Davis v City of Newcastle

NCAT Administrative and Equal Opportunity|2024-08-30

Background

These proceedings concern a request (the GIPA request) that Justin Davis (the applicant) made to City of Newcastle (the respondent) on 10 August 2023 for the release of information under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act), in the following terms: CoN Inland Pools Strategy 2043 Appendix 3 of the City of Newcastle Inland Pools Strategy 2043 refers to an Asset Condition Report by JWC Engineers. My request is for a copy of that report.

Decision at first instance

On 4 October 2023, the respondent issued a Notice of Decision and decided to refuse access to some of the requested information, on the basis that there was an overriding public interest against disclosure (s 58(1)(d) of the GIPA Act). It released redacted copies of the Consolidated Overview Report and the Asset Condition Review Reports, on the basis that there was an overriding public interest against disclosure.

Further review decision

On 6 May 2024, Senior Member Higgins during a case conference on 6 May 2024, during which she remitted the matter to the respondent for reconsideration and a new decision under s 65 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). The respondent advised the Senior Member that it needed to consult with a third party, who had objected to the disclosure of the redacted information on the grounds that disclosure could reasonably be expected to prejudice their legitimate business, commercial, professional or financial interests: cl 4(d) of the Table to s 14(2) of the GIPA Act.
On/about 21 May 2024, the respondent conducted a further internal review and issued a further Notice of Decision, which decided to release the same documents that were the subject of the previous decisions, but with further redactions removed.
On/about 14 June 2024, following further third party consultation, the respondent decided to release copies of the Consolidated Overview Report and the Asset Condition Review Reports, with further redactions removed.

Hearing

The matter came for hearing before me in Newcastle on 30 August 2024. The applicant appeared in person and Ms Au appeared for the respondent, instructed by Ms A Merle.

Reviewable decision

The parties agreed that the reviewable decision is that made by the respondent on 21 May 2024.

Respondent's case

The respondent relied upon the following evidence: 1. Statement of Lynn Duffy dated 23 July 2024; 2. Statement of Lynn Duffy dated 20 August 2024; 3. Statement of David Clarke dated 23 July 2024; and 4. Statement of David Clarke dated 20 August 2024.
The applicant did not require either Ms Duffy or Mr Clarke to attend for cross-examination and the statements were admitted into evidence and were marked as Exhibits "A", "B", "C" and "D", respectively.

Statement of Ms Duffy dated 23 July 2024

Ms Duffy stated that she is the Executive Manager Community and Recreation for the respondent and that she has held this position since 2019. Her duties include, but are not limited to, provision of services and facilities in the areas of Community Planning & Development, Sport & recreation, Aquatic Services (including professional beach lifeguard services and inland pools) and operational staff that maintain parks, sportsgrounds and playgrounds.
In her current role, Ms Duffy stated that she has full access to the books and records of the respondent relating to the subject matter of this GIPA request. She stated that the respondent engaged consultants to prepare the Inland Pools Strategy 2043, which relate to the maintenance and management of inland pools at Lambton, Wallsend, Mayfield, Stockton and Beresfield.
The GIPA request sought access to an "Asset Condition Report by JWC Engineers". However, there are no documents in the respondent's records that are titled "Asset Condition Report by JWC Engineers". She expressed the view that the applicant was actually requesting the "Inland Pools - Strategic Plan 2021 Condition Review Consolidated Overview Report", which was prepared by JWC Engineers as consultants to Otium Planning Group Pty Ltd (Otium).
The respondent engaged Otium to prepare the Inland Pools Strategy 2042 in February 2022 and Otium in turn engaged JWC Engineers to prepare written reports titled "Asset Condition Review" for each of the inland pools at Lambton, Wallsend, Mayfield, Stockton and Beresfield, which informed the Asset Condition Review Consolidated Overview Report.
In response to the Tribunal's order dated 6 May 2024, Ms Duffy stated that the respondent now wished to release the following documents (which were previously redacted) to the applicant, namely: (1) 21010.R-00C-Consolidated Overview; (2) 21010.R-01C Lambton; (3) 21010.R-01C Beresfield; (4) 21010.R-01C Mayfield; (5) 21010.R-01C Stockton; and (6) 21010.R-01C Beresfield.
Ms Duffy stated that she assisted In assisting David Clarke to make that decision, by conducting a thorough review of the information sought in the GIPA request, and she determined that the following redactions to the Asset Condition Review Consolidated Overview Report, should be maintained: 1. Executive Summary 3(j): The redaction related to the estimated costs to refurbish and upgrade the dive tower at Lambton Pool. The respondent would invite tenders from the public for the relevant service and the release of this information would significantly prejudice its commercial interest, as it would provide a form of guidance as to the estimated costs of the services; 2. 6.2.1 to 6.2.4: These redactions relate to the Working Papers as background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers. Therefore, this information is beyond the scope of the GIPA request; 3. 8.1.2 Gutter Overhang - Reconstruction Methodology: The redaction relates to the methodology to address the issue of pool gutter geometry at all five pools. This is a service for which the respondent would invite tenders from the public. The release of the redacted information would significantly affect its interest, as it would provide a form of guidance as to the methodology to address the issue, when the most appropriate methodology to address the issue would itself be the subject of tender; 4. 8.1.3 Spot Reinforcement Corrosion Repair Methodology: The redaction relates to the methodology to address the treatment of isolated corrosion spots, which "inherently involves uncertainty". This would be a service that the respondent would invite tenders from the public to provide the relevant treatment. To release that information would significantly affect its commercial interest, as it would provide a form of guidance as to the methodology to address the issue, when the most appropriate methodology to address that issue would be the subject of the tender; 5. 11.1 Pool Replacement Works versus Pool Remedial Works General: The redaction relates to the estimated costs of replacement of Lambton main and dive pools. The respondent would invite tenders from the public to provide the relevant service and to release this information would significantly affect its commercial interest, as it would provide a form of guidance as to the estimated costs of the services; 6. 16 Recommended works summary, table 9, summary of probable order of costs: The redaction relates to the breakdown of each individual pool's cost. The total of the probable order of costs are not released and the costs for each pool would be a matter for tender. The respondent would invite tenders from the public to provide the relevant service and the release of this information would significantly affect its commercial interest, as it would provide a form of guidance as to the estimated costs of the services.
In relation to "working papers", Ms Duffy stated that the respondent holds in its records "five further reports that are the working papers that informed the Asset Condition Review Consolidated Overview Report" for each of the inland pools (Lambton, Wallsend, Mayfield, Stockton and Beresfield). The following redactions were made to the working papers for Lambton Swimming Pool Report R-01: 1. 4.2(c) to (d) Geometry General: The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 2. 4.2 Main Pool (e) to (o): The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 3. 4.4 Dive Pool (a) to (j): The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 4. 4.5.1 Dive Tower General (c) to (f): The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 5. 4.5.2.1 Dive Tower Stair Access General (a) to (d): The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 6. 4.5.2.2 Dive Tower Stair Access Detail: The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 7. 4.5 Learn to Swim (LTS) Pool: The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 8. 5. Promenade (concourse): The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 9. 9. Recommended Concrete Testing: The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 10. Recommended Works & Indicative Costs: The redaction relates to the estimated costs and recommended works that the Lambton Pool may possibly require. The respondent would invite tenders from the public to provide the relevant works. To release this information would significantly affect its commercial interest, as it would provide a form a=of guidance as to both the words that would need to be undertaken and the estimated costs of the work.
In relation to the Beresfield Swimming Pool Report R-02, Ms Duffy stated that the following redactions should be maintained: 1. 1 Introduction: The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 2. 4.2 General (b): The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 3. 4.3 Main Pool: The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 4. 10 Recommended concrete testing: The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; and 5. 11 Recommended Works & Indicative Costs: The redaction relates to the estimated costs and recommended works that the Beresfield Pool may possibly require. The respondent would invite tenders from the public to provide the relevant works. To release this information would significantly affect its commercial interest, as it would provide a form a=of guidance as to both the words that would need to be undertaken and the estimated costs of the work.
In relation to the Mayfield Swimming Centre Report R-03, Ms Duffy stated that the following redactions should be maintained: 1. 4.2 Main Pool: The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 2. 4.4 Learn to Swim (LTS) Pool (b) to (e): The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 3. 5 Promenade (Concourse) (d) to (d): The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 4. 9 Recommended concrete testing: The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; and 5. 10 Recommended Works & Indicative Costs: The redaction relates to the estimated costs and recommended works that the Beresfield Pool may possibly require. The respondent would invite tenders from the public to provide the relevant works. To release this information would significantly affect its commercial interest, as it would provide a form of guidance as to both the words that would need to be undertaken and the estimated costs of the work.
In relation to the Stockton Swimming Centre Report R-04, Ms Duffy stated that the following redactions should be maintained: 1. 4.2 General (b) to (c): The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 2. 4.3 Main Pool: The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 3. 4.4 Learn to Swim (LTS) Pool (b) to (d): The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 4. 5 Promenade (b) to (c): The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 5. 9. Recommended concrete testing: The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; and 6. 10 recommended Works & Indicative Costs: The redaction relates to the estimated costs and recommended works that the Stockton Pool may possibly require. The respondent would invite tenders from the public to provide the relevant works. To release this information would significantly affect its commercial interest, as it would provide a form of guidance as to both the words that would need to be undertaken and the estimated costs of the work.
In relation to the Wallsend Swimming Pool, Ms Duffy stated that the following redactions should be maintained: 1. 4.2 General (b): The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 2. 4.3 Main Pool: The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 3. 5 Promenade (c) to (a) (sic): The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 4. 6 Piping Under Pool: The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; 5. 10. Recommended concrete testing: The redaction relates to background information and does not form part of the asset condition assessment as made by Otium and JWC Engineers, and it is therefore outside the scope of the GIPA request; and 6. 11 recommended Works & Indicative Costs: The redaction relates to the estimated costs and recommended works that the Wallsend Pool may possibly require. The respondent would invite tenders from the public to provide the relevant works. To release this information would significantly affect its commercial interest, as it would provide a form of guidance as to both the words that would need to be undertaken and the estimated costs of the work.

Statement of Ms Duffy dated 20 August 2024

In her statement dated 20 August 2024, Ms Duffy said that she had read the applicant's submissions filed 14 August 2024. She responded as follows.

Paragraphs 11 and 12

Ms Duffy stated that the information included in pp 42 and 43 of the Strategy referred to by the applicant is not the same information provided in the Asset Condition Reports that is currently subject to redaction. The information at pp 42 and 43 of the Strategy relate to costs estimates for facility redevelopment or improvements of the Inland Pools, whereas the costs estimates provided in the Asset Condition Review Reports (which are redacted) relate to specific recommended maintenance works programs that are independent of redevelopment/facility improvement works.
Ms Duffy maintained that the costs estimates in the Asset Condition Reports are material to the items that are subject to future tender and procurement processes and that premature release of the information will adversely affect the respondent's ability to obtain the best value contract with external suppliers (potential tenderers) which in turn adversely affects its ability to exercise its function of managing its assets and funds. She annexed a copy of the Strategy to her Statement.

Statement of David Clarke dated 23 July 2024

Mr Clarke stated that he is currently employed by the respondent as Executive Director Corporate Services and Chief Financial Officer and that he has held this position since 2022. From 2018 to 2022 he held the position of Director Governance. In his current role, his duties include (but are not limited to) oversight of the finance, legal, governance, human resources, customer service and IT and he has delegation to decide access requests under the GIPA Act and he has full access to the books and records of the respondent.
Mr Clarke stated that the respondent engaged consultants to prepare the Inland Pools Strategy 2043, which relate to the maintenance and management of inland pools at Lambton, Wallsend, Mayfield, Stockton and Beresfield (the Inland Pools). The "Asset Condition Report by JWC Engineers", which is referred to in Appendix 3 of the respondent's Inland Pools Strategy 2043 and is sought in the applicant's GIPA request, refers to the Asset Condition Review Consolidated Overview Report, which was prepared by JWC Engineers as consultants to Otium Planning Group Pty Ltd (Otium).
In February 2022, the respondent engaged Otium to prepare the Inland Pools Strategy 2043, and Otium then engaged JWC Engineers to prepare an Asset Condition Review for each of the Inland Pools, which informed an Asset Condition Review Consolidated Overview Report. The individual asset condition reports were the working papers that informed the Asset Condition Review Consolidated Overview Report.
Following the IPC's recommendation on 28 March 2024, that the respondent should make a new decision in relation to the applicant's GIPA request, he conducted a further review and issued a Notice of Decision dated 21 May 2024.
During the course of that further review, the respondent consulted Otium, which had objected to disclosure of the information on the grounds that it would prejudice it and JWC Engineers' legitimate business, commercial, professional or financial interests. After considering those objections, he decided to release the following documents to the applicant with redactions.
In response to the Tribunal's orders dated 6 May 2024, the respondent provided Otium with a copy of the current application and advised it of its rights to be heard in these proceedings or to be joined as a party to these proceedings. Otium subsequently advised the respondent that it did not intend to proceed further regarding its objections.
After considering that Otium did not intend to maintain its objections, on 14 June 2024 he issued a further Notice of Decision and decided to issue the following documents to the applicant with redactions: (1) 21010.R-00C-Consolidated Overview; (2) 21010.R-01C Lambton; (3) 21010.R-01C Beresfield; (4) 21010.R-01C Mayfield; (5) 21010.R-01C Stockton; and (6) 21010.R-01C Beresfield.
Mr Clarke stated that prior to 14 June 2024, the respondent underwent a negotiation process to enter into new commercial lease arrangements in relation to the operation and management of the Inland Pools. On or about 24 June 2024, following that process, the respondent entered into long-term commercial lease arrangements for the future management and maintenance of the Inland Pools.
Following this process, Mr Clarke further reconsidered the applicant's GIPA request and he decided to release the following documents in redacted form: (1) 21010.R-00C-Consolidated Overview; (2) 21010.R-01C Lambton; (3) 21010.R-01C Beresfield; (4) 21010.R-01C Mayfield; (5) 21010.R-01C Stockton; and (6) 21010.R-01C Beresfield.
In making that decision, he applied the public interest test and considered the relevant public interest considerations in favour of and against disclosure of the redacted information, as follows.

Public interest considerations in favour of disclosure

Mr Clarke decided that there is a general public interest in favour of disclosing the information and he also considered the personal factors of the applicant, who is a local member of the community that use the Inland Pools.

Public interest considerations against disclosure

Mr Clarke identified the following considerations under the Table to s 14(2) of the GIPA Act: 1. Clause 4(d) - disclosure could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests; 2. Clause 1(e) - disclosure could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of the respondent; 3. Clause 1(f) - disclosure could reasonably be expected to prejudice the effective exercise of the respondent's functions; and 4. Clause 1(h) - disclosure could reasonably be expected to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf the respondent by revealing its purpose, conduct or results.
Mr Clarke stated that as Otium did not maintain its objection to the release of information, he did not rely on cl 4(c) of the Table to s 14(2) of the GIPA Act.

Clause 4(d)

Mr Clarke stated that in relying upon this clause, it was necessary to identify the relevant legitimate interest and to explain how that would be prejudiced if the information was disclosed. He stated that he understood the meaning of "prejudice" was "to cause detriment or disadvantage" and that he understood "legitimate" to have its ordinary meaning, namely "genuine and not spurious".
Mr Clarke decided that the disputed documents contain information that, if disclosed, would prejudice the respondent's commercial interests regarding the management of its assets (the Inland Pools). The provision of Inland Pools is a key deliverable in the Strategy, and to ensure that the respondent can retain these assets to meet the needs of the community, it must ensure cost effective management of the Inland Pools.
Mr Clarke repeated that on 24 June 2024, the respondent entered into long-term commercial lease arrangements with an external management entity to manage the Inland Pools, and there are some future aspects of management of the Inland Pools that would be subject to tenders, where the respondent would seek to engage certain external service providers in relation t maintenance, upgrade and management aspects of the Inland Pools.
Release of the redacted information (which relates to costing, methods and designs for various components of proposed repairs and maintenance of the Inland Pools), would be the subject of current and future tenders that the respondent would invite from the public. Release of that information would prejudice the respondent having fair and equitable commercial negotiations and obtaining value for money for quotes received and it would place it at a financial disadvantage in obtaining the best value for money in the operation and management of the Inland Pools.
Mr Clarke stated that this matter has attracted significant media attention, including an article that was published in the Newcastle Herald on 2 April 2024, entitled "Commissioner rejects council's reasons for keeping pools report secret". While he did not afford any weight under s 15 of the GIPA Act to the fact that the information may be misrepresented or misunderstood, he was concerned that if the disputed information was discussed in the media would: 1. Hinder he respondent's ability to obtain value for money arrangement in its commercial negotiations with prospective entities. This would, in turn, negatively impact its negotiations with potential or future lessees, contractors or tenderers in relation t any leasing, contractual or other commercial agreements for the Inland Pools; and 2. Hinder its ability to obtain specialist advice (through engagement of external consultants) necessary for it to maintain and manage its assets, as contractors would shy away from providing services to it on the basis that their assistance may be subject to negative and misguided media attention.

Clause 1(f)

Mr Clarke stated that the release of the redacted information will prejudice the respondent's exercise of the following functions: (a) effective management and funding of its assets and/or community facilities (the Inland Pools); (b) effective management of its funds; (c) hinder its ability to obtain value for money arrangements in commercial negotiations and tender or procurement processes; and (d) provide adequate recreation facilities to the community within its local government area.

Clause 1(h)

Mr Clarke stated that the release of the redacted information in the Asset Condition Review Consolidation Overview Report will compromise the respondent's ability to effectively plan for and carry out the future works on the Inland Pools, adversely impacting its ability to effectively maintain them.

Clause 1(e)

Mr Clarke referred to the definition of "reveal" in cl 1 Sch 4 of the GIPA Act. He stated that the deliberative process relates to the respondent's decision in relation to the management of the Inland Pools, which include commercial negotiations and future tenders. Its considerations and decisions rely heavily on the investigation results, opinion and recommendation contained in the individual asset condition reports, that informed the Asset Condition Review Consolidated Overview Report.

Statement of Mr Clarke dated 20 August 2024

In this statement, Mr Clarke responded to the applicant's submissions filed 14 August 2024, as follows: 6. With respect to paragraphs 2, 3, 4, 6, 8 and 11 of the Applicant's submissions generally, I respond as follows: 7. I am aware that pursuant to section 8A(1) of the Local Government Act 1993 (NSW) (LG Act), various guiding principles apply to the exercise of Council's function, including when dealing with commercial arrangements and entering into contracts for services. 8. In particular, section 8A(1)(b) provide that "Councils should carry out functions in a way that provides the best possible value for residents and payers". 9. I am also aware that Council has obligation to comply with the principles of sound financial management that apply to Council when exercising its functions under section 8B of the LG Act which provides that (with emphasis added): (a) Council spending should be responsible and sustainable, aligning general revenue and expenses. (b) Councils should invest in responsible and sustainable infrastructure for the benefit of the local community. (c) Councils should have effective financial and asset management, including sound policies and processes for the following - (i) performance management and reporting, (ii) asset maintenance and enhancement, (iii) funding decisions, (iv) risk management practices. (d) Councils should have regard to achieving intergenerational equity, including ensuring the following - (i) policy decisions are made after considering their financial effects on future generations, (ii) the current generation funds the cost of its services. 10. I believe releasing the redacted information, which includes the estimated costs of the services and analysis of the nature of potential works required in relation to the future maintenance of the Inland Pools is inconsistent with the above obligations that apply to Council. 11. I believe the release of the redacted information will: (a) adversely impact Council's ability in obtaining the best value of future contracts with suppliers and contractors in relation to the maintenance of the Inland Pools due to the premature release of information that will be items subject to future tendering and procurement process. It is therefore likely that Council will need to spend more funds to maintain the Inland Pools due to the increase in maintenance costs (if best value contracts are not obtained) which in turn affects Council's ability to expend its funds responsibly; (b) allow potential tenderers to have access to information which is material to future tendering process which will in turn jeopardise Council's ability to obtain the best value tenderer during the procurement process and/or negotiate with potential tenderers; (c) hinder Council's ability to achieve sound financial management of its funds if best value contracts cannot be achieved; and (d) hinder Council's ability to effectively manage its assets, being the Inland Pools.

Applicant's case

The applicant presses for full and unredacted copies of the information sought in his GIPA request. He filed the following written submissions on 14 August 2024: 2. The Council's objection to release of the reports (sought in the Application) in full derives in part from its view of its legitimate business, commercial, professional or financial interests. Mr Clarke's statement discusses this at paragraphs 28-33. He suggests that other work at the pools may be sent to tender and release of the reports in full may prejudice the Newcastle City Council's commercial interests. 3. He does not say how the release would prejudice these interests and I think the Tribunal should regard this as an unsupported opinion, It is difficult to see how the legitimate interests of Council would suffer from the release of the reports. Mr Clark's opinion seems to imply the state of the asserts would be worse than the Inland Pools Strategy says or that a business entering a tender is not entitled to expect the Council to be transparent about what it is tendering on. 4. In my view these aren't legitimate business interests because they are based on entering into contracts where disclosure is not at the heart of the contract. In fact, Mr Clarke suggest that release of the reports might hinder Council's ability to obtain value for money arrangement in his commercial negotiations with prospective entitles. This makes it clear that disclosure might cost the Council more money and hence hiding the reports is better for them. 5. It also seems to be at odds with the elected council's position (hyperlink included)…
The applicant referred to para 35 of Mr Clarke's statement dated 23 July 2024, and he stated: 7. Apart from being paternalistic and insulting to ratepayers, this view sees negative media attention as being a bad thing, even if it exposes waste, the poor spending priorities of Council etc. Ratepayers should let the Council get on with spending their money and media should report positively on every project. All this because the media attention may be misguided. Who is guiding the media to report in a way r Clarke finds agreeable? 8. This insulting approach to ratepayers leads Mr Clarke to suggest that The release of the redacted information within the Current Redacted Documents would very likely result in Council being unable to effectively negotiate third party commercial arrangements or contracts in relation to the management and maintenance of the Inland Pools, and would in turn seriously jeopardise the future operation of the inland pools (emphasis added). 9. This is a completely unsupported statement and should be regarded with much dubiosity. On what basis does the revelation of the state of the asserts cause jeopardy to the future operation of the pools, noting the operation of the pools has been contracted to the private sector for 21 years? Is it that the Council don't want business knowing the assets are in a worse state than the glossy Inland Pools Strategy suggests? That would seem dishonest. 10. Further to his concern that Council might not be able to guide media attention, Mr Clarke suggests (via hearsay) that the reports of Otium and JWC Engineers may be misinterpreted (paragraph 45). It's unclear what this means but it seems to be saying Mr Clarke or the Council have the monopoly on wisdom when it comes to asset condition reports and the taxpayers should simply trust what they are being told.
The applicant also referred to Ms Duffy's statement dated 23 July 2023, and he stated: 11. I note in Lynne Duffy's statement at paragraph 18, she refers to redacted parts of the Asset Condition Reports and says severally …to release this information would significantly affect Council's commercial interest, as it would provide a form of guidance as to the estimated costs of the services. Releasing an estimate would prejudice the Council in a tender process where the scope of work and the price of those services are items to be submitted to tender. 12. However, at page 42 and 43 of the Inland Pools Strategy, facility improvements for each inland poo;, including their proposed development priority and cost estimate, are detailed. Ms Duffy doesn't explain the willingness to provide estimates in the Strategy but not in the Asset Condition Reports.

Respondent's written submissions

The respondent filed written submissions on 21 August 2024.
After setting out the background to the current dispute and referring to the relevant public interest considerations for and against disclosure, based on the evidence of Mr Clarke in Ex C and Ex D, the respondent replied to the applicant's submissions as follows.
The respondent disputed that Mr Clarke did not say how the release of the redacted information would prejudice its commercial interests. Paragraphs 32 and 33 of Ex C clearly explain the adverse impact that release of the redacted information may have, and this is further supported by Ms Duffy's evidence in Ex A.
The respondent further argued that the applicant's assertion regarding the implication of Mr Clarke's opinion regarding the state of the assets (the Inland Pools) and the expectation upon it to be transparent during the tendering process is without basis. It is not supported by any evidence and is not relevant to the current proceedings.
Further, the applicant's opinion as to whether identified business interests are "legitimate business interests" are without basis and is irrelevant. The legitimate business interests of the respondent are clearly set out in Ex A and Ex C.
The respondent argued that the webpage referred to by the applicant is irrelevant in these proceedings, as its obligations in dealing with government information arises under the GIPA Act.
In response to para 9 of the applicant's submissions, the respondent argued that the applicant's assertion is unsupported and without basis. Whereas Mr Clarke's statement is supported by evidence (and should be preferred).
Further, the respondent argued that the redacted information is independent of, and different in nature to, the information that is currently in the public domain. This is supported by the evidence of Mr Clarke in Ex D and Ms Duffy in Ex B.
Therefore, the correct and preferable decision is to affirm the decision under review.

Respondent's oral submissions

The respondent made oral submissions, which were consistent with its written submissions, including its argument that the individual Asset Condition Review Reports are outside the scope of the current GIPA request and that they should not be released to the applicant. The respondent stated that it lodged copies of these documents with the Tribunal on a confidential basis.
The respondent also spoke to the public interest considerations against disclosure upon which it relied, namely cll 4(d), 1(e), 1(f) and 1(h) of the table to s 14(2) of the GIPA Act.
The respondent concluded that the correct and preferable decision is to affirm the decision under review.

Applicant's oral submissions

The applicant made oral submissions in which he initially addressed the scope of his GIPA request. He complained that the "Asset Condition Review Consolidated Overview Report" had been referred to late in these proceedings as the only document held by the respondent that is within the scope of his GIPA request.
The applicant said that when he made his GIPA request, he did not know the actual names of the reports and that "the ones I asked for were referred to in the Strategy". Therefore, the individual Asset Condition Review Reports should be found to be within the scope of his request.
The applicant argued that the Asset Condition Reports deal with the actual condition of the Inland Pools and what works need to be done to remediate them, and there is a significant public interest in that information.
The Tribunal asked the applicant what grounds of his application for administrative review are being pressed? He replied to the following effect: 1. ground (a) is pressed; 2. ground (b) is not pressed; 3. ground (c) is pressed, because he maintained that page 42 of the Inland Pools Strategy already contains figures and estimates for work at each pool; 4. grounds (d) and (e) are pressed, and he believes that the respondent did not give sufficient weight to the public interest considerations in favour of disclosure under s 12(a) to (c) of the GIPA Act and it did not consider that disclosure of the disputed information could reasonably be expected to ensure effective oversight of the expenditure of public funds. He argued that the public interest considerations against disclosure should be afforded less weight because "there should be more transparency". 5. In relation to ground (f), he agreed that this is part of a deliberative process; 6. Ground (g) is not pressed; and 7. Ground (h) is withdrawn.
The Tribunal referred the applicant to para 4 of his written submissions and asked him to clarify why these were not legitimate business interests of the respondent. He replied to the effect that these were not legitimate business interests because the state of the pools would have to be disclosed in a tender process.
The applicant stated that he no longer pressed paras 7, 8, 9 and 10 of his written submissions. However, in relation to paras 11 and 12, he maintained that there was a contradiction in the respondent's position.
The Tribunal asked the applicant whether he agreed that cll 1(e), 1(f) and 1(h) were relevant public interest considerations against disclosure? However, he replied to the effect that he "has no further submissions to make".

Respondent's oral submissions

The respondent referred to ground (a) of the current application and stated that it disagreed with the applicant's statement about the commercial lease. In any event, the public interest considerations against disclosure apply to the future management of the Inland Pools and as a result of the arrangement entered into in June 2024, the redacted information relates to future tenders.
Otherwise, the respondent relied upon its written submissions.

Confidential hearing

As the respondent lodged copies of the unredacted documents with the Tribunal on a confidential basis, it was necessary to conduct a confidential hearing in the absence of the applicant pursuant to s 107 of the GIPA Act.
The Tribunal advised the applicant that it was about to commence a confidential hearing pursuant to s 107 of the GIPA Act and that upon the completion of that hearing, it would reserve its decision. Accordingly, he was excused from further attendance and he left the hearing room.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION] [NOT FOR PUBLICATION]
Upon the completion of the confidential hearing, the Tribunal reserved its decision.

GIPA Act

Section 3(2) states that the object of the Act is to open government information to the public and: (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
Section 5 provides: There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 9 confers on a person making an access application a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.
Section 12 provides for public interest considerations in favour of disclosure: 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. 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. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.
Sections 13 and 14, relevantly provide: 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. 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (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. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section). 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)- (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, or (f) prejudice the effective exercise by an agency of the agency's functions, (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- … (d) prejudice any person's legitimate business, commercial, professional or financial interests,…
Section 15 provides principles that apply to a determination as to whether there is an overriding public interest against disclosure of government information: 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.
Section 55 provides: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application" ) into account as provided by this section-- (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note : An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
Section 80 sets out those decisions which are 'reviewable decisions' under Part 5. Relevantly, 'a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant)' is a reviewable decision pursuant to s 80(i).
A person aggrieved by a 'reviewable decision' under the GIPA Act may apply to the Tribunal for review of that decision (s 100 of the GIPA Act). The onus on the agency is to establish that its decision is justified (s 105(1) of the GIPA Act).
Section 107 provides: Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT 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. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of- (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

ADR Act

Section 63 provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (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.

Relevant Legal Principles

The legal principles are not in dispute. The current application is brought before the Tribunal under s 63 of the ADR Act, which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".
The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
Unless there is a conclusive presumption that there is an overriding public interest against disclosure, the Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
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].
Sections 15(a) to (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 aim of the GIPA Act.
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 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).
Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher No 1); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).

Scope of the GIPA Request

I am satisfied that the individual Asset Condition Review Reports for the Inland Pools at Lambton, Beresfield, Mayfield, Stockton and Wallsend, are outside the scope of the applicant's GIPA request.
Accordingly, I make no orders for the release of those documents to the applicant.

Public interest considerations in favour of disclosure

The applicant relies upon s 12 (a) to (c) of the GIPA Act, and he particularly s 12(2)(c), which provides that disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
The applicant argued that the respondent failed to give sufficient weight to these public interest considerations in favour of disclosure.
In my view, these public interest considerations in favour of disclosure should be given substantial weight.

Public interest considerations against disclosure

The respondent relies upon the following public interest considerations against disclosure under the Table to s 14(2) of the GIPA Act: 1. Clause 1(e) - There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to 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; 2. Clause 1(f) - There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions; 3. Clause 1(h) - There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to 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); and 4. Clause 4(d) - There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests.
Having reviewed the unredacted documents during the confidential hearing under s 107 of the GIPA Act, I am satisfied that the public interest considerations relied upon by the respondent apply to the redacted information and that these public interest considerations against disclosure should each be given significant weight.
Based on the evidence of Ms Duffy and Mr Clarke, which was not challenged in cross-examination by the applicant, I am satisfied that the monetary figures that were redacted in the Asset Condition Review Consolidated Overview Report, which was prepared by JWC Engineers, are different to those published in the Inland Pools Strategy Report. Therefore, I am satisfied that this redacted information is not already in the public domain.
In relation to clause 1(f), I am satisfied that releasing the redacted information could reasonably be expected to prejudice the respondent's effective exercise of its functions, including: (1) the effective and proper management of its assets and community facilities; (2) the effective management of its funds; (3) hinder its ability to obtain value for money arrangements in commercial negotiations and tender or procurement processes; and (4) to provide adequate recreational facilities to the community in its Local Government Area.
In relation to clause 1(h), I am satisfied that releasing the redacted information could reasonably be expected to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted on behalf of the respondent by revealing its purpose, conduct or results. This especially applies to any future tendering or procurement processes,
In particular, Mr Clarke's evidence is to the effect that release of the redacted information will compromise the respondent's ability to effectively plan for and carry out future works on the inland pools, which will adversely impact on its ability to effectively maintain them. Further, both Otium and JWC Engineers advised the respondent that releasing the redacted information would prejudice the effectiveness and integrity of future investigations.
Mr Clarke's evidence on these matters was not challenged by the applicant and I accept it.
In relation to cl 1(e), the respondent argues that releasing the redacted information could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of the respondent.
Based on the evidence of Mr Clarke and Ms Duffy, I am satisfied that cl 1(e) applies to the redacted information.
It follows that I am satisfied that each of the public interest considerations against disclosure that are relied upon by the respondent apply to the redacted information.
In my view, each of these considerations should be given significant weight.

Balancing the public Interest

In applying s 13 of the GIPA Act, I have adopted the approach discussed in decisions including Flack and Hurst.
For the reasons set out above, I am satisfied that there is an overriding public interest against disclosing the disputed information, as the s 12 considerations are outweighed by the identified considerations in the table to s 14(2) of the GIPA Act.

Conclusion

The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 October 2024

Government Information (Public Information) Act 2009(NSW)

At a glance

Court

Decision date

Source

Judgment (33 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (9)