Destination NSW v Taylor

[2019] NSWCATAP 123

NCAT Appeal Panel|2018-12-07

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Source facts

Court

NCAT Appeal Panel

Decision date

2018-12-07

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 McKay v Transport for NSW [2017] NSWCATAD 212 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Taylor v Destination NSW [2017] NSWCATAD 272 Category: Principal judgment Parties: Destination NSW (Appellant) Andrew Taylor (Respondent) Representation: Counsel: M Painter SC (Appellant) M Cobb-Clark (Appellant) Solicitors: Banki Haddock Fiora (Appellant) Lander & Rogers Lawyers (Respondent) C Higgins (Information Commissioner) File Number(s): AP 18/40952 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: Taylor v Office of Destination NSW [2018] NSWCATAD 195 Date of Decision: 27 August 2018 Before: D Dinnen, Senior Member File Number(s): 2016/00378436

[2]

Introduction

Mr Taylor applied to Destination NSW under the Government Information (Public Access) Act 2009 (GIPA Act) for access to information about major events which they supported for the three years before April 2015. Destination NSW has appealed from a decision of the Tribunal that access should be provided to most of the information: Taylor v Office of Destination NSW [2018] NSWCATAD 195 (the Tribunal's second decision). We have allowed the appeal, but only to the extent that the Tribunal made orders inadvertently or inconsistently with other orders. We have found no errors of law and have otherwise refused leave to appeal on questions that are not questions of law.

[3]

Tribunal's second decision

On 21 April 2015 Mr Taylor applied to Destination NSW for access to the following information relating to major events supported by Destination NSW for the three years before April 2015: Any documents, reports, emails, correspondence concerning a number of major events supported by DNSW as well as events not supported The time period is for the past three years until April 2015 1.Documents used to decide support for events including Vivid, Addams Family Musical, Yabun Festival, Strictly Ballroom, Blue Man Group, New Year's Eve celebrations and Sydney Festival, Corroboree Sydney and Sydney Internal Art Series 2.The proposals and costing put forward for each event and the minutes of meetings discussing the merits of the events 3.Documents indicating who made the decision in each case and their expertise 4.List of events which failed to secure support Destination NSW with reasons why they were not supported 5.Documents showing how these event sponsorships were evaluated in terms of value for money for the taxpayer 6.Documents indicating how each event fulfilled the criteria under which they were assessed.
Destination NSW provided access to some information but refused to provide access to the remainder because there were, in its view, overriding public interest considerations against disclosure: GIPA Act s 58(1)(d). The subsequent procedural history is set out in the Tribunal's second decision at [3] to [7]. When the matter was heard by the Tribunal, the decision under review was Destination NSW's refusal to provide access to all the information in 79 documents. Following the first hearing, the Tribunal remitted the matter to Destination NSW with further directions about consultation with third parties and to confirm that the 79 documents comprised all the information in response to the application: Taylor v Destination NSW [2017] NSWCATAD 272. We will call this decision the Tribunal's first decision.
When the matter came back to the Tribunal for hearing, various third parties had made submissions and Destination NSW had confirmed that it did not hold any further information other than the information in the 79 documents. Destination NSW divided the documents into seven categories: proposals, event investment submissions, assessment and scoring templates, strategic investment agreements, key performance indicator analysis, correspondence from Destination NSW and minutes of meetings. At [19] and [20] of the second decision, the Tribunal found that Destination NSW had wrongly applied the public interest considerations to the various categories of documents instead of to the specific information in each of the documents. The Tribunal noted that the onus is on Destination NSW to justify its decision about the information it has withheld: GIPA Act, s 105(1).
The Tribunal then applied the public interest test in s 13 of the GIPA Act: 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.
When balancing the interests for and against disclosure, the Tribunal adopted the following descriptions to indicate the strength of each consideration: minimal, modest, moderate, strong, substantial, significant and substantial.
The Tribunal acknowledged that there is a general public interest in favour of disclosure of government information: GIPA Act, s 12(1). Apart from the information in proposal documents (documents created by event organisers to obtain funding from Destination NSW), the Tribunal identified the following specific public interest considerations in favour of disclosure: (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.
The Tribunal gave these considerations "significant and substantial" weight. In relation to the proposal documents, the Tribunal gave these factors "substantial" weight.
Destination NSW identified the following considerations as potentially applicable to some or all of the information in the 79 documents: 1.prejudice the effective exercise by an agency of the agency's functions (cl 1(f) of the Table to s 14); 2.ground an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence (cl 1(g) of the Table to s 14); 3.undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive disadvantage or disadvantage in any market (cl 4(a) of the Table to s 14); 4.reveal commercial-in-confidence provisions of a government contract (cl 4(b) of the Table to s 14); or 5.prejudice any person's legitimate business, commercial, professional or financial interests (cl 4(d) of the Table to s 14).
For each of the seven categories of documents, Destination NSW relied on some or all of these considerations. The Tribunal rejected the second consideration - that disclosure would ground an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence. The Tribunal then outlined the submissions from third parties and found that some of the information identified was commercially sensitive or confidential and that they were factors against disclosure: GIPA Act, cl 4(d) of the Table to s 14. When considering the submissions from third parties, the Tribunal noted that many of the documents were created by Destination NSW for internal use.
The Tribunal gave "modest' weight to each of the public interest considerations against disclosure identified by the Respondent in relation to their internal documents. At [86], the Tribunal found that Destination NSW had made "generalised assertions of confidentiality and prejudice" but there was limited evidence in support of those assertions. The Tribunal also took into account that the commercial value of the information has diminished since the access application was made in April 2015.
The Tribunal gave "moderate" weight to the fact that disclosure could reasonably be expected to prejudice a person's legitimate business, commercial, professional or financial interests, in relation to the information contained in several documents. The Tribunal also gave "moderate" weight to the fact that disclosure of certain information could reasonably be expected to reveal commercial-in-confidence provisions of a government contract.
After balancing the considerations for and against disclosure and summarising the basis for its findings in table form, the Tribunal concluded that the following information should be withheld: 1. Document 18: Page 2, dollar figures at "Summary of Event Proponent's Proposal"; page 10, first sentence of "DNSW Funding Details"; 2. Document 46: all dollar figures at Schedule 2 Item 2, Schedule 2 Item 7; all ticketing allocation figures at Schedule 2 Item 22 under "Corporate Hospitality"; all dollar figures at Schedule 3 after "Rights Fees cash package" 3. Document 62: Page 3, all of "Summary of Event Proponent's Proposal"; 4. Document 63: KPI Results; 5. Document 68: Dollar figures at page 15; 6. Document 75: dollar figure at page 10.

[11]

Document 63

Document 63 is a one page document headed "Performance against KPIs". At 89 of the reasons for decision, the Tribunal ordered that the following information not be disclosed: 4.Document 63: KPI Results;
Destination NSW submitted that the Tribunal has redacted a sentence in Document 63 under the heading "KPI Result" which discloses the KPI in relation to the percentage of attendees who will come from interstate or overseas specifically to attend the event. Destination NSW reasons that since that sentence has been redacted in one place in document 63 it should also be redacted where is appears elsewhere, namely in another part of Document 63 under the heading "Contract" and at page 15 of Document 46.
The Tribunal's findings about this document are summarised in the Table at [91] of the decision, as follows; WHOLE OF DOCUMENT: Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information Specific information identified at 89(4): Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a) + substantial weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies against disclosure of the government information
It is apparent from these findings that the Tribunal found in relation to the whole document that the balance of the public interest lies in favour of disclosure of the information, whereas in relation to the specific information, (that is "KPI Results") the balance of the public interest lies against disclosure. In our view, based on these findings, the Tribunal intended to convey that all the information under the heading "KPI Result" should be withheld and that all the information under the heading "Contract" should be disclosed. The Tribunal was distinguishing between the KPI itself and whether or not the KPI had been met. In those circumstances, we are not satisfied that the sentence identifying the KPI itself under the heading "Contract" should be withheld. The same conclusion applies to that information at page 15 of Document 46.

[16]

Internal/external documents

Destination NSW submitted that in applying the public interest test in s 13 of the GIPA Act, the Tribunal was required to weigh up several public interest considerations against disclosure including what they called "commercial in confidence considerations" and "legitimate interests considerations": GIPA Act, s14, Table Item 4(b) and 4(d). However, when considering the weight that should be attributed to those considerations, the Tribunal gave different weightings depending on whether the information was in documents provided by third parties applying to Destination NSW for support (external documents) or in documents which were for internal use (internal documents). According to Destination NSW, the Tribunal erred by taking into account an irrelevant consideration, namely whether the information appears in an "external document" or an "internal document".
Destination NSW has the right to appeal on a question of law, but requires the Appeal Panel's leave to appeal on any other ground: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b). If the irrelevant considerations ground is not a question of law, Destination NSW submitted that the Appeal Panel should give leave to appeal.
The relevant passages in the Tribunal's decision are at [86] - [90]. At [86] and [87] the Tribunal gives reasons for placing "modest weight" on various factors relating to internal documents. At [88] and [89], the Tribunal gives reasons for placing "substantial weight" on various factors relating to external documents. In the following passages, we have highlighted some words which the Tribunal did not highlight in the decision: [86] I disagree for the reasons expressed above that each of the public interest considerations against disclosure be given "strong" or "substantial" weight in relation to the relevant information. With respect to the documents created by the respondent for internal use, I agree with the Applicant's submissions that the Respondent has made generalised assertions of confidentiality and prejudice, and while some limited evidence is provided by the Respondent to support the assertions, "that evidence rarely goes further than the generalised assertions contained in the submissions". I also agree with the Applicant's submission that the commercial value of the information sought has generally diminished in the period between the access application being made in April 2015 and the determination of these proceedings in 2018, although I accept the Respondent's submission that its confidentiality is maintained despite the passage of time. [87] I therefore place modest weight on each of the specific public interest considerations against disclosure (identified at [44], [45] and [47] above) expressed by the Respondent to apply to the information contained within the documents created by the Respondent for internal use, as identified at 53, being each of Documents 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 22, 23, 26, 27, 29, 30, 31, 33, 34, 35, 36, 37, 39, 40, 41, 42, 44, 45, 47, 49, 50, 51, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 70, 71, 78, and 79. [89] [88] I initially place modest weight on each of the public interest considerations against disclosure (identified at [30], [46], and [49] above) expressed by the Respondent in relation to the information contained within the remaining documents, being Documents 2, 4, 14, 15, 21, 24, 25, 28, 32, 38, 43, 46, 48, 52, 65, 66, 67, 68, 69, 72, 73, 74, 75, 76, 77. I place additional weight on the public interest consideration against disclosure expressed at 4(d) of the Table to s 14 of the GIPA Act on the information contained within each of those documents on the basis of submissions by third parties and aggrieved persons, to the effect that I place moderate weight on that consideration. I also place additional weight on the public interest consideration against disclosure expressed at 4(b) of the Table to s 14 of the GIPA Act to the information contained in Documents 2, 14, 15, 21, 24, 25, 28, 32, 38, 46, 48, and 52, on the basis of the submissions by third parties and aggrieved persons, to the effect that I place moderate weight on that consideration. [89] I accept the additional submissions of the Global Creatures Group, Art Gallery of New South Wales, City of Sydney and 32 Hundred Lighting Pty Ltd regarding the commercial sensitivity of specific information contained in Documents 2, 18, 24, 46, 48, 62, 63, 68, 70, 71, 72 and 75. I additionally afford substantial weight to the public interest considerations against disclosure at cll. 4(b) and 4(d) with respect to the following specific information contained in those documents:
The Tribunal then listed information which, in accordance with the Tribunal's findings and reasons, should not be disclosed.
Destination NSW relied on a passage from Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [19] in support of their submission that the "irrelevant considerations" ground of appeal constitutes a question of law. In that decision, the Appeal Panel listed examples of questions of law including: [19] Whether the Tribunal took into account an irrelevant consideration, as explained in Peko-Wallsend (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24) per Mason J at 40: In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard .... (Words in brackets added.)
While this passage correctly states the law, the internal/external document dichotomy does not raise a question of law. As Basten JA explained in Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 (18 June 2013) at [9] the term "relevant considerations" is "widely misunderstood". A preferable term is "mandatory consideration" and "forbidden consideration" (for irrelevant considerations): Aronson, Groves, Weeks Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Lawbook Co.)
Basten JA held in Lo v Chief Commissioner of State Revenue at [9] that ". . .a matter traditionally described as an 'irrelevant consideration' is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious." The power the agency was exercising in this case is the power to decide whether "to refuse to provide access to the information because there is an overriding public interest against disclosure of the information": GIPA Act, s 58(d). The subject matter, scope and purpose of that power can be gleaned from the legislation as a whole, particularly the objects of the GIPA Act, the presumption in favour of disclosure in s 5, the public interest test in s 13 and the public interest considerations listed in the Table to s 14.
Destination NSW's argument assumes that the Tribunal took into account whether the information was contained in internal or external documents as a basis for according weight to various public interest factors. In our view, that assumption is not correct. Rather, the reason for distinguishing between these two categories of documents was the strength of the evidence and submissions about the specific information in those documents.
At [86] the Tribunal found that Destination NSW "made generalised assertions of confidentiality and prejudice, and . . . 'that evidence rarely goes further than the generalised assertions contained in the submissions.'" At [88], the Tribunal placed moderate weight on the "commercial in confidence considerations" and on the fact that disclosure of the information could reasonably be expected to prejudice a third party's legitimate business, commercial, professional or financial interests. The Tribunal attributed that level of weight to the information based on submissions by third parties and aggrieved persons, not just because the information was in external documents.
It was highly relevant for the Tribunal to take into account the strength of the evidence and submissions about specific pieces of information in applying the public interest test. This ground of appeal does not identify a question of law, nor is there any basis for granting leave to appeal.

[17]

Destination NSW's attitude

The second "irrelevant consideration" that Destination NSW submitted that the Tribunal had taken into account was its "attitude". At [83] of the decision, under the heading "Balancing Exercise Outcomes", the Tribunal held that: There will always be a tension between market competition and open and accessible government, but the GIPA Act places obligations on government to ensure that access to information takes precedence, by placing the presumption on disclosure. The Respondent's attitude throughout the course of dealing with this access application indicates that it does not understand, or is in disagreement with the correct application of these obligations. As noted by the Applicant: ...on the Respondent's approach, the entire operations of the respondent are to be shrouded in secrecy, and could never be the subject of scrutiny, as the arguments raised in these proceedings by the respondent would apply to any documents recording its operations and conduct in carrying out its functions. Such an approach could hardly be said to be consistent with the objects of the Act.
Destination NSW noted that the reference to its "attitude" is in the same paragraph as a "broad and unqualified statement that GIPA gives precedence to access to information over market competition." According to Destination NSW, that suggests that the Tribunal's view of its attitude influenced the way it applied the public interest test in s 13. This was characterised as a question of law because the Tribunal wrongly took into account its attitude as a relevant consideration when applying the public interest test. If it is not a question of law, Destination NSW submitted that the Appeal Panel should give leave to appeal on this ground.
The factual basis for the Tribunal's comments about Destination NSW's "attitude' can be found, in particular, at [57] of the Tribunal's first decision. the Tribunal gave the following reasons for remitting the matter for reconsideration: The onus for justifying its decision to refuse access to information lies with the Respondent. In reaching the correct and preferable decision in these proceedings, the Tribunal needs to determine whether the Respondent has justified its decision in relation to the Applicant's access application, and has 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. This is a difficult task in circumstances where the Respondent has failed in its obligations under s54 of the GIPA Act to consult with third parties, has incorrectly approached the application of s13 of the GIPA Act to categories of documents instead of information, has applied the public interest considerations in the table to s14 of the GIPA Act without filing evidence to support the submission as to why each relevant particular public interest consideration against disclosure applies to the information contained in each document, and has made submissions on categories of documents without specifying which documents fall into each particular category.
Destination NSW submitted that the Tribunal's view of its attitude influenced its application of the public interest test. In our view that is not correct. At [83], the Tribunal concluded that the way in which Destination NSW responded to Mr Taylor's application indicates that it does not understand, or is in disagreement with, the correct application of the obligations in the GIPA Act. The implication that can be drawn from the Tribunal's remarks is that if Destination NSW had understood and applied the principles correctly, it would have realised from the outset that there was no overriding public interest against disclosure of much of the information. We note that Destination NSW has now conceded that this is the case.
It is not open, on a fair reading of [83] of the Tribunal's decision, to conclude that the Tribunal's reference to Destination NSW's "attitude" influenced its application of the public interest test. It follows that the Tribunal did not take into account Destination NSW's attitude as a factor when deciding whether "to refuse to provide access to the information because there is an overriding public interest against disclosure of the information": GIPA Act, s 58(d). Consequently, the Tribunal did not take into account that matter as a consideration, and certainly not as an irrelevant or prohibited consideration.

[18]

Ground 2: the Tribunal erred by failing to give appropriate weight to the various public interest considerations for and against disclosure

Destination NSW acknowledged that this is not a question of law. The Appeal Panel's leave is required before an internal appeal can be made based on the weight given to various public interest considerations: NCAT Act, s 80(2). We note that Destination NSW now concedes that some information should be disclosed but that certain information in each of the 79 documents, which it characterises as highly confidential and critical to its operations, should be withheld. The details of the information which it says should be withheld, together with brief reasons for that view, is contained in a confidential submission filed after the hearing.
The Appeal Panel has set out the general principles that apply when considering whether to grant leave to appeal in Collins v Urban [2014] NSWCATAP 17 at [84]: [84] The general principles derived from these cases can be summarised as follows: 1. In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 2. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
Destination NSW submitted that the Tribunal was not only "arguably wrong" in the conclusions it reached, but that the Tribunal failed to give the same weight to various public interest considerations when assessing the effect of disclosing similar information. The Tribunal should have given due weight to the evidence of Sandra Chipchase, the CEO of Destination NSW. That evidence was never challenged and it was largely supported by submissions from third parties. The Tribunal should also have given significant weight to the public interest considerations in Item 4 of the Table in s 14 of the GIPA Act because disclosing this information will reduce Destination NSW's ability to negotiate more advantageous terms in future. The same weight should be given to these considerations regardless of whether the information appears in documents provided by applicants for support or in Destination NSW's internal documents.
Destination NSW suggested that it faces the same commercial pressures in respect of its operation as the various third parties do in respect of their businesses. The parties all operate in the same commercial context. Disclosure of the same kind of information in other documents would have essentially the same consequences as disclosure of the information the Tribunal has redacted.
Mr Taylor's response to these submissions was that leave should be refused because the weighing of competing considerations is fundamentally an impressionistic and inexact exercise. In McKean v Department of Justice [2016] NSWCATAP 93, the Appeal Panel held, when considering s 13 of the GIPA Act, that: This is an area where the decision maker is given a wide discretion by the law in identifying what may be seen as relevant, and weighed in the balance.
In those circumstances, Mr Taylor submitted that the Destination NSW has merely asserted that the conclusions were "arguably wrong". If the Tribunal failed to give the same weight to the same types of information equally across the various documents, that may have been because the information is not strictly identical. The Tribunal's approach may have been informed by the differential positions taken in respect of those pieces of information by Destination NSW and the relevant third parties. Mr Taylor went on to submit that if that is the case, Destination NSW has merely asserted that the Tribunal's conclusions are "arguably wrong."
The Tribunal found that there was an overriding public interest against disclosure of certain information in particular documents. That information can be described, generally, as follows: 1. the dollar amounts that an Event Organiser sought, that Destination NSW recommended for approval and that were ultimately approved (including details of investor payments); 2. the number of tickets to be allocated for corporate hospitality in relation to a particular event; and 3. whether or not a particular Event Organiser had met a KPI.
Destination NSW has assumed that the Tribunal found not only that the results of a KPI should be withheld but that the KPI itself should be redacted. For the reasons we have given, we do not accept that characterisation of the Tribunal's decision.
We have summarised the Tribunal's decision above but the following further detail is relevant to this ground of appeal. The Tribunal outlined Ms Chipchase's evidence at [30] - [35]. The Tribunal noted at [36] that, while Ms Chipchase asserted that her evidence was "supported by the responses from event organisers", two of the seven organisations expressed no objection or limited objections to disclosure. Only one of the seven organisations "expressed a generalised concern that disclosure might influence their future decision-making in relation to providing confidential or commercially sensitive information to Destination NSW." At [37] the Tribunal summarised its view of the deficiencies in Ms Chipchase's evidence: There was no specific explanation provided by the Respondent as to how or to what extent disclosure of identified, specific information could "cause great economic and cultural loss to NSW", who the competitors it alluded to were, both generally and for each of the events in question, what its budgets were and how these could be affected by the disclosure of specific information, or which of its employees were making decisions. There was no evidence from any of its employees or competitors regarding any of the assertions made about them by Ms Chipchase. There was limited evidence from selected third parties about their objections to disclosure, but no evidence supporting the Respondent's assertions of the likelihood of any of the asserted impacts of disclosure.
The Tribunal noted that Destination NSW had divided the documents into the following categories; proposals (from third parties); and other documents. The Tribunal rejected Destination NSW's submission that there were no specific public interest considerations in favour of disclosing those documents apart from the presumption in favour of disclosure. In relation to the remaining documents, the Tribunal rejected Destination NSW's submission that, based on various considerations, there were strong public interest considerations against disclosure. The Tribunal then summarised the evidence from those third parties who wished to be heard at [55] - [80].
After hearing from Global Creatures Group, Art Gallery of NSW, City of Sydney and 32 Hundred Lighting Pty Ltd, the Tribunal afforded substantial weight to the public interest considerations against disclosure of the information identified at [89] of the decision. The weight that the Tribunal gave to the disputed information depended on factors including the age of the information (e.g. at [64]), the degree of competition (e.g. at [80]), how specific the evidence was (e.g. at [56] and [64]); and whether there was a further planned presentation for the same event (e.g. at [64]). We note that the Tribunal also mentioned some of these considerations at [37] when assessing Ms Chipchase's evidence.
Under the heading "Balancing exercise outcomes", the Tribunal found at [86], that the public interest considerations against disclosure on which Destination NSW relied, were relevant. The first question was the weight to be given to those considerations. The Tribunal apportioned weight to each of the considerations for and against disclosure in respect of the information in the 79 documents. Where more than one public interest consideration was applicable, the Tribunal gave weight to each consideration and expressed a view as to whether there was an overriding public interest against disclosure.
The effect of the decision is that the same kind of information (dollar amounts, KPIs and ticket allocations) has been withheld where it appears in certain documents, and disclosed where it appears in other documents. We also accept that the parties all operate in the same general commercial context. But the weight to be attributed to each pubic interest consideration depends on the effect of disclosing each particular piece of information. The Tribunal carefully assessed the public interest considerations for each piece of information. The weight that the Tribunal gave to the considerations against disclosure depended on the probative value of the evidence about the effect of disclosing that information. The Tribunal gave more weight to public interest considerations against disclosure where, for example, specific information was identified, the information was current and the degree of competition was high. It follows that we do not accept Destination NSW's suggestion that the Tribunal erred by failing to give appropriate weight to the various public interest considerations for and against disclosure or that disclosure of the same kind of information in other documents would have essentially the same consequences as disclosure of the information the Tribunal has redacted.
None of the submissions made by Destination NSW justify granting leave based on the general principles summarised in Collins v Urban [2014] NSWCATAP 17. For example, there is no issue of principle, or question of public importance raised by the fact that the Tribunal attributed less weight to certain considerations than Destination NSW submits was justified by the evidence. Similarly, there is no injustice, factual error or defect in the fact finding process.

[19]

Ground 3 - the Tribunal's finding that Destination NSW had failed to satisfy its onus under s 53 of the GIPA Act lacked procedural fairness

Section 53 of the GIPA Act deals with searches for information held by an agency. It provides that: 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
In submissions to the Appeal Panel, the Information Commissioner provided at [42] some helpful commentary on the meaning of 'reasonable searches' and the scope of s 53 in general.
In its first decision, Taylor v Destination NSW [2017] NSWCATAD 272 the Tribunal remitted the matter to Destination NSW for reconsideration and made the following order about conducting further searches: (1) Within 7 days, the Respondent is to confirm with the Applicant and Tribunal that the 79 documents produced confidentially to the Tribunal comprise all available information sought by the access application. If this cannot be confirmed, the Respondent is to provide the Tribunal with a copy of any additional information and an updated Table of Documents within that 7 days.
Destination NSW subsequently stated in the reviewable decision that it "conducted electronic searches of its databases". After conducting these searches, Destination NSW made the following submission to the Tribunal: It would be futile and not in keeping with the purposes of the GIPA Act to require an agency to carry out searches in response to an access application such as Mr Taylor's when such searches would only identify information that could not be disclosed because there are overriding public interests against its disclosure. In the circumstances, searches for the documents and information sought by Mr Taylor would involve an unreasonable and substantial diversion of Destination NSW's resources.
At [95], the Tribunal expressed disagreement with this submission. Both the 79 documents that Destination NSW had provided in confidence to the Tribunal and Ms Chipchase's affidavit identified "a number of documents which existed but had not been identified by the Respondent as a result of the searches ordered." The Tribunal added, at [96], that Destination NSW had not provided any evidence of what those searches entailed, the extent of those searches, or any explanation for why existing documents were not identified by the searches." The Tribunal concluded at [98] that Destination NSW had "failed to satisfy its onus of proof, and the Tribunal is unable to be satisfied that reasonable searches have been conducted in accordance with s 53(2) of the GIPA Act."
At [99] the Tribunal concluded that it would not be appropriate to direct Destination NSW to conduct further searches when it had already been directed to do so. The Tribunal considered the option of referring this matter to the Information Commissioner under s 111: 111 Referral of systemic issues to Information Commissioner NCAT may refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally.
The Tribunal did not refer the matter but directed the parties to file and serve written submissions on the question of whether the matter should be referred to either the Information Commissioner or the Ombudsman. The Information Commissioner filed submissions on 20 September 2018, submitting that the matter was suitable for referral to the information Commissioner under s 111 of the GIPA Act. In that submission the information Commissioner suggested that her office has powers and functions under both the GIPA Act, and the Government Information (Information Commissioner) Act 2009 (NSW) which allow issues of agency systems, policies and practices to be considered, monitored and reported on.
The ground of appeal is that the Tribunal denied Destination NSW procedural fairness when finding that it had not discharged its onus of proof that reasonable searches had been conducted in accordance with s 53 of the GIPA Act.
Destination NSW makes two submissions about this ground of appeal. The first is that the Tribunal's finding that it had not discharged the onus of proof was based on an incorrect assumption. The Tribunal incorrectly assumed that it had ordered Destination NSW to conduct additional searches to identify information beyond the information contained in the 79 documents. Destination NSW interpreted the Tribunal's order as being to confirm whether the 79 documents already produced comprised all of the available information sought by the access applicant. As Destination NSW complied with that order, the Tribunal was not entitled to make a finding that it had not discharged its onus of proof that reasonable searches had been conducted.
In McKay v Transport for NSW [2017] NSWCATAD 212, the same member who heard this case at first instance made the following order about conducting further searches: First respondent to reconsider its reviewable decision with specific reference to the requirements of s 53 of the GIPA Act, conducting additional searches and identifying the nature and extent of the searches it has conducted in response to the Applicant's access application, by 31 July 2017.
This order is more explicit than the order the Tribunal made in the present case. Despite that fact, we are satisfied that the text of the Tribunal's order in the present case required Destination NSW to consider whether adequate searches had been conducted. That conclusion is supported by the fact that the Tribunal raised questions about the adequacy of Destination NSW's response to the access application.
At [41] of the first decision, the Tribunal found that, in response to one aspect of Mr Taylor's application, Destination NSW did not provide any specific information in answer to his request for information regarding "each case". The inference is that Destination NSW may hold such information but that it has not been disclosed. At [44] the Tribunal concluded that it is unclear whether Destination NSW was referring to information that had been provided confidentially to the Tribunal, "or other documents not otherwise provided to the Tribunal." A similar observation was made in relation to other information at [46]. It was in that context that the Tribunal ordered Destination NSW to confirm that the 79 documents produced confidentially to the Tribunal comprise all available information sought by the access application. Destination NSW can have been in no doubt that it was required to consider whether it held other information which had not been disclosed to the Tribunal. It follows that the Tribunal's finding that Destination NSW had not discharged the onus of proof was not based on an incorrect assumption.
The second submission was that the Tribunal had breached the "hearing rule" of procedural fairness. That rule requires the Tribunal to "hear" a person before making a decision affecting their interests. The rule would "ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse materials": Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591. Our understanding of Destination NSW's submission is that it was not given the opportunity to ascertain and respond to a relevant issue - that is, whether it had discharged its onus of undertaking reasonable searches. We have disregarded any evidence or submissions by the parties as to the merits of the Tribunal's finding because that was not a ground of appeal.
Destination NSW says it was not aware that compliance with s 53 of the GIPA Act was an issue because it was under the impression that it had complied with the Tribunal's order. According to Destination NSW, in January 2018 when the Tribunal reconvened, it did not express the view that it had failed to comply with the order. The Tribunal should have told Destination NSW what it was thinking and invited further submissions.
In Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591, the Court (Northrop, Miles and French JJ) quoted the following passage from F Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369: . . . the rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision";
Destination NSW relied on a qualification to the general principles summarised by the Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591, including the principle expressed above, in the following terms (footnotes deleted): 1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it;
Destination NSW knew that its compliance with s 53 of the GIPA Act was a critical issue. The Tribunal had raised questions about the adequacy of Destination NSW's response to the access application in the first decision and, in effect, directed that it conduct adequate searches. Ultimately, the Tribunal decided that Destination NSW's evidence and submissions did not discharged its onus of undertaking reasonable searches. This ground of appeal is answered by the principle that the rules of natural justice do not require the decision-maker to disclose what she or he is minded to decide so that the parties may have a further opportunity of criticising the decision maker's mental processes before a final decision is reached.
On appeal, we accepted into evidence an affidavit from Mr D'Costa dated 29 October 2018. That document sets out the searches that he conducted for the information sought by Mr Taylor. This evidence may be relevant to the Tribunal's decision as to whether it should refer the matter to either the Information Commissioner or the Ombudsman. Given our conclusions, it is not relevant to any issue before the Appeal Panel.
In our view, the Tribunal has not breached the rules of procedural fairness and this ground of appeal fails. We will direct the Registry to arrange a suitable date and time for the matter to be listed before the Member at first instance for directions to case manage the issue as to whether this matter should be referred to the Ombudsman or the Information Commissioner.

[20]

Orders

The appeal is upheld, in part. a. Paragraph 89(1) of the Tribunal's decision is set aside. In substitution for that decision, the following decision is made: Document 18: Page 2, dollar figures at "Recommendation for Investment" and "Executive Summary"; Pages 7 and 8, dollar figures under heading "Contract KPI's"; Page 10, first sentence of "DNSW Funding Details"; Page 10, dollar figures in the three dot points next to heading "DNSW Funding Details"; Page 11, dollar figure next to the heading "Approval." b. Paragraph 89(2) of the Tribunal's decision is set aside. In substitution for that decision, the following decision is made: Document 46: all dollar figures at Schedule 2 Item 2, Schedule 2 Item 7; all ticketing allocation figures at Schedule 2 Item 22 under "Corporate Hospitality"; all dollar figures in Schedule 3, pages 16, 17 and 18. c. Paragraph 89(3) of the Tribunal's decision is set aside. In substitution for that decision, the following decision is made: Document 62: Page 2, the dollar amounts next to the headings "Recommendation for investment" and "Executive Summary"; Page 3, all of "Summary of Event Proponent's Proposal"; page 10, the dollar amount next to the heading "DNSW funding Details"; page 11, the dollar amount next to the heading "Approval". d. The decision of the Tribunal is varied to add the following to paragraph 89 of the reasons for decision: Document 45, page 4, the dollar amount in the sentence, "The AGNSW has requested an investment from DNSW of ($X) in the exhibition Pop to Popism; Document 43 page 4, the dollar amount in the sentence, "The AGNSW has requested an investment from DNSW of ($X) in the exhibition Pop to Popism; Document 43, page 5, the dollar amount in the sentence, "The AGNSW has requested an investment from DNSW of ($X) in the exhibition Masterpieces from the National Gallery of Scotland. e. The decision of the Tribunal at 89(6) is varied to read: Document 75: dollar figures at page 10 f. The decision of the Tribunal is varied to add the following to paragraph 89 of the reasons for decision: Document 23, pages 1, 2, 3, 4, 12 and 13, the dollar amount relating to the cost of the broadcast production to be funded by Destination NSW.
Leave is refused for Destination NSW to appeal on grounds other than a question of law.
The appeal is otherwise dismissed.
These orders come into effect 28 days from the date of publication of these reasons for decision. Note: Registry to arrange a suitable date and time for the matter to be listed before the Member at first instance for directions to case manage the issue as to whether any matter should be referred to the Ombudsman or the Information Commissioner.

Destination NSW v Taylor

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