Grande v Lismore City Council - [2024] NSWCATAD 33 - NSWCATAD 2023 case summary — Zoe

NSWNSWCATAD

Grande v Lismore City Council

[2024] NSWCATAD 33

NCAT Administrative and Equal Opportunity|2023-09-18

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2023-09-18

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

Introduction

This is an application by Nicholas Grande (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 100 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for an administrative review of a decision of the delegate of Lismore City Council made on 14 December 2023 (the original decision) in response to an access application he made which was deemed complete on 24 November 2022. This application was filed with the Tribunal on 25 May 2023 (the application).
Since the application was filed, the original decision was subject to internal review by another delegate of the agency. The applicant was notified of the agency's internal review decision by notice of decision dated 29 June 2023 (the internal review decision). It is the agency's internal review decision that is now the subject of this administrative review.
By the internal review decision, the delegate decided to provide access to some additional information to that to which access was provided in accordance with the original decision and to otherwise refuse to provide access to certain information because of the over-riding public interest against disclosure contained in clause 4(d) of the s 14 Table; that is, that the disclosure of this information would prejudice a person's legitimate business, commercial, professional, and financial interests.
For the reasons set out following I have determined that the information the agency has identified as falling within the scope of the access request to which the agency has refused access can be sorted into 16 categories which are set out in Annexure A to this decision. I have determined that there is a public interest in the disclosure of categories 1 to 13 of that information, subject to the redaction of the names and signatures of Donnelly Blasting Pty Ltd's (Donnelly) personnel which are not sought by the applicant, and which can therefore be redacted in accordance with s 74 of the Act. I have also determined that access to category 2 of this information is to be provided subject to the redaction of the personal telephone numbers of neighbours and their contact persons in relation to which there is an overriding public interest against disclosure because this is personal information (consideration 3(a) to the table to s 14).

[2]

Procedural history

The application first came before the Tribunal, differently constituted, for a Case Conference on 13 June 2023. Both the applicant and the agency attended that listing of the application. Prior to the Case Conference the Information Commissioner had notified the parties and the Registry of her intention to exercise her right pursuant to s 104(1) of the Act to appear and be heard in the proceedings. The Information Commissioner also participated in the Case Conference by an authorised representative. The dispute was not resolved at the Case Conference. At that time, the agency had not finalised its internal review of the original decision. Consequently, the proceedings were adjourned to a further Case Conference on 3 July 2023. The Tribunal's adjournment order notes that the parties agreed that if the applicant was satisfied with the internal review decision he would withdraw his administrative review application at the 3 July 2023 listing, otherwise the application would be set down for hearing and a timetable issued for the filing and exchange of evidence and submissions.
A Case Conference was conducted before the Tribunal, differently constituted, on 3 July 2023. By that date, the agency had issued the applicant with notice of its internal review decision. The applicant informed the agency and the Tribunal that he remained dissatisfied with the agency's decision in relation to his access application and wished to proceed with administrative review of the internal review decision. The Tribunal therefore made directions for the filing and exchange of evidence and submissions by the applicant, the agency, and the Information Commissioner. As the agency's decision to refuse to provide access to certain information was substantially founded upon an objection to the release of this information made by a third party, Donnelly Blasting Services Pty Ltd (Donnelly), as a result of the agency's consultation with that party, the Tribunal also made directions requiring the agency to notify Donnelly of the proceedings, the orders made on that date, and its right to be heard. The proceedings were otherwise adjourned to a final hearing on 18 September 2023.
On 21 July 2023 the director of Donnelly notified the Registrar that it wished to appear and be heard in the proceedings. This communication was treated as an application for joinder as a party (joinder application). On 25 July 2023 the Tribunal, differently constituted, made orders for the filing and exchange of submissions by Donnelly and the parties in relation to the joinder application. The joinder application was listed for preliminary hearing on 8 August 2023.
Donnelly's joinder application was heard and determined by the Tribunal, differently constituted, on 8 August 2023. The Tribunal determined that Donnelly had a right to be heard in the proceedings pursuant to s 104(3) of the Act but refused its application for joinder as a party. The Tribunal otherwise extended the date for compliance with some of the orders made on 3 July 2023 for the filing and exchange of evidence and confirmed the 18 September 2023 final hearing date. I note that no directions were made for the filing and exchange of any evidence or submissions by Donnelly. Nevertheless, Donnelly has filed material outlining its objections to the release of certain information.
On 23 August 2023 the delegate of the Information Commissioner notified the Registrar that she no longer wished to appear and be heard in the proceeding.

[9]

The context of the access application

At some time in 2021 the agency called for tenders to conduct drilling and blasting at the Quarry. Grande Drill & Blast responded to that tender. By letter dated 14 September 2021 the agency notified Grande Drill & Blast that its tender had been accepted.
Grande Drill & Blast was obliged to monitor its blasting work at 4 monitoring locations to ensure that it was performed in compliance within the agency's license conditions, including in relation to ground vibration. Monitoring records were required to be supplied to the agency by Grande Drill & Blast as evidence of compliance after each blasting event.
On 26 September 2022 Grande Drill & Blast carried out blasting at the Quarry. Grande Drill & Blast provided its monitoring records to the agency in relation to that blast sometime late September or early October 2022.
By letter to Grande Drill & Blast dated 7 October 2022 the agency noted a non-compliant ground vibration at one monitoring location. It advised that this had triggered the agency's reporting requirements to the Department of Planning and Environment (DPE) and the Environmental Protection Authority (EPA) and that this had resulted in some form of investigation or enquiry which was 'ongoing'. It further advised: Until DPE and EPA are satisfied with the outcome of these enquiries and are assured future activities will remain within prescribed limits, Council will not be proceeding with Grand Drill & Blast, including for the next scheduled blast anticipated for this month.
Despite what is stated in that letter, in a letter to the DPE dated 30 September 2022 a delegate of the agency states: … A blast was executed at the Blakebrook Quarry on Monday 26 September 2022. Monitoring was undertaken at all three primary locations and [another location]. Results are listed below and show a minor vibration exceedance at Primary Location 8 [address]. The distance between the bast and the monitor was approximately 650 meters. This was the closest monitor to the blast. All other monitor location vibration results were well below prescribed license limits. … Upon review of the blast operations there are no apparent causes for the minor exceedance. Council will continue to monitor blast performance and should additional exceedances occur at this location from similar blast location further investigation will be undertaken.
On 1 November 2022 the applicant received an email from the agency which attached correspondence it had received from NRMA Insurance dated 25 October 2022 on behalf of an insured person. This correspondence asserted that there had been an 'accident' at an address on Nimbin Road, Lismore on "26 August 2022" in which the insurer's property suffered 'shock damages such as cracking' which was attributed to blasting at the quarry. The correspondence put the agency on notice that the insured would be seeking reimbursement of the costs of repairs, which had not yet been finalised. The agency's email also included a letter to Grande Drill & Blast from the agency's insurer which notified Grande Drill & Blast of the agency's intention to recover any repair costs it incurred as a result of this claim from Grande Drill & Blast. That letter states that the insured person's damage was incurred on 26 September 2022.
On or about 14 November 2022 the applicant sought to engage an independent expert from an entity trading as 'Blast It Global' to perform a desktop analysis of the blast vibration and airblast results from the blasting at the quarry. In its quotation for this work, Blast It Global states that it will require the provision of certain information to facilitate this analysis.
In response to Blast It Global's advice about the information it required for the analysis, the applicant telephoned the agency's Commercial Services Manager to request this information, citing as his reasons for requiring it, the need to review his company's performance, to investigate the alleged exceedances, and investigate the validity of the insurance claim. The Commercial Services Manager advised the applicant that he would need to lodge an access application under the GIPA Act in order to obtain this information.

[13]

The reviewable decision

The agency advised the applicant of the outcome of its internal review by notice dated 29 June 2023. The salient aspects of that decision are contained in the following extract: … As some of the information requested includes the personal or business information of third parties, on 14 June 2023 I consulted with these parties to determine whether they objected to the release of part, or all, of the information and their reasons for any objection. One of these parties did object to the release of all of their personal or business information on various grounds. In particular, they objected to the release of their intellectual property and details of their internal processes and methods, that are pertinent to the running of their business and its competitive edge. The objection does not mean that I cannot release the information. However, I must take it into account when making my decision. I have therefore considered it when applying and balancing the public interest test. The other party did not object to the release of their personal or business information. Under section 12(1) of the GIPA Act, there is a general public interest in favour of disclosing government information. Section 12(2) of the GIPA Act sets out some examples of other public interest considerations in favour of disclosure. However, I am not limited to those considerations in deciding your application. I find the following considerations in favour of disclosure are relevant to your application:

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.
Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. When applying the public interest test, the only public interest considerations against disclosure that I can take into account are those set out in the table to section 14 of the GIPA Act. To show that they are relevant to the information you asked for, I need to consider whether they could reasonably be expected to have the effect outlined in the table. I have identified the following considerations against disclosure as being relevant to your application:
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests. I have considered the relevant public interest considerations in favour of and against disclosure of the information you requested. I have also considered the objection raised by the third party. Having weighed up the considerations, I have decided under section 58(1)(a) of the GIPA Act to provide you access to some of the information in your request. This includes the blast location, airblast and vibration results with monitor location and name of monitoring location, serial number and all other information unredacted & blast video footage that was covered by the original decision of 14 December 2022. It also includes the remainder of the information requested that is comprised of the personal and business information of the party that did not object to the release of this information. … I have decided under section 58(1)(d) of the GIPA Act to refuse to provide access to come of the information because there is an overriding public interest against disclosure of the information. This is the remainder of the information requested that is comprised of the personal or business information of the party that did object to the release of this information. These requested records contain business information, including information that could prejudice the objecting third party in question's legitimate business, commercial, professional or financial interests. I have decided there is a public interest consideration against disclosure under section 14 (Table 14.4.d) of the GIPA Act that would result in a decision against disclosure of the information sought. Therefore, all Pre blast design reports, all drilling reports, including individual hole depth, explosives loaded load sheets, as tied up initiation design, including the down hole numbers, raw data for Airblast and vibration monitoring results, any blast design reports, and post blast report records that are the business information of the party that has objective to the release of their intellectual property and details of their internal processes and methods, that are pertinent to the running of their business and its competitive edge. …

I note that there is some contention in the parties' submissions about whether the agency continues to rely upon consideration 4(a) to the Table to s 14 in relation to its' internal review decision to refuse access to certain information. The agency's submissions are to the effect that it does not rely on consideration 4(a). I have therefore conducted this administrative review on that understanding.
I also note that in submissions on behalf of the applicant, and at the hearing, Counsel for the applicant advised that the applicant did not press the access application to any extent that it required the provision of the names and signatures of Donnelly personnel.

[16]

Agency

The agency contends, in effect, that its decision to refuse to provide access to the disputed information on the basis that consideration 4(d) of the Table to s 14 overrides the general public interest in the release of government information is the correct and preferable decision and ought to be affirmed by the Tribunal. It submits that it is entitled to rely upon the information itself, and Donnelly's assessment that disclosure of this information to the applicant would prejudice Donnelly's legitimate business, commercial, professional, and financial interests. It submits that the information withheld clearly contains Donnelly's intellectual property and details of its internal processes and methods which are pertinent to the running of its business and its competitive edge. It submits that this is sufficient to discharge its onus of establishing an overriding public interest against disclosure of this information without the need for further analysis or evidence. In this respect, it submits that Donnelly is better placed than Council to make good the assertion that this information is confidential, and that Donnelly has done so. Particular reliance is placed upon the fact that Donnelly is a commercial competitor with the applicant's company.
With respect to the personal factors of the application the agency submits that the fact that the applicant is the Director of a commercial competitor to Donnelly is a personal factor that weighs against rather than in favour of access to information concerning Donnelly being provided. It further submits on this point that there is little logic underpinning the applicant's assertion that he requires this information to investigate the 26 September 2022 exceedance allegation and insurance claim for two reasons. First, because none of the information relates to that event, and second, because he states in his Affidavit that equivalent or similar information to which access has been given in the absence of an objection from another competitor 'was very limited in its usefulness'.

[17]

Jurisdiction

Section 100 of the GIPA Act provides that a person who is aggrieved by a decision that is a reviewable decision under the GIPA Act may apply to the Tribunal for an administrative review of that decision under s 55 of the ADR Act. Section 80 of the GIPA Act sets out what decisions are reviewable decisions for the purposes of that Act. They include, relevantly: 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 … refuse to provide access to information in response to an access application, …
Section 101(1) of the GIPA Act provides, relevantly, that an application for administrative review of a decision specified in s 100 of that Act must be made within 40 working days after notice of the decision to which the review relates is given to the applicant. However, s 101(2) provides that if the decision is the subject of external review by the Information Commissioner, an application for administrative review by NCAT can be made up to 20 working days after the applicant is notified of the completion of the Information Commissioner's review.
The Information Commissioner's review of the agency's original decision was completed and provided to the applicant on 28 April 2023. The original application in this proceeding was filed on 25 May 2023, which was on the 19th day after the applicant was notified of the Information Commissioner's decision. The application has thus been made within the time permitted for the making of such an application.
The Tribunal's role in the conduct of an administrative review is prescribed in s 63 of the ADR Act: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) the applicable written or unwritten law (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
A "correct" decision is one that is rightly made, while preferable is apt to refer to a decision involving discretionary considerations: Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286 at [140] per Kiefel J.

[18]

Applicable law

The starting point for analysis of the legislative scheme to be applied in this administrative review is found in the object of the Act in s 3 which states: (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 release of government information by agencies, and (b) by 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.
This object is amplified with a statutory command, contained in section 3(2), which provides: (2) It is the intention of Parliament - (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest possible cost, access to government information.
Part 2 of the GIPA Act establishes general principles for open government information. Division 1 of that Part establishes the ways of accessing government information. This includes, in s 5, a presumption in favour of disclosure of government information: 5 Presumption in favour of disclosure of Government Information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 9 in Division 1 deals with access applications for government information. It provides, in s 9(1): 9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4(Access applications) unless there is an overriding public interest against disclosure of the information. …
Part 2, Division 2, of the GIPA Act concerns the public interest considerations that are associated with access to government information. Section 12 in that Division provides: 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note: The following are examples of public interest considerations in favour of disclosure of information - (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. … (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. …
Section 13 contains the "public interest test" for determining if there is an overriding public interest against disclosure. It provides: 13 Public interest test There is an "overriding public interest against disclosure" of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
Section 14 contains public interest considerations against disclosure. It provides: 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purposes of determining whether there is an overriding public interest against disclosure of government information.
The Table 14(2) considerations that are relevant in these proceedings are: … 3 Individual rights, judicial processes and natural justice: 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) reveal an individual's personal information, … 4 Business interests of agencies and other persons: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - … (d) prejudice any person's legitimate business, commercial, professional or financial interests, …
Section 15 sets out the principles that apply to the determination of the public interest. It provides: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
In Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 at [24]-[25], the Appeal Panel explained the approach to determining whether there is an overriding public interest against disclosure as a two-step process. The agency case for refusal must rely on one or more of the s 14 considerations. Insofar as the considerations in the Table to s 14 are engaged, the Tribunal's task is then to weigh that case against the factors favouring disclosure mindful of the injunctions that appear in both ss 12 and 15.
Part 4, Division 3 of the Act sets out the process according to which an agency is to deal with an access application. Section 54 sets out an agency's obligation to consult with relevant others in relation to an access application. It provides, relevantly: 54 Consultation on public interest considerations (1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that - (a) the information is of a kind that requires consultation under this section, and (b) the person may reasonably be expected to have concerns about the disclosure of the information, and (c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. (2) Information relating to a person is of a kind that requires consultation under this section if the information - (a) includes personal information about the person, or (b) concerns the person's business, commercial, professional or financial interests, or … … (4) The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection. (5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information. …
Section 55 in that Division provides that 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 personal factors related to the application into account. It provides: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses -2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) The applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. … (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
Part 4, Division 4 sets out how access applications are to be decided. Section 58 relevantly provides: 58. How applications are decided (1) An agency decides an access application for government information by: … … (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, …
Part 4, Division 6, sets out how access to information is to be provided. Section 74 in that Division deals with the deletion of information from a copy of record to be accessed. It provides: 74 Deletion of information from copy of record to be accessed An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.
Part 5, Division 4, of the Act deals with the review of decisions of concerning access applications by NCAT.
Section 104 in that Division concerns the right of appearance before NCAT in relation to such a review. In this respect it provides, relevantly: 104 Right of appearance before NCAT … (3) Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review.
Section 105(1) in that Division provides, relevantly, that in any administrative review conducted by the Tribunal under Part 5, Division 4 of the Act concerning a decision made by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by section 105. None of those exceptions are relevant in this case.

[19]

Consideration

To determine the outcome of this administrative review the Tribunal must pose and answer the following questions: 1. does the agency's case for refusal rely upon a public interest consideration against disclosure contained in the Table to s 14? 2. as the answer to this question is "yes" in this case what weight is to be accorded that consideration in respect of each item of information to which access has been refused? 3. what are the public interest considerations in favour of the disclosure of the information to which access has been refused, having regard to ss 12 and 15? What weight is to be given these considerations? 4. In the balancing exercise required by s 13, has the agency discharged its onus of establishing that there is an overriding public interest against the disclosure of the information to which access has been refused? 5. if the answer to (d) is "no" to any extent, should the agency's decision to refuse access to information sought by the access application be set aside? 6. if the answer to (e) is "yes" what other orders should be made in disposition of this administrative review?
As has been set out above, the agency's case for refusing the applicant access to the disputed information rests solely on the public interest consideration contained in s 4(d) of the Table to s 14 of the Act. That is, it is the agency's case that there is a public interest against the disclosure of this information because its disclosure could reasonably be expected to prejudice Donnelly's legitimate business, commercial, professional, or financial interests.
Whether information could reasonably be expected to cause this prejudice is a question of fact to be determined on the material before the Tribunal. However, the Table to s 14 considerations are to be understood as being of a systemic character. It is thus not necessary for the agency to prove in a positive sense that specific information will have the asserted effect, rather, the agency's onus is discharged if it is established that the information is of a particular character, and that character of information is likely to have the asserted effect: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWCATAP 259 at [26]; Transport for NSW v Searle [2018] NSWCATAP 93 at [61]. However, this is a granular not a global analysis. It requires consideration of each item of information where the public interest against disclosure is asserted: Destination NSW v Taylor [2019] NSWCATAP 123 at [69].
In Transport for NSW v Searle [2018] NSWCATAP 93 at [68] an Appeal Panel helpfully distilled the following principles to be applied in a case in which a Table to s 14 consideration is relied on by an agency: 1. the agency bears the onus of establishing the existence of the public interest consideration against disclosure in accordance with s 105 of the Act, 2. the words "could reasonably be expected" are to be given their ordinary meaning. They require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect, 3. in order to discharge the onus, the agency needs to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds, 4. It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way, 5. "prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from.
In Newcastle City Council v Newcastle East Residents Act Group [2018] NSWCATAP 259 at [59] another Appeal Panel provided guidance as to how evidence relied upon by an agency to establish that the disclosure of information "could reasonably be expected" to have the asserted effect is to be evaluated: 1. a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient, 2. there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect, 3. prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.
In the directions made at the conclusion of the Case Conference conducted on 3 July 2023, the Tribunal required (in direction 3b) the agency to file and serve: … a schedule of documents for which there is a claim of an overriding public interest against disclosure, identifying in tabular form each document in dispute by number and giving details of its date, nature, subject matter and author, and of the basis on which access was refused.
The agency only partially complied with that order. The documents in the agency's confidential bundle are not page numbered. Most documents are 'batched' with others related to a particular blasting event, rather than being individually identified. While most 'batches' of documents can be associated with an item on the schedule, not every document can be. Additionally, there are items on the schedule that I have been unable to associate with a document or batch of documents in the confidential bundle. There are also two documents in the confidential bundle which I cannot find a reference to in the schedule, and which appear to have been generated by Ron Southon Pty Ltd. I had understood the agency to say that access had been provided to all information related to that entity. In summary, the agency's schedule and confidential bundle is of limited assistance in the analysis required by this administrative review.
Doing the best that I can with the material identified in the agency's schedule and confidential bundle I have developed the categories of documents that appear in annexure A to these reasons. I will ascertain the public interest with respect to these categories.
Category 1 are "personnel checklists". This information comprises no more than a proforma onto which are handwritten by various Donnelly personnel their names and signatures. As I have stated above, the applicant does not press for the release of the names and signatures of Donnelly personnel. That being the case, that information is now irrelevant to the access request and may be redacted from this information in accordance with s 74 of the Act. This information constitutes a Donnelly business record, but there is no arguable basis upon which its' release with or without redaction could reasonably be expected to prejudice Donnelly's legitimate business, commercial, professional, or financial interests. This category of documents does not contain intellectual property, or any other information of a sensitive business, commercial, professional or financial character. I am thus not satisfied that consideration 4(d) to the Table to s 14 is engaged by this category of documents. To any extent that it is, I give the public interest against its disclosure no weight.
Category 2 are "neighbour contact lists". They record the names and addresses of property owners and/or occupiers in the vicinity of the quarry, and their telephone numbers, or the telephone numbers of their nominated contact persons. These documents also contain some short annotations of instructions given by neighbours in relation to contact, and the outcome of attempts at contact. This information is personal information, but other than in relation to the telephone numbers, this is not sensitive personal information.
The agency does not rely on consideration 3(a) of the Table to s 14 in its refusal to provide the applicant with access to this information. Nevertheless, that consideration is engaged by this information. I give significant weight to the public interest against disclosure of the telephone numbers of neighbours and their contact persons. I give minor weight to the public interest against the disclosure of the other personnel information of neighbours.
I cannot see how consideration 4(d) of the Table to s 14 is engaged by this information. It is not information concerning Donnelly's business, commercial, professional, or commercial interests except in the most peripheral way. To any extent that these interests are engaged I give this consideration no weight.
Category 3 are "blast management plan checklists". They are lists of required actions to be taken prior to, during and after blasting events by the quarry manager/supervisor and the 'shot firer' who is a Donnelly employee. The checklists contain a 'sign-off' column in which the initials of the quarry manager and shot firer are recorded as certifying each specified action has been completed. This is an agency form which contains some information supplied by Donnelly. To the extent that the checklists contain a name and signature of Donnelly personnel this information may be redacted in accordance with s 74 for the reason stated above. The information does concern Donnelly's business and professional interests, but I cannot see any arguable basis upon which the disclosure of this information could prejudice these interests. It is information of a 'generic' kind that every person who conducts blasting activities at the quarry must complete. I thus give the public interest consideration in 4(d) in the Table to s 14 no weight in relation to this information.
Category 4 are agency proforma checklists onto which is recorded some information concerning Donnelly' blasting activities. The 'key appointments' checklist records which Donnelly personnel are authorised to fire shorts, to design blasts, and to act as blast guards. The names of Donnelly personnel may be redacted in accordance with s 74 for the reason stated above. What is left is the name of the quarry manager, his signature, a date and the proforma itself. This information does not concern Donnelly's business, commercial, professional, or financial interests.
The 'shot pre-initiation' and 'shot pre-loading and firing' checklists are risk assessments which are required to be completed and signed off by the shot firer and SSE (Senior Site Executive/quarry Manager) prior to blasting. The shot firers are Donnelly personnel. Their names may be redacted in accordance with s 74 for the reason stated above. The checklists do contain some information particular to the blast to be carried out by Donnelly, being information related to the 'minimum front row burden', the weight of bulk explosives to be used and the powder factor. However, there is nothing in the material before me that could lead me to the conclusion that this bare information has any sensitivity attached to it, and that its' disclosure could cause prejudice to Donnelly. I thus give the public interest consideration in 4(d) in the Table to s 14 no weight in relation to this information.
Otherwise, the information on these risk assessments is in generic form. The shot firer and quarry manager simply certify that certain risk mitigation actions have been taken prior to a blasting event. This information does concern Donnelly's business and professional interests, but I cannot see any arguable basis upon which the disclosure of this information could prejudice these interests. It is information of a 'generic' kind that every person who conducts blasting activities at the quarry must complete. I thus give the public interest consideration in 4(d) in the Table to s 14 no weight in relation to this information.
Category 5 are 'no trigger reports' in relation to blasts conducted by Donnelly. Broadly speaking, these reports contain information concerning each blasts' compliance with environmental controls. They specify vibration and blast over pressure trigger levels, a monitoring location, detailed monitoring results, and whether there was any exceedance of the specified trigger levels. It may be accepted that these reports do contain sensitive business and commercial information. The release of this information, particularly if it did disclose any exceedance of an environment control, could cause Donnelly prejudice. However, the reporting of this information to the agency is for the public accountability purpose of ensuring that blasting activity adheres to environmental controls. Having regard to that character of this information I am only prepared to give consideration 4(d) to the Table to s 14 minor weight in respect of this information.
Category 6 are Instantel Event Reports which report vibration and air overpressure results for Donnelly blasting events recorded by a Minimate blast monitoring device. They are of the same character as the information in Category 5. For the reasons stated in relation to Category 5 I give consideration 4(d) to the Table to s 14 minor weight in respect of this information.
Category 7 are landscape and aerial photographs of the quarry taken in association with Donnelly blasting events. Most are agency 'master' photographs onto which are marked Donnelly blast sites and firing locations. The remainder depict rock rubble post blasting events. These photographs contain some information related to Donnelly's business and commercial interests, but on the material before me I cannot see that this information is of any sensitivity, or that its' disclosure could cause prejudice to Donnelly. I thus give the public interest consideration in clause 4(d) in the Table to s 14 no weight in relation to this information.
Category 8 is media footage of Donnelly blasts. On the material before me I am not able to ascertain if these video clips have been recorded by Donnelly or the quarry manager or some other person. However, all they reveal is an explosion at a particular site and the rock rubble generated by the blasts. While these videos contain some information related to Donnelly's business and commercial interests, on the material before me I cannot see that this information is of any sensitivity, or that its' disclosure could cause prejudice to Donnelly. I thus give the public interest consideration in clause 4(d) in the Table to s 14 no weight in relation to this information.
Category 9 are "Safety Work Method Statements". In broad terms, they identify in tabular form the presence or absence of specified risks, set out specified tasks and competencies to be satisfied by Donnelly staff in relation, and identify control measures to manage risk. The Statements appear to be templates purchased from a third party provider, and possibly adapted by Donnelly to suit its particular activities. Some pages in these documents contain the names and signatures of Donnelly personnel which may be redacted in accordance with s 74 of the Act for the reasons stated above. Otherwise, while I accept that these documents are Donnelly business records, on the material before me, I cannot see that they have commercial sensitivity, or that their disclosure would prejudice Donnelly. Unlike some categories of information set out above, I am prepared to consider that they do involve some Donnelly specific design elements, which might be characterised as Donnelly's intellectual property. In recognition of that I give the clause 4(d) consideration public interest against disclosure some weight in relation to this category of information.
Category 10 are "Orica delivery dockets" for explosive purchased by Donnelly to undertake its blasting activities. Those included in the agency's confidential bundle have, in most cases, faded such that no information is ascertainable from them. Where that is not the case, the information on the docket is simply the purchaser (Donnelly), date of purchase, shot type, weight of explosives, time required, and the delivery location (which is the quarry). It may be accepted that these delivery dockets contain Donnelly's business and commercial information, but on the material before me I cannot see that this has any sensitivity. The most that it is capable of revealing is how much explosive was purchased by Donnelly and delivered to the quarry on a particular date. Having regard to what Donnelly says in its letters of objection, I note that the delivery dockets do not reveal any Donnelly secret explosive storage location. I therefore give the clause 4(d) consideration public interest against disclosure no weight in relation to this category of information.
Category 11 are "Blakebrook Quarry - Blast Report Checklist - coversheets". These are proformas which record a particular blast by number, location, time, date, and contractor (Donnelly). The items to be attached to the coversheet are then set out in tabular form. In the "attached" column the presence or absence of each item is indicated by a "Y" or "N" or "N/A" (yes, no, not applicable). The third column indicates whose responsibility it is to supply each item of information, whether the contractor (Donnelly) or the quarry, or both. The Checklist is signed by the Quarry Manager. This category of information refers to, but does not itself contain, Donnelly business and commercial information. I do not consider the mere reference to whether particular items of information at attached or not attached to the coversheet of any sensitivity, or that there is any likelihood that the disclosure of this information would cause prejudice to Donnelly. I therefore give the clause 4(d) consideration public interest against disclosure no weight in relation to this category of information.
Category 12 are "Calibration Certificates" for blast monitoring equipment used by Donnelly. All they certify is that equipment's functionality; that is its capacity to provide accurate readings of vibration and air blast pressure. While this information relates to Donnelly's business and commercial interests, on the material before me I cannot see that any sensitivity attaches to this information, or that its disclosure could cause Donnelly prejudice. I therefore give the clause 4(d) consideration public interest against disclosure no weight in relation to this category of information.
Category 13 is a "Blast Compliance Declaration" signed and submitted to the agency by Ron Southon Pty Ltd in relation to a blast it conducted at the quarry on 23 December 2022. On the material before me I am unable to ascertain why access to this information has not been provided, other than that it appears in a confidential bundle in relation to the whole of which the clause 4(d) public interest consideration against disclosure is asserted. I had understood the agency's position to be that it had provided the applicant with access to all records related to Ron Southon Pty Ltd's blasting activity at the quarry because that contractor did not object to it doing so. In any event, there is no material before me that would explain why the disclosure of this certificate would prejudice Ron Southon Pty Ltd's business, commercial, professional, or financial interests, let alone Donnelly's. It simply certifies that the blast conducted on that date complied with environmental regulations, the quarry Safety Management System, and that monitoring results have been reported to the agency within the required time. I therefore give the clause 4(d) consideration public interest against disclosure no weight in relation to this category of information.
Category 14 is a "Blast Report" submitted to the agency by Ron Southon Pty Ltd in relation to the blast it conducted at the quarry on 23 December 2022. For the reasons stated above I am unable to ascertain why this document is in the confidential bundle, other than that the clause 4(d) consideration public interest against disclosure is asserted in relation to the whole of that bundle. The document includes information such as number of holes, their spacing, depth, diameter, and information related to the characteristics of explosive charges. I am prepared to allow that such information could be of commercial sensitivity because it reflects Ron Southon Pty Ltd's blast design which may be unique to it. It thus may constitute intellectual property the disclosure of which may be prejudicial to Ron Southon Pty Ltd's commercial and financial interests. However, in the absence of any satisfactory explanation as to how precisely that is the case, I am not prepared to make those findings. I give the possibility that this is the case some weight as a potential clause 4(d) public interest against disclosure of this information.
Categories 15 and 16 are documents that contain information about the design of blasts carried out by Donnelly. In broad overview they contain information about shot locations and size, blast parameters, blast design maps, drill plan maps, tie in plans, and bore track reports. I am prepared to allow that such information could be of commercial sensitivity because it reflects Donnelly Pty blast design which may be unique to it. It thus may constitute intellectual property the disclosure of which may be prejudicial to Donnelly's commercial and financial interests. However, in the absence of any satisfactory explanation as to how precisely that is the case, I am not prepared to make those findings. I give the possibility that this is the case some weight as a potential clause 4(d) public interest against disclosure of this information.
I turn now to the public interest in favour of the disclosure of the disputed information. Section 12 provides that there is a general public interest in favour of the disclosure of government information. I give this consideration significant weight in accordance with the policy of the Act. The genesis of the access application is the applicant's concern that the agency unreasonably suspended his company's contract to blast at the quarry, and attributed damage incurred by a third party property owner to a blast conducted by his company. These are personal factors of the application to which I give moderate weight for the reasons discussed following. However, they also enliven the general public interest considerations in favour of the disclosure of government information found in s 12(2)(a) and (e). That is, disclosure of the information could reasonably be expected to enhance the agency's public accountability or reveal the agency has engaged in misconduct or improper conduct. I give these considerations significant weight.
There are personal factors of the application which weigh both in favour of and against the disclosure of the disputed information. The information relates to a business and commercial competitor of the applicant's company, and this information may contain the intellectual property of that competitor. This consideration, if established in relation to particular information, would weigh against its disclosure because it may have the potential to unfairly advantage the applicant in the market in which it and its commercial competitor operates by exposing aspects of the competitor's business model. If such a conclusion could be drawn, this consideration should be given significant weight. However, as I have stated, the material before me is not sufficient to support such a conclusion being drawn.
The genesis of the access application was the applicant's desire to commission from Blast it Global an independent desk top analysis of vibration and air blast results from blasting at the quarry. That analysis was sought in a context where the applicant's company's blasting contract with the agency had been suspended due to an exceedance of an environmental control, and where the agency had asserted the applicant's company was liable for damage to the property of a third party because of this exceedance, or otherwise. I am satisfied that these are personal factors of the application that weigh in favour of the disclosure of the disputed information. The agency submits, partly in reliance upon what the applicant says about the utility of equivalent documents to which access has been provided, that there is no or very limited rational connection between the personal factors asserted and the disputed information. That may be accepted to some extent. The information in Categories 1 to 4, for example, are likely to be of no utility to the applicant in relation to the personal factors of the application. On the other hand, Categories 5, 6, 11, 15 and 16 appear to me to be directly relevant to those personal factors. In any event, it does not fall to the applicant to prove that the specific information that falls within the scope of his access request is directly relevant to a personal factor. He obviously cannot know this because he does not have access to that information. Rather, for a personal factor of the application to arise, it is only necessary for the applicant to establish some plausible basis upon which the information sought relates to the asserted personal factor. I am satisfied on the material before me that this is the case here.
Section 13 of the Act requires me to find the balance between the public interest in the disclosure of the information that falls within the scope of the applicant's access application, and any public interest against the disclosure of that information. This balancing exercise is a "question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at [74].
For the reasons stated above I am not satisfied on the material before me that the agency has established by reference to clause 4(d) of the Table to s 14 that there is any public interest against the disclosure of the information in Categories 1 to 13, or to the extent that such a consideration is made out, that it ought to be given other than minor weight.
Nor am I satisfied that there is a personal factor of the application that weighs against the disclosure of this information. In this respect, while the information in these categories is a business record of a competitor, it is not information that is capable of providing the applicant with any advantage in the marketplace within which it and its competitor operates.
It follows from this that the general public interest in the disclosure of this information must outweigh any public interest in its non-disclosure.
The agency does not rely on any public interest consideration against disclosure other than clause 4(d) in the Table to s 14. However, in this administrative review I am satisfied that the clause 3(a) consideration arises in relation to the personal information of neighbours of the quarry and their contact persons in the Category 2 information. While most of the personal information in Category 2 is not of a sensitive nature, I am satisfied that the personal telephone numbers of neighbours and their contact persons is sufficiently sensitive to weigh significantly against the disclosure of that information to the applicant. There is no personal factor of the application that would weigh in favour of the disclosure of that information to the applicant. Weighing the competing considerations in the balance I am satisfied that the public interest against the disclosure of this information outweighs the public interest in its disclosure. The agency must therefore redact this information from the Category 2 information to which access is to be provided.
For the reasons set out above, I am satisfied that the information in Categories 14, 15 and 16 potentially engage the clause 4(d) public interest against disclosure. However, on the material before me I cannot be satisfied that this consideration is made out as a matter of fact, and if it is, I am unable to determine on the material before me what weight that consideration should be given.
The agency's decision that the clause 4(d) consideration applies in relation to the information in Categories 14 to 16 is a bare assertion based solely upon Donnelly's third party objection to the disclosure of this information. There is nothing in the material before me that would indicate that the agency has engaged in any degree of critical analysis of Donnelly's objection by reference to the information that falls within the scope of the access application.
The agency's role was to determine if it was in the public interest that access be provided to the information that fell within the scope of the applicant's access application. That was a summative task. It required the identification of the public interest considerations in favour of, and against, disclosure of the information, and consideration of any third party objection to disclosure and any personal factors of the application. In performing such a task, the agency is not an advocate for, or the mere mouthpiece of, a third party objector. It is not to accept, uncritically, what is said by a third-party objector about the nature of information. It must make an independent decision as to the character of the disputed information on rational, clearly articulated, grounds which are founded upon the policy of the Act. The public interest and the private interests of a third party objector to the disclosure of information are capable of coinciding, but they are not to be conflated. The public interest will oftentimes trump the private interest of a third-party objector and require that access be provided to information the objector would prefer not to be disclosed
In this case the agency has refused the applicant access to information that has some relationship to Donnelly's business affairs based on its objection in circumstances where there is no issue that it has provided access to exactly equivalent information that has some relationship to Ron Southon Pty Ltd's business affairs because it expressed no objection to the disclosure of this information. How the clause 4(d) consideration could be engaged with respect to the information concerning Donnelly, but not the information concerning Ron Southon Pty Ltd is unexplained. It is suggestive that the agency has merely acted as a mouthpiece for Donnelly in refusing access to information involving it, without engaging in the process of independent analysis required of it by the policy of the Act.
For the foregoing reasons, the reviewable decision must be set aside.
With respect to Categories 1 to 13 the correct and preferrable decision is that access be provided to this information subject to the redaction of the names and signatures of Donnelly personnel in accordance with s 74 and the redaction of the personnel telephone numbers of neighbours and their contact persons in Category 2 because of the clause 3(a) public interest against the disclosure of this personal information. I will direct that the agency provides the applicant with access to this information by 1 March 2024.
With respect to Categories 14 to 16 the access application is remitted to the agency for reconsideration in accordance with these reasons. The agency is to notify the applicant and the Registrar of its new decision, and the reasons for that decision, by 8 March 2024. The applicant is to notify the agency and the Registrar if he wishes to further pursue this administrative review application with respect to the new decision or if the application is withdrawn by 15 March 2023. If the applicant wishes to pursue this application he must also apply to the Deputy Divisional Registrar by 15 March 2024 to have the application listed for directions.

[21]

Annexure A: Summary of review outcome by category of document Cat No Category Description Decision

 Blast "Personnel Checklists"                                                                                                                                                                                                                                             Access to be provided after names and signatures of Donnelly personnel are redacted pursuant to s 74 on the basis that these are no longer relevant to the information applied for.

 Blakebrook Quarry Neighbour Contact Lists                                                                                                                                                                                                                                Access to be provided after column 2 and 3 personal phone numbers of neighbours and their contacts are redacted

 Blast Management Plan - NRQA Site - Attachments and B                                                                                                                                                                                                                    Access to be provided after names and signatures of Donnelly personal are redacted pursuant to s 74 on the basis that these are no longer relevant to the information applied for.

 Blakebook Quarry "Key Appointments, Drill and Blast Activities for NRQA"; "Shot Pre-Initiation Check Sheet"; "Shot Pre-loading and Firing Checklist"                                                                                                                     Access to be provided after names of Donnelly personnel are redacted pursuant to s 74 on the basis that these are no longer relevant to the information applied for.

 Blakebrook No Trigger Reports                                                                                                                                                                                                                                            Access to be provided

 Instantel Event Reports                                                                                                                                                                                                                                                  Access to be provided after names and signatures are redacted pursuant to s 74 on the basis that these are no longer relevant to the information applied for.

 Landscape and aerial photographs of quarry                                                                                                                                                                                                                               Access to be provided after names and signatures are redacted pursuant to s 74 on the basis that these are no longer relevant to the information applied for.

 Media video footage of blasts                                                                                                                                                                                                                                            Access to be provided

 Safety Work Method Statements                                                                                                                                                                                                                                            Access to be provided after names and signatures are redacted pursuant to s 74 on the basis that these are no longer relevant to the information applied for.

Orica explosives delivery dockets                                                                                                                                                                                                                                        Access to be provided

Blakebrook Quarry - Blast Report Checklist - Coversheet                                                                                                                                                                                                                  Access to be provided

Calibration Certificate for Minimate Blaster; Minimate Plus Base Unit; Micromate Systems ISEE Geophone; Micromate System DIN Geophone; Blastmate III                                                                                                                     Access to be provided

Northern Rivers Quarry Blast Compliance Declaration - Ron Southon Pty Ltd - 23 December 2022                                                                                                                                                                             Access to be provided

Ron Southon Pty Ltd Blast Report - 23 December 2022                                                                                                                                                                                                                      Remitted for reconsideration in accordance with reasons

Blakebrook Quarry Blast Control Plans                                                                                                                                                                                                                                    Remitted for reconsideration in accordance with reasons

16 Donnelly Blasting blast design documents: drill plans; load plans; design and evaluation records; drill summaries; monitor logs; monitoring results; surveys; weight envelope charts; clearance distance designs; monitor site locations; explosive transport cartnotes Remitted for reconsideration in accordance with reasons

Grande v Lismore City Council

At a glance

Court

Decision date

Source

Judgment (22 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (6)

Cited By (2)