The application before the Tribunal dated 3 May 2023 is for review of an internal review decision by the Respondent, Midcoast Council, in relation to the release of certain information that it holds relating to the Applicant ("AR Application"). The Respondent's internal review decision ultimately relates to an access application under the Government Information (Public Access) Act 2009 ("GIPA Act") which was received by the Respondent on 2 December 2022 ("access application").
[2]
Background
As required by s 54 GIPA Act, the Respondent consulted with the Applicant to ascertain whether it objected to the proposed release of information held by the Respondent related to the Applicant under the access application. In response to that consultation the Applicant advised that it objected to the release of certain of the information proposed to be released by the Respondent ("relevant information"). The Respondent determined to release some of the relevant information and to withhold (or redact) other relevant information.
On 24 February 2023 the Applicant sought an internal review of the Respondent's decision of 1 February 2023. In the internal review decision of the Respondent dated 24 March 2023 ("IR Decision"), the Respondent determined to release some of the relevant information that was the subject of the Applicant's objection which is the information subject to this AR Application ("Relevant Information"). Much of the Relevant Information proposed to be released is also subject to some redactions made by the Respondent.
Under the AR Application the Applicant applied to the Tribunal for an external review of the IR Decision. The Applicant submits that there is an overriding public interest against disclosure of the Relevant Information proposed to be released by the Respondent under the IR Decision. The Applicant contends that the following considerations outweigh the general public interest in favour of disclosure of the relevant information:
1. the disclosure will diminish the competitive commercial value to the Applicant of the Relevant Information; and
2. the disclosure will prejudice the Applicant's legitimate business, commercial, professional or financial interests.
On 22 May 2023 the following relevant orders were made by the Tribunal ("22 May Orders"):
"1. On or before 05 June 2023, Lakeside Forster Pty Ltd is to give the Tribunal and the Midcoast Council the following material: evidence including statements, documents and submissions in regards to its claim for additional deletions to the specified email for which the access applicant seeks access.
…
3. On or before 19 June 2023, Midcoast Council is to give the Tribunal and all other parties the following material:
(a) its decision as to whether it affirms, sets aside or varies its decision in regard to Lakeside Forster Pty Ltd's claim for additional deletion; and
(b) in the event it affirms its decision in regard to the requested additional deletions: all evidence in reply, submissions and a summary of legal arguments.
4. On or before 03 July 2023, Lakeside Forster Pty Ltd is to give the Tribunal and the Midcoast Council the following material (if any) in reply: evidence including statements, documents, and submissions.
5. The parties consent to a hearing of this application being dispensed with and the Tribunal is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal."
The Applicant complied with Orders 1 and 2 of the 22 May Orders. Order 2 being the provision, on a confidential basis, of the unredacted information in issue (i.e. the Relevant Information). However, the Respondent failed to comply with Order 3(a) of the 22 May Orders and did not, in relation to Order 3(b), provide any evidence in reply, submissions or a summary of legal arguments.
I note that in Order 5 of the 22 May Orders the Tribunal confirms that (i) it has determined (and is satisfied that) a hearing of the AR Application can be dispensed with and the matter can be adequately determined in the absence of the parties by considering any written submissions or other documents or materials lodged with or provided to the Tribunal (i.e. "on the papers") and (ii) the parties have consented to this matter being determined on the papers.
[3]
Role of the Tribunal
The role of the Tribunal in undertaking an administrative review is to decide what the "correct and preferable" decision is having regard to the material before it: s 63 Administrative Decisions Review Act 1997 ("ADR Act"). The Tribunal is required to make its decision on the material available to it at the time of the hearing or, in this case, when making its determination on the papers and is not limited to material that was before the decision-maker.
This is a merits review and therefore the Tribunal is not concerned with the question of whether the decision under review (i.e. the IR Decision, in this case) was itself correct or incorrect but (as noted) to determine the correct and preferable decision.
The issue in this AR Application is whether the correct and preferable decision is that there is an overriding public interest against disclosure of the relevant information (or any parts of it).
[4]
Applicable legislation
The object of the GIPA Act is, as stated in s 3(1) GIPA Act, to open up access to government information to the public (i.e. the GIPA Act provides a framework for access to government information). The GIPA Act is to be interpreted and applied so as to further this object. The meaning of "government information" is broad, s 4 GIPA Act provides that government information means information contained in a record held by an agency. The GIPA Act provides that access to government information is only to be restricted when there is an overriding public interest against such disclosure.
Part 2 of the GIPA Act provides the mechanism by which one can make an access application to an agency for access to the government information that the agency holds. Section 5 GIPA Act provides that there is a presumption in favour of the disclosure of government information, unless there is an overriding public interest against disclosure. Further, s 9(1) GIPA Act gives a person who makes a valid access application a legally enforceable right of access to government information, unless there is an overriding public interest against disclosure of the information.
Section 12 GIPA Act also provides that there is a general public interest in favour of the disclosure of government information and, further, that nothing in the GIPA Act limits any other public interest considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.
The term 'public interest' is not defined in the GIPA Act nor is it a fixed concept. In Director of Public Prosecutions v Smith [1991] 1 VR 63 the Supreme Court of Victoria (Appeal Division) found:
"The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals".
Section 13 GIPA Act sets out the "public interest test" for determining whether there is an overriding public interest against disclosure of information in the following terms:
13 Public interest test
There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
As summarised by the Tribunal in Tallawoladah Pty Ltd v Department of Planning Industry and Environment [2021] NSW ATAP 248 ("Tallawoladah") at paragraph [19]:
This test in s 13 GIPA Act requires the Tribunal, as the decision‑maker, to attribute weight to each consideration for and against disclosure and determine whether the balance of the public interest lies in favour of or against disclosure of the relevant government information: Hurst v Wagga Wagga City Council [2011] NSWADT 307; Flack v Commissioner of Police, NSW Police [2011] NSWADT 286. The GIPA Act provides no set formula for calculating the weight of considerations under s 13 GIPA Act for determining whether one set of considerations outweighs the other, and the Tribunal has stated that "any reasonable approach that follows the s 15 GIPA Act principles seems to be acceptable … it is really a matter of placing identified considerations in order of priority or importance": Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278 at paragraph [96]. The balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at paragraph [17].
The only considerations that may be taken into account as public interest considerations against disclosure, for the purpose of determining whether there is an overriding public interest against disclosure of the relevant government information, are those listed in the table in s 14 GIPA Act ("Table") (see s 14(2) GIPA Act).
Relevantly, clauses 4(c) and (d) of the Table provide:
4 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) diminish the competitive commercial value of any information to any person,
(d) prejudice any person's legitimate business, commercial, professional or financial interests,
…
While a broad value judgment is required to be made, it is not made in a vacuum. It is a determination made having regard to the objects of the GIPA Act, the general presumption in favour of disclosure of government information and the principles set out in s 15 GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104]. Sections 15(a) - (d) GIPA Act operate to promote disclosure of information and promote the object of the GIPA Act, notwithstanding any embarrassment to Government or potential misinterpretation. In s 15 GIPA Act, only s 15(e) identifies a principle that mitigates against disclosure.
[5]
Rights and interests of third parties under the GIPA Act
Section 54 GIPA Act provides that agencies are to consult with third parties where the information to which access is sought concerns the third party's business, commercial, professional or financial interests and the person may "reasonably be expected to have concerns" about the disclosure of the information.
The purpose of this consultation is to ascertain whether the third party has an objection to disclosure of some or all of the information and the reasons for their objection. The agency (in this case, the Respondent) must take any objection to disclosure of information into account in the course of determining whether there is an overriding public interest against disclosure of any of the relevant information.
Pursuant to s 100 GIPA Act a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under the ADR Act. A third party who has raised objections to the release of any of the information is a person who may be aggrieved by the reviewable decision and has the right to administrative review by the Tribunal.
In administrative review proceedings under s 105(1) GIPA Act, usually the onus falls on the agency (i.e. the Respondent in this case) to establish that its decision not to release certain information, for example, is justified. However, where the review is requested by a third party (i.e. the Applicant in this case) of a decision of the agency (i.e. the IR Decision in this case) to provide access to government information in response to an access application, as is the case in this matter, under s 105(2) GIPA Act the burden of establishing that there is an overriding public interest against disclosure of any of the Relevant Information (in this case) lies on the applicant for review (i.e. the Applicant in this case).
[6]
Guiding principle and duty of the parties
The 'guiding principle' detailed in s 36 Civil and Administrative Tribunal Act 2013 ("CAT Act") establishes the duties of the Tribunal and the parties, among others, in relation to proceedings before the Tribunal, most relevantly as follows:
"(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in proceedings.
…
(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal:
(a) a party to proceedings in the Tribunal, …"
[7]
Material before the Tribunal
As noted above (see paragraph [6] above), in addition to the AR Application (which attached IR Decision) and the confidential documents referred to in paragraph [26] below, the Applicant made written submissions but did not provide any other evidence in support of the AR Application or its submissions and therefore relies on its written submissions.
The Applicant provided to the Tribunal, on a confidential basis, the documents with all the Relevant Information included.
As noted above (see paragraph [6] above), the Respondent did not provide any submissions or the confirmation required by Order 3 of the 22 May Orders.
The IR Decision simply (and only) noted, as regards the Relevant Information, that:
"In relation to prejudicing any person's legitimate business, commercial, professional or financial interests, I have applied the public interest test and have decided under section 58(1)(a) to provide access to your information as there is an overriding public interest for disclosure of the information."
[9]
Applicant's stated considerations against disclosure
The Applicant contends that the public interest considerations against disclosure outweigh those in favour of disclosure. The considerations against disclosure raised by the Applicant are as follows:
(1) The disclosure of the information would diminish its competitive commercial value to the Applicant (clause 4(c) of the Table); and
(2) The disclosure of the information would prejudice the Applicant's legitimate business, commercial, professional or financial interests (clause 4(d) of the Table).
[10]
The need for evidence in GIPA matters
In Wavelength Group Pty Ltd v Upper Hunter Shire Council [2021] NSWCATAD 182 ("Wavelength"), Senior Member Goodman noted at paragraphs [28] - [30]:
[28] Whether disclosure of particular information "could reasonably be expected to" have a particular effect is a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]; McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 at [66].
[29] The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83]:
"[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.
…
[83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17]."
[30] In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 an Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to [Transport for NSW v Searle] and the authorities discussed in that decision, the Appeal Panel said at [59]:
"Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind:
(1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;
(2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;
(3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses."
In Toplace Pty Ltd v City of Parramatta [2021] NSWCATAD 149, Principal Member Pearson stated at paragraph [77], in addition to and confirming much of the Tribunal's thinking in Wavelength, that:
In considering the public interest considerations against disclosure, the following principles are relevant:
(1) The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words:
... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
(2) In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]:
"[25] … 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."
(3) The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]).
(4) In considering the evidence required to establish that disclosure "could reasonably be expected to have" one of the effects stated in cll 1 or 3, the relevant principles are:
(a) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;
(b) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; and
(c) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses: Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 at [59].
The Tribunal in Wavelength also noted (and confirmed by the Tribunal in Tallawoladah) that a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient. There must be real and substantial grounds supporting a submission, view or opinion that disclosure could reasonably be expected to have a particular effect. In the present matter, no probative evidence was provided to the Tribunal to support the findings of fact that the Applicant requested the Tribunal make in the Applicant's submissions.
[11]
Clause 4(c) of the Table
The Applicant contends that the disclosure of the relevant information would diminish its competitive commercial value to the Applicant.
In relation to clause 4(c) of the Table, 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] and Australians for Sustainable Development Inc v Barangaroo Delivery Authority 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 Applicant has not provided any evidence in support of its contention that the Relevant Information proposed to be disclosed has commercial value. Further, it is not clear to the Tribunal that the information sought to be redacted by the Applicant (i.e. not to be disclosed by the Respondent) has any competitive commercial value. Even if it were to be assumed that the relevant information has competitive commercial value, it does not necessarily follow that the release of that Relevant Information would diminish its value. These issues need to be (and should have been) addressed by evidence.
In my view, based on the materials and information before the Tribunal, the Applicant has failed to discharge its onus with respect to clause 4(c) of the Table.
[12]
Clause 4(d) of the Table
The Applicant contends that the disclosure of certain of the Relevant Information that the Respondent proposes to disclose can reasonably be expected to prejudice its legitimate business, commercial, professional or financial interests.
In order to establish this contention the Applicant must identify the particular legitimate business, commercial, professional or financial interests it is referring to: Commissioner of Police, NSW Police Force v Camilleri at paragraph [37]. The Applicant must also establish the basis on which a finding can be made by the Tribunal that the disclosure of this Relevant Information could reasonably be expected to prejudice those interests.
The Applicant submits that the disclosure of how the Applicant conducts business, its strategies and how it intends to manage various sites would prejudiced its proposed commercial transaction and submits that the disclosure would thus prejudice its legitimate business, commercial, professional or financial interests. However, the Applicant did not adduce any probative evidence in support of these contentions or that such would have created the particular claimed effect.
In the circumstances, based on the materials and information before the Tribunal, I am not satisfied that the Applicant has discharged its onus with respect to clause 4(d) of the Table.
[13]
Conclusion
It is disappointing that the Respondent saw fit not to assist the Tribunal by making written submissions, providing any relevant evidence or responding to Order 3 of the 22 May Orders. This compounds the limited IR Decision which does not detail the Respondent's analysis of the Applicant's objections or detail the Respondent's balancing process (i.e. what public interest considerations for and against disclosure it considered and how it weighted them).
Even though the Respondent chose not to make any written submissions or provide any evidence to assist the Tribunal, arguably in breach of its duties under s 36 CAT Act, in this case the Applicant has not provided any evidence in support of its case and it has not discharged the onus of establishing that there is an overriding public interest against disclosure of the Relevant Information. Accordingly, the Respondent's IR Decision should be affirmed.
[14]
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: 31 July 2023