Burnett (on behalf of Burnett) v Secretary, Department of Communities and Justice

NCAT Administrative and Equal Opportunity|2021-05-06

[2010] NSWADT 298 Lemon v Department of Planning and Environment [2019] NSWCATAD 148 Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 Sherman v Commissioner of Police, NSW Police Force [2016] NSWCATAD 107 Turner v Corrective Services NSW (No. 2) [2013] NSWADT 232 Texts Cited: Nil Category: Principal judgment Parties: Donald Burnett (on behalf of Luca Burnett) (Applicant) Secretary, Department of Communities and Justice (Respondent) Representation: Solicitors: McLachlan Thorpe Partners (Applicant) Respondent (self-represented) File Number(s): 2020/00204119 Publication restriction: Until otherwise determined, pursuant to s 64(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW) the (i) publication of any of the confidential evidence given to the Tribunal or the contents of the confidential documents submitted to the Tribunal and (ii) disclosure to the Applicant of any of the confidential evidence given to the Tribunal or the contents of the confidential documents submitted to the Tribunal are prohibited.

Introduction

This matter concerns the application (Application GIPA20/503) made by the Applicant to the Respondent under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for access to certain pages of the Family and Community Services Policy and Procedures Manual title "Screening and Response Priority" (Manual) which pages were redacted in the copy of the Manual originally released to the Applicant by the Respondent in response to Application GIPA20/503, in accordance with the Respondent's decision dated 20 March 2020 (20 March Decision).

Background

The Applicant is a young person who is the subject of a Joint Child Protection Response (JCPR) Program Assessment.
The Manual is one of the tools (i.e. parts) of the Structured Decision Making® (SDM) System developed and licensed to the Respondent by the USA-based National Council on Crime and Delinquency (Licensor or NCCD), now known as Evident Change.
By letter dated 4 February 2020 the Applicant submitted Application GIPA20/503 to the Respondent for access to certain information (GIPA Application).
By letter dated 20 March 2020 the Respondent provided its 20 March Decision on the GIPA Application to the Applicant and provided access in part to the information requested in the GIPA Application, including a heavily redacted version of the Manual. The Respondent refused to provide access to (i.e. redacted) most of the Manual requested based on its finding of an overriding public interest against disclosure pursuant to item 1(h) of the table to s 14 of the GIPA Act (s 14 GIPA Act Table).
By letter dated 9 April 2020 the Applicant applied for an internal review of the 20 March Decision in relation to the redacted pages of the Manual (IR Request). In the IR Request the Applicant specifically requested an internal review of the Respondent's decision to deny access to pages 11 to 43 and 52 to 56 of the Manual.
By letter dated 6 May 2020 the Respondent provided its 6 May Decision on the internal review resulting from the IR Request. As part of the 6 May Decision the Respondent released some additional pages (pages 11 and 12) of the Manual to the Applicant but refused to provide access to the other requested pages of the Manual (i.e. pages 13 to 43 and 52 to 56), again on the basis of its finding of an overriding public interest against disclosure pursuant to item 1(h) s 14 GIPA Act Table.
After incorrectly sending the request for external review (within time) to the Australian Information Commissioner and Privacy Commissioner and then missing the time for seeking a review by the NSW Information Commissioner, the Applicant filed the AR Application with the Tribunal on 10 July 2020. At the time of filing, the AR Application was outside of the prescribed time for filing and the Applicant requested the Tribunal to use its discretion under s 101(4) GIPA Act.
On 18 August 2020 the Tribunal ordered, with the consent of the Respondent, that the time for commencing proceedings/filing the AR Application was extended to 10 July 2020 (i.e. the Tribunal accepted the late filing of the AR Application).
On 2 December 2020, with the agreement of the parties, the Tribunal revised the Tribunal's 18 August 2020 orders by, among other things, extending the dates for filing of evidence and submissions and the date after which the Tribunal's determination on the papers was to occur.
In addition to the AR Application, the Tribunal received the Applicant's written Outline of Submissions on 8 September 2020 (Applicant Submissions), the Respondent's written submissions on 21 October 2020 (Respondent Submissions) (including certain confidential documents) and the Applicant's written Submissions in Reply on 16 December 2020 in response to the Respondent's written submissions (Applicant Reply Submissions). The Respondent also filed the Statement of Mr Matthew Jones, Director, Strategy, Child and Family, Strategy, Policy and Commissioning of the Respondent on 30 November 2020 (Jones Statement).
Annexure A to the AR Application (referred to in the Applicant Submissions) is a letter from the Applicant's legal representative dated 29 June 2020 (29 June Letter) (wrongly addressed to the Federal Director of FOI Dispute Resolution) seeking external review of the 6 May Decision. In the 29 June Letter the Applicant sets out the reasons for seeking external review of the 6 May Decision which denied access to pages 13 to 43 and 52 to 56 of the Manual (Relevant Pages).
After reviewing the documents submitted by the Respondent I noticed that only the redacted version of the Manual had been provided (i.e. the Relevant Pages were not included) and I requested that the Respondent provide a confidential unredacted copy of the Manual for consideration by the Tribunal (Unredacted Manual). On 15 January 2021 the Respondent filed the Unredacted Manual on a confidential basis with the Tribunal.

Issue to be determined

The issue to be determined by the Tribunal is whether the correct and preferable decision is that there is an overriding public interest against the disclosure of the government information in the Relevant Pages which have been withheld/redacted by the Respondent pursuant to the 6 May Decision.

Jurisdiction and role of the Tribunal

The Tribunal has jurisdiction under ss 80(d) and 100(1) GIPA Act to review the Respondent's decision (in this case the 6 May Decision) to refuse to release the government information in question pursuant to s 58(1)(d) GIPA Act: see Jacobs v Commissioner of Police, NSW Police Force [2013] NSWADT 54 at [26].
Under s 63(1) Administrative Decisions Review Act 1997 (NSW) (ADR Act) the Tribunal is required to determine what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. As to the material before the Tribunal, see [14] above.
The Tribunal makes its own decision in place of the Respondent's decision, without any presumption that the Respondent's decision is correct and, pursuant to s 63(3) ADR Act: (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 Tribunal's decision must take account of the public interest considerations advanced to the Tribunal both by the Applicant for release and the Respondent for withholding the information in question, the respective evidence supporting those public interest considerations for and against release and then weigh and balance those various competing public interest considerations.
Under s 105 GIPA Act the Respondent has the burden of establishing to the Tribunal that the decision it made is justified.
In determining an application for review the Tribunal is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure (s 107(1) GIPA Act).

The GIPA Act

As is well known, the object of the GIPA Act is to open up government information to the public. This object is to be realised by: 1. authorising and encouraging the proactive public release of government information by agencies (s 3(1)(a) GIPA Act); 2. giving members of the public an enforceable right to access government information (s 3(1)(b) GIPA Act); and 3. restricting access to government information only when there is an overriding public interest against disclosure (s 3(1)(c) GIPA Act).
Built into the GIPA Act is a presumption in favour of the disclosure of government information, unless there is an overriding public interest against such disclosure (s 5 GIPA Act). Under s 9(1) GIPA Act a person who makes an application to access government information has a legally enforceable right to be provided with such access, unless there is an overriding public interest against disclosure of the information.
Section 12 GIPA Act reiterates the general presumption in favour of disclosure of government information (s 12(1) GIPA Act), provides that there is no limit on the public interest considerations in favour of disclosure that may be taken into account (s 12(2) GIPA Act) and notes some examples of public interest considerations that favour disclosure: 12 Public interest considerations in favour of disclosure … Note - The following are examples of public interest considerations in favour of disclosure of information: (a) 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. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
In this case s 13 GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
As no conclusively presumed overriding public interest(s) against disclosure is being claimed by the Respondent under s 14(1) GIPA Act, the only public interest considerations against disclosure that can be considered by the Respondent (in this case) and the Tribunal are those exhaustively set out in the s 14 GIPA Act Table. In this case the s 14 GIPA Act Table relevantly includes (i.e. in its submissions the Respondent relies on) the following as the public interest considerations against disclosure of the Relevant Pages: 14 Public interest considerations against disclosure … Table 1 Responsible and effective government 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) - … (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). … 4 Business interests of agencies and other persons There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - … (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests, … (Emphasis added.)
Section 15 GIPA Act provides for certain principles that apply to the determination of whether there is an overriding public interest against disclosure of the information in question: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
Also, s 72 GIPA Act provides: 72 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.
Under s 73(1) GIPA Act an agency (i.e. the Respondent in this case) is not entitled to impose any conditions on the Applicant's use or subsequent disclosure of the information released by it under a GIPA Act access application. However, under s 73(2) GIPA Act the Respondent may impose a condition on how a right of access may be exercised by the Applicant (e.g. to prevent a copy or notes being taken), but only for the reasons permitted under s 72(2) GIPA Act.
While referring to similar provisions under the Freedom of Information Act 1989 (NSW) (repealed), the Administrative Decisions Tribunal in Department of Education and Training v GJ (GD) [2009] NSWADTAP 33, considering a number of prior cases, stated relevantly at [42]: "… The theory, at least, is that once access is given under FOI to one citizen, any other citizen who makes the same request should have the same rights: see further Humane Society v National Parks and Wildlife Service [2000] NSWADT 133 at [26-31]. … … I consider that the FOI Act does not establish a scheme under which agencies can deal differentially as between third party applicants who make the identical request…There is, for example, no mechanisms in the Act allowing for conditional or limited disclosure once a request is granted under FOI."
That is, s 73(1) GIPA Act is unconditional as regards any conditions to be imposed by the agency (i.e. Respondent in this case) on release of the information. However, release under the GIPA Act does not impact any underlying rights (e.g. intellectual property rights) of the Respondent or any other party (i.e. the Licensor) in the information released.

The Respondent's Submissions and Evidence

The Respondent submits in the Respondent Submissions and the evidence of Mr Jones in the Jones Statement states, most relevantly and in summary, that (references are to the Respondent Submissions unless otherwise noted): 1. There is an overriding public interest against disclosure of the Relevant Pages as their disclosure could reasonably be expected to (pars 7 and 8): 1. found an action against the Respondent for breach of confidence or otherwise result in the disclosure of information provided to the Respondent in confidence (item 1(g) s 14 GIPA Act Table); 2. prejudice the conduct, effectiveness and integrity of the Manual and the reliability of its results by revealing the Respondent's conduct to individuals who have no regard for the law and are prepared to do what it takes to avoid the operation of the law (item 1(h) s 14 GIPA Act Table); 3. diminish the competitive commercial value of the Manual to the Licensor (item 4(c) s 14 GIPA Act Table); and 4. prejudice the Licensor's legitimate business, commercial, professional or financial interests (item 4(d) s 14 GIPA Act Table). 1. Release of information under the GIPA Act has been held to be, in effect, released to the "world at large": Sherman v Commissioner of Police, NSW Police Force [2016] NSWCATAD 107 at [14]. Releasing the Relevant Pages, which reveal the Respondent's risk assessment practices, risk evaluation methods and decision-making tools, has the potential to reveal that information to anyone and everyone, not just the Applicant: par 23. 2. The existence of a fee payable to the Licensor demonstrates that the Manual is not publicly available. If it was publicly available the Respondent would not be required to pay a significant fee for its use (Jones Statement par 9). The Manual is therefore confidential information provided to the Respondent because of the payment of a significant fee, under the contract between the Respondent and the Licensor (Contract Agreement), for its use as part of the Respondent's critical child protection functions: par 34. 3. Section 9 of the Contract Agreement provides that the Respondent treat any "proprietary information" it gains access to on a strictly confidential basis. Proprietary information is not defined in the Contract Agreement but the Respondent submits that the entirety of the Manual is proprietary information because it is information created and owned by the Licensor to which the Respondent gained access by a licence at a significant cost (par 35 and Jones Statement par 13). 4. The Manual is licensed to the Respondent for a significant fee because it contains proprietary information that is not publicly available, thus there is potential that disclosure of these pages of the Manual could reasonably be expected to found an action against the Respondent for breach of confidence (par 62 and Jones Statement par 16). 5. The competitive commercial value of the information is significant to the Licensor. If the Respondent were to release this information it would significantly diminish, if not destroy, the competitive commercial value of the Manual to the Licensor. For this reason the Respondent submits that significant weight should be placed on this public interest consideration against release (item 4(c) s 14 GIPA Act Table): par 72. 6. If the Manual was disclosed it would have a prejudicial effect on the Licensor's business interests. This is because the Licensor would lose the proprietary interest it holds in the information contained in the Manual, which it has developed and over which it maintains copyright. It would also have a prejudicial effect on the Licensor's commercial and financial interests, as the Licensor would lose the exclusive use of the Manual and therefore its competitive advantage and it would no longer be able to charge a licence fee for the use of the SDM System and the Manual, if the Manual was copied by a competitor. This may affect its ability to remain commercially viable. Lastly, it would prejudice the Licensor's professional interests because it developed the SDM System and the Manual and retains the information it has gained through research and investigation to develop the Manual: par 81. 7. While not having addressed the public interest considerations in favour of disclosure in the Respondent Submissions, the Respondent submits that the weight taken as a whole for each of the public interest considerations against disclosure, when balanced against those in favour of disclosure, is weighted significantly against disclosure. 8. In pars 92 and 95 of the Respondent Submissions, the Respondent refers to the possible infringement of NCCD's copyright by providing a copy of the Relevant Pages to the Applicant and s 72(2)(c) GIPA Act and notes: "An option open to the Tribunal to overcome infringement of the copyright by the Respondent is for the Applicant to be provided a reasonable opportunity to inspect the Manual."
The concessions and admissions made by the Respondent in the Respondent Submissions and in the evidence of Mr Jones (perhaps inadvertently) are, in summary, as follows: 1. The Manual is not a tool used by the Respondent to assess or determine a "person of interest" or a "person causing harm" or, to use the words of the Applicant, does not "set out the criteria against which 'causing harm' is assessed". The purpose of the Manual is to assess whether a notification received at the Child Protection Helpline meets the threshold for a child or young person at risk of significant harm (i.e. whether harm has occurred) and the response the Respondent should take to the notification of this (pars 24 and 89 and Jones Statement pars 5 and 9). 2. The Relevant Pages do not contain information or guidelines around assessing, determining or recording a "Person of Interest" or a "Person Causing Harm": par 90. 3. After asking the Licensor whether the Respondent could release the Manual (or the Relevant Pages), NCCD responded as follows (par 53 and Jones Statement par 15): "NCCD's position is that it is up to the local jurisdiction to determine who to release the P&P Manual (Policy and Procedures Manual, which includes not only the SDM Safety, Risk and Risk Reassessment Policy Manual but also the Screening and Priority Response Tool) to - your licence gives you permission to showcase this to anyone that helps support your implementation." (Emphasis added.) 1. The Respondent submits that the Manual is subject to copyright that belongs to the NCCD, that release of the Manual by the Respondent would infringe NCCD's copyright in the Manual and that s 72(2)(c) GIPA Act provides that access to government information must be provided in the way requested by an applicant unless "to do so would involve an infringement of copyright": pars 93 and 94.

The Applicant's Submissions and Submissions in Reply

In the Applicant Submissions the Applicant submits, in summary and most relevantly, that: 1. At par 3, undue weight has been placed on the singular public interest consideration identified against disclosure (at that time item 1(h) s 14 GIPA Act Table) and that insufficient weight has been placed on several public interest considerations in favour of disclosure. 2. In addition to the six favourable considerations in favour of disclosure of the information noted by the Respondent in the 6 May Decision the Applicant submits in pars 8 and 9 that the following three considerations ought to be afforded more significant weight than was afforded to them in the 6 May Decision: 1. disclosure of the Relevant Pages could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public; 2. disclosure of the Relevant Pages could reasonably be expected to advance the fair treatment of individuals in accordance with the law in their dealings with agencies; and 3. disclosure of the Relevant Pages could reasonably be expected to contribute to the administration of justice generally, including the principles of natural justice and procedural fairness. 1. At par 11, the Respondent's sole reliance on item 1(h) s 14 GIPA Act Table (at that time, prior to the Respondent Submissions being filed) is misconceived as disclosure would not prejudice the effectiveness of any such test, relevantly being the JCPR Program Assessment but would rather assist the Respondent by enabling the Applicant to understand the framework within which they are being assessed by the JCPR and respond in a relevant and meaningful manner. 2. At par 13, the single public interest consideration against disclosure (as raised in the 6 May Decision) does not outweigh the three material public interest considerations in favour of disclosure. 3. At par 15, the Tribunal should take into consideration the potential for the Tribunal's decision to have a prolonged long-term effect on the Applicant's future endeavours, employment prospects and opportunities, in light of the fact that the Applicant is under the age of 18.
In the 29 June Letter, most relevantly and in summary, the Applicant notes that: 1. There is a general duty in executive decision making to accord natural justice. 2. It is a well-established common law duty to act fairly in the sense of according procedural fairness, in the making of "administrative decisions which affect rights, interests and legitimate expectations". 3. The Manual stipulates that if a child protection assessment leads to a decision that affects the rights, interests and legitimate expectation of the person alleged to have caused harm, the principles of natural justice must be observed. 4. The subject of a decision is entitled to have their mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it. 5. The information requested may assist in exercising any legal right the Applicant has and to ensure the Applicant is afforded natural justice, primarily the opportunity to make fully informed submissions in response to allegations. 6. The reason the Applicant has been assessed as "a person of interest", as potentially a "person causing harm" to a young person is because the JCPR has been used by the Respondent to make that assessment. The Applicant has no prospect of being able to answer that allegation if the principles on which "harm" is determined and assessed are withheld from the Applicant. It cannot possibly be in the public interest to withhold such information.
At par 4 of the Applicant Reply Submissions the Applicant submits, after referring to par 17 of the Jones Statement in which Mr Jones states that if the Manual is released outside of the Respondent it will enable persons of interest to tailor their responses in order to alter the outcome of an investigation or assessment of risk: "…Such a comment infers a lack of bona fides by the Applicant. There are a number of problems with this statement… (a) It is entirely speculative, … (b) It is not explained how… the release of the Manual could possibly enable [the Applicant] or anyone else to "manipulate the provision of information… to alter the outcome of an investigation"… (d) 'Information' is true or untrue, relevant or not relevant. The manual will have no impact on whether the information is true or untrue…"
At par 6 of the Applicant Reply Submissions the Applicant further submits that: "… the decision to disclose the manual is one in which the principles of natural justice must be observed which includes the right of the Applicant to turn his or her mind to the critical issues or factors on which the decision is likely to turn, in order to have an opportunity of dealing with it."

Approach to deciding whether to grant access under the GIPA Act

The process for deciding whether to grant access under the GIPA Act to the government information in question is to identify the public interest considerations in favour of and against disclosure of that information. Then it is necessary to allocate weight to each of these positive and negative considerations, followed by a process of balancing them to reach a decision as to whether access to the information in question (in this case the Relevant Pages) should be granted: Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 at [9] and Lemon v Department of Planning and Environment [2019] NSWCATAD 148 at [64].
Because the Respondent bears the burden of justifying its decision to refuse the Applicant access to the information in question (s 105 GIPA Act), it has the burden of establishing that the public interest considerations against disclosure on which the Respondent relies actually apply. The Respondent must first establish both generally and specifically that the disclosure of the information could, pursuant to items 1(g), 1(h), 4(c) and 4(d) s 14 GIPA Act Table in this case, reasonably be expected to (a) found an action for breach of confidence or disclose information provided in confidence, (b) prejudice the conduct or effectiveness of an investigation, (c) diminish the commercial value of the information or (d) prejudice any person's business interests. It is not sufficient that the Respondent merely makes an assertion that the relevant risk "could reasonably be expected": Turner v Corrective Services NSW (No. 2) [2013] NSWADT 232 at [32].
Having established that the claimed public interest considerations against disclosure "could reasonably be expected to" have the enumerated effects, the Respondent then bears the burden of establishing that, on balance, these public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.

Could reasonably be expected to

When examining the Respondent's claims based on items 1(g), 1(h), 4(c) and 4(d) s 14 GIPA Act Table the Tribunal must reach a view on whether disclosure of the information "could reasonably be expected to" have the nominated effect: Attorney-General's Department v Cockcroft (1986) 10 FCR 180; [1986] FCA 35. In that case the Full Federal Court provided the following guidance, as helpfully summarised in Calderwood v Department of Planning, Industry and Environment [2020] NSWCATAD 200 at [40]: "… The decision maker must make a judgement as to whether the expectation is reasonable, as opposed to something irrational, absurd or ridiculous. It is also regarded as undesirable to consider the operation of the expectations in terms of probabilities or possibilities. It is not appropriate to consider any specific degree of likelihood or probability but rather to determine whether the expectation was reasonably based. One should confine oneself to the language of the provision and attempt to form an opinion on the evidence as to what can reasonably be expected to happen if disclosure occurs."
In Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] it was stated that the test to be applied when considering whether the nominated effects could be reasonably expected is an objective one approached from the viewpoint of a reasonable decision maker. Something which could be reasonably expected is something more than a mere possibility, risk or chance and must be based on real and substantial grounds, not purely those which are speculative, fanciful, imaginary or contrived.
In determining whether the Respondent's claimed effects of the release of the Relevant Pages of founding a breach of confidence action, prejudicing the conduct or effectiveness of an investigation, diminishing the commercial value of the information or prejudicing any person's legitimate business interests could reasonably be expected, the Tribunal considers whether disclosure could reasonably be expected to have the nominated effect. The first consideration is of the broad and general sense and then, secondly, whether it could be reasonably expected in this case. If (but only if) such a reasonable expectation emerges, the Tribunal then considers what weight should be given to these public interest considerations against disclosure and weighs them up against the public interest considerations in favour of disclosure.

Public interest considerations in favour of disclosure

All the public interest considerations in favour of disclosure (referred to at [24], [25] and [36(2)] above and in the 6 May Decision) must be considered in the balancing process to be undertaken by the Tribunal. I give significant weight to the public interest considerations in respect of: 1. informing the public about the operations of agencies and the policies and practices for dealing with the public; and 2. revealing the reason for a government decision and providing contextual information that informed the decision.
I have also considered and give significant weight to the Applicant's personal factors under s 55(2) GIPA Act (see [36(5)] and [37(4), (5) and (6)] above). That is, the motives of the Applicant to seek natural justice and to answer the assessment made against them, although in this case the Relevant Pages may be of limited assistance in this regard (see [48(1)] below).

Public interest considerations against disclosure

In considering if the Respondent's claimed public interest considerations against disclosure of the Relevant Pages could reasonably be expected to have the nominated effects, I note the following inconsistencies in and concerns with the Respondent's submissions and evidence: 1. The Respondent's submissions and evidence in respect of item 1(h) s 14 GIPA Act Table state that prejudice to the conduct and effectiveness or integrity of an investigation will arise from the release of the Relevant Pages by revealing key processes, approaches and factors in the assessment of "persons of interest" and "persons causing harm". That is, such persons could use the Relevant Pages to tailor their responses to questions to manipulate the provision of information (see [34(1)] above). However, the Respondent's submissions and evidence in relation to other claimed public interest considerations against disclosure (i.e. items 4(c) and (d) s 14 GIPA Act Table) state that the Relevant Pages of the Manual do not in any way relate to (or provide information as to) how to assess a potential "person of interest" or "person causing harm" (see [35(1) and (2)] above). These contradictory positions cannot both be correct. Based on the evidence and submissions before me, I am satisfied that the Relevant Pages do not relate to the assessment of a "person of interest" or "person causing harm". 2. The Respondent concludes the Respondent Submissions by stating that the weight of the public interest considerations against disclosure outweigh those in favour of disclosure (see [34(8)] above). However, nowhere in the Respondent Submissions or the evidence of Mr Jones does the Respondent refer to the public interest considerations in favour of the release of the Relevant Pages, address their weight or seek to balance them against the public interest considerations it has detailed against disclosure. 3. Section 9 of the Contract Agreement relates to "proprietary information" which, while undefined in the Contract Agreement, traditionally and in the context of the terms of Section 10 "NCCD's Intellectual Property Rights" means information of a confidential or secret business nature belonging to a party that the other party gains access to in performance of the agreement. As the Manual is (and Relevant Pages are), as part of the licensed SDM System, dealt with under Section 10 of the Contract Agreement, Section 9 (proprietary information) does not apply to it/them. This view is supported by the emphasised quoted words of NCCD in [35(3)] above, where NCCD notes that the Manual is licensed material and that the Respondent is able to share the Manual (i.e. including the Relevant Pages) under such licence. If the Relevant Pages can be shared in these circumstances without requiring the imposition of obligations of confidentiality on the recipient, the Relevant Pages cannot be proprietary information subject to Section 9 or have been provided in confidence to the Respondent. For, if they were, the authorised action of sharing in these circumstances (i.e. without imposing obligations of confidence on the recipients) would render the obligations of confidence imposed on the Respondent meaningless because that information would then be public. 4. Similar to the discussion in (3) above as regards proprietary information, the Relevant Pages in this case cannot be confidential information or provided to the Respondent in confidence (i.e. likely to found an action for breach of confidence against the Respondent) where they are licensed to the "public" (i.e. persons other than the Respondent) as part of the SDM System. In fact, the impact of the release of the Relevant Pages on the licensing activity (and diminishment of NCCD'S ability to exploit that copyright by licensing to others) is the basis for the Respondent's claimed public interest considerations against disclosure in items 4(c) and 4(d) s 14 GIPA Act Table. Again, these contradictory positions cannot both be correct. Based on the evidence and submissions before me, I am satisfied that the Relevant Pages are copyright but not confidential information and were not provided to the Respondent in confidence. 5. The Respondent submits that the Manual is subject to copyright and such copyright is likely owned by NCCD (which, based on the evidence and submissions before me, I agree with). However, the Respondent does not explain how the release of the Relevant Pages will be reasonably likely to diminish the copyright in (i.e. the competitive commercial value of) the Manual to NCCD or prejudice NCCD's legitimate business, commercial, professional or financial interests. That is, if copyright exists in the Relevant Pages (in fact the Manual as a whole) and is owned by and remains vested in NCCD then given that release under the GIPA Act is not a reproduction of the Manual on a commercial scale, for example, the commercial value of the Manual is not diminished and the business interests of NCCD are not prejudiced. That is, NCCD can continue to exploit and enforce its copyright in the Manual (and the SDM System) and, while a particular release under the GIPA Act may or may not be an infringement of copyright, any infringement by release under the GIPA Act does not diminish or otherwise effect the copyright of NCCD as against the Applicant or any other person for any infringing use under the Copyright Act 1968 (Cth). 6. I accept the Respondent's submission that release under the GIPA Act should be considered as being a release to the "whole of the world" in the sense that the Respondent cannot, as part of the access or release of that information, impose any conditions on the use or disclosure of the information which it releases. However, such access or release does not forfeit, erode, waive or otherwise diminish the copyright owner's copyright in the Relevant Pages (in this case) or excuse the Applicant (in this case) from complying with copyright law. In the absence of any compelling submissions or evidence to the contrary, while the Respondent cannot impose its own conditions on the use or disclosure of the released information as part of the release, there is nothing in the GIPA Act which alters (or excuses the infringement of) any intellectual property rights in the released materials, for example. That is, in this case, if the Applicant is provided a copy of the Relevant Pages they are still required to comply with copyright law as regards their use and disclosure of the Relevant Pages.
Having considered the submissions and evidence before me, my findings in [48] above and each of items 1(g), 1(h), 4(c) and 4(d) s 14 GIPA Act Table which the Respondent says, considered together, outweigh the public interest considerations in favour of disclosure, below I set out my summary conclusions as to each of the Respondent's submitted public interest considerations against disclosure: 1. Item 1(g) s 14 GIPA Act Table: The Manual is used by the Respondent's relevant (and possibly other agency) staff, others the Respondent needs to help it implement the SDM System and is licensed by the Licensor/NCCD to the Respondent and generally to others who pay the licence fee (see [48(3) and (4)] above). This is clearly contrary to the Relevant Pages being confidential information or provided to the Respondent in confidence as they have been published/made publicly available (even if for a fee). I find that the Respondent has not established that the Manual is (or the Relevant Pages are) confidential information or was provided to the Respondent in confidence. Also, I am satisfied that the Relevant Pages are not "proprietary information" as contemplated under Section 9 of the Contract Agreement. Thus, in this case, the disclosure of the Relevant Pages cannot reasonably be expected to found a breach of confidence action against the Respondent or otherwise result in the disclosure of any information provided to the Respondent in confidence. 2. Item 1(h) s 14 GIPA Act Table: Given the Respondent's contradictory submissions and evidence and my finding on that (see [48(1)] above), I find that in this case the Respondent has not established that the release of the Relevant Pages could reasonably be expected to prejudice the conduct, effectiveness or integrity of any investigation or review conducted by or on behalf of the Respondent in relation to the assessment of a "person of interest" or a "person causing harm" by revealing its purpose, conduct or results. 3. Item 4(c) s 14 GIPA Act Table: Given that the Manual is (and the Relevant Pages are) protected by copyright and are licensed by the Licensor to the Respondent and others, in this case the 'competitive commercial value' of the Manual and/or the SDM System could not reasonably be expected to be diminished by release to the Applicant of the Relevant Pages under the GIPA Act. 4. Item 4(d) s 14 GIPA Act Table: For the same reasons as noted in (3) above, I find that in this case the release of the Relevant Pages of the Manual could not reasonably be expected to prejudice the legitimate business, commercial, professional or financial interests of the Respondent or NCCD/the Licensor.

Balancing the public interest

As noted in [49], I do not find that any of the Respondent's claimed s 14 GIPA Act Table public interests against disclosure are established. That is, the disclosure of the Relevant Pages could not reasonably be expected to (a) found an action for breach of confidence or disclose information provided in confidence, (b) prejudice the conduct or effectiveness of an investigation, (c) diminish the commercial value of the information or (d) prejudice any person's business interests. Thus, in the absence of any public interest considerations established against disclosure, the public interest considerations in favour of disclosure must prevail and the Applicant must be provided access to the Relevant Pages.

Form of access

Despite the Respondent's reference to s 72(2)(c) GIPA Act and the potential breach of copyright which may occur by providing the Applicant with a copy of the Relevant Pages (see [35(4)] above), neither party made any detailed submissions or presented any evidence on this issue and no specific form of access was requested by the Applicant in the GIPA Application. Therefore, pursuant to the guiding principle of the Tribunal in s 36(1) CAT Act and s 63(3) ADR Act, I will remit to the Respondent the decision as to the form of access to the Relevant Pages to be provided to the Applicant.

Orders 1. The decision of the Respondent under review is set aside. 2. In its place the decision is made that, subject to the decision as to form of access pursuant to the Orders below, the Applicant is to be given access to the relevant government information in question. 3. The decision as to the form in which access to the information is to be provided to the Applicant is remitted to the Respondent pursuant to s 65 of the Administrative Decisions Review Act 1997 (NSW). 4. Within 30 days of the date of these Reasons for Decision the Respondent is to make the decision referred to in Order 3 and provide reasons for that decision to the Applicant and the Tribunal. 5. The Applicant is to inform the Tribunal and the Respondent whether they wish to proceed with the application for review of the 6 May Decision (as amended by the decision referred to in Order 3 above) or withdraw that application within 7 days after the earlier to occur of: 1. the receipt of the Respondent's decision under Order 3 above; or 2. 30 days after the date of these Reasons for Decision. 1. If the Applicant wishes to proceed with their application for review of the 6 May Decision (as amended as to the form of access by any decision under Order 3 above) they are to request the Registry relist the matter for directions when they inform the Tribunal of their decision in accordance with Order 5 above. 2. Until and except as otherwise determined by the decision made under Order 3 above or Tribunal order after any subsequent review of that decision by the Tribunal, pursuant to s 64(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW), it is prohibited to: 1. publish any of the confidential evidence given to the Tribunal or the contents of the confidential documents submitted to the Tribunal; or 2. disclose to the Applicant any of the confidential evidence given to the Tribunal or the contents of the confidential documents submitted to the Tribunal.

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: 06 May 2021

Freedom of Information Act 1989(NSW)

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