Elf Farm Supplies Pty Ltd v Department of Planning and Environment

Chronology of events

1. The Department's original decision was taken on 16 February 2017. Elf requested an internal review of the decision on 16 March 2017. The internal review was decided on 20 April 2017. Elf sought review by the Information Commissioner on 19 June 2017. The Information Commissioner's review was completed on 23 August 2017. On 12 September 2017, the Respondent informed the NCAT Applicant that it would not follow the Information Commissioner's recommendation to make a new decision. On 20 October 2017, the NCAT Applicant made an application to the Tribunal for external review.
2. Elf is entitled to seek review by this Tribunal if it is "aggrieved by a reviewable decision": section 100 of the GIPA Act. A "reviewable decision" is a decision "of an agency in respect of an access application": section 80 of the GIPA Act. These issues were discussed in CGU Workers Compensation (NSW) Ltd v Department of Planning and Environment [2018] NSWCATAD 32 at paragraphs [3] - [7].
3. The Department's decision of 16 February 2017 and the internal review decision of 20 April 2017 are reviewable decisions as they are in respect of the access application. In my view, the decision to not follow the Information Commissioner's recommendation is not a decision in respect of the access application.
4. The Information Commissioner's review was completed on 23 August 2017. Section 101(2) of the GIPA Act provides that the time for making the application to the Tribunal for administrative review is "20 working days after the applicant is notified of the completion of the Information Commissioner's review". Twenty working days from 23 August 2017 is 20 September 2017. Elf made its application to the Tribunal on 20 October 2017, over four weeks late.
5. Elf sought and I granted an extension of the time for making the application for review of the decision of 20 April 2017 on the ground that the delay was excusable in circumstances where Elf sought external review of the decision from the Information Commissioner and then awaited the Department's response to the Information Commissioner's recommendation that the Department make a new decision.

The Issue for Determination

1. Elf continues to object to the release of information contained within the Report. The issue for determination is whether there is an overriding public interest against disclosure of that information because of the commercial value of the information and the disadvantage that would follow if it is released.

Applicable legislation

1. The task of the Tribunal is to determine the "correct and preferable decision": section 63 of the Administrative Decisions Review Act 1997.
2. The approach to be taken in applications under the GIPA Act has been considered in numerous cases before this Tribunal. For a recent consideration see the discussion by Senior Member Perrignon in Peter Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139.
3. The objects of the Act are set out in section 3(1): In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
4. The Tribunal is to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure. Pursuant to section 5 of the GIPA Act there is a presumption in favour of disclosure of the information unless there is an overriding public interest against disclosure. In accordance with section 9(1) of the GIPA Act, the Applicant has a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information.
5. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) further provides that nothing limits the considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure.
6. Pursuant to section 13 of the GIPA Act, there will only be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
7. The table to section 14 sets out the relevant public interest considerations against disclosure. The only factors that can be taken into account are those referred to in section 14 of the GIPA Act. Section 14 provides that - (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.
8. Elf relies on the public interest considerations against disclosure set out in clauses 4(c) and 4(d) of the Table at section 14 of the GIPA Act.
9. Clause 4(c) states that there is a public interest consideration against disclosure of information if the disclosure of that information could reasonably be expected to diminish the competitive commercial value of any information to any person.
10. Clause 4(d) states that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests.
11. Section 55 of the GIPA Act provides for consideration of personal factors of the application. It states: 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. …
12. Section 80 of the GIPA Act provides: 80 WHICH DECISIONS ARE REVIEWABLE DECISIONS The following decisions of an agency in respect of an access application are "reviewable decisions" for the purposes of this Part: … (d) a decision to provide access or to refuse to provide access to information in response to an access application, …
13. Section 100 of the GIPA Act provides: 100 ADMINISTRATIVE REVIEW OF DECISION BY NCAT A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an "NCAT administrative review"). Note: A reviewable decision does not have to be internally reviewed or reviewed by the Information Commissioner before it can be the subject of an NCAT administrative review.
14. Section 105(2) provides: 105 ONUS ON AGENCY TO JUSTIFY DECISIONS ... (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. ...
15. Thus, the onus of establishing that there is an overriding public interest against disclosure of information lies on Elf.
16. The issue in this matter is whether the public interest considerations against disclosing the information in the Report, based on Elf's legitimate business interests, outweigh the public interest considerations in favour of disclosing that information.

The Material before the Tribunal

1. Elf relies on the evidence of its general manager, Mr Neil Cockerell, and of Mr Michael Assal, a Senior Engineer & Consultant of The Odour Unit Pty Ltd. It also provided written and oral submissions.
2. The Respondent has lodged an unredacted copy of the Report as well as written and oral submissions.

Elf's Case

1. Elf accepts that there is a statutory presumption in favour of the disclosure of government information and a general right of the public to have access to government information held by agencies. However, it contends that there are public interest considerations against disclosing the information contained in the Report that outweigh the public interest considerations in favour of disclosing that information.
2. Elf contends that the public interest considerations against disclosure set out in clauses 4(c) and 4(d) of the Table at section 14 of the GIPA Act apply to the unredacted material in the Report, and not just those parts of the Report that the Department has redacted from release. Elf submits that the disclosure of that material will diminish its competitive commercial value and prejudice Elf's legitimate business, commercial and financial interests.
3. Mr Cockerell provided evidence of the steps that Elf took to obtain approval for the development of the Substrate Plant, the commissioning of the report, expenses incurred and community consultation that was undertaken in relation to the development.
4. Mr Assal provided affidavit evidence and also attended the hearing and was cross-examined. He is a co-author of the Report. His evidence largely concerns the technical aspects of the Report and focused on its unique aspects. He explained how aspects of the Report that are apparently already in the public domain take on a different character because of the context in which they appear.
5. He is concerned that the disclosure of information gathered from overseas facilities would allow a competitor to back-engineer and ascertain the nature of the Elf facilities. He is also concerned that inferences can be drawn from details about locations and dates of visits to those locations. His evidence is that some details might be known to others in the industry, but it is the integration of the various factors in the context of the plant that would not be known to competitors and which therefore makes it commercially valuable.
6. Mr Assal's evidence is that even allowing for the redactions that the Department has proposed, sufficient information remains to allow a competitor to copy Elf's design.
7. Mr Assal provided an annotated copy of the report in which he highlighted parts of the Report which he maintains are commercially sensitive and which he says should not be released.
8. Elf submits that the evidence supports the following: 1. Elf commissioned and paid for the Report, at a significant cost. The cost of the Report included the cost of overseas research; 2. the Report describes a system that is the result of extensive research, consultancy advice and Elf's own know-how arising from 50 years' operation in the industry; 3. Elf incurred costs of approximately $161,000 on consultancy fees relating to the odour emissions plant; 4. the Report relates to an application for approval to construct a large and capital-intensive state-of-the-art facility that has cost Elf nearly $38 million to date and may cost as much as $52.6 million by completion; 5. Elf has a legitimate interest in protecting its very substantial investment of past and future earnings in the facility by preventing disclosure to its competitors of information about the project that would assist those competitors and thereby jeopardise the paying down of its borrowings and the recovery of its investment; 6. the unredacted material in the Report has competitive commercial value. It identifies the designer of the plant, the nature or supplier of control systems, the locations and characteristics of comparable plants, and particular characteristics of elements of the plant and of its components and design. Information on all of these subjects is the product of Elf's investment in the design of the plant and the obtaining of the Report, and is of considerable value to Elf; 7. Elf's application for the modification of its planned expansion of its facility was successful. The Report is therefore valuable to Elf's competitors as providing a primer for anyone who is applying to set up a substrate plant; and 8. disclosure of the unredacted material will diminish the value of that information to Elf by making it available to Elf's competitors.
9. Elf provided a table that sets out the information that is contained in the Report that it says is commercially sensitive.
10. Elf submits that the public interest considerations against disclosure are substantial. Because of its investment in the Report and in the project to which the Report relates, it has a legitimate business, commercial and financial interest in protecting the whole of the Report. Because the unredacted material contains information that has competitive commercial value, its disclosure will prejudice that legitimate interest.

The Department's case

1. The Department accepts that: 1. the Report contains technical data that represents new developments in the field; 2. the technical data contained in the Report is not widely known by Elf's competitors, if at all; and 3. Elf acquired the Report at a financial cost.
2. The Department also accepts that the disclosure of the technical data could reasonably be expected to diminish its competitive commercial value. This is because making the technical data widely known would provide Elf's competitors an opportunity to use and benefit from the technical data without having incurred the expense of gathering it. This in turn would prejudice Elf's business, commercial and financial interests because it would have expended money but not received the exclusive value of the technical data.
3. However, the Department does not accept that all the information in the Report is of competitive commercial value to Elf.
4. The Department contends that the disclosure of the Report could reasonably be expected to promote open discussion of public affairs and contribute to positive and informed debate on an issue of public importance because it would provide greater context on the issue of odour emissions and how that issue is being addressed. It submits that air quality is a public health issue of great importance and providing access to information about how it is being addressed is in the public interest.
5. The Department also contends that the disclosure could reasonably be expected to enhance Government accountability because it would contribute to informing people about the decision to approve the expansion of the substrate facility. It submits that it is preferable that information relied upon by the Government when making a decision is made available for public scrutiny. This facilitates examination of the decision, which in turn increases Government accountability.
6. Ms Mattes, solicitor for the Department, notes that the Report was prepared as a condition of the approval of modifications and that odour impact on the public is a public interest issue. Ms Mattes referred to my decision in Southern Radiology Nuclear Medicine v Environmental Protection Authority [2014] NSWCATAD 145 where I accepted the importance of transparency in regard to measures to ensure compliance with conditions of an approval. At paragraphs [47] - [48] I noted: 47. The Respondent considers that the case of Fulham v Director General, Department of Environment and Conservation [[2005] NSWADT 68] is very applicable here. It says that the Documents establish that compliance and due process has taken place. It further says that there is a public interest consideration in favour of releasing information that assures the public at large and patients in particular, that the use of radiation equipment is properly oversighted and is safe for people and the environment. It is important to inform the public of the actions taken by the EPA and practitioners to ensure compliance with the Radiation Control Act 1990 and regulations. 48. The Respondent says that the Documents show how it deals with non-compliance issues, and hence the release would enhance government accountability and maintain and advance a system of responsible government that is open, accountable, fair and effective. The Respondent agrees with the Applicant that there was no risk to the public, as the breaches had been rectified. The Respondent argues that this adds to the public interest in disclosure. Members of the public, if able to read about compliance of practitioners, can feel safe when receiving or being exposed to radiation for treatment or diagnostic purposes.
7. The Department adheres to the proposed redactions. It contends that the proposed redactions take account of Elf's submissions on internal review and that these would address a lot of Elf's concerns. It maintains that Elf conceded that some of the information would already be known to its competitors and that information that is in the public domain should not be redacted.
8. The Department submits that its decision should be affirmed.

Consideration

1. It is necessary that I weigh the competing public interest considerations.
2. I agree with the Department that disclosure of the unredacted material will provide greater context on the issue of odour emissions and how that issue is being addressed. I accept that this is a relevant consideration in favour of release. I also accept that air quality is an issue of public health and that there is a general public interest in the release of information about systems that could impact on air quality. I also accept that the disclosure could reasonably be expected to enhance Government accountability. I accept that these are relevant consideration in favour of release and should be given reasonable weight.
3. In response, Elf contends that material about the modification that is already in the public domain is sufficient to form the basis of public discussion and that no greater context will be provided by the unredacted material. It further contends that any benefits of disclosure of the unredacted material will not outweigh the adverse effects of that disclosure for Elf.
4. Elf contends that the unredacted material does not provide information that relates to public health in any substantial way and therefore the considerations in favour of disclosure should be given little weight.
5. Elf submits that access to the Report should be refused on the basis that it contains commercially sensitive information and there are likely adverse effects of disclosure. It contends that disclosure could reasonably be expected to diminish the value of the unredacted material and to prejudice Elf's legitimate interest in protecting its investment in the Report and the whole project. It submits that, when one weighs the considerations in favour of disclosure against those against disclosure, the balance falls on the side against disclosure and that the Department should not provide access to any of the Report.
6. As noted, Elf relies on the public interest considerations against disclosure set out in clauses 4(c) and 4(d) of the Table at section 14 of the GIPA Act. Both clauses 4(c) and (d) concern prejudice to a party's commercial interests. Elf must demonstrate that it is reasonable to expect that disclosure of the information would diminish the competitive commercial value of any information to any person.
7. The words "commercial value" in Clause 4(c) are modified by the adjective "competitive".
8. The Macquarie Dictionary On Line defines competitive thus - adjective of, relating to, involving, or decided by competition: competitive examination.
9. "Competitive commercial value" therefore connotes information of commercial value gained in, or relating to, a competitive commercial or business context, including competitive information relating to the competitive purchase and provision of government services: McKinnon v Blacktown City Council [2012] NSWADT 44 at paragraphs [79] - [80].
10. In C H Real Estate Pty Limited (t/a Raine & Home Commercial, Penrith) v Penrith City Council [2005] NSWADT 147 the President of the Administrative Decisions Tribunal considered the approach to be taken in dealing with a comparable provision under the Freedom of Information Act 1989. He stated at paragraphs [46] - [47]. 46 The breadth of the terms 'business, professional, commercial or financial affairs' has been noted in a number of cases (see, for example, Raethel v Director General, Dept of Education and Training [1999] NSWADT 108 at [43]); and it has also been noted that they can be overlapping categories not to be read down by reference to each other (Schlebaum (No 2) v Director General, Dept of Community Services & anor [2001] NSWADT 214 at [36]). 47 The next question is could disclosure 'reasonably be expected to have an unreasonable adverse effect on those affairs'. The adverse effect to which CH points is that if disclosure were permitted the effort and cost borne by CH in developing the document and its contents would be lost, and competitors would be free to adopt both the information and content for duplication in their own submissions. What is required of the decision-maker assessing this question is a judgment as to whether the claimed disadvantage is 'reasonable as distinct from something that is irrational, absurd or ridiculous': Re Attorney General's Dept and Cockcroft (1986) 64 ALR 97 at 106, and Re Organon at [27].
11. In the present matter Elf relies on the evidence of Mr Assal to establish how specific aspects of the information contained in the Report are of commercial value to Elf and the disadvantage that would follow its release. I accept Mr Assal's evidence. I agree that the conclusions that Elf submits can be drawn from the evidence, that I have set out at paragraph [42] above, are reasonably available on the evidence. While on a first reading it appears that much of the information is likely to be known by Elf's competitors, I am satisfied that it is the context in which the information appears that gives the information its commercial value to Elf. This information is not generally available and would be of value to a competitor. I am also satisfied that information relates to Elf's legitimate business, commercial or financial interests. Release of the information would have a prejudicial effect on Elf's business, commercial or financial interests.
12. It is necessary that I form a judgement as to whether the claimed disadvantage is reasonable as distinct from something that is irrational, absurd or ridiculous. In this matter I am satisfied that if that information were to be released to the access applicant, Elf's claim regarding the likely disadvantage to it is reasonable.
13. In my view, these considerations against disclosure should be given significant weight.
14. When the considerations in favour of release are weighed against those against release it is my view that the correct and preferable decision is to refuse access to the information that is of commercial value to Elf, on the basis that the disclosure of the information could reasonably be expected to have the effects set out in clauses 4(c) and (d) of the Table to section 14 of the GIPA Act.
15. Nevertheless, I agree with the Department that not all the information in the Report is of competitive commercial value to Elf. I do not agree with Elf's primary position that the whole of the Report should be withheld.
16. Mr Assal has provided a marked up copy of the report in which he has highlighted sections that he identifies as of competitive commercial value and where the value of the information would be diminished if it were disclosed. That copy of the copy of the Report was filed in the Tribunal on 1 June 2018. Mr Assal proposed redactions are in addition to those that the Department proposed. I agree with Elf's position that this information should not be released. However, I am satisfied that public interest considerations in favour of release are to be given greater weight in regard to the remainder of the Report.
17. In my view, the correct and preferable decision is that the report should be released in a redacted form. However, those parts of the Report that Mr Assal has identified as of competitive commercial value to Elf should not be released.

Order

1. The decision under review is varied.
2. The document titled 'Elf Farm Supplies Pty Ltd: Mushroom Substrate Plant - Modifications to Approved Expansion, Odour Emissions Plant Design and Construction Review, Mulgrave, NSW, Final Report' dated May 2016 is to be released to the access applicant in a redacted form in accordance with paragraphs [68] and [69] of these reasons.

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: 29 November 2018