Jundu Pty Ltd and Mogul Stud Pty Ltd v The Hills Shire Council

Applicant's right to information

1. The Government Information Public Access Act 2009 ("GIPA Act") gives members of the public an enforceable right to access government information, subject to the provisions of that Act. That right is given for the stated object of maintaining and advancing "a system of responsible and representative democratic Government that is open, accountable, fair and effective" (s 3(1)(b) of the GIPA Act).
2. A person who makes an access application for government information has a "legally enforceable right to be provided with access to the information" (s 9(1) of the GIPA Act). Access applications are to be dealt with in accordance with Part 4 of the GIPA Act.
3. An agency may determine an access application under the GIPA Act in a number of ways, as relevantly set out in s 58(1), including: "(a) deciding to provide access to the information …. (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information."
4. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5 of the GIPA Act). There is a general public interest in favour of the disclosure of government information (s 12(1) of the GIPA Act). However, the right to access will not be available where "there is an overriding public interest against disclosure of the information" (s 9 of the GIPA Act).
5. There is an overriding public interest against disclosure of government information for the purposes of the GIPA 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 (s 13 of the GIPA Act). 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 of the GIPA Act (s 14(1) of the GIPA Act). The considerations listed in the Table under s 14 of the GIPA Act are the only other considerations that may be taken into account in determining whether there is an overriding public interest against disclosure (s 14(2) of the GIPA Act).
6. The power of the Tribunal to review a decision of the Respondent arises where a person is aggrieved by a "reviewable decision" of an agency. Such a person may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) ("ADR Act") of that decision (s 100 of the GIPA Act).
7. What are "reviewable decisions" of an "agency" is set out in s 80 of the GIPA Act. They include a decision to provide access or to refuse to provide access to information in response to an access application (s 80(d) of the GIPA Act).
8. There was no dispute that the Respondent is an "agency".
9. An agency has made a "reviewable decision" within the meaning of s 80 of the GIPA Act, the agency being the Respondent and the "reviewable decision" being the decision to refuse to provide access to information in response to an access application.
10. The Tribunal under s 63 of the ADR Act is to determine the matter, based on the material before it, including any relevant factual material and any applicable written or unwritten law. It must decide what is the correct and preferable decision. It may decide to affirm, vary or set aside the decision and make a substitute decision, or set aside the decision and remit the matter to the agency in accordance with any directions or recommendations of the Tribunal.
11. The provisions of the GIPA Act referred to above apply where the Applicant has made a valid "access application" seeking "government information". It is not in issue that the Applicant made an "access application" under Part 4 of the GIPA Act and that the information requested was "government information" (see definition of these terms in s 4 of the GIPA Act).
12. The Respondent has the onus of establishing that the decision is justified (s 105(1) of the GIPA Act).

Consideration

1. In determining the correct and preferable decision on review of a decision to refuse access to information, the well-established approach in making the required determination by the Tribunal is the process outlined in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [24] - [25], relevantly that: "Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused. … The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions…".
2. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286, the task of the Tribunal was described as follows: "…. in all cases other than those falling under the terms of Schedule 1, the public interest test under the GIPA Act involves the following: (a) identifying the public interest in favour of disclosure; (b) identifying the public interest against disclosure; and (c) determine where the balance lies".
3. Section 15 of the GIPA Act sets out the principles that apply when determining whether there is an overriding public interest against disclosure: "(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 a 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".
4. The Applicant identified the following considerations in favour of disclosure of the relevant information: 1. disclosure of the information sought would provide information about the operation of the Respondent in discharging its functions under statute as a local government body 2. disclosure would assist in providing an increased opportunity for community participation in the Box Hill Precinct project 3. the disclosure of information setting out the basis on which the Respondent had come to an assessment of how much it needs to raise as funding for the Box Hill Precinct project, including acquisition costs, is of public interest.
5. I accept that the matters raised by the Applicant are public interest considerations in favour of disclosure of the information they seek.
6. The Respondent for its part, identified a number of public interest considerations against disclosure, set out in s14 of the GIPA Act. Relevantly, cl 1 of the Table in s 14 of the GIPA Act sets out the following public interest considerations against disclosure: "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, (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, (f) prejudice the effective exercise by an agency of the agency's functions, …… (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed)..."
7. Disclosure must be one that "could reasonably be expected" to have the relevant effect. What this means was described in Leech v Sydney Water Corporation [2010] NSWADT 298 in the following terms, at [25]: "The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC".

Clause 1(d) - prejudice supply to an agency of confidential information

1. Clause 1(d) has application in circumstances where disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions.
2. No specific submissions were made or evidence adduced addressing how the supply to the Respondent of confidential information could be prejudiced as a result of disclosure. To the extent that the confidential information whose supply could be prejudiced may include future briefing materials and other documents prepared for councillors by the Respondent's personnel acting under its direction, it is unclear how prejudice to the supply of confidential information of this kind could arise as a result of disclosure, on the evidence before the Tribunal. If the relevant prejudice is alleged in respect of supply to the agency of information from third party service providers such as valuers, no evidence was adduced in support of such a submission. Accordingly, I am unable to place weight on the public interest considerations against disclosure set out in cl 1(d).
3. Further, where the confidential information in issue comprises of internal documents created by the Respondent, I accept that confidence may attach to such documents on creation, if they were created subject to confidentiality. However, what is protected by cl 1(d) is the "supply" of the relevant information "to the agency". Once such a document containing relevant information has been created by the agency, it has the document. In these circumstances, it is unclear what "supply" to the agency could be made within the meaning of cl 1(d). The creation of the information by an agency does not, in my opinion, amount to some kind of "self-supply", absent a statutory deeming of such an outcome. However, I do not need to consider the question further, having found that little weight can be attached to the public interest considerations against disclosure set out in cl 1(d).

Clause 1(e) - reveal a deliberation or consultation

1. The Respondent relies on the public interest consideration against disclosure that disclosure would 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. Clause 1(e), in my opinion, may protect both information created for the purposes of deliberations by the Respondent and a record of those deliberations created at the time of the deliberations or subsequently.
3. Clause 1(e), however, also requires that disclosure of that information would reveal such 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.
4. That the meaning of the word prejudice is to "cause detriment or disadvantage" or to "impede or derogate from" was accepted in Hurst v Wagga Wagga City Council [2011] NSWADT 307, at [60].
5. What is meant by a "deliberative process" was considered in Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113. Higgins SM said: "As a matter of ordinary English the expression "deliberative processes" appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. "Deliberation" means "The action of deliberating: careful consideration with a view to decision": see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. ..."
6. The Appeal Panel, considering the reach of cl 1(e), said in Ryan v NSW Minister for Planning and Open Spaces [2021] NSWCATAP 22, at [34]: " … the Appeal Panel notes that: (1) cl 1(e) contemplates that the deliberative process that may reasonably be expected to be prejudiced may be a "particular case or generally". Thus, the focus of this clause goes beyond particular deliberative processes; (2) there is no requirement that the deliberative process that may reasonably be expected to be prejudiced is the same as the deliberation which could be expected to be revealed by disclosure of the information (where it is a deliberation rather than a consultation, opinion advice or recommendation that would be revealed by disclosure of the information). This is clear from the use of the phrase "a deliberative process"; (3) the existence of a deliberative process which might reasonably be expected to be prejudiced by disclosure will turn upon the evidence before the Tribunal in each case. Whilst the parties referred in their submissions to particular cases in support of their preferred interpretation, those cases turn on their particular facts. For example, in AQJ, the Tribunal found that the deliberative process had concluded, whereas in Owen the Tribunal found that there was an ongoing deliberative process".
7. In Luxford v Department of Education and Communities [2016] NSWCATAD 118, the Tribunal said, at [107]-[108]: "Officers should be able freely to do in written form what they could otherwise do orally, in circumstances where any oral communication would remain confidential. Such written communications relating to decision-making and policy formulation processes ensure that a proper record is maintained of the considerations taken into account. If they were to be released for public scrutiny, officers may in the future feel reluctant to make a written record, to the detriment of these processes and the public record: McKinnon v Department of Treasury [2006] HCA 45. Callinan and Heydon JJ. Stated at paragraph [121]: The second ground, which speaks of jeopardy to candour, and the desirability of written communications, obviously cannot readily be dismissed ... I accepted that there is a public interest consideration against disclosure of this information, as it could be expected to prejudice the deliberative processes of the agency".
8. In Miskelly v Secretary, Department of Education [2019] NSWCATAD 48, the Tribunal again, in the context of the operation of a school, emphasised the "need to be able to freely discuss privately and frankly how to best manage and resolve sensitive issues" observing that if "records of discussions (deliberative processes) concerning students or parents are released in full, the ability of the respondent and school to perform their day to day functions may be seriously impaired" (at [54]).
9. The Applicant submits that it is difficult to see how the release of the withheld documents would prejudice the Respondent's decision-making process in circumstances where that decision making process has been completed, with no future decision-making process that can be prejudiced. However, it is well accepted that whether cl 1(e) can apply needs to be determined not with regard to a particular deliberative process but to deliberative processes of an agency generally, having regard to the agency's operation and the circumstances in which it operates (see Ryan, at [34]).
10. I accept that disclosure of information used in deliberations of the Respondent created in the expectation of confidence, is likely to prejudice the deliberative processes of the Respondent. Where confidential information to be used in deliberations is created and the deliberations occur subject to an understanding of confidence, it could be expected that disclosure of information made subject to that understanding, is likely to inhibit and constrain contributions to future deliberations, so prejudicing deliberative processes. I find that there is, in the circumstances, the required connection between the relevant disclosure and prejudice arising.
11. I am satisfied that the considerations set out in cl 1(e) remain relevant in respect of information created for the purposes of deliberations concerning the Box Hill Precinct project. I attach significant weight to those considerations.

Clause 1(f) - prejudice the effective exercise of an agency's functions

1. A public interest consideration against disclosure arises where disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions.
2. There was a submission by the Respondent that release of the Internal Briefing Note was likely to prejudice the effective functioning of the Respondent, as it will impact on the Respondent's "decision making as to potential rezoning locations". There was no specific evidence in support of this statement as to how that impact could come about. However, I infer the Respondent's submission to be that disclosure of information concerning potential rezoning locations could give rise to disputation and therefore interfere with decisions as to rezoning. If these are the circumstances relied upon, I am unable to give them much weight, given that if rezoning were to occur, there would, at some point, need to be disclosure made in any event.
3. However, I accept that to the extent that the disclosure of confidential information inhibits and constrains future deliberations in the circumstances described at [51] above, this will interfere with the decision-making processes of the Respondent, and as such, satisfy the requirements of cl 1(f).

Clause 1(h) - integrity of any audit, test, investigation or review

1. There were no specific submissions made by the Respondent in respect of cl 1(h) and why it was relevant. I am unable to see on the evidence the relevance of cl 1(h).
2. Clause 3 of the Table in s 14 of the GIPA Act, in determining whether there is an overriding public interest against disclosure, provides: "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 - …… (c) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings,… "

Clause 3(c) - prejudice any court proceedings

1. There were no specific submissions made by the Respondent as to why cl 3(c) remained relevant. While proceedings had been heard and determined in the Land and Environment Court, that determination occurred on 28 November 2023 (Mogul Stud Pty Ltd v The Hills Shire Council [2023] NSWLEC 1714). To the extent that the Respondent's reliance on cl 3(c) originally may have related to these proceedings, these proceedings have now been determined. These proceedings having been determined, I would not have placed much weight on cl 3(c). In any event, I understood the Respondent to no longer press its submissions based on cl 3(c).
2. The Respondent relied on numerous public interest considerations against disclosure set out in cl 4 in the Table in s 14. Clause 4 relevantly provides as follows: "4 Business interests of agencies and other persons There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - (a) undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market, …… (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests, (e) prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed)".

Clause 4(a) - undermine competitive neutrality

1. The Respondent relies on the public interest consideration against disclosure, that disclosure could reasonably be expected to undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market.
2. I accept the submission of the Applicant that disclosure to the Applicant does not prevent some other party, including a competitor of the Applicant, from seeking the same information (or indeed the Respondent making that information public). A disclosure of information under the GIPA Act is understood to be a disclosure without conditions "to the world". The provision of relevant information, therefore, under the GIPA Act does not, in my opinion, create competitive advantage or disadvantage as between the Applicant and other developers.
3. However, to the extent that cl 4(a) is intended to address competitive neutrality as between an agency on the one hand and its competitors on the other, it is not clear that matters going to competition between other parties (for example between the Respondent and its competitors) is a relevant consideration.
4. If, however, the submission is that the provision of relevant information by the Respondent, in some way undermines "competitive neutrality" within the meaning of cl 4(a), because the Respondent having provided such information to its competitors does not, for its part, have the same access to information of the relevant kinds held by its competitors, there may be some basis for the application of cl 4(a), for example in respect of valuation information. However, in circumstances where there is no competitive process in train between different parties for the acquisition of the land in question and instead a compulsory acquisition under consideration, I do not place significant weight on the considerations set out in cl 4(a).

Clause 4 (c) - diminish competitive commercial value

1. The Respondent relies on the public interest consideration against disclosure, being that disclosure could reasonably be expected to diminish the competitive commercial value of information it has.
2. In Manning v Bathurst Regional Council [2018] NSWCATAD 132, a local government body relied on cl 4(a) to resist disclosure of valuation information it had concerning property it sought to acquire. The Tribunal found that the information in question had commercial value. However, the Tribunal found that the respondent in that case: " …. has not identified any specific competitor with whom the Council is competing or will be competing in a commercial sense. The information is relevant to its sale of the property to a single purchaser. In this case I am not satisfied that the information has a "competitive commercial value.""
3. "Competitive commercial value" is understood as information of commercial value gained in, or relating to, a competitive commercial or business context (Manning, at [23]). Such a context, in my opinion, connotes competition in the market generally and circumstances where the commercial information in question may be used both to formulate a negotiating position for a specific transaction at a given point in time or to formulate sales strategies for a future date, with or without expressions of interest from a particular buyer. In the present matter and absent particular circumstances that may have been relevant in Manning, I do not consider that a specific competitor needs to be identified at a particular time for the information in issue to have a "competitive commercial value".
4. However, given the absence of market competition for acquisition of the land in question and instead a compulsory acquisition under consideration, I do not place significant weight on the considerations set out in cl 4(c).

Clause 4(d) - prejudice any person's legitimate business, commercial, professional or financial interests

1. The Respondent relies on the public interest consideration against disclosure, being that disclosure could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests.
2. In Manning, the Tribunal found that cl 4(d) had application. It said, at [26]-[27]: "… [The respondent] … submitted that disclosure of the redacted information in the Confidential Business Papers would disclose how much the Council is prepared to accept for the property in future….. Having reviewed the documents, I am satisfied that this is the case. If this information was known to a purchaser, the Council submitted, it could reasonably be expected to prejudice the Council's legitimate commercial interests by placing it in a weaker negotiating position when it came to sell the property, resulting in a lower sale price".
3. While the question at hand arises in the context of a proposed acquisition of land rather than a hypothetical future sale, I am of the opinion that cl 4(d) has application in the present case.
4. I accept that the disclosure of information containing the value of properties that the Respondent may, at a future date acquire, whether by means of a negotiated sale or by compulsory resumption, could reasonably be expected to prejudice the Respondent's legitimate business, commercial or financial interests. That information provides the Respondent with benchmark values against which it can formulate its negotiating position as to the purchase price or settling the acquisition cost. Where that information is made public by disclosure, a provision of information under the GIPA Act being a disclosure "to the world", the Respondent would suffer the relevant prejudice, in that information that would otherwise put the Respondent in a better position to negotiate a price or settle acquisition costs, will have been disclosed to the very parties from whom the properties in question may be acquired, so weakening the Respondent's negotiating position.
5. If it was the case that the valuations held by the Respondent will be absolutely determinative of the price it will pay, then in principle, no prejudice arises from disclosure of that valuation information. However, even accepting that the amount having to paid by the Respondent needs to be market value, based on the principles applying to a compulsory acquisition, it is well accepted that valuation is not a science. Valuation can involve opinion on the part of the valuer. Valuers may, in good faith, differ among themselves as to what true value is, even when applying the same valuation methodology. It does not, therefore, follow that the particular price paid by the Respondent for land it will acquire will be determined with exactitude on the basis of the valuations that it has.
6. Maintaining the ability of the Respondent to obtain the best outcomes it can reasonably achieve in the negotiation of prices of land it needs to acquire serves the interests of the public, including the Respondent's ratepayers.
7. It should be self-evident, for the reasons set out above, that disclosure of the relevant valuation information could reasonably be expected to prejudice the Respondent's legitimate business, professional, or financial interests within the meaning of cl 4(d).
8. The Applicant makes the submission that any acquisition of land by the Applicant in the circumstances of this matter will occur pursuant to the discharge by the Applicant of its functions and duties under statute. I understand the Applicant to be submitting that, in these circumstances, there can be no commercial or business interests engaged within the meaning of cl 4.
9. I am unable to accept the Applicant's submission that the discharge of statutory functions could, of itself, exclude the existence of business or commercial interests. The considerations set out in cl 4 recognise that such interests may exist and are intended to protect relevant business or commercial interests of agencies, regardless of whether or not they operate under a statutory framework. An acquisition of land in particular, is ordinarily understood to be a commercial transaction involving, among other things, negotiation or settling of a price or value. I have no difficulty in finding that these are circumstances in which the information as to value held by the Respondent answers the description of information whose disclosure could reasonably be expected to prejudice the Respondent's legitimate "business" or "commercial" interests. Even if such interests were not engaged, the price that the Respondent has to pay with little doubt involves its "financial interests" within the meaning of cl 4(d). The considerations set out in cl 4(d), in these circumstances, carry considerable weight.

Clause 4 (e) - prejudice the conduct, effectiveness or integrity of any research

1. The Responded relies on the public interest consideration against disclosure, being that disclosure could reasonably be expected to prejudice the conduct, effectiveness or integrity of any research revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
2. There were no clear submissions made by the Respondent in support of its reliance on cl 4(e). If the submission is that valuation information obtained by the Respondent or the plan for delivery the Box Hill Precinct project, is "research" within the meaning of cl 4(e), it is difficult to see, on the evidence, how disclosure could prejudice the "conduct, effectiveness or integrity" of the valuation or project plan. If there was evidence before the Tribunal impugning the integrity of relevant valuations or project plan, there may be a hypothetical basis for reliance on cl 4(e). However, there was no evidence or inference that can be made to suggest that any such questions arose.

Documents

1. Each of the documents in dispute are considered below having regard to the balance between public interest considerations for and against disclosure considered above.

Property Valuation Report

1. The Respondent's submission is that it would not be in the public interest to release the Property Valuation Report.
2. On the evidence, the valuations in question form the basis for estimated land acquisition and capital costs of the Respondent. In the Respondent's submission, if this information were made available to the Applicant, who is a developer with significant majority landholdings in the Box Hill Precinct, then it would, in essence, undermine the Respondent's strategic negotiating position. This was because at the time the Respondent proposed to acquire the land, the Applicant, if it had the valuation information, would know precisely the basis for the Respondent's intended purchase price and their expectations for that purchase price. That knowledge being made public, in the Respondent's submission, immediately undermined the Respondent's strategic commercial position with respect to all future property negotiations. In the Respondent's submission, in these circumstances, there was a real likelihood that negotiations would progress to the detriment of the Respondent, particularly where the Respondent could have a statutory obligation to acquire the land under s 21 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).
3. The Respondent further submits that the Respondent is under an obligation to maintain sound financial management, requiring the Respondent's expenditure to be responsible and sustainable, aligning general revenue and expenses. In the Respondent's submission, this objective would be both constrained and frustrated if they were placed at a significant disadvantage as a result of being unable to acquire land at a reasonable negotiated price.
4. The Respondent also raises concerns that other landowners could be also disadvantaged, on the basis that the Applicant had the potential to use the information sought to their detriment, through itself acquiring land at an advantage.
5. I understood the Respondent to be relying on the public interest considerations against disclosure set out under the heading "Business interests of agencies and other persons" in the Table in s 14.
6. Clause 4(c) applies to circumstances where disclosure of the information could reasonably be expected to "diminish the competitive commercial value of any information to any person". I have found that this consideration should not carry much weight.
7. Clause 4(d) is applicable where disclosure of the information could reasonably be expected to "prejudice any person's legitimate business, commercial, professional or financial interests".
8. I place significant weight on the considerations against disclosure set out in cl 4(d) for the reasons set out at [70]-[76] above. I place less weight on the public interest considerations in favour of disclosure of the relevant valuation information set out at [35] above. The consequence is that the Property Valuation Report is not to be disclosed.

Briefing note

1. [NOT FOR PUBLICATION]
2. [NOT FOR PUBLICATION]
3. I understood the Respondent to rely on the public interest consideration against disclosure set out in cl 1(e) that disclosure could reasonably be expected to 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.
4. Clause 1(e), first of all, requires that the relevant information be identified as a "deliberation" or other relevant category of information. It is clear enough that the briefing note in question answers the description of a deliberation of the Respondent, setting out as it does, its thought process and consideration of various matters concerning delivery of the Box Hill Precinct project. To the extent that it was considered by the Respondent in accordance with its formal processes, it is also likely to go to revealing the content of the deliberations in which the briefing note was considered.
5. Clause 1(e) also requires that the relevant deliberation could reasonably be expected to prejudice a deliberative process of the Respondent. I accept that disclosure of the Internal Briefing Note setting out or revealing deliberations of the Respondent that occurred in a context of confidence is likely to prejudice the deliberative processes of the Respondent generally. It was an internal document. I infer from this that an expectation of confidence attached to the relevant deliberations.
6. [NOT FOR PUBLICATION]
7. Where deliberations occur subject to an understanding of confidence, it could be expected that disclosure of those deliberations made subject to such an understanding, is likely to inhibit and constrain contributions to future deliberations, so prejudicing the process.
8. I place significant weight on the importance of maintaining the integrity of the Respondent's deliberative processes. The public interest considerations against disclosure set out in cl 1(e), therefore, carry significant weight in relation to the Internal Briefing Note. That weight is greater than the weight I allow to the public interest considerations in favour of disclosure set out at [35] above. The consequence is that the Internal Briefing Note is not to be disclosed.

Councillor Briefing Report

1. As regards the Councillor Briefing Report, the Respondent's evidence was that it was presented to the Respondent in the absence of the public. This was done under s 10A of the Local Government Act 1993 (NSW) which provides for closure of meetings to the public in relevant circumstances. The Respondent's submission is that the provisions of the Local Government Act are aligned with relevant items in s 14 (Lipscombe v Blue Mountains City Council [2018] NSWCATAD 182, at [72]; Sharples v Tweed Shire Council [2015] NSWCATAD 59, at [32]).
2. [NOT FOR PUBLICATION]
3. I place significant weight on the considerations set out in cl 4 against disclosure to the extent that the Councillor Briefing Report contains valuation information. I set out my reasons for doing so at paragraphs [87] above.
4. I also place significant weight on the considerations set out in cl 1(e) and (f), to the extent that the Councillor's Briefing Report relates to deliberations of the Respondent, for the reasons set out at [51] and [55] above. That weight is greater than the weight I allow to the public interest considerations in favour of disclosure set out at [35] above. The consequence is that the Councillor Briefing Note is not to be disclosed.

Work Schedule and NPV

1. The Respondent submits, that in respect of the Work Schedule and NPV models, they include both financial data used to develop the proposed draft contribution plan, including capital cost estimates and land acquisition estimates based on the Property Valuation Report, as well as the timing as to when the Respondent would plan to acquire the land and deliver infrastructure projects.
2. In the Respondent's submission, this information should not be available to persons with whom the Respondent was planning to negotiate in order to acquire land, as this would "completely undermine the Council's position".
3. The Respondent by letter dated 4 December 2024 informed the Tribunal that a summary version of the Work Schedule had been made public, excluding the Respondent's staff internal working and notes.
4. I place significant weight on the considerations set out in cl 4(e) against disclosure, to the extent that relevant documents contain valuation information. I set out my reasons for doing so at [70] - [76] above. To the extent that the documents in question contain or were considered in deliberations of the Respondent, I place significant weight on the considerations against disclosure set out in cl 1(e) and (f). I place less weight on the public interest considerations for disclosure set out at [35] above. The consequence is that the Work Schedule and NPV are not to be disclosed.

Subsequent disclosure

1. The Respondent on 4 December 2024, disclosed to the Tribunal that "large amounts of information" had already been disclosed since the hearing of this matter. It also appears that as part of the IPART evaluation, there has been disclosure of relevant information. However, the Respondent did not specify what parts of the information in dispute were included in those disclosures. In the absence of those details, I am unable to ascertain the relevance of that disclosure to what remains in dispute. Nevertheless, the parties indicated that the Tribunal should proceed to determine the matter.

Personal information

1. The parties also indicated in their submissions that they were in agreement that personal information about personnel of the Respondent and other personal information set out in the relevant information documents, should not be disclosed. That information includes contact details such as telephone numbers. I am in agreement that personal information including names, telephone numbers and email addresses should not be disclosed by reason of the weight that should be attached to the public interest consideration against disclosure set out in cl 3(a) of the Table to s 14. That weight overrides any public interest considerations favouring disclosure.

Emails of November 2021

1. An email chain and attachments from November 2021 had been in dispute. It includes correspondence between the Respondent and a State government department. It is not clear whether it remains in dispute. To the extent that it does, I find that cl 1(e) applies. The email correspondence deals with and reveals deliberations as to questions of funding, land acquisition timeframes and proposals for land use. I do not consider that involvement of a state government department in the conversation alters the character of the information as deliberations protected by cl 1(e). On the evidence, those deliberations were in progress at the time, without conclusion of those deliberations in the form of a decision as to the matters in issue. I attach significant weight to cl 1(e). That weight overrides any public interest considerations favouring disclosure.

Conclusions

1. I find that information containing valuations of property in the Box Hill Precinct should not be disclosed, the public interest considerations against disclosure outweighing those for disclosure, for the reasons set out above, subject to paragraph [110] below.
2. Information prepared for deliberations of the Respondent set out in the Internal Briefing Note and the Councillor Briefing Report should not be disclosed, the public interest considerations against disclosure outweighing those for disclosure for the reasons set out above, subject to paragraph [110] below.
3. Information set out in the Work Schedule and NPV should not be disclosed, the public interest considerations against disclosure outweighing those for disclosure, for the reasons set out above, subject to paragraph [110] below.
4. Information that has already been released, as referred to in the Respondent's letter dated 4 December 2024, including information held by the Respondent that has been publicly released in connection with the IPART assessment, should be released to the Applicant to the extent not already done.

Orders 1. The administratively reviewable decision under review is set aside. 2. The decision to release information as described in the Respondent's letter to the Tribunal of 4 December 2024 is affirmed. 3. The administratively reviewable decision under review is otherwise affirmed. 4. Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the contents of all paragraphs in these reasons marked NOT FOR PUBLICATION are not to be published or disclosed to the Applicant or the public.

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: 06 January 2025