow the identity of the person to be inferred.
Turning now to the redactions that have been made by Sydney Water, I note that some reductions are in fact of information which falls outside the scope of the access request. Mr Brazel appears to have had access to some of this information in other circumstances, but in terms of this application for access under the GIPA Act, any information which falls outside of the scope of his request may be withheld.
I am satisfied that, with one exception, the redactions have been properly made and all contain the personal information of the third party objectors. The exception is the signature block of the lawyer Colin Grace. Mr Brazel has a copy of this document in full, including the signature block and is well aware of Mr Grace's signature having copies of other documents containing the signature. The signature block should be released.
[10]
Orders
1. A hearing is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013.
2. The decision made by Sydney Water on 12 August 2020 is varied to the extent set out in [99] of these reasons.
3. The decision under review is otherwise affirmed.
4. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the disclosure of the material filed with the Tribunal on a confidential basis is restricted to the respondent, the respondent's legal representatives and the Tribunal.
[11]
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: 13 December 2021
Parties
Applicant/Plaintiff:
Brazel
Respondent/Defendant:
Sydney Water
Cases Cited (12)
REASONS FOR DECISION
Thomas Brazel has had a long running dispute with a strata committee. A former member of the strata committee, Jeff Scott, who at the time was an employee of Sydney Water, used his work email account to communicate with others about the dispute. These emails sent by Mr Scott became information "held" by Sydney Water and therefore subject to the Government Information (Public Access) Act 2009 (GIPA Act).
In 2016 Mr Brazel made an access application to Sydney Water seeking access to the communications of Mr Scott relating to the strata dispute sent via his work email address (GIPA Application 9177). Mr Brazel made a further GIPA application in July 2017, GIPA Application 9255. Third party objections were received for both access applications. However, after balancing the considerations in favour of and against release, all information within the scope of both access requests was released to Mr Brazel.
On 5 March 2019 Mr Brazel made a third application to Sydney Water, GIPA Application 9412, in which he sought access to certain policies and to objections from third parties who were consulted by Sydney Water in response to his GIPA Application 9177. Before making its decision, Sydney Water sought the views of the third parties. The policies were released but Mr Brazel was refused access to the third party submissions, which were contained in six emails, on the basis that there was an overriding public interest against disclosure of the information. Mr Brazel sought review of this decision by the Tribunal.
In Brazel v Sydney Water [2020] NSWCATAD 188 Senior Member Montgomery set aside the decision under review and ordered that the information be released in a redacted form. The Tribunal concluded that the documents could be redacted to remove the names, email addresses and other personal information of the third parties and, in those circumstances, that the considerations in favour of disclosure of the remaining information outweighed the public interest considerations against its release. Mr Brazel appealed to the Appeal Panel from that decision. The appeal was dismissed and leave to appeal refused (Brazel v Sydney Water Corporation [2021] NSWCATAP 13).
Prior to publication of both Mr Montgomery's decision and that of the Appeal Panel, Mr Brazel made a further GIPA application, GIPA Application 9527, in which he sought access to the submissions or responses made by the third parties to Sydney Water in relation to GIPA Applications 9177, 9255 and 9412. Sydney Water made an initial decision on 5 March 2020 and Mr Brazel sought review of that decision by the Information and Privacy Commissioner (IPC). The IPC recommended that Sydney Water make a new decision in respect of GIPA Application 9527. Sydney Water made a further decision on 12 August 2020 following receipt of the IPC review report and also publication of Senior Member Montgomery's decision in relation to GIPA Application 9412 on 24 July 2020.
Sydney Water states that, following Senior Member Montgomery's and the Appeal Panel decisions, it has released the information sought in GIPA Application 9177 with the redaction of personal information of the third party objectors in accordance with the decision of Senior Member Montgomery.
In relation to the current application (GIPA Application 9527), Sydney Water has:
1. refused to deal with that part of Mr Brazel's application which related to access to the third party submissions made in response to GIPA Application 9177 on the basis that those documents were the subject of the Tribunal's decision and has been dealt with accordingly; and
2. provided access to the third party submissions made in response to GIPA Applications 9255 and 9412 in a redacted form by applying the guidance set out in Senior Member Montgomery's decision in relation to GIPA Application 9177.
Mr Brazel now seeks review of that decision. The decision by Sydney Water to refuse to provide access to some of the information sought by Mr Brazel in GIPA Application 9527 is a decision which is reviewable by the Tribunal: s 80(d) of the GIPA Act. The Tribunal's jurisdiction to conduct this review derives from s 100 of the GIPA Act and s 9 of the Administrative Decisions Review Act 1997 (ADR Act). The Tribunal's function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination.
The issues to be determined
Sydney Water argues that the primary issue for determination is whether it was correct to apply, and in fact correctly applied, the Tribunal's earlier decision (which has been upheld by the Appeal Panel), to the third party submissions made in response to GIPA Applications 9255 and 9412.
Unfortunately, Sydney Water misunderstands the nature of administrative decision making and the role of the Tribunal on review. Leaving to one side for the moment whether Sydney Water was correct to decide not to deal with the present application in relation to GIPA Application 9177, the application raises two matters which have not been determined by the Tribunal before. These are whether Mr Brazel should be provided with access to the third party submissions in GIPA applications 9255 and 9412. In its own decision of 12 August 2020 Sydney Water appropriately considered whether there was an overriding public interest against disclosure of the information sought.
Section 63 of the ADR Act is very clear that the role of the Tribunal is to make a new decision in light of the material before it. The Tribunal re-makes the decision, as if it were the administrator. This echoes the conclusions of the High Court in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, albeit in relation to the Administrative Appeals Tribunal, that the task of the Tribunal is to make the correct or preferable decision in the circumstances as they exist at the time of the decision. It is therefore necessary for me to consider Mr Brazel's current application taking into account the evidence and submissions he has provided, along with the evidence and submissions put by Sydney Water, including any new evidence provided by either party which was not before the Tribunal in the previous application.
In that context, I note that, despite its primary submission that I should simply determine whether it has applied the earlier Tribunal decision correctly, Sydney Water has in fact, in the alternative, provided evidence and submissions directed towards what is the central issue which is a determination of whether there is an overriding public interest against disclosure of the information in relation to GIPA Applications 9255 and 9412.
A further issue in relation to the information sought concerning GIPA Application 9177 is whether Sydney Water was correct to refuse to deal with that aspect of the application on the basis that it has already decided an application for the same information.
Public interest considerations against disclosure
Sydney Water refers to the public interest considerations set out in the table in s 14 and submits that there is an overriding public interest against disclosure in circumstances where it could reasonably be expected disclosure would:
1. prejudice the supply to Sydney Water of confidential information that facilitates the effective exercise of its functions (s 14 Table, cl 1(d));
2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of Sydney Water (s 14 Table, cl 1(e));
3. prejudice the effective exercise by Sydney Water of its functions (s 14 Table, cl 1(f));
4. result in the disclosure of information provided to Sydney Water in confidence (s 14 Table, cl 1(g));
5. reveal an individual's personal information (s 14 Table cl 3(a)) or contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (s 14 Table cl 3(b)).
Each of the considerations against disclosure set out in the table in s 14 of the GIPA Act have the requirement that disclosure of the information could reasonably be expected to have the nominated effect.
The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words:
... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]:
"[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC."
The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]).
Confidentiality orders
On 17 March 2021 the Tribunal made an order pursuant to s 64 of the NCAT Act prohibiting publication of the confidential material filed by Sydney Water until further order of the Tribunal. Mr Brazel objects to the order.
Sydney Water has filed a brief statement by Jignesh Chudasama, a GIPA Officer and Senior Compliance Analyst in the Corporate Compliance Team at Sydney Water. Attached to that statement is an unredacted copy of the third party submissions made in response to GIPA Applications 9177, 9255 and 9412. The submission and attachment were filed on a confidential basis and have not been provided to Mr Brazel. It appears from his submissions that Mr Brazel seeks to be provided with these documents in order to properly respond to the submissions of Sydney Water.
Section 107 of the GIPA Act states that, in determining an application for administrative review, the Tribunal is to ensure that it does not disclose any information for which there is an overriding public interest against disclosure. Section 64 of the NCAT Act permits the Tribunal to prohibit or restrict disclosure of evidence given to or documents lodged with the Tribunal.
The starting point in deciding whether an order under the s 64 of the NCAT Act should be made is the presumption set out in s 49 of that Act that proceedings are to be conducted in public, so that, in accordance with the rules of procedural fairness, a party knows the case it has to meet (Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61 at [26]).
In Bellamy v Bellamy [2018] NSWSC 534 Parker J, with respect to s 64(1)(d) stated at [30]:
Section 64(1)(d) is a provision which applies generally to proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal.
In its consideration of whether to make the order sought by Mr Brazel, the Tribunal must turn its mind to whether it would be appropriate to make an order prohibiting disclosure of the documents because of "the confidential nature" of those documents or, more broadly, "for any other reason": see Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41 at [3].
In arguing against the confidentiality order Mr Brazel raises arguments that the information to which he seeks access is not confidential. He in effect conflates issues relating to the s 64 order with the issues in the substantive proceedings. In any event, an order under s 64, and more particularly s 64(1)(d), does not only relate to confidentiality but can be for any other reason.
GIPA Application 9177 - refuse to deal
As noted above, in so far as this application by Mr Brazel relates to access to the third party submissions made in response to GIPA Application 9177, Sydney Water argues that it correctly refused to deal with that part of the application as the issues had previously been dealt with in the decision of Senior Member Montgomery and the Appeal Panel. Sydney Water also states that it has correctly applied the decision of the Tribunal to the information sought and has provided Mr Brazel with the information redacted in accordance with the Tribunal's decision which was upheld on appeal.
In accordance with s 60 of the GIPA Act an agency may decide to refuse to deal with an access application on a number of grounds. Section 60(1)(b) provides:
(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason) -
…
(b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application…
There are two components to s 60(1)(b) of the GIPA Act. The first is whether the agency has already decided a previous application for the information concerned in the present application, or information that is substantially the same as that information; and secondly, whether there are reasonable grounds for believing that the agency would make a different decision on the application.
In Commissioner of Police v Danis [2017] NSWCATAP 7 the Appeal Panel said at [43]:
Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of (sic) deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) … Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1) …
The Appeal Panel went on to say that when reviewing a decision based on s 60(1) the Tribunal "should examine the matter, at least in part, by reference to systemic considerations such as the role provisions of this kind play in promoting the efficient administration of the GIPA Act, and the avoidance of wasteful deployment of limited resources" (at [49]).
Several of the public interest considerations against disclosure require that there be some relevant "prejudice" to the agency. "Prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].
In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to various authorities, the Appeal Panel said at [59]:
"Based on these authorities 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:
(1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;
(2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;
(3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses."
Before proceeding to the substantive issues in this application, two matters need to be considered. The first relates to whether this application may be dealt with on the papers and a hearing dispensed with and the second concerns confidentiality orders previously made in this matter.
Applicants in proceedings under the GIPA Act are often placed in a difficult position because they are denied access to, not only the information at issue, but also to evidence an agency wishes to put forward to justify its decision. In this matter the evidence provided on a confidential basis to the Tribunal is the unredacted information itself and a statement by an officer of Sydney Water attesting that the information is the third party submissions in an unredacted form. In accordance with s 107 of the GIPA Act it is entirely reasonable and within the terms of s 64(1)(d) of the NCAT Act to make orders preventing the disclosure of the information which has been withheld from an applicant in deciding the GIPA application pending the determination of the application by the Tribunal.
Sydney Water seeks further orders that this material not be disclosed. In light of my findings below, I have made further orders.
There is no doubt that a previous decision has been made in relation to the information sought by Mr Brazel concerning the third party submissions in GIPA Application 9177, not only by the agency, but also by the Tribunal. The information sought in the previous application has been substantially released to Mr Brazel in accordance with that decision. In the circumstances, it is arguable, given the Tribunal's decision and the subsequent decision of the Appeal Panel, that there are no reasonable grounds for believing that the agency would make different decision on the application.
Mr Brazel states that the Tribunal's decision was made in error as it was misled by Sydney Water. He states that new and relevant evidence relating to the submissions has become available since the previous Tribunal hearing. Mr Brazel states that the information has already been disclosed. His primary argument appears to be that because the identity of at least some of the writers was disclosed or known to whom in other circumstances the information was not provided to Sydney Water on a confidential basis.
Mr Brazel also seeks to rely upon the review decision of the IPC relation to the current application and states that the IPC found that there was no evidence of confidentiality with respect to the communications between Sydney Water and the third party objectors. He also states that the IPC acknowledged that the information had already been disclosed to him. Mr Brazel indicates that, because the Tribunal in the previous application heard evidence from Sydney Water in a confidential session, it therefore failed to consult with him about that evidence which led to a flawed decision being made. Mr Brazel submits that no weight should be given to Senior Member Montgomery's decision or to that of the Appeal Panel as those decisions were prejudiced.
These matters are addressed below when discussing the relevant considerations against disclosure. In light of my conclusions there and in view of the fact that the matter has previously been decided, I am satisfied that there are no reasonable grounds for believing that Sydney Water would make a different decision concerning access to third party submissions in GIPA Application 1977.