Bright v Eurobodalla Shire Council

NCAT Administrative and Equal Opportunity|2018-05-24|Before: Party J

Solicitors: Sparke Helmore Lawyers (Respondent) File Number(s): 2016/00378515

Introduction

James Bright ("the Applicant") applied for access to information held by the Eurobodalla Shire Council ("the Council") under the Government Information (Public Access) Act 2009 ("the GlPA Act"). His access application requested: A copy of tender submission from the South Coast Hunters Club that was provided to ESC Councillors in connection with its application to hire the relevant Narooma venue from 018-22. This is one of the submissions referred to in the 'Policy' section of staff report FBD16/012 that was presented to the ESC meeting of 22/3/16 (Pages 19 & 20)
The reference to a "tender submission from the South Coast Hunters Club" ("the Submission") is a reference to submissions made by the South Coast Hunters Club ("the Club") for a licence for the use of NATA Reserve, Narooma ("the NATA Oval") to hold its Huntfest expo ("Huntfest") on the June long weekend for a period of five years from 2018 - 2022.
The Council decided to refuse to provide access to the information that the Applicant had requested. The Applicant then sought external review by the Information and Privacy Commissioner ("the IPC"). The IPC recommended that the Council make a new decision in relation to the information withheld.
The Council undertook a review in response to the IPC's recommendation. However, the Council maintained its decision to refuse access to the requested information.

Background to the application

The background to the access application and the application to the Tribunal is not in dispute. Briefly, the background is as follows: 1. The NATA Oval is a Crown Reserve under the Trusteeship of the Eurobodalla (South) Reserve Trust for which the Council has been the Trust Manager since 1938. 2. In March 2013, the Club entered into a licence agreement with the Council which enabled the Club to hold its Huntfest once per year for five years on the NATA Oval. 3. In December 2015 the Council called for general Expressions of Interest for the use of a number of Council-controlled crown reserves including NATA Oval. The Council received more than one response for the use of NATA Oval and, while not legally required to do so, it conducted a "selective tendering" process. 4. In February 2016, the Council requested tender submissions for a licence for the use of NATA Oval on the June long weekend for a period of five years from 2018 - 2022. It sought information such as economic activity, financial viability, budget and a risk management plan and advised the tenderers that submissions would be considered as if under a tender process. 5. The Council received two submissions from the parties involved in the selective tendering process - one submission from the Club and the other from the Animal Justice Party. 6. In March 2016, the Council resolved in closed session that the licence would be issued to the Club. 7. The Applicant's access application sought access to the Club's submission. 8. In response to the access application the Council conducted third party consultation under section 54 of the GIPA Act. When consulted, the Club advised the Council that it objected to the release of the Submission to the Applicant. It objected to the release of any information regarding the financial dealings of Huntfest, or information about its sponsors or supporters. 9. In May 2016 the Council determined to refuse access to the Submission. 10. In July 2016 the Applicant sought a review of the Council's decision by the IPC. The IPC recommended that the Council make a new decision. The Council's review upheld its decision to refuse access to the requested information. 11. In November 2016 the Applicant applied to the Tribunal for external review of the Council's decision. 12. Following mediation between the parties it was agreed that the Council would reconsider its decision. 13. The Council again consulted the Club regarding the potential release of a redacted version of the Submission. The Club confirmed that it did not want any part of the Submission released but if it were to be released in a redacted form then any reference to firearms, onsite security and risk assessment should not be released. 14. The Council made a new decision to release a redacted version of the Submission. 15. In May 2017 the Club applied to the Tribunal for a review of the Council's decision to release a redacted version of the Submission. In February 2018 Senior Member Robertson delivered his decision affirming the Council's decision to release a redacted version of the Submission: South Coast Hunters Club v Eurobodalla Shire Council [2018] NSWCATAD 42. 16. In March 2018 the Tribunal Council gave the Applicant a redacted version of the Submission. The Applicant has sought review of the decision to redact information from the Submission.
The Council has provided an unredacted copy of the Submission to the Tribunal. This has not been given to the Applicant. It is common ground that the Applicant is not seeking any security and risk assessment information that has been redacted from the Submission. Nor does the Applicant seek personal information of individuals.

Applicable legislation

The object of the GIPA Act is to open government information to the public to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective: section 3 of the GIPA Act.
Section 5 of the GIPA Act creates a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information: section 9 of the GIPA Act.
Section 11 provides that the GIPA Act overrides general privacy provisions, other than as provided for in Schedule 1. Section 12 provides that there is a general public interest in favour of the disclosure of government information, and identifies a range of examples of public interest considerations in favour of disclosure. The public interest considerations in favour of disclosure are expressly not limited.
Section 13 provides that there will be an overriding public interest against disclosure of government information "if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
The considerations against disclosure are exhaustively set out in the GIPA Act. Section 14(1) provides that it is "conclusively presumed" that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. The "only other considerations" that may be taken into account as public interest considerations against disclosure are those set out in the Table to section 14: section 14(2) of the GIPA Act.
Section 104(3) of the GIPA Act provides that any person who could be aggrieved by a decision of the Tribunal has a right to appear and be heard in the proceedings before the Tribunal. Therefore, the Club was entitled to appear at the hearing of the application. The Club appeared and made submissions.
Section 105 of the GIPA Act provides: (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) ...

The material before the Tribunal

The Council relies on the evidence of its Director Commercial and Corporate Services, Mr Anthony O'Reilly, and that of its Divisional Manager Governance and Administrative Services, Mr Jeff Phillips. Mr O'Reilly attended the hearing, gave evidence and was cross-examined,
Ms Nevin, solicitor for the Council provided written and oral submissions.
Mr Bright appeared on his own behalf and made both written and oral submissions.
Mr Leon Trainor, Secretary of the Club appeared on behalf of the Club and made both written and oral submissions.

The Club's position

The Club accepts that the Applicant is entitled to receive a redacted version of the Submission but it objects to the release of the Submission in an unredacted form. It exercised its right to appear and be heard in these proceedings. Mr Trainor adopted the Council's submissions but also sought to express the Club's concern that the Submission contains the entire modus operandi of Huntfest and that any release would render it vulnerable to competitors in the future.
Mr Trainor identified two main areas of concern: 1. the Submission contains commercial information and the Club would suffer severe disadvantage in future commercial dealings if it were to be released; and 2. the Submission contains personal information and there is a risk of harm to persons should it be released.
The Club accepts that there may be some public interest considerations in favour of informing the public about the use of public land. However, it submits that a distinction should be made between what will inform the public about Huntfest's use of the Council's venues and information that should not be disclosed.
The Club maintains that when it provided the Submission to the Council it was under the impression that the entire document would be treated as commercial-in-confidence. The Council had requested comprehensive financial information, including profit and loss statements, balance sheets and financial projections to establish Huntfest's financial viability. The Club provided the Submission on that basis and contends that this financial information should continue to be treated as commercial-in-confidence.
The Club contends that if that information were released, it would very likely have a prejudicial effect on the future supply of confidential information by the Club and also from other bodies seeking to tender. This would in turn have a detrimental effect on the Council's ability to make informed decisions to exercise its functions.
The Club submits that significant weight should be given to these factors.
In relation to the commercial information, Mr Trainor submitted that Huntfest has been a commercially successful venture since its inception. It has brought welcome tourist revenue to the Shire of Eurobodalla during a traditionally quiet time in the financial cycle and both business community of Narooma and those businesses participating in Huntfest have benefited.
Mr Trainor noted that the Submission was written in the form of the Huntfest Business Plan and contains: 1. the identity of exhibitors, sponsors and volunteers; 2. detailed budget information including income and expenditure; 3. funding and grant applications and research strategies; 4. two years of visitor survey information and data; and 5. the detailed event run sheet.
The Club considers that the following redacted information has significant commercial value: 1. financial information, including the Huntfest activity budget, expected income and expenditure, and profit details; 2. income from exhibitor fees, sponsorship, gate takings and t-shirt sales; 3. economic benefits to the local community; 4. intended growth projections; 5. strategic planning details for Huntfest in the period 2018 - 2022, including sponsorship, public funding, government funding/grants; 6. donations made by the Club to organisations in the community; 7. information about the Huntfest target audience; and 8. information about the advertising strategy and budget.
The Club strongly believes that the release of any of that information has the potential to diminish its competitive commercial value in the following areas: 1. it may affect the Club's future licence applications; 2. competitive tenderers will be able to use the information to the disadvantage of the Club; 3. it may impact on the Club's bargaining power in future negotiations with exhibitors and suppliers; 4. it may affect the Club's ability to obtain sponsorship for the event, as well as grants and other funding; and 5. it may impact on the number of visitors willing to pay to attend Huntfest.
The Club submits that these factors should be given significant weight.
The Club also raised issues in relation to security at Huntfest and the risk of harm that might result from release of that information. As noted above, the Applicant does not seek security and risk assessment information that has been removed from the redacted version of the Submission.
The Club also raised issues in relation to the fact that the Submission contains personal information of members of the Club Committee and Huntfest personnel, including names, telephone numbers, email addresses and photographs. Mr Trainor contends that, since 2013, members of the Club and their families have been subject to significant harassment and vilification because of their association with Huntfest. The Club is concerned that the release of the redacted personal information could lead to further harassment and intimidation of the persons involved. As noted above, the Applicant does not seek personal information that has been redacted from the Submission.
The Club also raised issues in relation to the motives behind the application. It contends that the Applicant has represented SAFE Inc. in matters relating directly to the Submission and that it has made no secret of its intention to have Huntfest shut down. The Club is of the view that if the redacted information were released it would be used to that purpose.

The Council's case

As noted, the Council initially determined not to release the Submission. It subsequently determined to release it with certain information redacted. Mr Phillips' evidence outlines the steps taken to determine whether information that has been redacted has been publicly released.
It is apparent from the unredacted copy of the Submission that has been filed that much of the information that has been redacted is information that the Applicant is not seeking.
Mr Phillips provided a table in which it identified categories of information that has been redacted and the consideration against disclosure which it contends is applicable to each of those categories.

Confidential information about the operations and commercial funding strategy for Huntfest for the five-year period 2018-22: Clause 1(d) of the schedule to section 14 of the GIPA Act.

The Council's invitation to make a submission as part of a selective tender advised that the process would be conducted in accordance with Council's "Licensing of Council-controlled public reserves and associated buildings" Code of Practice. The Council's usual tendering process requires that submissions are treated confidentially.
The Council submits that as the Club provided this information under implied confidence, its release may prejudice the supply of similar information to the Council in future (either by the Club or other tenderers) and this would impact the Council's ability to effectively exercise its functions.
The Council accepts that the tendering process is relevant only to the extent that, by communicating to the tenderers that the Council would be undertaking a selective tendering process, it gave rise to a reasonable expectation on the part of the Club that the Submission would be treated confidentially.
Mr O'Reilly's evidence is that the Council dealt with the Submission as if it were a tender and in a manner that was consistent with the Council's tender practices. The Submission was treated in a confidential manner.
It is the Council's position that disclosure of the following information could reasonably be expected to prejudice the supply to the Council of confidential information that facilitates the effective exercise of the Council's functions or found an action against the Council for breach of confidence or otherwise result in the disclosure of information provided to the Council in confidence: 1. The identity of exhibitors; 2. The identity of sponsors; 3. The identity of volunteers; 4. Budget information including income and expenditure; 5. Funding and grant applications and research strategies; 6. Visitor survey information and data; and 7. Event run sheet.
The Council submits that it is not necessary for the Submission to have been marked "confidential" in order for it to be characterised as confidential. In support of this contention the Council relies on views expressed by Deputy President Higgins in Australians for Sustainable Development v Barangaroo Delivery Authority [2013] NSWADT 252 at paragraph [68]: It is well established that even where information has not expressly been provided to an agency in confidence, this can be inferred from the circumstances in which it was provided.
In McKinnon v Blacktown City the Council [2012] NSWADT 44 Judicial Member Molony stated at paragraph [55]: "[I]n an appropriate case, confidentiality with respect on information communicated in the course of an investigation can be inferred, the factual background must justify the making of such an inference".
In Williams v Department Industry and Investment [2012] NSWADT 192 at paragraph [45] I accepted that that under the GIPA Act, the determining question is whether, as a question of fact, the information is confidential. 1. The confidential quality of communications is a question of fact; 2. To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality; 3. The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed; 4. The confidential quality of the information must be determined in the light of all of the circumstances of the particular case.
The Council submits that if the Submission were released without the redactions, it is reasonable to expect that other potential tenderers may be concerned about the Council's ability to protect their confidential information from disclosure in future. This may cause tenderers to withhold the supply of information which the Council requires to enable it to effectively evaluate tenders and make informed decisions to exercise its functions.
Therefore, disclosure of the redacted information could reasonably be expected to prejudice the supply to the Council of confidential information that facilitates the effective exercise of the Council's functions; or found an action against the Council for breach of confidence or otherwise result in the disclosure of information provided to the Council in confidence.
The Council submits that these factors should be given significant weight.
The Council submits that the information referred to above, that was said to have been provided to the Council in confidence, is information that is of commercial value to the Club. The relevant information is described at paragraph [28] and the anticipated impact of its release is referred to in paragraph [29] above.

Any details which would reveal security arrangements, and would increase risk to the public if disclosed: Clauses 2(d) and 2(e).

The Council submits that the release of this information may endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person. Further, the release may endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle.
As noted above, the Applicant is not seeking security and risk assessment information.

Any personal information such as names, contact details, addresses, telephone numbers: Clauses 3(a), 3(b) and 3(f)

The Council submits that the release of this information could reveal an individual's personal information, contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 and expose a person to a risk of harm or of serious harassment or serious intimidation.

Photographs: Clauses 3(a), 3(b) and 3(f)

The Council submits that the release of this information could reveal an individual's personal information, contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 and expose a person to a risk of harm or of serious harassment or serious intimidation.
As noted above, the Applicant is not seeking personal information of individuals.

Information identifying suppliers, sponsors and supporting organisations, and recipients of donations: Clause 3 (f).

The Council submits that the identified persons may become the targets of harassment if this information is released and that this is a consideration against disclosure.

Financial information relevant to the Club's operations, event budget and fundraising plans: Clause 4(d)

The Council submits that as Huntfest runs at a profit of close to $30K, this information is commercially sensitive. The release of this information could prejudice the Club's legitimate business, commercial, professional or financial interests.

Advertising or marketing information, strategies or plans: Clauses 4(c) and 4(d)

The Council submits that Huntfest is the largest event of its kind held south of Sydney in NSW. However, it says that there are several similar events held nationally and the organisers of those events are the Club's legitimate competitors. It contends that if this information were released those competitors may be able to use it to their own advantage and that would prejudice the Club's commercial interests and diminish the competitive commercial value of the information.

Survey report information: Clauses 4(c), 4(d) and 4(e)

The Club conducted its own market research for its own marketing and advertising purposes. The Council contends the data obtained from that research would be of commercial value to any of the Club's competitors. The Council submits that the release of this information could prejudice the conduct, effectiveness or integrity of the Club's research by revealing its purpose, conduct or results.
These same issues were canvassed in South Coast Hunters Club v Eurobodalla Shire Council. However, in that matter the Tribunal did not need to consider the redacted information.
The Council submits this factor should be given significant weight.
The Council also submits that the Tribunal should take account of the Applicant's motives for seeking the redacted information.

The Applicant's submissions

As I have noted above, the Applicant participated in the South Coast Hunters Club v Eurobodalla Shire Council matter. It appears that there is significant overlap between the submissions that he made in that matter and those that he presented in this matter. The discussion of his submissions in South Coast Hunters Club v Eurobodalla Shire Council can be found at paragraphs [45] - [50] of the decision: Mr Bright's submissions 45 Mr Bright submitted, in relation to the suggestion that the disclosure of the Document would create a risk of harm, that the HuntFest has been held at Narooma for the last five years and there was no evidence before the Tribunal of any incident of violence since the HuntFest has been occurring. 46 In relation to the allegation that the Document contained commercially valuable information, Mr Bright submitted that the Hunt Club was a not for profit organisation and in particular that it was incorporated under the Associations Incorporation Act, and that its objects must therefore be limited to small scale commercial activity. Mr Bright questioned the extent to which the protection of the commercial operations of the Club deserves any weight. 47 In response to the submission that the tender submission was commercial-in-confidence, Mr Bright submitted that the Council had not provided any document to the applicant at the time of tender which might have suggested that the tender would be treated as confidential. Mr Bright submitted there was no evidence that either the Council or the Club had stated at the time of submission that the tender was submitted in confidence. 48 In respect of the suggestion that there could be an inference of confidentiality Mr Bright submitted that that might be a reasonable inference in a business transaction but this was an application to use a public facility at a fee to be set by Council. Mr Bright submitted that none of the essential characteristics of a tendering process were present. Mr Bright referred to the Council's call for expressions of interest for the conduct of activities on the NATA Oval and the Council's Code of Practice for the licensing of Council controlled public reserves and associated buildings, both of which are in evidence before the Tribunal. 49 Mr Bright submitted that the expressions of interest process was not covered by the tendering guidelines. He submitted that, although the Council might have used the nomenclature of tendering in the course of calling for submissions or expressions of interest, it was not in fact conducting a tendering process. Mr Bright pointed out that the Council's Code of Practice in relation to the licensing of reserves set out the structure required of a submission, including: • A description of the activity, its longevity and sustainability, its future growth potential and expected community benefits. • A description of the proponent's management experience, financial viability and other relevant experience. • Activity Marketing Plans. This may include information on whether the activity will be advertised locally or more broadly, and what mechanism will be used, such as print and/or social media. • Activity Budgets. This may include such documents as profit and loss statements, balance sheets, or financial projections. • Risk Management Plan. • Fee tendered, if the activity is not covered by Council's adopted fees and charges for the use of the public reserve. 50 Mr Bright submitted that the Code of Practice needs to be understood in considering whether the tender submission and in particular the structure of the Document could be considered commercial in confidence.
The Applicant submits that the identities of the exhibitors is already known and has been known for a long time. He said that there is no basis for suggesting that sponsors have been harassed or that new sponsors are likely to be harassed.
The Applicant denies that he has ever represented the Animal Justice Party. He stated that he does not know what the Animal Justice Party was proposing and only has a vague idea of what was in its application.

Discussion

The GIPA Act establishes a presumption in favour of the disclosure of government information, and identifies a range of examples of public interest considerations in favour of disclosure. The public interest considerations in favour of disclosure are expressly not limited. The Club and the Council accept that there may be some public interest considerations in favour of informing the public about the use of public land. However, they contend that the considerations against release of the redacted information outweigh those in favour of release.
It is necessary that I undertake a weighing process between these competing considerations.
I agree with the Council's submissions in regard to the assessment of whether information provided is confidential. The confidential quality of communications is a question of fact. I am satisfied that the Council's invitation to participate in a selective tender advised that the process would be conducted in accordance with Council's Code of Practice. I am also satisfied that the Council's usual tendering process requires that tenders are treated confidentially. However, I am not satisfied that the Submission was supplied under an express pledge of confidentiality. I must therefore assess whether the confidential quality of the information may be inferred.
The evidence suggests that the Council was under no obligation to undertake a tender process. However, it is apparent that the Council kept the Submission securely and dealt with in a similar manner to that adopted in relation to a tender process. The Club clearly regards the information that it provided to the Council as confidential.
In my view, the nature of the relationship between the Council and the Club in regard to the invitation to provide the information, the form in which the Club provided the information and the manner in which the Council secured the information suggests the confidential quality of the information.
Notwithstanding that there was no express pledge of confidentiality, it is apparent that both the Council and the Club regarded the Submission as commercially confidential. In the circumstances I agree that the information was provided to the Council in confidence. Therefore it follows that release of the redacted information could result in the disclosure of information provided to the Council in confidence.
The Club has indicated that the release of the information would impact on its preparedness to provide the same level of detail to the Council in future. It is also likely that others who might be invited to participate in a similar "selective tendering" process in the future could be less prepared to be as forthcoming with information that the Council would require to assist its selection process than would otherwise be the case. That is because potential participants in such a process may be concerned about the Council's ability to protect their confidential information from disclosure.
I am satisfied that it is very likely that the release of the redacted information could have a prejudicial effect on the future supply of confidential information to the Council by bodies seeking to tender. In the circumstances I am satisfied that disclosure of the information could have a detrimental effect on the Council's ability to exercise its functions.
I agree that these considerations should be given significant weight.
I do not agree with the Applicant that issues relating to competition can only be considered by reference to the local area. The material before me suggests that interest in Huntfest is far more widespread than the Eurobodalla Shire or the NSW south coast. That being the case, any consideration of the potential consequences of release of the redacted information must take into account not just competition for the use of the Council's assets, but also potential competition for Huntfest's potential audience, sponsors and exhibitors.
I am satisfied that the market research data is of commercial value to the Club. The research was conducted by the Club and it is used for its own marketing and advertising. I am satisfied that this information would be of commercial value to any of Huntfest's competitors. I accept that release of the information could prejudice the conduct, effectiveness or integrity of that research by revealing its purpose, conduct or results.
I agree that this consideration should be given significant weight.
Nevertheless, in my view an exception should be made to this general position insofar as the information relates to the identity of exhibitors at the 2018 Huntfest and the identities of sponsors that were publicly displayed. The Applicant has indicated that he attended Huntfest at Narooma on Saturday 9 June 2018. He is therefore aware of the exhibitors who were present on that occasion. If the identity of sponsors were publicly displayed that information has already been released. I am unaware whether the redacted information contains information relating to the identity of sponsors and exhibitors at the 2018 Huntfest. If that is the case, and if this information would be of commercial value to any of Huntfest's competitors, it could have been obtained by anyone attending the event.
Schedule 4 to the GIPA Act defines the expression "reveal as: "reveal" information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
Information of the identities of sponsors and exhibitors cannot be revealed for the purposes of section 14 of the GIPA Act if it were already publicly displayed at the 2018 Huntfest as it has already been disclosed.
In my view this consideration should be given little weight in regard to the identity of sponsors and exhibitors at the 2018 Huntfest.
With the exception of the identity of sponsors and exhibitors at the 2018 Huntfest, it is my view that when the competing considerations are weighed, the considerations against release of the redacted information outweigh those in favour of release.
It follows that, with the exception of the identity of sponsors and exhibitors at the 2018 Huntfest, the decision under review is the correct and preferable decision. It should therefore be affirmed. If the redacted information contains information which would identify exhibitors at the 2018 Huntfest, it should be released to the Applicant.

Orders 1. Any information that has been redacted from the Submission that identifies sponsors and exhibitors at the 2018 Huntfest is to be released to the Applicant. 2. The decision under review is otherwise affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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 2018

At a glance

Court

Decision date

Before

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Judgment (19 paragraphs)

Parties

Cases Cited (1)

Cited By (5)