Cleverley v Harness Racing New South Wales [2021] NSWCATAD 281 | Case summary

NCAT Administrative and Equal Opportunity|2021-03-10

The Applicant's evidence

The Applicant relies on his own evidence and statements provided by Mr Colin McDowell and Mr Emilio Rosati. Each of these witnesses set out their involvement in the harness racing industry and expressed their concerns about corruption in the racing industry.
The Applicant is a solicitor in a firm that represents many clients who are involved in the industry. He also has a private interest in the industry. Mr McDowell and Mr Emilio Rosati are both heavily involved in the industry as owners, trainers and drivers and have a passion for the sport of harness racing. They both referred to a long history of corruption and drug cheats in Harness Racing and are concerned that the situation of corruption and cheating still continues.
Mr McDowell stated that he is concerned that either: 1. HRNSW is not actually testing all of the swab samples that they take from horses, or 2. there is a potential break somewhere in the chain of custody that could avail itself to a Green Light Scandal situation occurring.
In relation to the GIPA access applications he stated: I cannot understand why Harness Racing New South Wales cannot be transparent about their swabbing and testing process, particularly with their dubious past. I believe that this is information that the public and the people in the industry have a right to know. I have tried to speak to the CEO of Harness Racing New South Wales, Mr Dumesny about my concerns and in the end nothing has changed. The absurd and unnatural horse improvements are still occurring. I felt that this GIPA application was the only way I could try to get to the bottom of the issues for the sake of my community and my sport.

The processing charges

The Applicant has submitted: HRNSW granted access to the Sample Identity Cards of horses swabbed at the Meetings. Before releasing the documents HRNSW requested a sum of $255.00 for their costs and expenses of dealing with the request based on 8.5 hours at $30.00 per hour. The Applicant seeks the review of the processing charges requested by HRNSW on the following bases: (a) All GIPA Applications sought similar types of information; (b) The reasoning provided for all GIPA Applications were the same; (c) The time provided (8.5 hours in total) is not an efficient use of time; (d) The time must be based on the lowest reasonable estimate of time that will need to be spent in providing the access;3 and/or (e) The processing charges are unreasonable, unfair and unjust. The Sample Identity Card is a one page document for each horse. The Tribunal should dismiss the processing charge. Further and in the alternative, the Tribunal should reduce the processing charge.
In regard to the processing charges, Mr Dumesny stated that HRNSW had been required to undertake consultation in regard to the Applicant's requests. In the notice of decision annexed to his statement of 1 February 2021 he wrote: In this case 8.5 hours were undertaken to deal with your request, resulting in a total charge of $255 at $30 per hour, in accordance with section 64 of the GIPA. Your access to Category Two Documents is conditional on payment of this charge, by cheque made payable to Harness Racing NSW. Please note that your $30 application fee counts towards this payment, so the relevant cheque should be for the amount of $225.
In relations to the charges HRNSW submitted: 8.5 hours was not an inefficient use of time in dealing with the Second, Third and Fourth GIPA Applications in circumstances where it involved: a. considering the requests in conjunction against the First GIPA Request; b. consider three separate applications which were filed on three separate dates; c. reconsidering each application in light of the context of further continuing applications being made, and the content of those applications; d. searching for records in relation to all horses swabbed across each of the three dates; e. searching for records from racing forensic laboratories in relation to the status of the testing of each of the multiple samples taken across the three dates. This was particularly complicated in circumstances where the requests were made just days after the races took place and therefore samples were each at various stages of the processing timeline; f. consultations with the integrity department in relation to each of the samples; g. consultations with the ARFL who had custody and were in various stages of processing the samples; h. obtaining legal advice in relation to the requests; i. responding to a further email of Mr Cleverley dated 31 August 2020, by letter of 2 September 2020 (1 page plus annexures); and j. providing a decision and reasons for the decision by letter of 14 September 2020 (3 pages). It is further noted that: a. The fact that the applications related to similar types of information is of no consequence in circumstances where locating the information required researching and locating numerous swabs, from multiple races, for which each had differing chain of custody, transfer and testing records. b. The applicants contend that the "reasoning provided for all the 3 GIPA Applications were the same". The difficulty with that ground is that no reasoning was provided for the applications at all. The respondent was required to guess at what potential use any applicant might have for the highly sensitive information sought, and that required guess-work in consultation with other departments. c. The nature and sensitivity of the information sought significantly impacted the time that it took to access and consider the information. Particularly in circumstances where the information sought relates to the methodologies used to detect prohibited substance abuse in racing, its sensitivity required multiple consultations and
On the material before me I am satisfied that the steps outlined by HRNSW would have been necessary for the determination of the access applications. In my view, the processing charge is reasonable.
I understand that as GIPA application 1 has been the subject of an agreement between the parties the issue of processing charges in relation to GIPA application 1 has also been resolved. If I am wrong on that point, I would reach the same conclusion in regard to the reasonableness of the charges for GIPA application 1.

Public interest considerations in favour of disclosure

The GIPA Act provides that there is a general public interest in favour of disclosure and there is no limit to the matters that may be regarded as public interests in favour of disclosure.
The Applicant has submitted that a number of considerations in favour of disclosure apply. I generally agree with most of that submission. I am satisfied that disclosure of the withheld information could reasonably be expected to: 1. promote open discussion in relation to the custody and testing procedures of samples to ensure that it is fair and not subject to corruption; 2. assist with the oversight of the expenditure of public funds; 3. promote open discussion in relation to whether or not HRNSW has engaged in misconduct or negligent, improper or unlawful conduct; and 4. enhance HRNSW's accountability.
I agree that these are strong considerations in favour of disclosure and should be given reasonable weight.

Public interest considerations against disclosure

Clauses 1(f) and 1(h) of the table to section 14 of the GIPA Act both refer to the reasonable expectation of a particular effect. The decision in relation to whether it can be reasonably expected is one which must be made upon logically probative material, and a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient.
Whether disclosure of particular information "could reasonably be expected to" have a particular effect is a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police at paragraph [42]; McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 at paragraph [66].
The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at paragraphs [54] and [83]: "[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. [83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17]."
In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 an Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to Searle and the authorities discussed in that decision, the Appeal Panel said at paragraph [59]: "Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses." The expression "reasonably be expected to have the effect" has been discussed above.
In that regard, HRNSW has provided evidence from Mr Prentice, Integrity Manager with Harness Racing New South Wales; and Mr Cawley, Science Manager of ARFL.

Clause 1(f) of the table to section 14

Clause 1(f) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of prejudicing the effective exercise by an agency of the agency's functions.
Clause 1(f) also uses the word "prejudicing". "Prejudice" bears its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council at paragraph [60].
I am satisfied on the basis of the evidence given by Mr Prentice and Mr Cawley that the disclosure of the withheld information could prejudice the effective exercise by HRNSW of its functions. It has the potential to impact on the effectiveness of the procedures that HRNSW has adopted to combat corruption and drug use, including drug testing and it also has the potential outcome that the ARFL would cease providing services to HRNSW.
Both of these potential consequences would clearly prejudice the effective exercise by HRNSW of its functions.
In my view, the public interest consideration against disclosure in clause 1(f) of the Table to section 14 of the GIPA Act is applicable to the withheld information and should be given significant weight.

Clause 1(h) of the table to section 14

Clause 1(h) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of prejudicing 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).
It operates to protect the ongoing effectiveness of the methods adopted by an agency such as HRNSW in preventing, detecting, investigating or dealing with crime. This is to ensure that the agency is able to maintain the integrity of its investigatory methods by protecting the identity of its methodology: see the discussion in Sheehy v Commissioner of Police; Rapisarda v Commissioner of Police; McDonald v Commissioner of Police; Housego v Commissioner of Police [2018] NSWCATAD 73.
The investigation which could be expected to be prejudiced must be the investigation whose purpose, conduct, or results would be revealed. In the present matter the investigation is complete. However, clause 1(h) operates to protect the ongoing effectiveness of the methods adopted by the agency. This then ensures that the Respondent is able to maintain the integrity of its investigatory methods by protecting its methods.
In McDonald v Commissioner of Police, NSW Police [2019] NSWCATAD 66 the evidence was that disclosure of complaint information generally would have a tendency of revealing the purpose of the investigation that is being conducted and the manner in which it is being conducted; and that it is critical that persons are not given the opportunity to understand covert police methodology. The Tribunal found that there is a real public interest in not revealing information about the conduct of internal investigations to the world at large, so that any person can scrutinise the manner in which an investigation is conducted. In my view, a similar public interest applies in relation to HRNSW investigations.
The clause refers to revealing the investigation's purpose, conduct or results. There is a question of whether revealing the results of the investigation will prejudice the conduct, effectiveness or integrity of future investigations - not merely the investigation or review in issue.
In Johnson v Secretary, Department of Communities and Justice [2020] NSWCATAD 23 the Tribunal noted that the opening words of clause 1(h) refer to "in a particular case or generally". The application of clause 1(h) is not limited to the investigations which are the subject of the withheld information. Disclosing the withheld information could prejudice future HRNSW investigations.
In my view the confidentiality of the investigation process is fundamental to the proper conduct of that process. The disclosure of the specific information that has been requested could prejudice the conduct or effectiveness of future investigations as it could disclose the methodology that HRNSW has adopted.
In my view, the public interest consideration against disclosure in clause 1(h) of the Table to section 14 of the GIPA Act is applicable to the withheld information and should be given significant weight.

Where does the balance lie?

It is necessary to balance these considerations against those in favour of the release of the information. As I have indicated, the public interest considerations in favour of disclosure are to be given reasonable weight. However, in my view greater weight should be given to the public interest considerations against disclosure. That being the case, the correct and preferable decision is to affirm the HRNSW decision to refuse to release the withheld information.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 28 September 2021

Applicable legislation

The Applicable legislation is not in dispute.
The object stated under section 3(1) of the GIPA Act is to open government information to the public. The GIPA Act is to be interpreted and applied so as to further its object. The meaning of "government information" is broad. Section 4 provides that government information means information contained in a record held by an agency. Access is only restricted when there is an overriding public interest against disclosure.
Part 2 of the GIPA Act provides the mechanism by which a member of the public can make an access application for government information to an agency. Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 9(1) gives a person who makes a valid access application a legally enforceable right of access to government information unless there is an overriding public interest against disclosure of the information.
Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information and, further, that nothing in the GIPA Act limits any other public interest considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Individual interests in seeking information may coincide with the public interest.
The term 'public interest' is not a defined or fixed concept. In Director of Public Prosecutions v Smith [1991] 1 VR 63 the Supreme Court of Victoria Appeal Division found: "The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals".
Section 13 of the GIPA Act sets out the "public interest test" for determining whether there is an overriding public interest against disclosure of information in the following terms: 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.
The test in section 13 requires the Tribunal as decision-maker to attribute weight to each consideration for and against disclosure, and determine whether the balance of the public interest lies in favour of, or against, disclosure of government information: Hurst v Wagga Wagga City Council [2011] NSWADT 307; Flack v Commissioner of Police, NSW Police [2011] NSWADT 286. The GIPA Act provides no set formula for calculating the weight of considerations for determining whether one set of considerations outweighs the other, and the Tribunal has stated that "any reasonable approach that follows section 15 principles seems to be acceptable ... it is really a matter of placing identified considerations in order of priority or importance": Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278 at paragraph [96]. The balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at paragraph [17].
Section 14(2) of the GIPA Act relevantly provides that the public interest considerations listed in the Table to section 14 are the only considerations that may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
Section 55 of the GIPA Act provides for the consideration of personal factors of application. Section 55 is referred to above.
Where an application for review of a reviewable decision is made to the Tribunal, subsection 105(1) of the GIPA Act provides that 'the burden of establishing that the decision is justified lies on the agency'. That is, the Respondent bears the onus to establish that the information to which the Applicant has sought access should not be released.
As noted above, the Respondent relies on clauses 1(f) and 1(h) of the table to section 14 of the GIPA Act.
Clause 1(f) of the table to section 14 of the GIPA Act provides: 1. 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) - … (f) prejudice the effective exercise by an agency of the agency's functions,
Clause 1(h) of the table to section 14 of the GIPA Act provides: 1. 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) - … (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).
Whilst a very broad value judgment is required to be made it is not one to be made in a vacuum. It is a judgment to be made having regard to the objects of the legislation, the general presumption in favour of disclosure of government information and the principles set out in section 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104]. Subsections 15(a) - (d) operate to promote disclosure of information and promotion of the object of the GIPA Act notwithstanding any embarrassment to Government or potential misinterpretation. Only section 15(e) identifies a principle that mitigates the pro-disclosure ambition of the GIPA Act.

Cleverley v Harness Racing New South Wales

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