Eyes v Wyong Shire Council

Background

1. The background of the matter is not in dispute. The Respondent proposes to develop an integrated education and business precinct on Council-owned land near Warnervale. That Project is intended to encompass: a. a university or other major education provider (such as TAFE) campus; b. a student residential college; c. a knowledge and community centre as part of a SMARTS Hub; and d. a business park.
2. To assist with the planning and development of the Project, the Respondent commissioned SGS Economics and Planning to complete an economic viability and feasibility analysis of the Project. The SGS Report was the product of that exercise.
3. The SGS Report assesses, inter alia, the local competition for the delivery of such a Project; the demand for such a Project in the local area; the projected costs and revenue of the Project and the opportunities and challenges associated with the Project.
4. In submissions to the Tribunal the Respondent provided the following chronology of events (references deleted):

• On 18 November 2014, the Applicant lodged an application for internal review.
• By application filed on 20 November 2014, the Applicant sought review of the Decision. By operation of s. 82(5) of the GIPA Act, the filing of that application precluded the Respondent from completing the internal review.
• At the first planning meeting on 3 March 2015, the Respondent sought a direction permitting it to complete the internal review of its decision. That direction was made and the internal review decision determined that the SGS Report should be released to the Applicant in part. A redacted copy of the SGS Report was provided to the Applicant on 11 March 2015.
• The Respondent has since given further consideration to the SGS Report and has determined to remove some of the redactions contained in the version provided to the Applicant on 11 March 2015. ... The redacted information now comprises: 1. the content under the title '3.3 Local Context' (pages 25-26 of the SGS Report); and the last bullet point under the heading 'Challenges' (page 27 of the SGS Report); 2. The majority of the content in Chapter 4 of the SGS Report, titled 'Demand for Education and Business Precinct' (pages 28-36 of the SGS Report), with the exception of one line on page 30 of the SGS Report, and two paragraphs on page 33 of the SGS Report, and the corresponding parts of the Executive Summary in the SGS Report, being; 1. (i) the content under the heading 'Business park demand' (page 1 of the SGS Report); 2. (ii) part of the content, being the first and last paragraph, the last line in the second paragraph, and the table under the heading, 'Education demand' (page 2 of the SGS Report); and 3. (iii) all of the content under the heading 'Opportunities and challenges' (page 3 of the SGS Report; 1. The content in Chapter 6 of the SGS Report, titled 'Feasibility Analysis' (pages 47-52 of the SGS Report), and the corresponding parts of the Executive Summary in the SGS Report, being the content under the headings 'Feasibility' (page 5 of the SGS Report); and 'Financing and funding of the precinct' (page 5 of the SGS Report); 2. The content in Chapter 7 of the SGS Report, titled 'Precinct Development' (pages 53-60 of the SGS Report), and the corresponding parts of the Executive Summary, being the content under the headings 'Preconditions for a successful education precinct' (page 6 of the SGS Report); 'Timing and staging' (page 6 of the SGS Report); and 'Next steps' (page 6 of the SGS Report); 3. Appendix 2 of the SGS Report, titled 'Benchmarking Analysis' (pages 72-81 of the SGS Report); and 4. Appendix 3 of the SGS Report, titled 'Economic Impact Analysis' (pages 82-89 of the SGS Report).

1. The Applicant seeks access to the SGS Report in its entirety.
2. The Respondent subsequently indicated that it relies on the additional consideration against disclosure in subclause 4(c) of the Table to section 14 of the GIPA Act i.e. that the disclosure of the information could reasonably be expected to diminish the competitive commercial value of the information to the Respondent.

Evidence

1. Each of the parties provided written and oral submissions. The Respondent relies on the open and confidential affidavits and oral evidence of Mr Steven Mann. I have been given a redacted copy of the SGS Report and related reports. The Respondent has provided an unredacted copy of the SGS Report on a confidential basis.

Relevant law

1. Section 3(1) of the GIPA Act provides: 3 Object of Act (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.
2. Section 3(2)(a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object.
3. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: section 5 of the GIPA Act.
4. A person who makes an access application for government information has a legally enforceable right to access unless there is an overriding public interest against disclosure of the information: section 9(1) GIPA Act.
5. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information. Section 12 allows for the consideration of any public interest in favour of disclosure. Nothing in the GIPA Act limits any other public interest consideration in favour of the disclosure that may be taken into account when making a decision in respect of an access application.
6. Section 13 of the GIPA Act provides that there is an overriding public interest against disclosure of government information 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.
7. The approach the Tribunal should take to applying section 13 has been discussed in a number of decisions including Flack v Commissioner of Police, NSW Police [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307. The consistently applied approach is that the test in section 13 of the GIPA Act requires decision makers to: 1. identify relevant public interest considerations in favour of disclosure, 2. identify relevant public interest considerations against disclosure, 3. attribute weight to each consideration for and against disclosure, and 4. determine whether the balance of the public interest lies in favour of or against disclosure of the government information.
8. The public interest test must be applied in accordance with the principles set out in section 15 of the GIPA Act, which provides that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner. No such guidelines are relevant to the present application.
9. The Table to section 14 of the GIPA Act provides a list of possible public interest considerations against disclosure. Section 14(2) states: ... (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. …
10. As noted above, the agency has asserted that subclauses 1(f), 4(c) and 4(d) of the Table to section 14 of the GIPA Act are relevant to this matter.
11. Clause 1 of the section 14 table relevantly provides: 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): (a) ... (f)) prejudice the effective exercise by an agency of the agency's functions
12. Clause 4 of the section 14 table relevantly provides: 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: (a) … (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests ...
13. It is necessary to consider the Interpretative provisions found in Schedule 4 to the GIPA Act in order to address the applicability of those provisions. The following definitions are relevant to this matter: "disclose" information includes make information available and release or provide access to information. "exercise" a function includes perform a duty. "function" includes a power, authority or duty. "reveal" information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
14. The burden of justifying an overriding public interest against the disclosure of information lies with the agency: section 105(1) GIPA Act.

Public interest considerations favouring disclosure

1. The determination of the access application was made by the agency's Legal & Research Officer. The reasons provided by the decision maker indicate that the agency applied the presumption in favour of disclosing information under section 5 of the GIPA Act and "the general public interest in favour of the disclosure of information held by Council". The Respondent accepts that disclosure of the information could reasonably be expected to inform the public about the Respondent's operations, for example, the Respondent's ongoing research and investigation into the proposed Warnervale business and education precinct in Wyong Shire.
2. The Respondent accepts that disclosure of the redacted information could reasonably be expected to promote the open discussion of public affairs, enhance government accountability or contribute to positive and informed debate on an issue of public importance; and to ensure effective oversight of the expenditure of public funds.
3. Nevertheless, the Respondent contends that the public interest considerations in favour of disclosure are outweighed by those against.
4. The Applicant has identified a number of considerations favouring disclosure. In my view those considerations fall within the categories that the Respondent identified.
5. I attribute a significant weight to each of these public interest considerations.

Public interest considerations against disclosure

1. The Respondent submits that disclosure of the SGS Report could reasonably be expected to prejudice the effective exercise of the Respondent's functions (section 14 Table 1(f)) diminish the competitive commercial value of the information contained within the Report (section 14 Table 4(c)) and prejudice the Respondent's legitimate business, commercial, professional or financial interests (section 14 Table 4(d)).
2. The Respondent has provided detailed submissions in regard to the content of the SGS Report, the commercial value of the information and the potential impact of release of the Report to the Applicant.
3. The Respondent has not identified other Public interest considerations against disclosure.

Has the SGS Report been disclosed?

1. The Applicant has asserted, and the Respondent has accepted, that the SGS Report was made available on a publicly accessible website coordinated by the Department of Planning and Environment. The Respondent's Property Development Manager, Mr Mann, stated in his affidavit of 13 May 2015: On 12 May 2015, I became aware that the SGS Report was available via the publicly accessible website ... This website is referred to as the "Local Plan Making Tracking System" and is coordinated by the Department of Planning & Environment. It publishes all proposed amendments to local environmental plans submitted to the Department. It is essentially a search engine, enabling any person to search those proposals using a number of search filter options. For example, a person can search for a particular proposal by title or can search for all proposals in a particular local government area.
2. Mr Mann then set out the steps that would need to be followed in order to access the Report.
3. Under cross-examination Mr Mann confirmed that the Respondent provided the SGS Report to the Department of Planning & Environment. There is no suggestion that there was any illegality involved in making the Report available on the website.
4. The evidence also indicates that the SGS Report was available through the Department of Planning & Environment website at the time that a planning meeting was held in the Tribunal. Notwithstanding that the Report was available through the website, the Respondent maintained its position that it should not be released to the Applicant.
5. As noted above, for the purposes of the GIPA Act, to "disclose" information includes to "make information available and release or provide access to information".
6. I am satisfied that the SGS Report was disclosed when it was made available on a publicly accessible website coordinated by the Department of Planning and Environment.
7. For completeness I also note that it is my view that the information contained within the SGS Report Further has also been revealed. As noted above, for the purposes of the GIPA Act, to "reveal" information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
8. The Section 14 considerations each require that the "disclosure of "of the information" could reasonably be expected to have the identified effect. In my view the likelihood of that consequence must be low where the information has already been disclosed.
9. In my view, as the information contained within the SGS Report has already been disclosed, the weight to be attributed to each of the public interest considerations against disclosure must be very low.
10. I note that the Respondent contends that there is no evidence to show that the SGS Report was accessed from the Department of Planning & Environment website. There is no evidence before me as to whether or not any record has been maintained in regard to what access was obtained while the SGS Report remained on the Department of Planning & Environment website. The Respondent would have been in the best position to obtain that evidence. I give little weight to that argument. Whether or not the Report was accessed from the website does not alter my view that the SGS Report was disclosed.
11. Given the views that I have expressed as to the weight to be attributed to the considerations for and against disclosure, it is my view that the balance of the public interest lies in favour of disclosure of the information.
12. It follows, in my view, that the Respondent's determination should be set aside and the unredacted SGS Report should be released.

Order

1. The decision under review is set aside.
2. The decision is made that the unredacted SGS Report is to be released to the Applicant. 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: 19 October 2015