Calderwood v Department of Planning, Industry and Environment; Calderwood v Campbelltown City Council; Department of Planning, Industry & Environment v City of Ryde

The Evidence

1. Mr Tansey is the Executive Director for Policy and Strategy for the Better Regulation Division of the Department of Customer Service. He is also currently the chair of the New South Wales Fire Safety and External Wall Cladding Taskforce. Mr Tansey's affidavit relates how the NSW Government established the New South Wales Fire Safety and External Wall Cladding Taskforce in 2017. The Department of Customer Service is responsible for it now. The Department of Customer Service maintains a central database of buildings that may have combustible cladding. The database contains input from various member agencies but Councils do not have access to it. Inter-alia it contains information provided by various government agencies, local councils, building owners who have registered buildings on the Cladding Register maintained by DPIE. The database is dynamic, and he states that agencies have provided information on the basis that it will not be disclosed to others.
2. Mr Tansey states that "The work of the Task force has included notifying those potentially affected and taking Action to engage with owners and consent authorities to drive remediation of any fire safety risks." (Para 14) The database also contains a great deal of other information including whether a building has been quote "cleared" and therefore no longer considered potentially high risk" (Para 16) Mr Tansey further says about the database that over the past three years hundreds of building records would be added or amended in the database each week but now although the number of identified buildings is relatively stable, there are constant updates concerning the latest status of buildings identified and which are either being investigated, subject to notices or orders, or undergoing remediation (Para 17). The information on the database is "point in time" and updated as new information is received
3. Mr Tansey says that by contrast the information on the Cladding Register is static. All buildings in the Cladding Register are inspected by Fire and Rescue to determine whether or not the building poses a risk and the location and arrangement of cladding on such buildings. Statistical information is published weekly on the Department's website but does not include the identity or details of any buildings
4. The Taskforce has notified building owners or occupants and tenants in writing concerning the status of the building as having potentially combustible cladding and does so on a continuing basis (para 21). It is also notified of potentially high risk buildings which are referred to local councils to investigate and report back on fire safety provisions. Councils have a list of high priority buildings in each LGA.
5. Mr Tansey also states that prospective purchasers can check for the existence of potentially unsafe cladding (para 22) and the Department of Customer Service oversees the regulation of real estate agents. He notes that it is an offence for real estate agents to enter a contract or arrangement and conceal a material fact and since March 2020 regulations specify certain combustible cladding facts which must be disclosed (para 23).
6. Mr Tansey recognises that information concerning combustible cladding on a building can be commercially sensitive because the existence of building defects reduces the value of a building to prospective purchasers (para 26). He also notes that the information about specific buildings as cladding effective may not be complete or current. He states that many buildings originally assessed as potentially at risk have been later deemed safe (para 27 & 28).
7. He is of the view that disclosure of information in the register could Act as a disincentive for building owners to self register and may cause stakeholders to be less willing to collaborate with the Task force or provide the information that it requires.
8. Mr Whybrow is Assistant Commissioner Community Safety at Fire and Rescue New South Wales. In his affidavit he discusses the tragic events which occurred at the Grenfell Tower in London and a combustible cladding fire at the Lacrosse building in Melbourne (para 4 - 7). He states that the Task force has written to owners and occupants of buildings at risk, and notes that senior officials at local councils know about potential combustible cladding buildings in their local government areas (para 9 & 11). He says the Task force is trying to do is best to ensure that everyone who needs to know knows about a buildings risk, but there are elements who would use such information for malign purposes. He considers that publishing the addresses puts he at risk cladding buildings by identifying a list of targets for arson and mischief (para 12).
9. He discusses the steps put in place to identify and respond to fire in combustible cladding buildings (para 15). He says that Fire and Rescue New South Wales has spent well over 29,000 hours inspecting 4127 buildings suspected of having combustible cladding. He also states that Fire and Rescue New South Wales has assessed all such buildings for risk elements in firefighting operations, prepared pre-incident plans and has enhanced protocols established for higher risk buildings (para 21 - 23). He states that if there was a publication of addresses that this would require additional work to review their plans and protocols because it is considered that the risk to such buildings would be increased (para 24).
10. Mr Hudson is the Deputy Commissioner of Police Investigations & Counter Terrorism. His affidavit considers the general security and terrorist threat to premises containing combustible cladding. He considers that such buildings are an easy terrorist target and provides some examples of terrorist organisations' public discussions of such matters (para 5 - 11). Although the threat seems in the background he says that New South Wales Police would be concerned if locations were available to the public. New South Wales Police is also concerned from a general security perspective (para 15). He says that arson is not an uncommon offence in New South Wales in 2019 there were a surprisingly large number of incidents concerning deliberately lit fires relating to buildings and also a large number of people who are legally processed for committing arson type sensors. He says that " a large proportion of structural fires and bushfires are deliberately lit" (para 16).
11. in his affidavit, Mr Walton, Executive Director Planning Policy of the DPIE discusses the administrative arrangements for the establishment and maintenance of the Combustible Cladding Register (para 3 - 16). He notes that building owners have an obligation to provide details about the building and external combustible cladding (para 8). At this point the obligation is only in relation to certain classes of (apartment buildings -typically multiunit residential buildings, residential buildings used as boarding houses, guesthouses, hostels or backpackers buildings; care facilities for children, the elderly or persons with disabilities) and buildings of a public nature such as hospitals and clinics, schools, universities, childcare centres, sporting facilities, nightclubs, and public transport buildings; aged care buildings; and dwellings within them such as a caretaker's residence or storage facility.
12. Buildings can be registered online. Persons using the online registration system have been led to believe in the frequently asked questions part of the site that it was not the government's intention to make the information collected public can (para 16).
13. Apparently despite deadlines for registration building owners are continuing to register buildings at a rate of about 2 per week (para 20). Verification of the information in the register is performed by Fire and Rescue New South Wales and any relevant consent authority and the results of those inspections and other relevant information is maintained by DCS in the database (para 21). He says that the register becomes a storable record of registrations and those records are superseded by the dynamic factor of the database (para 21). One of the items contained in the register is the address of building (para 17).
14. Mr Walton says that access to the register is strictly controlled. Persons who are able to access register include certain Fire and Rescue officers, certain council officers in relation to buildings in their LGA, departmental compliance unit officers, IT staff and certain Department of Customer Service (para 22 - 24)

The GIPA Act

1. As discussed above the starting point is that there is a legally enforceable right to have the information the subject of the access application made public. This is effectively a presumption in favour of disclosure. The agency carries the burden of establishing the preponderance of the public interest against release of the information (S105 GIPA Act)
2. In this case DPIE, Department of Customer Service and Fire and Rescue New South Wales all join in making submissions in support of refusal of access. The Councils are also government agencies (S 4; schedule 4,clause 1 GIPA Act).
3. The agencies rely on the following matters referred to in the Table to S14 as factors against disclosure because the information could be reasonably expected to: clause 1 (d): prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions clause 1(e): reveal a deliberation or consultation conducted… In such a way as to prejudice a deliberative process of government or an agency clause 1(f): prejudice the effective exercise by an agency of the agency's function clause 1 (h) : prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or behalf of an agency by revealing it's purpose, conduct or results clause 2 (d) : endanger or prejudice any system or procedure for protecting the life, health or safety of any person clause 2 (e): Endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle clause 2 (f): facilitate the commission of a criminal Act clause 3 (a): reveal an individual's personal information clause 3 (b): contravene an information protection principle under the Privacy & Personal Information Protection Act 1998 clause 4 (d) : prejudice any person's legitimate business, commercial, professional or financial interests

The Submissions

1. When examining the agencies claims based on the items in section 14 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). The Full Federal Court provided the following guidance. 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. It was held in this case that to require the decision-making agencies to establish a case on the balance of probabilities was an error.
2. The Tribunal has cited these observations on numerous occasions including Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [56 to 58]; Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [56 to 58]; Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 at [56 to 62] . What is required is an objective assessment as to what could be reasonably expected by a reasonable administrator.
3. Section 105(1) of the GIPA Act places the burden of justification of refusal upon DPIE and Campbelltown Council in the Liverpool, Penrith and Campbelltown matters. Section 105 (2) puts the burden on DPIE in the Ryde matter to establish that the information should not be released.
4. The Department of Consumer Services and Fire and Rescue NSW join in the DPIE submissions pursuant to their right to do so in section 104(3) of the GIPA Act because they could be aggrieved by the decision of the Tribunal.
5. DPIE also submits that because the Combustible Cladding Register is not fully reliable as it is a static record of information provided by owners and others rather than an up-to-date or verified information source this reduces the weight of the public interest in favour of disclosure. Further, DPIE submits that although the Tribunal is not to take into account that information might be misunderstood or misinterpreted (S 15 (d) GIPA Act), it is appropriate that the inaccuracy of information have some role in determining the weight of the positive factors in favour of disclosure.
6. DPIE the notes that the Tribunal is not considering an application for access to information in the database as opposed to information in the Cladding Register. The Register is a static record of information but the database has up-to-date information which includes material on the Register.
7. DPIE sorts the public interest considerations against disclosure into 4 areas 1. risk of arson or terrorist attacks -Table items 2 (d), (e) and (f). 2. prejudice to building owners' willingness to provide information about buildings or and otherwise co-operate, - Table items 1 (d), 1 (e), 1 (f) and 1 (h). All all you you are you will 3. prejudice to the exercise of the relevant administrator's discretion as to whether or not to make some part of the register available to the public. 4. adversely impact on building owners' financial or commercial interests - Table item 4 (d).
8. Claims concerning "endangerment" require serious consideration (Electoral Commissioner State Electoral Office V McCabe 2003 NSWADTAP 28 at [36]. Mr Hudson's affidavit provides details of hundreds of deliberately lit fires in a given year and in my view it would be reasonably expected that the publication of the address of buildings which are on the register of combustible cladding could be a "red flag" to persons who may wish to do mischief or cause significant danger to persons within buildings. This is particularly the case for buildings which may be occupied by persons who will be likely to be at disadvantage in removing themselves from a situation of danger such as buildings used as aged care homes, disabled accommodation, schools, childcare centres, and hospitals. Mr Whybrow's affidavit deals with these risks also. The Grenfell Tower disaster is indicative of the potential risks.
9. Mr Hudson mentions some of the risks of buildings being targeted for a terrorist attacks. This may be considered under the heading of a reasonable expectation of facilitation of the commission of a criminal act (Table item 2 (f)). The evidence mentioned by Mr Hudson is mostly reports of "chatter". The danger is real but not present. I would allocate only modest weight to this aspect of the agency's argument considered by itself. However there is considerable evidence concerning the prevalence of the crime of arson and the additional risk of a terrorist attack simply fortifies the Tribunal's view on the endangerment of life health and safety of people, and the security of property. In my view Table items 2 (d), (e) and (f) are of vital concern to the agencies and are fully engaged, and that it is reasonable to have an expectation that disclosure of the addresses of buildings on the register could be expected to lead to danger and facilitate the commission of a criminal act such as arson.
10. Although owners have a legal obligation to provide information about their buildings with external combustible cladding Mr Walton states that buildings are being placed on the register even now the rate of 2 per week (para 20). They also provide information and collaborate in other ways with the Task force. Mr Tansey notes (para 28) that a number of buildings have been placed on the register although they have no external combustible cladding or such cladding is safe and requires no rectification out of an abundance of caution (see also Whybro para 19). This information has been provided in circumstances where it has been indicated that there was no intention to make the register public (Walton paras 12 - 16).
11. DPIE submits that provision of the address of buildings could be perceived as impacting on insurability, insurance premiums and bank lending practices. This seems doubtful as insurers and banks are likely to be well informed about such matters, but there may be a perception (wrongly based) by owners that this will occur. These perceptions, in the DPIE in the submission, are likely to cause some owners to err on the side of non-disclosure which could have a significant adverse impact on the agency's function.
12. The DPIE submits that this engages Table item 1 (d), (e), (f), and (h) and 2 (d) on the following basis- there will be prejudice to supplies of confidential information regarding the cladding status of particular buildings; resistance of owners to provide information which may become public; prejudice to effective exercise of functions of agencies such as the gathering of information about buildings with potential cladding risk; prejudice to the effectiveness of investigations by agencies by revealing inclusion of particular buildings on the register which could lead to other owners being more reluctant to provide information; prejudice the systems or procedures for protecting people and property being the Taskforce activities of identifying, assessing and remedying combustible cladding risks.
13. It is further submitted that there would be prejudice to the effective exercise of an agency's function, here the Planning Secretary who has the ability under the environmental planning legislation to provide the Register or part of it to Fire and Rescue, local councils and the public. It is submitted that is implicit in this power that legislature expected that the Register would not be made public unless the Planning Secretary determined to exercise his or her power. It is argued that the Planning Secretary's function would be prejudiced by depriving that person of the function altogether if the register were disclosed pursuant to the GIPA Act
14. As to Table item 4 (d) it has been submitted that if the Register was published containing the addresses of buildings, that the value of those buildings will be reduced. I doubt that this is really the case where a potential purchaser can make enquiries to find out whether the building has combustible cladding and if so if rectification work has been done or it has been cleared as safe; and there are specific disclosure obligations on property industry professionals in any case. I find this unconvincing as it seems that if possible combustible cladding risk is discoverable by potential purchasers that the publication of the address of such a building would not have any further it effect on value.
15. A similar approach would be taken to the submission concerning insurers and banks taking a different view about the building in question. Further it seems to me that it is not reasonable to expect that the operation of a business in a combustible clad building would be prejudiced in the absence of any evidence to this effect. What it might do however is make the building less attractive to tenants who usually do not conduct the same investigations and searches as a potential purchaser, but there is no evidence to this effect.
16. At paragraph 62 of the Respondent's submissions the DPIE decided to disclose the number of buildings in the Liverpool and Penrith LGAs and do not oppose equivalent information being released in relation to Campbelltown and Ryde. It is the addresses of the buildings on the Cladding Register which are at the core of the concerns of DPIE and the other agencies.
17. As to that part of the application for information on rectification work contained in the Register, it is submitted that Register does not contain such information, but may have some indirect information as to whether a fire safety order has been issued if building owners have properly completed this area of the online registration form.
18. In my view the application does not encompass the release of such information which is at best indirect, incomplete and unverified if it is on the Register at all.
19. Miss Calderwood makes submissions in response. She submits that a relevant consideration for the Tribunal is that 2 other agencies have released information in response to other GIPA applications made for information about combustible cladding. In my view it is not relevant to consider what decisions have been made by other agencies in relation to other applications, particularly when the terms of those applications and the information which has been released is not specified.
20. She submits that the legislature, if it had wanted the information to remain confidential, could have provided that the Register information should be secret and exempt from the GIPA Act, but instead allowed the GIPA Act to apply. I do not consider this argument being in anyway compelling.
21. Ms Calderwood submits that there is no evidence that building owners who wished for information to be kept confidential would be discouraged from engaging in the process of online registration. This is a matter which is not readily amenable to the collection of evidence from building owners. In any case the test is whether a reasonable administrator could have such an expectation, and in my view that is a reasonable expectation. It is a matter of which judicial notice can be taken that citizens providing confidential information to government agencies generally do not want identifying factors which would publicly reveal the source of such information. Citizens value their privacy.
22. Ms Calderwood further submits that because the Tribunal is not permitted to take into account that disclosure may be misinterpreted or misunderstood (S 15 (d) GIPA Act) that the unreliability of information on the Register is therefore irrelevant. As a general proposition this is probably correct, however if information is known to be unreliable then it is a factor which weighs in the balance of whether the public interest in disclosure of information is to be as far as possible reliable information.
23. As to the risk of arson and terror attacks Ms Calderwood submits that the claim rests on the view that public awareness of a structure's increased flammability compared to others structures would encourage arson or terrorist attacks. She makes a leap from that to suggest that petrol stations would be likely targets of such attacks and says that as there is no evidence of such attacks on petrol stations. She submits that the evidence on this issue should not be accepted. The logic is difficult to follow, and I regard this as a weak argument
24. As to the submission of the DPIE relating to reluctance of owners to register their buildings and cooperate with authorities Ms Calderwood submits that the claim that owners who have a legal obligation to provide information would be discouraged is unsubstantiated. I refer to my earlier comment that a degree of confidentiality about the contents of the Register is part of relevant citizens' expectations.
25. As to the submissions made by the DPIE in relation to perceived adverse impact on value, insurability and bank lending, she says that the general public and the market have a right to know about such information. The material before me suggests that the relevant part of the public (for example owners and tenants) know about such information, and so do banks and insurance companies. Admittedly not all relevant persons who may be interested will have that information available to them (for example hospital patients, aged care residents, parents of children in child care).
26. Ms Calderwood also submits that the claim that information release would prejudice the effective exercise of the Planning Secretary's functions under the Environment and Planning Assessment legislation is not substantiated. I am unable to see any real merit in the claim and would agree with her submission.
27. Ms Calderwood finally submits that the claim that disclosure of information could be expected to prejudice a person's legitimate business, commercial, professional or financial interests is unjustified on the basis that a diminution in value is an existing commercial effect. While this may not apply in respect of the proposed sale or insurance transaction because the purchaser or insurance entity can discover the information reasonably readily, it could have some effect on an owner's ability to attract a tenant which could be expected to prejudice the legitimate business, commercial or financial interests.
28. The agencies put on brief submissions in reply. In response to the submission that disclosure of unreliable information might be misinterpreted or misunderstood is irrelevant, DPIE submits that it is material in considering the strength of public interest in favour of disclosure as part of the balancing process.
29. The reply submissions drew attention to the evidence that building owners may be discouraged from providing information given to a parliamentary enquiry (Tansey affidavit para 25 and annexure J to that affidavit) which contains material from which it is easy to draw an inference that at least early movers among building owners may suffer considerable disadvantage by coming under an obligation to rectify without any funds or guidelines on how to do this.
30. The reply submissions effectively make the point that decisions on other GIPA applications by other agencies are not relevant and that the petrol station analogy used by Ms Calderwood has little strength.

Consideration

1. Bearing in mind the principles discussed above concerning each of the items relied on by the respondent, the Tribunal must turn its mind to the question of whether, objectively, it considers the enumerated prejudicial effects could reasonably be expected.
2. In performing this task the Tribunal considers whether disclosure could be reasonably expected to have the effect in a broad, general sense and then whether it could be reasonably expected in this particular case.
3. If such a reasonable expectation emerges, the Tribunal then considers what weight should be given to the considerations against disclosure.
4. The Tribunal then weighs the public interest considerations in favour of disclosure against the public interest considerations against. It then must determine whether the negative factors outweigh the factors in favour.
5. It must be borne in mind that the only live issue for determination is whether the addresses of buildings on the Register located in the four LGAs should be disclosed. The number of such buildings in two LGAs have already been disclosed, and there is no objection to the revelation of those numbers in the other LGAs. The evidence is that the Register does not contain information identifying "rectification work proposed and, where relevant, undertaken" which could potentially be disclosed.

The Liverpool application

1. First I apply this process to deciding whether the addresses of buildings on the Cladding Register in the Liverpool LGA should be disclosed to Ms Calderwood. I examine each of the grounds from the Table in s 14 GIPA Act relied upon as factors which the agencies say, considered together, outweigh the public interest in making such a disclosure.
2. Table item 1(d) (Prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's function)
3. The agencies submit that making building addresses public will deter owners from registering buildings they know or suspect have combustible cladding, and from cooperating with authorities in investigating and remedying any cladding problem.
4. This ground is made out. Although owners have a legal obligation to place buildings on the Register there have been public indications that information will be treated as confidential. This of course, of itself does not override the GIPA Act. Experience has shown that building owners have displayed a commendable abundance of caution in placing buildings on the Register which on investigation have been established not to be a risk, or not to be subject to the registration obligation. If building owners knew that the address of their building would be disclosed an objective decision-maker could reasonably consider that their willingness to put the building on the Register (and cooperate in remedying any difficulties) could be problematic. Publicly naming the buildings could increase pressure on building owners. If they consider the information they provide to be confidential, experience is generally that the informants want the information to remain confidential. Building owners may also feel some degree of reassurance that the treatment of information as confidential could reduce the risk of the building becoming the target of arson/terrorism.
5. Evidence was also produced indicating that those owners of strata buildings (or their representatives) who have complied with their obligations of registration, and have had their buildings investigated and have been ordered to make rectification have been put into a very difficult situation in finding what replacement products are approved, which contractors are approved and/or experienced, and how the required work can be paid for. If these matters become well known and the addresses of these buildings were made public, it is reasonable to expect that this would add another stress factor to the dilemmas facing building owners.
6. I would give strong weight to this factor.
7. Table item 1(e) (Reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.)
8. The agencies have not provided any direct evidence relating to this item. They seek that it be considered in the context of consideration of Table items 1 (d), 1 (f), and 1 (h) .
9. In my view it adds nothing of substance to consideration of those other 3 items. I do not accord it any weight of its own.
10. Table item 1(f) (Prejudice the effective exercise by an agency of the agency's function)
11. This ground is established. The agencies in question have responsibility for maintaining the up-to-date database of buildings on the Cladding Register, risk assessments in relation to such buildings, and functions concerning rectification.
12. For reasons discussed in relation to item 1(d) public disclosure of the addresses of buildings on the Register could be reasonably expected to provide a discouragement to building owners who have already made disclosure on the assumption that the information will be confidential, to make further disclosure, and to new registrations (which are continuing at a rate of about 2 per week). More particularly, loss of assumed confidentiality is unlikely to assist or contribute to an attitude of willing cooperation with authorities given the difficulties that rectification presents. Fire and Rescue New South Wales have given evidence (Whybro para 24) that disclosure of the addresses will likely result in a large increase in their workload.
13. I would treat this as a strong factor against disclosure.
14. The agencies also submitted that disclosure could prejudice the effective exercise the Planning Secretary's function under the Environmental and Planning Assessment legislation which permits the planning secretary to do any or all of the following: make the Register or any part of it available to Fire and Rescue New South Wales, any council, or any other person; make the Register or any part of it available to the public; or publish the Register, or any part of it, on a website maintained by the Department.
15. They submit that implicit in this provision is that the Register will not be made public, leaving the Planning Secretary free to exercise their power. I do not find this argument at all convincing. Such a power must yield to the GIPA Act unless there is some specific carveout for decisions of this type by the Planning Secretary.
16. Table item 1(h) (Prejudice the conduct, effectiveness or integrity of an audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced or whether or not completed). This ground is not established. Fire and Rescue New South Wales gave evidence that it would expect to do considerably more investigations on buildings on the Register if their addresses were publicly disclosed. Fire and Rescue New South Wales is the leading agency tasked with investigating and reviewing buildings on the Cladding Register. Local councils also play an important role. Owners of buildings on the Register will no doubt know the purpose, conduct and ultimately the results of Fire and Rescue and Council investigations and reviews. It has not been established that disclosure of the address of a building will prejudice the conduct effectiveness or integrity of their investigations and reviews.
17. I would not give it any weight.
18. Table item 2(d) (endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person) This item is made out. Although the claim of endangerment requires "grave assessment (which) must be closely scrutinised and not easily accepted" (see Electoral Commissioner, State Electoral Office v McCabe (2003) NSWCATAP 28 at [36]). Deputy Commissioner Hudson and Assistant Commissioner Whybro both agree that arson is a significant risk, and given the tragic circumstances of fires such as that at the Grenfell Tower in London it seems to me that it could be reasonably expected that general publication of the addresses of buildings which are on the Cladding Register could endanger or compromise the lives and safety of occupants and the first responders' systems and procedures (even where threats are made as hoaxes) for protecting the life, health or safety of persons of persons in such buildings.
19. I regard this as a very strong factor against disclosing the information.
20. Table item 2(e) (Endanger the security of or prejudice any system for protecting any place, property or vehicle).This ground is also made out. It is really a further extension of Table item 2 (d) in the circumstances since the buildings are regarded as located at a place, constitute property, and will very commonly have vehicles located within or nearby to the building. I regard this as a very strong factor against disclosing the information.
21. Table item 2(f) (facilitate the commission of a criminal act).This item is made out. It too is a further extension of item 2D. Arson is a criminal act and the evidence is that there are numerous cases of arson each year. Public knowledge of the addresses of buildings at risk could be reasonably expected to facilitate a person who intended to cause harm by fire. I regard this as a very strong factor against disclosing the information.
22. Table item 4(d) (prejudice any person's legitimate business, commercial, professional or financial interests).There appear to be some circumstances in which such interests could be prejudiced. The evidence is that the agencies have been in touch with numerous classes of people with an interest or need to know about buildings which are on the Register (such as owners and tenants). Prospective owners who do their research should be able to establish the combustible cladding status of particular buildings. Real estate agents are required to disclose information about such buildings. Banks and insurance companies are sophisticated commercial operators who have the ability to discover such information. So the degree of prejudice to those interests is likely to be minimal because the information is already largely in the market already or readily discoverable by those who care to look.
23. An owner who wishes to rent property in a building on the Register may find that this is a disincentive to prospective tenants who become aware of this position. There are no doubt other examples where legitimate interests could be prejudiced, but there is no evidence. Although the expectation is reasonable, it is not a factor of great concern.
24. I would therefore accord only modest weight to this factor.

Balancing the Public interest.

1. I begin by noting that the scales are tipped in favour of disclosure at the outset, and that numerous other positive factors can be considered in weighing up the public interest in providing public access to the information (see sec 12 GIPA Act).
2. I note again that the live question is whether there should be disclosure of the addresses of buildings in the Liverpool LGA which are on the Cladding Register. The GIPA Act does not make a distinction between matters of minor public interest in disclosure and those of significance. The general public interest in providing access to this item of government information is tempered by the fact that a section of the public with a particular interest in the information have been officially informed about their building's status though I note that not all those with a special interest in such matters have been contacted. I further note that the information may be unreliable.
3. Weighed against this are the negative factors discussed immediately above. As indicated, I regard the arson and terrorism risk as a factor having very great weight, and the potential for owners to not disclose or not fully cooperate with the authorities to deal with risks of buildings with combustible cladding as strong factors
4. I give only modest weight to the prejudice to the interests of owners, and to the other matters relating to administration
5. Weighing the positive against the negative I find that the negative factors against disclosure outweigh the positive factors in favour in relation to this item of information.

The Penrith application

1. The same issues arise in relation to the Penrith application and the result is the same.

The Campbelltown application

1. Unlike the Liverpool and Penrith applications (which were referred to and decided by the DPIE) the Campbelltown application (which was in relevantly identical terms) was decided by Campbelltown City Council and the decision was to not provide access to the information sought. The Campbelltown matter has been joined with the Liverpool and Penrith applications as the same issues arise.
2. In addition to some of the grounds relied on in the decisions on the Liverpool and Penrith applications (being Table items 1 (d); 1 (f); and 4 (d)), Campbelltown Council has relied on Table item 1 (c) (Prejudice to relations with, or the obtaining of confidential information from, another government agency); Table item 3 (a) (disclosure could reasonably be expected to reveal an individual's personal information); Table item 3 (b) (disclosure could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Act 1998; Table item 5 (e) (disclosure could be reasonably expected to expose any person to unfair advantage or disadvantage as a result of the premature disclosure of information concerning any proposed action of Council). These grounds are not related in the decision to any of the particular information requested.
3. In the decision each of these items receives a short 3 to 4 line explanation. Campbelltown City Council has put on its own brief submissions which adopt and rely upon the submissions made by the DPIE and also on the evidence filed in this matter. It has not put on its own evidence, but the Tribunal has ordered that evidence in one matter shall be evidence in the others. The additional grounds are not addressed in the submission.
4. As I have indicated earlier I would only accord modest weight to Table items 1 (d), 1 (f), and 4 (d). There is no direct evidence on Table items 1 (c) and 5 (e), but on their face they seem less than compelling. I cannot see how the disclosure of the addresses of buildings on the Cladding Register in the Campbelltown LGA could reveal an individual's personal information or contravene an information protection principle Such that Table items 3 (a) and 3 (b) would be engaged.
5. As the Tribunal is now the decision maker and required to seek to make the correct and preferable decision, it seems to me that in the circumstances I can take into account the other grounds relied on in the Liverpool and Penrith applications as well as the weight of evidence related to those grounds. In my view the agency is entitled to call in aid any of the grounds in the s 14 Table in satisfying the burden it has under s 105 GIPA Act provided that is not unfair to the other party. It is not bound to rely only on the grounds it used in making the decision under challenge.
6. Accordingly it is my view that in respect of the Campbelltown application the public interest factors negating public disclosure of the addresses of buildings on the Cladding Register in the Campbelltown LGA outweigh the public interest factors in favour, for the same reasons as in the case of the Liverpool and Penrith matters.

The Ryde application

1. The Ryde application differs from the Liverpool and Penrith cases because Ryde Council proposed to disclose the information the subject of the application, and prior to doing so consulted DPI as an interested third party pursuant to s 54 GIPA Act. DPIE made submissions to Ryde Council on internal review which were not accepted, and, being aggrieved by the proposed reviewable decision to disclose, brought Tribunal proceedings as an applicant to prevent Ryde Council from disclosing the information pursuant to section 80 (d) 100, (and carrying the burden under 105 (2)) GIPA Act.
2. Contrary to the submissions of Ms Calderwood, the Council did not disclose the information sought as it was limited by s 54 (6) and (7) of the GIPA Act.
3. My view is that in the Ryde application the public interest factors negativing public disclosure of the addresses of buildings on the Cladding Register in the Ryde LGA outweigh the public interest factors in favour, for the same reasons as in the case of the Liverpool and Penrith matters.

Orders 1. In the Liverpool, Penrith and Campbelltown matters the decisions of the agencies in respect of disclosure of the addresses of buildings on the Cladding Register in the respective LGA's is affirmed. 2. In the Ryde matter the objection by the aggrieved applicant agency to disclosure of the addresses of buildings on the Cladding Register in the Ryde LGA is upheld.

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: 14 August 2020