Kirkby & Gibbs v Department of Premier and Cabinet

The Respondent's Position

1. The DPC contends that its decision was the correct and preferable one. It has filed confidential submissions addressing the question of whether any parts of the Curtilage report appeared to have been previously published. This summary proceeds by reference only to other documents filed in these proceedings.
2. [NOT FOR PUBLICATION].

Scenic's position

1. As the access applicant, Scenic has the right to appear and be heard in this matter: section 104(3) of the GIPA Act.
2. Scenic supports the OEH decision to release the requested information with personal information redacted. It submits that the decision should be upheld as the correct and preferable decision.
3. Scenic is the owner of land that adjoins the Applicant's property.
4. Scenic refers to a letter from the Heritage Division of the OEH which advised of the Applicant's request to have an expansion of Varro Ville's curtilage. The letter noted the direction of the Heritage Council for the Heritage Division to further investigate an appropriate area for an amended State Heritage Listing and it also advised Scenic that the area being investigated included part of the land owned by Scenic.
5. In July 2017, in response to the letter from the Heritage Division of the OEH, Scenic lodged an access application under the GIPA Act seeking information that supported the Applicant's expanded curtilage request.
6. Shortly afterwards, the Heritage Division of the OEH again wrote to Scenic giving notice of the Intention to consider listing an expanded curtilage around Varroville House on the State Heritage Register. That letter also referred to the possibility of the inclusion of part of the land owned by Scenic in the wider Curtilage. It appears that this is not currently the case but Scenic contends there is a real possibility that future changes to the curtilage could impact on it and therefore it should have a copy of the same report that the Respondent has.
7. In October 2017 the Heritage Council of NSW recommended the listing of an expanded curtilage around Varro Ville House on the State Heritage Register. The Recommendation noted support for the inclusion of additional land that included part of the land owned by Scenic. It also noted that the Applicants urged for that approach.
8. Scenic stated that in October 2018 it lodged an informal GIPA Act application with Campbelltown City Council for access to the Curtilage Study. The Applicants had provided a copy to the Council with a submission that they made regarding a development application for a proposed cemetery on land adjacent to Varro Ville House. Campbelltown City Council provided access to what Scenic described as "an incomplete and low quality May 2016 version of the Curtilage Study". Scenic noted that it was not given access to the final October 2016 version of the Curtilage Study.
9. Scenic maintains that the Curtilage Study held by Campbelltown City Council is "open access information" that an agency must be released unless there is an overriding public interest against disclosure. Section 6 of the GIPA Act provides: 6 MANDATORY PROACTIVE RELEASE OF CERTAIN GOVERNMENT INFORMATION (1) An agency must make the government information that is its "open access information" publicly available unless there is an overriding public interest against disclosure of the information. Note : Part 3 lists the information that is open access information. (2) Open access information is to be made publicly available free of charge on a website maintained by the agency (unless to do so would impose unreasonable additional costs on the agency) and can be made publicly available in any other way that the agency considers appropriate. (3) At least one of the ways in which an agency makes open access information publicly available must be free of charge. Access provided in any other way can be charged for. (4) An agency must facilitate public access to open access information contained in a record by deleting matter from a copy of the record to be made publicly available if inclusion of the matter would otherwise result in there being an overriding public interest against disclosure of the record and it is practicable to delete the matter. (5) An agency must keep a record of the open access information (if any) that it does not make publicly available on the basis of an overriding public interest against disclosure. The record is to indicate only the general nature of the information concerned. (6) Nothing in this section or the regulations requires or permits an agency to make open access information available in any way that would constitute an infringement of copyright.
10. Section 18 of the GIPA Act provides: 18 WHAT CONSTITUTES OPEN ACCESS INFORMATION The following government information held by an agency is the agency's "open access information" that is required to be made publicly available by the agency under section 6 (Mandatory proactive release of certain government information): (a) the agency's current agency information guide (see Division 2), (b) information about the agency contained in any document tabled in Parliament by or on behalf of the agency, other than any document tabled by order of either House of Parliament, (c) the agency's policy documents (see Division 3), (d) the agency's disclosure log of access applications (see Division 4), (e) the agency's register of government contracts (see Division 5), (f) the agency's record (kept under section 6) of the open access information (if any) that it does not make publicly available on the basis of an overriding public interest against disclosure, (g) such other government information as may be prescribed by the regulations as open access information.
11. Clause 5 of the Government Information (Public Access) Regulation 2018 provides: 5 Additional Ways In Which Open Access Information Is To Be Made Available (1) A local authority must make its open access information publicly available by: (a) making the information available for inspection free of charge by any person at the office of the local authority during ordinary office hours, and (b) providing a copy of a record containing the information (or providing the facilities for making a copy of a record containing the information) to any person either free of charge or for a charge not exceeding the reasonable cost of photocopying. (2) This clause does not prevent a local authority from archiving records that contain open access information in accordance with the authority's records management practices and procedures. The authority is required to retrieve archived records and make the information available in accordance with this clause in response to a request for access as soon as reasonably practicable after the request is made. (3) This clause extends to open access information of a local authority that is open access information listed in section 18 of the Act (and is not limited to information listed in Schedule 1).
12. Scenic adopts the public interest considerations in favour of disclosure that OEH identified and submits that those considerations carry significant weight. It disputes the Applicant's contentions regarding the weight to be given to the considerations against disclosure and submits that the factors in favour of disclosure outweigh those against it.

Public interest considerations in favour of release of the information

1. As noted above, a number of public interest considerations in favour of release of the information in issue have been identified. I agree that each of those is a relevant consideration.
2. Scenic has identified the issue of "open access information". The relevance of "open access information" to the balancing process was considered by the Appeal panel in McEwan v Port Stephens Council [2018] NSWCATAP 211 at paragraphs [39] - [42]: Consideration - open access information issue 39 In relation to the open access information point on the appeal, the Council: (1) Said that it did not dispute that some of the information sought was open access information and it had made no reference to it in its submissions before the Tribunal because this was not in issue. (2) Submitted that the mandatory release of open access information was subject to the standard overriding public interest against disclosure assessment. Accordingly, protection of privacy and health information principles still applied. (3) Submitted that, whilst there was a need to take into account the open access factor in the weighing of the public interest considerations for and against disclosure, this factor made no significant difference to the weighing exercise required of the Tribunal in this case. 40 We do not agree with this last submission (in paragraph 39(3)). 41 We agree that the mandatory release requirement in s 6 of the GIPA Act is substantially qualified such that it does not apply when the balancing exercise required by the overriding public interest against disclosure test set out in s 13 of the GIPA Act is against disclosure. This is apparent from the terms of s 6(1) of the GIPA Act. 42 However, we think that because the information in issue was open access information the Tribunal needed to start with the position that this was an important factor in favour of disclosure which was additional to other relevant factors in favour of disclosure, including the general public interest in favour of disclosure provided for in s 12(1) of the GIPA Act. In our view such an approach is necessary in order to give meaningful effect to the mandatory release requirement expressed in s 6.
3. McEwan was followed in Webb v Port Stephens Council (No. 3) [2018] NSWCATAP 286. The Appeal Panel stated at paragraph [77]: Where the information in issue is in fact open access information, as noted by the Appeal Panel in McEwan, this is an "important factor in favour of disclosure" (in addition to other relevant factors in favour of disclosure, including the general public interest in favour of disclosure provided for in s12(1) of the GIPA Act) when it comes to determining whether the balance lies between a public interest consideration against disclosure and the public interest in favour of disclosure.
4. I accept that the fact that the Curtilage Study held by Campbelltown City Council is "open access information" is an important factor in favour of disclosure which is additional to other relevant factors in favour of disclosure.

Public interest considerations against release of the information

1. The Applicants have identified a number of public interest factors against disclosure. I accept that there is a reasonable possibility that disclosure of the information that is in issue could be expected to have some of the outcome that the Applicants have argued. However, some of those factors are no longer relevant because a decision on the curtilage expansion has been made.

Clause 1(d) of the table to section 14 of the GIPA Act

1. The Applicants submit that disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions. They contend that if the information is released, and the release becomes known within the community, individuals who would otherwise be prepared to provide information to the Respondent would be reluctant to do so in the future. I accept that this is a possibility. However, I do not consider that it should be given significant weight. In my view, it is likely that support for the preservation of heritage buildings will continue and that the Respondent will be able to continue to exercise its functions effectively notwithstanding that there may be some reluctance to provide confidential information.

Clause 1(e) of the table to section 14 of the GIPA Act

1. The Applicants submit that disclosure of the information 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. As noted above, a decision on the curtilage expansion has been made. The relevant deliberative process has concluded. In the circumstances I am not satisfied that this factor continues to be a relevant consideration.

Clause 1(f) of the table to section 14 of the GIPA Act

1. The Applicants submit that disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions. I am not satisfied that the Respondent's functions would be prejudiced if the information was released. In my view, the release of the information would inform the public about the heritage value of the property and the reasons for the decision that has been taken in regard to the curtilage expansion. This would make the Respondent's activities more transparent than they would otherwise be. As a result of the additional transparency the exercise of the agency's functions would potentially be enhanced rather than prejudiced. In my view this factor is not a relevant consideration.

Clause 1(g) of the table to section 14 of the GIPA Act

1. The Applicants submit that disclosure of the information 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. I am satisfied that the Applicants understood that the information that they provided to the agency was given in confidence. However, the agency subsequently informed the Applicants that it might not be able to be kept the information confidential. It is not clear that the Respondent received the information on the basis that it was subject to a confidentiality agreement. Nevertheless, I am satisfied that disclosure of this information would result in the disclosure of information provided to the Respondent in confidence.
2. As noted above, an early copy of the Curtilage Report was lodged at Campbelltown Council and was publicly available to be viewed on a read only basis. In the circumstances it is my view that minimal weight should be given to this consideration.

Clause 1(h) of the table to section 14 of the GIPA Act

1. The Applicants submit that disclosure of the information could reasonably be expected to 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). I am not satisfied that the Applicants have identified any audit, test, investigation or review conducted by or on behalf of the Respondent. As noted above, a decision on the curtilage expansion has been made. Even if the review in relation to the curtilage expansion was conducted by or on behalf of the Respondent, I am not satisfied that any prejudice would result from revealing its purpose, conduct or results. In my view this factor is not a relevant consideration.

Clause 2(e) of the table to section 14 of the GIPA Act

1. The Applicants submit that disclosure of the information could reasonably be expected to endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle. This submission was based on the fact that no decision had been taken in regard to the curtilage expansion and that the property was left vulnerable. As noted above, a decision on the curtilage expansion has been made. I am not satisfied that this factor continues to be a relevant consideration.

Clause 3(a) of the table to section 14 of the GIPA Act

1. The Applicants submitted that disclosure of the information could reasonably be expected to reveal an individual's personal information. It is not clear to me whether they continue to rely on this consideration. The Respondent determined to redact their personal contact details. It is apparent that the information in issue contains some personal information e.g. the Applicants' names and land interests. Their identities are apparent or could reasonably be ascertained from this information. I am satisfied that this information is personal information. However, I am satisfied that this information has already been revealed as the Applicants' identities and association with the Varro Ville Homestead and the State Heritage Register is on the public record. In the circumstances it is my view that minimal weight should be given to this consideration.

Clause 3(b) of the table to section 14 of the GIPA Act

1. The Applicants have also submitted that disclosure of the information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002. For that same reason as stated in regard to clause 3(a) it is my view that minimal weight should be given to this consideration.

Clause 3(f) of the table to section 14 of the GIPA Act

1. The Applicants have also submitted that disclosure of the information could reasonably be expected to expose them to a risk of harm or of serious harassment or serious intimidation. The Applicants believe that the release of this information will unnecessarily increase antagonism towards them from nearby landowners who are hoping to develop their land. The Applicants fear personal vilification and physical harm to themselves and their property. Given the history of this matter I am not satisfied that disclosure of the information would expose the Applicants to any greater risk than already exists. In my view, if the risk still exists it will be as a consequence of actions that have already been taken. It would not be as a consequence of disclosure of the information. I am not satisfied that this factor continues to be a relevant consideration.

Clause 4(c) of the table to section 14 of the GIPA Act

1. The Applicants have also submitted that disclosure of the information could reasonably be expected to diminish the competitive commercial value of information. While I am satisfied that the information in issue is of value to the Applicants I am not satisfied that the information has "competitive commercial value". It does not does not relate to a competitive commercial or business context and it does not give the Applicants a competitive edge. I am not satisfied that this factor is a relevant consideration.

Clause 4(d) of the table to section 14 of the GIPA Act

1. The Applicants have also submitted that disclosure of the information could reasonably be expected to prejudice their legitimate business, commercial, professional or financial interests. However it is not clear how the release of the information would affects those interests. On the material before me I am not satisfied that the Applicants' financial interests would be prejudiced by disclosure of the information. I am not satisfied that this factor is a relevant consideration.

Clause 4(e) of the table to section 14 of the GIPA Act

1. The Applicants have also submitted that disclosure of the information could reasonably be expected to prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results. I accept that the information concerns research commissioned by the Applicants. I also accept that disclosure of the information might open the review up to scrutiny. However, I am not satisfied that such scrutiny or the revelation of the purpose, conduct and results of the research would prejudice its conduct, effectiveness or integrity. As noted above, a decision on the curtilage expansion has been made. I am not satisfied that this factor continues to be a relevant consideration.

Clause 5(b) of the table to section 14 of the GIPA Act

1. The Applicants have also submitted that disclosure of the information could reasonably be expected to prejudice the conservation of any place or object of natural, cultural or heritage value. This submission was based on the fact that no decision had been taken in regard to the curtilage expansion and that the property was left vulnerable. As noted above, a decision on the curtilage expansion has been made. I am not satisfied that this factor continues to be a relevant consideration.

Where does the balance lie?

1. For the reasons set out above, I have found that limited weight should be given to the public interest considerations against disclosure.
2. I have found that there are public interest grounds in favour of disclosure. In my view, significant weight should be given to some of those considerations. Significant weight should be the public interest in having transparency about the expenditure of public funds and in the decision making processes that have the potential to impact on the properties surrounding the Varro Ville Homestead. Notwithstanding the Applicants' contention that there is no longer any intention to seek expansion of the Varro Ville curtilage onto Scenic's property, I am satisfied that there is reason for Scenic to believe that there is a real possibility that future changes to the curtilage could impact on it and other surrounding properties. In my view, significant weight should be given to the public interest in Scenic and other potentially affected parties having access to information which may be the basis of decisions that affect them.
3. In my view, when the respective public interest considerations for and against disclosure are balanced, the public interest considerations in favour of disclosure outweigh the public interest considerations against disclosure.
4. Accordingly, I find that the decision of the Respondent is the correct and preferred decision and the appropriate order is that the decision of the Respondent be affirmed.

Order 1. The decision under review is 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: 04 February 2020