Darley v City of Parramatta

1. Moreover, the Tribunal expressed that it gave the personal factors "significant weight". That being so, we agree with the respondent's submission that the ground does not advance how the rejection of essentially similar evidence could have affected the outcome.
2. The appellant says the Tribunal "ruled out the Applicants [sic] evidence which went to the weight to be given to the public interest reasons for disclosure". The appellant submits (AS[67]):

"At [82] of the Determination the Tribunal states that evidence from the applicant (and the response to the same from the Respondent) that there was considerable community anger, outrage and community backlash regarding the decision to enter into a partnership with the Eels was not relevant. The Determination says I have not extracted this evidence in this decision as I do not consider it to be relevant to the issues to be determined in these proceedings."

1. We note the appellant's submission that the Tribunal did not consider or ascribe appropriate weight to the "considerable community anger" or "considerable community backlash" as recorded in her affidavit evidence, but observe that evidence (unlike that of Mr Mikhail) was not unchallenged: see affidavit of Ms Jones-Blayney 24 July 2024 at [21]-[27]: (Exhibit B, B250-1).
2. For the reasons above, we are not satisfied that the appellant has established that the Tribunal failed to take into account a mandatory relevant consideration.
3. We are therefore not satisfied that there was an error on a question of law on this ground.

Ground (v): construction of s 14 of the GIPA Act

1. This ground raises a question of law, being the Tribunal's interpretation of the GIPA Act.
2. More specifically, the Appellant says the Tribunal misconstrued the GIPA Act by:

"v) importing the word only into the phrase 'could reasonably be expected to...'. The Determination states at [160] It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. Thus reversing the accepted approach of requiring real and substantial grounds."

1. The relevant provision is s 14 of the GIPA Act. The table sets out a series of public interest considerations against disclosure, with the chapeau reading as follows:

"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) --"

1. At [160] of the Reasons, the Tribunal was explaining the relevant statutory scheme; the word "only" appears in the first line:

"[160] It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view [sic] of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance" Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech)."

1. The appellant's submissions extracted the opening sentence and said that the introduction of the word "only" placed an inflection upon the test which incorrectly reversed the onus of proof - "from the requirement for a positive finding based on real and substantial grounds, to one which only has to be reasonable. The interpretation of 'could reasonably be expected' has therefore been set at a lower standard in the Determination. It has been diminished. In our view this is an incorrect application of the Act and not supported by the authorities": AS[80].
2. This same point is said again by the appellant at AS[83] after making reference to the "correct" test in Leech. However, that was precisely the test set out by the Tribunal lower in the identified paragraph of the Tribunal's Reasons. Accordingly, although the use of the word "only" is, in our view, unnecessary, it is clear that it was a word used to highlight that there was a "reasonable" versus absolute element to the test.
3. We are satisfied (from the full context set out above) that the Tribunal didn't mis-state the test, ignore the onus being on the agency, or omit the central authority of Leech. We observe that the Tribunal also identified in that paragraph that the issue fell to be determined "... as a question of fact based on real and substantial grounds and not just a "mere risk or chance'".
4. Further, the Appeal Panel was not taken to any part of the Reasons which evidenced an incorrect application of the reasonableness test by the Tribunal.
5. Appeal ground(v) is therefore not made out.

Ground (vi): Interpreting s 15(e) of the GIPA Act as one which mitigates against disclosure

1. The appellant says the Tribunal erred in law in its expression of the principle in s 15(e) of the GIPA Act where it said (Reasons at [159]):

"While a very broad value judgment is required to be made, it is not to be made in a vacuum and a judgment must be made having regard to the objects of the Act, the general presumption in favour of disclosure of government information and the principles set out in s 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(3) identifies a principle that mitigates the proc-disclosure aim of the GIPA Act."

1. Section 15(e) of the GIPA Act says (relevantly):

"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 -

...

(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."

1. The appellant submits that s 15(e) does not mitigate against the pro-disclosure objectives; rather, it is a pro-disclosure principle and acts as a check on agencies which otherwise may be tempted to relevant information on a conditional basis. Only s 73 tempers s 15(e) by providing some nuance to the prohibition contained in s 15(e).
2. We note that the above statement was part of the Tribunal's outline of the structure of the GIPA Act and was the only reference to that paragraph of s 15. The Tribunal was entitled to state it as it did, and the appellant has not demonstrated how this led into the decision being in error.
3. In her written submissions, the appellant points to [191]-[198] of the Reasons in respect of the Tribunal's findings in respect of Bundles 3 and 4. However, to the extent that the Tribunal found the information was "out of scope", no balancing test was required to be conducted and therefore no error of law could result.
4. In respect of the information that was within scope, we also disagree with the appellant's suggestion at AS[88] that Commissioner of Police v DYD [202] NSWCATAP 224 requires the principles in s 15 to be considered only after the balancing test is conducted. In that case, the Appeal Panel endorsed a submission by the Commissioner (our emphasis) that:

"The Tribunal should have asked itself whether the public interest considerations against disclosure in s 13 outweighed the public interest considerations in favour of disclosure and made that determination in accordance with the principles in s 15."

1. The chapeau to s 15 also suggests otherwise; using language of "whether" and "to be made".
2. The language of the GIPA Act also does not dictate how the principles in s 15 are to be applied (whether in favour of disclosure or against); which may vary from case to case depending on the circumstances (as noted at RS[95]-[96]).
3. Ultimately, it is a question of fact for the decision maker in balancing the relevant factors, which is in accordance with the Tribunal's observations, relevant to this case, at [159] of the Reasons.
4. It follows we are not satisfied an error on a question of law has been made out. We also observe that the Tribunal's consideration of the confidential materials was set out in the part of the reasons that were not released to the appellant. We have, as noted above, reviewed the confidential part of the reasons and are satisfied as to the level of review that the Tribunal undertook, having regard to the content of that information.
5. Appeal ground (vi) is therefore not made out.

Ground (vii): LGA v GIPA "confidentiality" interpretation

1. Under this ground, the appellant says the Tribunal erred in law at [173] of the Reasons by finding that information considered confidential under the LGA cannot be found to be not confidential under the GIPA Act. The appellant explained at the hearing that this ground concerns Bundles 3 and 4 (versus Bundles 1 and 2).
2. This ground raises a question of law, and consideration of leave to appeal is not required.
3. The wording of what the Tribunal said at [173] of the Reasons is as follows:

"To the extent that the applicant appears to argue that the disputed information can be considered confidential for the purposes of the LGA, but that it is not confidential for the purposes of the GIPA Act, I reject that argument. There is simply no legal support for it."

1. The appellant referred to the Appeal Panel's decision in McKean v Department of Justice [2016] NSWCATAP 93, at [10]. That paragraph simply set out the following statement, which is uncontroversial:

"10. While the Act does give at s 12 some illustrations of PICFDs, the possibilities as to what might be regarded as a PICFD in a particular case are not restricted by the Act in any way. This contrasts with the position in relation to PICADs. Section 14(2) provides:

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information."

1. The Tribunal's jurisdiction, and role, was to conduct an administrative review of the decision to refuse access to the disputed documents.
2. The Tribunal was neither permitted, nor required, to:

(1) assess the merits of actions undertaken by the Council, its CEO, or staff in respect of the sponsorship of the Eels; nor

(2) review compliance with any provisions of the LGA, the Council's code of conduct, tender processes or other policies.

1. This ground of appeal is therefore not made out.

1. For completeness and because we understand the appellant to have submitted leave to appeal should be granted, we will also consider the issue of leave.
2. The appellant has not established any issue of principle, nor question of public importance, matter which might have general application, nor reasonably clear injustice, nor unreasonable or mistaken factual error, nor unorthodox Tribunal fact finding. We do not discern any such error on the part of the Tribunal.
3. Therefore to the extent any leave might be required, we would not grant leave.

1. For the above reasons, we make the following orders:

(1) To the extent that leave to appeal is required, leave is refused.

(2) The appeal is dismissed.

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.