Manning v Bathurst Regional Council

NCAT Administrative and Equal Opportunity|2018-06-27|Before: Mr J

Background

The applicant in these proceedings has applied for review of a decision under the Government information (Public Access) Act 2009 (NSW) ("the GIPA Act") concerning access to information from the respondent council.
On 19 April 2017 the applicant lodged an application under the GIPA Act with the respondent Council seeking access to information described as follows: "1. Confidential Business paper relating to agenda item 8 of the Bathurst Regional Council meeting of 16 March 2016 "Purchase of land, West Bathurst" - section discussing the reasons why council is considering the purchase of 9 McKell Street. 2. Confidential Business paper relating to agenda item 3 of the Bathurst Regional Council meeting of 18 May 2016 "Purchase of land, West Bathurst" - section discussing the reasons why Council has decided to purchase 9 McKell Street. 3. A copy of the full response from Wilkinson Murray Acoustic Consultants, excerpts of which were quoted in the letter sent to me by the General Manager on 5 February 2016. 4. A copy of the letter that the General Manager sent to Wilkinson Murray Acoustic Consultants pursuant to his letter to me dated 18 January 2016. 5. A copy of the most recent acoustic report that Council commissioned in regard to the pool pump noise at its property at 9 McKell Street, which the General Manager spoke about at public question time, and said had been sent to my solicitor, but which he has not received."
The Council located records which fell within the application and provided the applicant with access to certain information. Other information referred to in these proceedings as "Confidential Business Papers" were provided with information redacted. A Valuation Report and a letter from the Council's lawyers were withheld.
The applicant applied to the Information Commissioner for external review. On 14 July 2017 the Information Commissioner determined that the decisions of the Council were not justified and recommended the Council make a new decision. The Council conducted an internal review on 26 July 2017. The outcome of the internal review decision was as follows: 1. Documents 1 and 2 (the Confidential Business Papers) had information which was said to be outside the scope of the application and also of a commercial nature removed. Section 14 Table 4(d) of the GIPA Act was relied upon. 2. Document 3 was released with personal information removed in accordance with s 14 Table 3 (a). 3. Document 4, an email response from Wilkinson Murray, was provided. 4. Document 5 was not provided as it was said to be subject to legal professional privilege (s 14(1), Sch 1, cl 5). 5. Document 6 (the Valuation Report) was referred to in Documents 1 and 2 but was said to be outside the scope of the request and was not provided.

Application for review

The applicant applied to the Tribunal for a review of the Council's internal review decision.
The preliminary issue of whether certain information sought in the review was outside the scope of the access application was determined by Senior Member Lucy in Manning v Bathurst Regional Council [2018] NSWCATAD 18.
The Senior Member held that: 1. The information within the solicitor's letter and the valuation report was not captured by the access application. 2. The redacted information in the body of the Confidential Business Papers was within the scope of the access application. 3. Accordingly, that part of the application which sought review of the decisions to deny access to the solicitor's letter of 4 May 2016 (identified in the Notice of Decision as Document 5) and the valuation report dated 7 March 2016 (identified in the Notice of Decision as Document 6) was dismissed.
I am now required to determine the balance of the application for review, which relates to Documents 1 and 2. The respondent relies on the public interests against disclosure which are identified in clauses 4 (c) and (d) of the Table to s 14 of the GIPA Act.
It is recorded that at a case conference on 19 September 2017 the applicant stated that she no longer pressed for an unredacted version of the email from Wilkinson Murray (Document 4).

The legislative framework

The 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 (s 5). Section 105(1) provides that the burden of establishing that its decision is justified lies on the Council.
Sections 12 and 13 provide: 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies. 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.
The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at [74].
In undertaking this exercise the Tribunal is to be guided by s 15 of the GIPA Act.
Under section 55 of the GIPA Act, the Tribunal is entitled to consider the Applicant's motives for making the application to the extent that it is relevant to whether disclosure could reasonably be expected to have any of the effects referred to in clauses 2 - 5 of the Table to section 14. The personal factors of the application can also be taken into account as factors in favour of providing the Applicant with access to the information.
Section 14(2) provides: The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
Clause 4 of the Table to s 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: … (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests, …
The words "could reasonably be expected to" are to be given their ordinary meaning: see 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".
In addition, in Leech v Sydney Water Corporation [2010] NSWADT 198 at [28] it was said: " 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."

Whether disclosure could reasonably be expected to diminish the competitive commercial value of any information to any person

The respondent submitted that disclosure of the Confidential Business Papers could reasonably be expected to diminish the competitive commercial value of the information in question to the Council (s 14(4) item 4(c) of the Act). It relied upon the decision of Eyes v Wyong Shire Council [2016] NSWCATAD 120.
The Council had made a business decision to purchase the property in question. The Council's submissions identify that redacted information dealt with the quantum of the valuation obtained by the Council; the Council's view as to the value of the property; the costs for the Council associated with purchasing the property; negotiations over the purchase; and the amount for which the Council expects to be able to sell the property.
In Media Research Group Pty Ltd v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7 at paragraph [44] the Appeal Panel considered comparable provisions in clauses 7(1)(b) and 7(1)(c) in Schedule 1 to the Freedom of Information Act 1989 (NSW) and endorsed the discussion of "commercial value" in Seeney and Department of State Development [2004] QlCmr 4 where the Queensland Information Commissioner identified two senses in which information may have "commercial value": "a. "commercial value" in its "primary meaning"' refers to information that is "valuable for the purposes of carrying on the commercial activity in which the ... person is engaged": paragraph [36]. The information "may be valuable because it is important or essential to the profitability or viability of a continuing business operation, or a pending 'one-off commercial transaction": at paragraph [36], b. In its "second meaning", information has a "commercial value to [a] ... person if a genuine arms-length buyer is prepared to pay to obtain that information from that ... person, such that the market value of the information would be destroyed or diminished if it could be obtained under the FOI Act from a government agency". at paragraph [37]."
I am satisfied that the redacted information in this case is important to the profitability of a pending commercial transaction and falls into the first category of information with a commercial value.
In Eyes v Wyong Shire Council [2016] NSWCATAD 120 at [71] the Tribunal noted that the meaning of "commercial value" is modified by the word "competitive" and accepted, following Nature Conservation Council of NSW v Department of Trade and Investment Regional Infrastructure and Services [2012] NSWADT 195 at [160] and McKinnon v Blacktown City Council [2012] NSWADT 44 at [79] and [80], that the word "competitive" implied that the information would provide the person with a "competitive edge". In the latter case the Tribunal, after considering the ordinary meaning of the word "competitive", observed that: "'Competitive commercial value' therefore connotes information of commercial value gained in, or relating to, a competitive commercial or business context, including competitive information relating to the competitive purchase and provision of government services."
The Council 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."

Whether disclosure could reasonably be expected to prejudice the Council's legitimate business, commercial professional or financial interests

"Prejudice" under the GIPA Act has been held to have the same meaning as under the FOI Act, which is its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].
The Council conceded that the price it paid for the property could be accessed through a public search. However the component of the price which was referable to "acquisition costs" could not. It 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.
In response, the applicant submitted that: 1. The residential property market fluctuates and is driven by supply and demand; 2. The council cannot sell the property until work is done on the retaining wall and drainage and this may be some time in the future, possibly 3 years from the purchase; and 3. Valuations and appraisals in 2016 will not be relevant to the price of the property when it is put on the market in the future.
The evidence was that the Council had no immediate plans to sell the property (as at October 2017) but was likely to want to sell it in the future once any outstanding dispute with the applicant regarding the property was resolved. There was also evidence (tendered by the applicant) that the purchase of the property by the Council has been the subject of local news coverage and that the applicant has contributed to that coverage. No evidence was available regarding the property market in Bathurst or to what extent the information being public might affect a sale. In my view, however, it could reasonably be expected that if it was disclosed, the information would become public knowledge. For a prospective purchaser to know how much Council would accept on reselling the property, and the basis for that position, could reasonably be expected to disadvantage the Council as a seller in any negotiations and result in a lower sales price.
On the available evidence, I am satisfied that disclosure of the redacted information in Documents 1 and 2 could reasonably be expected to prejudice the Council's legitimate commercial, financial or business interests as a vendor of the property.

The balancing exercise

The applicant submitted that the public interests in favour of disclosure included: 1. The council paid in excess of the market price for the property to cover the vendors' relocation costs and other expenses, and it was in the public interest that the amount of financial support the Council gave the vendors was revealed. 2. It was in the interests of fair treatment, transparency and social justice that the information be released. 3. Release of the information would give the applicant an indication of how much money Council was allocating to rectification works on the property. 4. The price paid by the Council included an amount for "financial assistance for private gain" to the vendors which, had the Council provided that assistance under s 356 of the Local Government Act 1993, would have had to be disclosed to the public under that Act.
As to (2) the applicant did not demonstrate how these interests would be served by disclosure. As to (3), a reading of the documents does not indicate any support for this point.
As to (4) I am not satisfied that s 356 is relevant. That section appears to relate to financial assistance provided to persons for the purpose of performing functions of the Council.
The Act provides examples of public interests in favour of disclosure and these include: 1. 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.
This point is related to point 1 of the applicant's submissions. I am satisfied that disclosure of the value of the property as at the time of purchase could reasonably be expected to promote open discussion of public affairs relating to the Council's actions in this case. It could possibly enhance accountability about the expenditure of public funds, but this is more remote. In my view the public interest in favour of disclosure, given the limited scope of the discussion concerning a single transaction, does not outweigh the public interest against disclosure, given the potential for financial disadvantage to the Council.
Accordingly the respondent has established that its decision in respect of Documents 1 and 2 was justified and should be affirmed.

Orders 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: 27 June 2018

Freedom of Information Act 1989(NSW)

(Public Access) Act 2009(NSW)

At a glance

Court

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Before

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Judgment (8 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (3)

Cited By (2)