Johnson v Wollondilly Shire Council

NCAT Administrative and Equal Opportunity|2021-08-10

Introduction

Ms Susan Johnson ("the Applicant") has applied to the Tribunal for review of a determination by Wollondilly Shire Council ("the Respondent" or the "Council") under the Government Information (Public Access) Act 2009 (NSW)("the GIPA Act"). The matter concerns an access application ("the access application") lodged by the Applicant for access to information held by the Council.

The Access request

The application concerns the Walker Corporation Wilton South East development ("the Development"). The Applicant's motivation for the access application was to obtain a better understanding of the actions being taken by the Respondent with respect to ecologically sustainable development, and to confirm that social justice and procedural fairness and water justice principles are supported.
The scope of the access application as agreed between the Applicant and Council sought: 1. Agenda and outcomes of council meeting with Minister Rob Stokes on 24 Oct 2019. Include personal diary notes (non-digital). The purpose of and outcomes regarding Ben Taylor, Toni Averay and any other officer representations to the Minister Planning, Rob Stokes, since Mr Taylor's appointment to Council. We are aware Mr Taylor attempted to make representation on 31 October 2019 when his call interrupted budget estimates at Parliament, and subsequently recorded as follows in the transcript: "Mr Rob Stokes: I did not take the call. I rejected it. I told Ben Taylor that he could call me back later..." The request pertaining to representation to Minister Stokes, is for searches of both Digital and non-digital records; diary notes; note books and SMS/voice mail messages. 2. Sydney Water - Wilton Planning a) All strategic planning correspondence, minutes, and personal diary notes of meetings held with Sydney Water since April 2018; in respect to the Walker Corporation Wilton South East development. b) Scope of the search to include meetings and correspondence on the strategic planning of the Sydney Water infrastructure provision for water supply, water treatment and recycled water, water availability and any other related matter; for example, the proposed Prospect to Macarthur water pipeline to service Wilton and Greater Macarthur: • Meeting notes, digital and non-digital • Electronic records and emails between Sydney Water and Council • The search to include all records from April 2018 3. Water Symposium a) Letters/emails inviting Department of Planning Industry and Environment, the local State and Federal members, the IPART, Sydney Water and Water NSW to a Community Forum to explain the water supply and pricing to Wilton new town and the Greater Macarthur (as per Resolution 219/2019) b) Letters/ email responses from invitees.

The Determination

The Respondent initially identified 8400 documents as falling within the scope of the access application. A further 20 documents were subsequently identified as falling within the scope. The Respondent decided to grant access to some of the information and to refuse to provide access to other information on the basis of overriding public interest considerations against disclosure.
The Respondent contends that there is a confidentiality agreement between it and Sydney Water Corporation ("Sydney Water") which governs the disclosure of confidential information exchanged between those parties. Sydney Water has provided submissions in relation to its arrangements with the Respondent and other organisations and the confidential nature of the withheld information.
The Respondent decided that release of the withheld information could reasonably be expected to: 1. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency: clause 1(e) of the table to section 14 of the GIPA Act; 2. endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle: clause 2(e) of the table to section 14 of the GIPA Act; 3. reveal an individual's personal information: clause 3(a) of the table to section 14 of the GIPA Act; 4. reveal commercial-in-confidence provisions of a government contract: clause 4(b) of the table to section 14 of the GIPA Act; 5. diminish the competitive commercial value of any information to any person: clause 4(c) of the table to section 14 of the GIPA Act; 6. prejudice business interests: clause 4(d) of the table to section 14 of the GIPA Act; and 7. prejudice the conservation of any place or object of natural, cultural or heritage value: clause 5(b) of the table to section 14 of the GIPA Act.
The Applicant has applied to the Tribunal for external review of the decision. She has raised a number of concerns in regard to the decision. She submitted: The Agency decision redacts or withholds information that appears to be useful to: a. Gaining certainty in the actions taken to reverse the current water security concerns (i.e. available potable water from the Upper Nepean catchment) b. Understanding where Wilton wastewater plants are to be sited, and where and how discharge is to be treated. c. Understanding the risks, efficiencies and effectiveness of public goods and services associated with the Wilton development. d. Ensuring development assessments have considered the impacts of ecological sustainable development, including principles of intergenerational equity, natural resource conservation and polluter pays. e. Providing increased opportunity for community participation in environmental planning and assessment pertaining to the list requests. f. Understanding whether Council is acting sufficiently to address environmental planning concerns. g. Providing procedural fairness - as community were not given the opportunity to comment on certain information regarding Wilton planning matters before they were used in development decision-making. ... h. Understanding why Sydney Water and Council are not supporting growth expansion of current serviced areas of Picton, Tahmoor, Bargo, Thirlmere, but are willing to support the rapid expansion of Wilton which has no existing infrastructure and no publicly available information on proposed land use requirements and control measures. It is allowed to rely on temporary systems. i. Addressing the concern that the information that transferred between Ms Averay and Sydney Water following the deferral of the Wilton South-East Development Application, and which was subsequently presented to the Regional Planning Panel for decision-making, - whether this action represented a fair and democratic assessment of development risks that would ordinarily be accomplished through the process of preparing an Assessment Report for the DA, pursuant to S4.15 EP&A Act.
She is concerned about the long term planning of water for the area and the impact of development on the environment.
In relation to a meeting between the Respondent's CEO and the Minister for Planning, she is concerned that there is no record following the meeting.
She argued that the onus is on the Respondent to confirm that all information that falls within the scope of the access application has been located. She contends that the issues that she has raised are public interest considerations in favour of release of the withheld information.

Applicable legislation

The object stated under section 3(1) of the GIPA Act is to open government information to the public by authorising and encouraging proactive public release of government information (section 3(1)(a)); and giving members of the public an enforceable right to access government information (section 3(1)(b)). It is the intention of Parliament that the GIPA Act be interpreted and applied so as to further its object: section 3(2)(a).
The term "government information" is defined in section 4 of the GIPA Act as information contained in a record held by an agency. The term "record" is defined in clause 10 of Schedule 4 as: 10 Meaning of "record" (1) In this Act - record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means. (2) A reference in this Act to a record includes a reference to a copy of the record. (3) For the purposes of the definition of record in this Act, the knowledge of a person is not a record.
The term " agency " is defined as: agency means any of the following - (a) a Public Service agency, (b) a Minister (including a person employed by a Minister under Part 2 of the Members of Parliament Staff Act 2013), (c) a public authority, (d) a public office, (e) a local authority, (f) a court, (g) a person or entity that is an agency pursuant to regulations under clause 5 of Schedule 4.
Public authority means (a) a statutory body representing the Crown, or (b) a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument, or (c) the NSW Police Force, or (d) the Teaching Service, or (e) a State owned corporation, or (f) a wholly-owned subsidiary of the Crown in right of the State or of a public authority, or (g) a body declared to be a public authority by a regulation under this clause.
In Brazel v Sydney Water Corporation [2021] NSWCATAP 13 the Appeal Panel confirmed at paragraph [80]: Sydney Water is a corporation and a statutory State Owned Corporation (statutory SOC) within the State Owned Corporations Act 1989 (NSW) (see Sydney Water Act 1994 (NSW), s 4 and State Owned Corporations Act, s 20A, Sch 5).
It follows Sydney Water is an agency for the purposes of the GIPA Act.
Clause 12 of Schedule 4 of the GIPA Act provides: 12 Government information held by agency (1) A reference in this Act to government information held by an agency is a reference to - (a) information contained in a record held by the agency, or (b) information contained in a record held by a private sector entity to which the agency has an immediate right of access, or (c) information contained in a record in the possession or custody of the State Records Authority (or that the Authority has in the custody or possession of some other person) to which the agency has an immediate right of access, other than a record that is withheld from public access under section 59 of the State Records Act 1998, or (d) information contained in a record that is in the possession, or under the control, of a person in his or her capacity as an officer or member of staff of the agency (including, in the case of a Minister, the personal staff of the Minister). (2) Information that would be regarded as government information held by an agency because the agency has access to a record that contains the information is not to be regarded as government information held by the agency if the public generally has access to the record (for example, because the record is available on the Internet). (3) Information contained in a record that genuinely forms part of the library material held by an agency is not government information held by the agency. (4) Information contained in a record held by the agency that is information that was unsolicited and is not relevant to the agency's business or functions is not government information held by the agency.
Section 5 of the GIPA Act provides that there is a presumption in favour of disclosure of government information. Section 9 of the GIPA Act provides that applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure.
Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information that is not covered by overriding secrecy laws. The category of public interest considerations in favour of disclosure is not limited. Subsection 12(2) sets out several examples of public interest considerations in favour of disclosure.
Section 13 of the GIPA Act provides that 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. The balancing exercise set out in section 13 "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 paragraph [74].
Section 14(1) of the GIPA Act provides that 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 to the GIPA Act. The public interest considerations listed in the Table to section 14 of the GIPA Act 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. If it is conclusively presumed that there is an overriding public interest against disclosure because of the operation of Schedule 1 to the GIPA Act, no balancing process is undertaken to determine whether there is an overriding public interest against disclosure of the information.
Access is restricted only when there is an overriding public interest against disclosure: see Taylor v Destination NSW [2020] NSWCATAD 137 at paragraph [6].
The Respondent relies on several public interest considerations listed in the Table to section 14 of the GIPA Act. Insofar as it is relevant to the decision under review the table 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)- … (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency … 2 Law enforcement and security There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally- … (e) endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle … 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- … b) reveal commercial-in-confidence provisions of a government contract,( c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests … 5 Environment, culture, economy and general matters 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- … (b) prejudice the conservation of any place or object of natural, cultural or heritage value, or reveal any information relating to Aboriginal or Torres Strait Islander traditional knowledge …
The Respondent's decision relied on a number of public interest considerations that are no longer relevant because of the release of additional information or the fact that the Applicant has not pressed for release of some other information.
The public interest considerations against disclosure need to be examined at a broad operational level and many of those considerations are concerned with systemic features of the operation of government: Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5.
The words 'could reasonably be expected to' require the Tribunal to determine whether the effect that is alleged to occur with disclosure of the information could reasonably be expected.
The term 'prejudice' has its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60].
Clause 1 of Schedule 4 of the GIPA Act defines "government contract" between a public sector agency and a private sector entity with respect to government information that may include "a contract under which a party agrees to undertake a specific project (such as construction infrastructure or property development project)". The GIPA Act further defines "commercial-in-confidence provisions" of a contract to mean any provisions of the contract that disclose certain information about the contractor, including, "any matter the disclosure of which would place the contractor at a substantial commercial disadvantage in relation to other contractors or potential contractors, whether at present or in the future": clause 1 of Schedule 4; section 121 (2)(a)-(c).
section 104(1) of the GIPA Act provides: 104 Right of appearance before NCAT (1) The Information Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division. ... (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.
The Information Commissioner ("the IPC") appeared and made submissions, pursuant to section 104(1) of the GIPA Act. Sydney Water appeared and made submissions, pursuant to section 104(3) of the GIPA Act.
Section 105 of the GIPA Act provides that the Respondent bears the onus of satisfying the Tribunal that its decision is justified.

Public Interest Considerations in favour of disclosure

The Note to subsection 12(2) of the GIPA Act provides the following: The following are examples of public interest considerations in favour of disclosure of information - (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. ...
I accept that these considerations are relevant in this matter.

The public interest considerations against disclosure

The Respondent provided a schedule ("the documents Schedule") which identifies the relevant documents and the basis on which information has been withheld. I will adopt the numbering system that has been set out in the documents Schedule.
As a result of further discussions between the parties the Respondent agreed to release further information, Sydney Water indicated that it no longer presses for redaction of some of the identified information and the Applicant indicated that she no longer sought some other information. The Applicant has indicated that she does not seek access to document 31 or the personal information redacted in documents 83 and 85. Further, she does not seek review of the costs imposed by the Respondent.
With limited exceptions, all documents identified as falling within the scope of the access application have been released in full. As noted, some information has been withheld. Three documents have been withheld in full - documents 1, 16 and 54. Documents from which some information has been redacted are documents numbered 1, 6, 7, 8, 11, 16, 23, 24, 25, 26, 29, 30, 31, 32, 52, 54, 55, 56 83, 85, 1A, 2A, 3A, 4A, 5A, 6A, 8A, 9A, 11A, 20A.
The Respondent contends that the public interest considerations against disclosure in clauses 1(f), 1(g), 3(a), 4(b), 4(c) and 4(d) of the Table to section 14 apply to the withheld information.
Clause 1(d) of the Table to section 14 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)- … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, …
Clause 1(f) of the Table to section 14 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)- … (f) prejudice the effective exercise by an agency of the agency's functions …
Clause 1(g) of the Table to section 14 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)- … g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence …
Clause 4 of the Table to section 14 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- … b) reveal commercial-in-confidence provisions of a government contract c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests …

Sydney Water's position

Sydney Water accepts that there is a public interest in disclosing information that promotes open discussion of public affairs and informs the public about the operations of agencies. It agrees that there is no overriding public interest against disclosing the documents that the Respondent has released. However, Sydney Water objects to the release of information that was created in the context of Sydney Water providing a commercial consultation service to Walker Corporation Pty Ltd and Bradcorp Holdings Pty Ltd ("the Developers").
Sydney Water says that the commercial consultation service involved the development of options for a water servicing strategy that met the Developers' aspirations for the development at Wilton. It is consistent with Sydney Water's short and long-term servicing strategy and requirements for the region. Sydney Water's involvement in developing various water servicing strategies and options for the Developers was separate to any development approval process.
Further, Sydney Water says that the Respondent's possession of, and involvement in the creation of parts of, the withheld information was not related to any obligation of Sydney Water or the Respondent in any development application. It was a result of Sydney Water assisting the Developers by consulting with the Respondent, as a significant stakeholder, to develop water servicing options for the Developers prior to any such application.
Sydney Water submits that that release of the withheld information could be reasonably expected have one or more of the identified effects in clauses 1(f), 1(g), 4(c) and 4(d) of the table to section 14 of the GIPA Act and that there is an overriding public interest against disclosure of the Information once those factors are considered in the balancing exercise.

Kate Miles evidence

Sydney Water filed a statement dated 11 June 2021 by its Head of Systems and Asset Planning, Ms Kate Miles. Ms Miles also attended the hearing and was cross-examined. Ms Miles' statement includes five confidential annexures ("the confidential annexures"). The Applicant has not been given the confidential annexures.
Confidential Annexure KM-1 is a confidential service agreement between Sydney Water and the Developers in relation to a proposed residential housing development in Wilton. Sydney Water contends that this agreement does not fall within the scope of the Access Application and that the terms of the service agreement are confidential. In the circumstances the service agreement should not be disclosed to the Applicant, to the Respondent or to the IPC.
Confidential Annexure KM-2 is a confidentiality agreement between Sydney Water and the Respondent, which governs the disclosure of confidential information between the parties for the purpose of management of water, waste water, recycled water and storm water systems within Sydney Water's area of operations, including Wilton. Sydney Water contends that this confidentiality agreement does not fall within the scope of the access application. In the circumstances the confidentiality agreement should not be disclosed to the Applicant or to the IPC.
Confidential Annexure KM-3 comprises of a table prepared by Sydney Water, which includes Sydney Water's comments on each of the Respondent's redactions. Confidential Annexure ICM-3 includes extracts of the redacted information on the basis that the Applicant will not be granted access to that information.
Confidential Annexure KM-4 is a copy of the document 31. As noted above, the Applicant does not seek access to that document.
Confidential Annexure KM-5 is a copy of the document 32. Confidential Annexure KM-5 includes information which has not been disclosed to the Applicant. It includes extracts of the redacted information on the basis that the Applicant will not be granted access to that information.
Sydney Water sought non-disclosure orders pursuant to section 107 of the GIPA Act and, if necessary, section 64(1) of the Civil and Administrative Tribunal Act 2013, in respect of Confidential Annexures KM-1, KM-2, KM-3, KM-4 and KM-5. I have agreed to that request.
Ms Miles' evidence is that on or about 4 April 2018, Sydney Water entered into a design services agreement with the Developers in relation to a proposed residential housing development in Wilton. A copy of the Services Agreement has been provided to the Tribunal on a confidential basis in Annexure KM-1.
The services agreement contains confidentiality provisions in relation to information provided in connection with it.
Ms Miles also stated that: In order to perform the Services, Sydney Water engaged ENSure, a joint venture between Jacobs Engineering Group and GHD (ENSure), to define the preferred "2046 adaptive pathway and interim integrated servicing plan for water, wastewater, stormwater and recycled water on the Development". ENSure provided to Sydney Water a series of reports and presentation slides to present at workshops with stakeholders and as pre-reading documents (collectively, the Reports). The Reports contain information including (among other things): a) sensitive and confidential financial information of the Developers; b) confidential information regarding details of the Development, which is not publicly available; c) commercial projections which are confidential to the Developers; and d) confidential information regarding details of proposed licensing arrangements with the Environmental Planning Authority (EPA). In the course of providing the Services, Sydney Water also consulted other stakeholders, including Wollondilly Shire Council. On 13 August 2018, Sydney Water and Wollondilly Shire Council entered into a mutual confidentiality agreement (Confidentiality Agreement) which governed the disclosure of confidential information exchanged between them for the purpose of management of water, waste water, recycled water and storm water systems within Sydney Water's area of operations, including Wilton which is located in the Wollondilly Shire. A copy of the Confidentiality Agreement is at Confidential Annexure KM-2.
In relation to the withheld information Ms Miles stated: Sydney Water agrees that there is an overriding public interest against disclosing some of the documents that Wollondilly Shire Council has decided to withhold in entirety to date, and says further in relation to those documents (using tab references set out in the Schedule of Documents): a) Tab 1; The document was commissioned by Sydney Water, and prepared by a third party consultancy body, for the purposes of and in the course of Sydney Water providing the Services to the Developers. This document contains confidential and sensitive information, which if released to the world at large, would prejudice both Sydney Water and the Developer's financial and business interests. b) Tab 2: Sydney Water is agreeable to release this document. c) Tab 16: This map was created by Sydney Water for the purposes of and in the course of providing Services to the Developers. The document was provided to Wollondilly Shire Council and the Developers in confidence. d) Tab 19: Sydney Water is agreeable to release this document. e) Tab 31: Sydney Water is agreeable to partially release this document with redactions. Sydney Water's proposed redactions to this document are set out in yellow highlighting in Confidential Annexure KM-4. f) Tab 32: Sydney Water is agreeable to partially release this document with redactions. Sydney Water's proposed redactions to this document are set out in yellow highlighting in Confidential Annexure KM-5. The redacted information refers to confidential and sensitive information, which if released to the world at large, would prejudice Sydney Water's and the Developers' financial and business interests. g) Tab 43; Sydney Water is agreeable to release this document. h) Tab 54: This map was created by Sydney Water for the purposes of and in the course of providing Services to the Developers. The document was provided to Wollondilly Shire Council and the Developers in confidence.
With respect to the consequences that could reasonably be expected as a result of disclosure of this information Ms Miles stated that, in her view, the disclosure would be reasonably expected to result in: 1. disclosure to the world at large of information provided to Sydney Water in confidence; 2. disclosure of Sydney Water's business information, which is provided to third party providers (such as ENSure) and the Developers in confidence. Disclosing information of this nature would negatively impact Sydney Water's commercial and financial interests; 3. diminishment of the competitive commercial value of information provided by the Developers to Sydney Water in confidence due to its disclosure to the world at large, including to the Developer's competitors; 4. diminishment of the competitive commercial value of information and services commissioned by Sydney Water for the Developers (and created by third parties such as ENSure) due to its publication to the world at large, including to the Developers' competitors; 5. third party developers being less willing to engage Sydney Water for its consultancy services as opposed to other providers of the services out of concern that information given to Sydney Water in confidence may be published to the world at large. This would negatively impact Sydney Water's commercial and financial interests; and 6. third parties who participate in tendering processes to engage in work for Sydney Water may be informed of prices that Sydney Water is prepared to pay for such work. These prices are confidential, and if released to the third parties, it would prejudice Sydney Water's commercial and financial interests.
Under cross-examination Ms Miles was asked about various aspects of Sydney Water's operations and involvement in relation to development projects. She confirmed that Sydney Water has competition in the marketplace and that its involvement with respect to a development project is prior to approval. Her evidence in regard to the withheld information was not varied in any material sense.

The Respondent's case

As noted, the Respondent has the onus of justifying its decision. It relies on the evidence of its Senior Corporate Governance & Risk Officer, Ms Toni Spence as well as the evidence provided by Sydney Water. The Respondent notes that Ms Miles has confirmed the existence of a confidentiality agreement between it and Sydney Water. The agreement governs the disclosure of confidential information exchanged between the Council from Sydney Water in relation to or for the purpose of the management of water, waste water, recycled water and storm water systems.
The Respondent contends that:

Ms Miles' evidence sets out Sydney Water's involvement in the development at Wilton, the relationship between Sydney Water and the Developers and the provision of information in confidence to Sydney Water from Developers;
Sydney Water engaged ENSure who provided a series of reports and presentations that were presented at workshops with stakeholders and as pre-reading documents;
The documents contain:
sensitive and confidential financial information of the Developer,
confidential information regarding the Development,
commercial projections that are confidential information of the Developers provided to Sydney Water on a confidential basis;
confidential information regarding the details of proposed licensing arrangements with the EPA.
Sydney Water consulted with the Respondent as part of its services and part of the consultation involved the sharing of confidential information;
prior to the exchange of information captured by this application, the Respondent and Sydney Water entered into an agreement which identifies what information will be confidential and governs how confidential information between the parties would be treated;
the deed of confidentiality between Sydney Water and the Respondent identifies certain information that is confidential and imposes obligations on each of the parties with respect to the retention of the confidentiality of the information; and
that information is not available to the public.

The Respondent contends that the release of the information that Sydney Water provided to it may reasonably be expected to found an action against it and possibly against Sydney Water for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.
Further, it contends that the failure to comply with the agreement that certain information is confidential would amount to a breach of the agreement and found an action against the Council for breach of confidence.
The Respondent also contends that the information has commercial value. It relies on the evidence given by Ms Miles with respect to the consequences of the disclosure of the withheld information.
The Respondent contends that considerations in relation to the withheld information falls generally into four categories: 1. The disclosure of information that would reasonably be expected to prejudice the effective exercise by an agency of the agency's functions: Clause 1(f) of the Table to section 14; 2. The disclosure of Confidential information between Sydney Water, its agents or business partners and the Respondent that could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence: Clause 1(g) of the Table to section 14; 3. The disclosure of information that would reasonably be expected to reveal an individual's personal information: Clause 3(a) of the Table to section 14. 4. The disclosure of commercially sensitive information that would reasonably be expected to: 1. reveal commercial-in-confidence provisions of a government contract: Clause 4(b) of the Table to section 14, 2. diminish the competitive commercial value of any information to any person: Clause 4(c) of the Table to section 14, 3. prejudice any person's legitimate business, commercial, professional or financial interests: Clause 4(d) of the Table to section 14.
As noted, the Applicant does not seek the information that would reasonably be expected to reveal an individual's personal information.

Ms Toni Spence

Ms Spence determined the access application. She provided a statement dated 7 July 2021 and also attended the hearing and was cross-examined. She explained the searches that were undertaken in response to the access application. She located 8400 documents from the searches. She confirmed that each of the records was considered and a total of 1055 pages of information were identified as captured by the request. The information was mostly documents created by or for Sydney Water or correspondence between the Respondent and Sydney Water.
Ms Spence explained the consultation process that she followed in relation to the information that was located as falling within the scope of the request. She undertook consultation with Sydney Water and considered the submissions made by Sydney Water in determining whether there was a public interest consideration against disclosure.
Ms Spence confirmed that the Respondent entered into a confidentiality deed with Sydney Water in August 2018 to allow the exchange of confidential information between the Respondent and Sydney Water regarding the matters set out in the agreement. These included the management of water, wastewater and storm water systems. The Respondent's role in the process was as one of the governmental stakeholders involved in Sydney Water and its partners planning of the water infrastructure within the Council's local government area.
Ms Spence stated that the information that is within the scope of the access application that has not been released is information that is related primarily to the business interests of Sydney Water.
Under cross-examination Ms Spence was questioned about the searches that she undertook. She stated that she believes that the Respondent's record management complies with State record keeping requirements. All documents received by the Respondent are scanned into the TRIM record management system. She did not experience any difficulties in the search process. She confirmed that each of the records was considered by her staff and they did not simply rely on the description of the record that is recorded in the TRIM system. She was personally involved in the searches and in the consideration of the information, along with other staff members.
After these proceedings were commenced Ms Spence undertook further searches. Additional information was located as a result of that search process but the additional information that she located was either duplicates or drafts of information that had previously been located. It was not new information. She is confident that all the information that the Respondent holds that is within the scope of the access application has been located.
In regard to the Applicant's expectation that the Respondent would hold further information relating to the meeting between the Respondent's CEO and the Minister for Planning, Mr Zoppo referred to the searches that were undertaken. He noted that those searches included a specific enquiry with the CEO who attended the meeting requesting material falling within the description of the access application. He submitted that if the Respondent made and kept records of the meeting, those involved in the meeting, including the CEO, would be aware of those records. No records of the meeting were located other than those that have been released.
Mr Zoppo submitted that Ms Spence answered the Applicant's questions honestly and that it is apparent that the Respondent takes its record keeping and GIPA Act obligations seriously. The Respondent contends that the searches that were undertaken were appropriate and reasonable and that there is no reason to believe that other information that falls within the scope of the access application is held and has not been located.
He submitted that only a small amount of the located information has been withheld. The vast majority has been released. The public interest balance is against disclosure of the withheld information.

Consideration

As I have noted, each of the documents that remain in dispute has been provided to the Tribunal on a confidential basis. By reference to the schedule provided by the Respondent, the withheld documents are numbered 1, 6, 7, 8, 11, 16, 23, 24, 25, 26, 29, 30, 31, 32, 52, 54, 55, 56 83, 85, 1A, 2A, 3A, 4A, 5A, 6A, 8A, 9A, 11A, 20A. Of those, documents 1, 16 and 54 are withheld in their entirety. The remaining documents are released in a redacted form.
In relation to document 1, Ms Miles' evidence is that the document was commissioned by Sydney Water, and prepared by a third party consultancy body, for the purposes of and in the course of Sydney Water providing Services to the Developers. This document contains confidential and sensitive information, which if released to the world at large, would prejudice both Sydney Water and the Developer's financial and business interests.
The Respondent contends that clauses 1(e), 4(c) and 4(d) of the table to section 14 of the GIPA Act apply to this information.
In relation to clause 1(e) there are two elements. First, one must look to see whether the withheld information concerns a deliberation, consultation, opinion, advice or recommendation. The second element requires consideration of whether the revelation of that information could be reasonably expected to prejudice a deliberative process of government or an agency. In the circumstances, the Tribunal must be satisfied that the disclosure of the information in issue could reasonably be expected to reveal a consultation in such a way to "prejudice a deliberative process". The Respondent must demonstrate how and why a prejudice would arise if the withheld information is disclosed.
In Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317 Senior Member Goodman stated at paragraphs [88] - [91]: 88. The words "in such a way as to" in cl 1(e) require that there be a connection between the revelation of the deliberation, consultation, opinion, advice or recommendation and the "prejudice" to a "deliberative process" of NSW Police: Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113 at [57]; Luxford v Department of Education and Communities (NSW) [2016] NSWCATAD 118 at [103]. 89. As noted above, the word "prejudice" bears its ordinary meaning.
I accept that the information in issue was created as part of a consultation process. Ms Miles' evidence shows that Sydney Water operates in competition with other service providers. I also accept that the release of this information could be reasonably expected to hinder future process of government or an agency because third parties may be reluctant to enter consultancy arrangements with Sydney Water if it is apparent that confidential information may be disclosed. The potential impact of that consequence is likely to be much greater for Sydney Water than for the Respondent. It should be given reasonable weight.
In relation to clause 4(c), information has "commercial value" if the information is valuable for the purposes of carrying on the commercial activity in which the entity is engaged or if a genuine arms-length buyer is prepared to pay to obtain the information: see McKinnon v Blacktown City Council at paragraphs [77] - [78]; Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 at paragraph [74].
The use of the adjective 'competitive' in clause 4(c) "connotes information of commercial value gained in, or relating to, a competitive commercial business context": see McKinnon v Blacktown City Council at paragraphs [79] - [80].
The Respondent relies on Ms Miles' evidence that Sydney Water operates in a competitive environment and that the information has commercial value. It also relies on Ms Miles' evidence with respect to the consequences of the disclosure of the withheld information.
I am satisfied that if the document 1 information does have competitive commercial value and that if it were released it could prejudice Sydney Water's financial and business interests.
In relation to clause 4(d), the Respondent must identify particular legitimate business, commercial, professional or financial interest. It must also demonstrate a basis on which the finding can be made that disclosure of the information could reasonably be expected to prejudice those interests.
The Respondent relies on Ms Miles' evidence in regard to Sydney Water's commercial interest and the potential consequences of the disclosure of the withheld information.
I am satisfied that the release of the information could mean that those that deal with the Respondent will be less likely to provide confidential information knowing that the confidentiality of such information would not be maintained. This would lead to hesitation or unwillingness to deal openly and frankly with the Respondent. This could prejudice the future supply of confidential information not only for this development but also future development and prejudice the effective exercise of the functions of the Council and Sydney Water.
In my view, the public interest considerations against disclosure in clause 4(c) and clause 4(d) should be given significant weight. On balance, I am satisfied that the public interest against disclosure outweighs those considerations in favour of disclosure.
In relation to document 16, Ms Miles' evidence is that the document is a map that was created by Sydney Water for the purposes of and in the course of providing Services to the Developers. The document was provided to the Respondent and the Developers in confidence.
The Respondent contends that clause 4(b) of the table to section 14 of the GIPA Act apply to this information.
As it relates to Government contracts, 'confidential information' is defined in section 32(1) of the GIPA Act to include the 'commercial-in-confidence provisions' of the contract. "commercial-in-confidence provisions" of a contract means any provisions of the contract that disclose-- (a) the contractor's financing arrangements, or (b) the contractor's cost structure or profit margins, or (c) the contractor's full base case financial model, or (d) any intellectual property in which the contractor has an interest, or (e) any matter the disclosure of which would place the contractor at a substantial commercial disadvantage in relation to other contractors or potential contractors, whether at present or in the future."
Having reviewed all of the evidence, I am satisfied that the deed of confidentiality between Sydney Water and the Respondent imposes obligations on each of the parties with respect to the retention of the confidentiality of information. I am satisfied that this information was provided to the Respondent in confidence. I am also satisfied that release of this document could reasonably be expected to reveal commercial-in-confidence provisions of a government contract.
In my view, the public interest considerations against disclosure in clause 4(b) should be given significant weight. On balance, I am satisfied that the public interest against disclosure outweighs those considerations in favour of disclosure.
In relation to document 54, Ms Miles' evidence is that the document is a map that was created by Sydney Water for the purposes of and in the course of providing Services to the Developers. The document was provided to the Respondent and the Developers in confidence.
I am satisfied that this information was provided to the Respondent in confidence. I am also satisfied that release of this document could reasonably be expected to reveal commercial-in-confidence provisions of a government contract.
In my view, the public interest considerations against disclosure in clause 4(b) should be given significant weight. On balance, I am satisfied that the public interest against disclosure outweighs those considerations in favour of disclosure.
As noted above, the remaining documents that have not been released in full have been released in a redacted form. It is apparent that Sydney Water has not made blanket claims with respect to confidentiality. It has only raised an objection to the release of information which it regards as commercially sensitive.
Ms Miles has given evidence of the basis on which Sydney Water has asserted that there is an overriding public interest against disclosure of the redacted information.
With the exception of document 11A, the Respondent contends that clauses 4(b), 4(c) and (d) of the table to section 14 apply to the redacted information.
The Respondent contends that clause 1(f) of the table to section 14 applies in relation to the redacted information in document 11A.
Clause 1(f) of the table to section 14 of the GIPA Act provides: 1. 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) - … (f) prejudice the effective exercise by an agency of the agency's functions,
Ms Miles has identified the redacted information and explained how the disclosure of the information could reasonably be expected to prejudice the effective exercise of Sydney Water's functions.
As I have noted above, I am satisfied that the deed of confidentiality between Sydney Water and the Respondent imposes obligations on each of the parties with respect to the retention of the confidentiality of information. I am also satisfied that the release of this information could be reasonably expected to hinder future process of government or an agency because third parties may be reluctant to enter consultancy arrangements if it is apparent that confidential information may be disclosed. This consideration should be given reasonable weight.
On balance, I am satisfied that the public interest against disclosure outweighs those considerations in favour of disclosure.
In relation to the remaining redacted information, I am satisfied that significant weight should be given to the public interest considerations in clauses 4(c) and (d) of the table to section 14. On balance, I am satisfied that the public interest against disclosure outweighs those considerations in favour of disclosure to that redacted information.

Clause 1(g) of the Table to section 14

I agree that the release of the information provided to the Respondent by Sydney Water was provided in confidence. It is governed by the deed of confidentiality and it may reasonably be expected to found an action against the Respondent and possibly against Sydney Water for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence. In my view, this public interest consideration against disclosure applies to each of the documents that has been withheld in full and to the withheld information that has been redacted from the remaining documents. In my view this consideration should be given significant weight.
On balance, I am satisfied that the public interest against disclosure in clause 1(g) of the Table to section 14 outweighs those considerations in favour of disclosure to that redacted information.

Section 64(1) of the Civil and Administrative Tribunal Act 2013

Section 64 provides: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders - (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
For the reasons argued by Sydney Water, it is my view that an order should be made pursuant to section 64(1) of the Civil and Administrative Tribunal Act 2013 in regard to Confidential Annexures KM-1, KM-2, KM-3, KM-4 and KM-5 to the statement of Kate Miles dated 11 June 2021.

Conclusion

The Applicant has raised the issue of whether the Tribunal can be satisfied that the Respondent has failed to locate additional information that it holds which falls within the scope of the access application. On the basis of the evidence before me, I am satisfied the searches that the Respondent undertook were appropriate and reasonable and there is no reason to believe that other information that falls within the scope of the access application is held and has not been located.
The Respondent has released a significant amount of information since making the decision that is under review. As a consequence of the additional disclosures, the original decision is clearly not the correct and preferable decision. It should therefore be set aside.
However, I have formed the view that the information that has been withheld should not be released. In my view, the public interest against disclosure of the withheld information outweighs those considerations in favour of disclosure. The decision to withhold that information should be affirmed.

Orders

The decision under review is set aside insofar as it relates to information that has subsequently been released.
The decision under review is otherwise affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 June 2022

At a glance

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Judgment (16 paragraphs)

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Legislation Cited (3)

Cases Cited (5)

Cited By (3)