McAlary v Yass Valley 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. An "agency" is defined in s 4(1) of the GIPA Act to include a "local authority". A "local authority" means a council, county council or joint organisation within the meaning of the Local Government Act 1993 (NSW). The Respondent is a council within that Act.
9. An agency has made a "reviewable decision" within s 80 of the GIPA Act, the agency being the Respondent and the "reviewable decision" being a 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).
13. The hearing of this matter was conducted partly in private for the Respondent to make submissions on the material it wished to redact from Document 1. The Tribunal had before it and considered the unredacted version of Document 1.

Consideration

1. 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]; Else v Transport for NSW [2021] NSWCATAD 59, at [18]).
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". See also Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [24] - [25].
3. Relevantly, clause 1 of the Table in s 14 of the GIPA Act, in determining whether there is an overriding public interest against disclosure, provides: "1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - …. (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (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, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence".
4. 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".
5. The Respondent submitted that the following considerations in favour of disclosure are applicable; 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 2. disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
6. The Respondent, however, submitted that the considerations against disclosure of the relevant information outweighed the considerations in favour of disclosure. In support of its submission, the Respondent said that disclosure would; 1. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency 2. prejudice the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions 3. found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence 4. prejudice the effective exercise by an agency of the agency's functions.
7. The Respondent also relied on certain considerations set out in clause 4 of the Table under s 14 of the GIPA Act. They were that disclosure would: 1. diminish the competitive commercial value of any information to any person 2. prejudice any person's legitimate business, commercial, professional or financial interests.
8. The parties reduced the scope of the dispute to a single document identified as Document 1. The Respondent was prepared to provide this document to the Applicant, subject to certain redactions. The document in question included terms of finance to be provided by Westpac. It also included information on interest rates offered by other financiers, the most favourable rate and monthly payments. It was this information that was sought to be redacted.
9. Document 1 contained 3 categories of information. They were information concerning; 1. projected building costs 2. a summary of expressions of interest addressing funding options 3. an assessment of financial implications of the project and options for the Respondent to offset the loan, including the potential sale of land from its portfolio of land holdings.
10. The Applicant agreed that to the extent Document 1 addressed the first and second categories of the information described at [30] above, the material should not be disclosed. However, in respect of the third category, the Applicant submitted that there appeared to be three subsets of information namely, the financial implications of the project, the options to offset the loan and the potential sale of land to meet project costs. The Applicant's position was that each of these three subsets of information were of concern and interest to the Yass Valley public and as such, consideration should be given to release in redacted form of those parts of Document 1 that related to them. The information in dispute was set out in part 2.3 of Document 1.

Deliberations of Respondent - cl 1(e) of Table under s 14 of GIPA Act

1. The first question is whether disclosure of the information in question could reasonably be expected to have the effect described in clause 1(e). That is, would disclosure 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. The evidence is that Document 1 was prepared for the express purpose of deliberations of the Respondent. The question, however, is not whether Document 1 was prepared for such a purpose of deliberation but whether it could reasonably be expected to reveal a deliberation or consultation or an opinion or advice, or recommendation given. Given that the Respondent has agreed to provide Document 1 in redacted form, the particular question arises with respect to the information sought to be redacted.
3. To the extent that the material sought to be redacted simply describes terms offered by Westpac and other financiers before the relevant deliberation, it is difficult to see how the information concerning those terms necessarily reveals the content of a deliberation, consultation, opinion, advice or recommendation occurring after the terms were offered. Information comprising matters of fact, such as proposed commercial terms, put before the Respondent for the purposes of deliberation, consultation, opinion, advice or recommendation does not lead to the necessary conclusion that the information reveals the content of the deliberations, consultations conducted, opinion, advice or recommendations concerning that information. The information sought to be redacted is about the terms of the loan from Westpac and offers by other financiers. No information about any prior or contemporaneous deliberations, consultations, opinions, advice or recommendation as such is, on the face of the evidence, contained in that information, other a recommendation to negotiate with Westpac set out in a different part of Document 1 which the Respondent does not wish to redact.
4. Even if the information in question revealed any of the matters set out in clause 1(e) of the Table under s 14, disclosure must be one that "could reasonably be expected" to have the relevant effect, namely, revelation "in such a way as to prejudice a deliberative process of government or an agency". 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".
5. The Respondent submitted that disclosure of the recommendations made would prejudice a deliberative process of the Respondent by providing an unfair advantage to private entities in future commercial negotiations with the Respondent in relation to the project in question. However, no evidence was provided as to how or why disclosure of the information in question would be prejudicial or how it could provide an unfair advantage to someone in future negotiations, such as a future financier. On the contrary, it could be reasonably expected that publication of the terms of the current financing and offers by other financiers would facilitate competition between financiers tendering in the future and prepared to offer better terms,.
6. To the extent that disclosure of the information in question would reveal the terms of funding offered by Westpac and other financial institutions, it could reasonably be expected that the resulting transparency as to the relevant commercial matters would benefit the Respondent, businesses providing finance in the future as well as ratepayers. It is difficult to see how, in the circumstances at hand, encouraging competition between financial institutions so as to deliver the best outcomes for local government and ratepayers can create prejudice to the deliberative processes of government or an agency.
7. Even if there is a risk of some kind that disclosure would result in prejudice to the deliberative process of the Respondent, I do not place much weight on a risk of this kind as a consideration against disclosure in the balancing exercise I need to carry out, on account of the matters set out at [36] and [37] above.

Confidentiality - cl 1(d) of Table under s 14 of GIPA Act

1. The Respondent resists disclosure of the unredacted parts of Document 1 in relation to borrowings of the Respondent, on the basis that the information was submitted to it on a confidential basis as part of an expression of interest process. It contains commercially sensitive information about entities which were and may continue to be competitors. Disclosure, in these circumstances, in the Respondent's submission, may prejudice the supply of confidential information that facilitates the effective exercise of the Respondent's functions within the meaning of clause 1(d) of the Table to s 14 of the GIPA Act.
2. The Tribunal in Collins v Department Finance, Services & Innovation [2018] NSWCATAD 60, said (at [63]-[64]): "… the Tribunal is to engage in a relatively abstract analysis. The Tribunal is to ask whether, as a matter of reasonable expectation, if material of the kind sought to be protected were released, could it prejudice the supply of similar material to government in the future. In this context the word 'prejudice' is to be given its ordinary meaning, namely: 'to cause detriment or disadvantage'. It is not necessary that the decision-maker be satisfied that the release of the information will in fact prejudice the future supply of information. The Tribunal is to consider the nature of the material sought to be protected, the extent to which material of that kind can only reasonably be obtained by confidential communication and the extent to which guarantees of confidentiality may be necessary. That is, would disclosure of the information sought damage the ability of the agency to obtain similar information in future? The agency's evidence is examined in regard to the conditions under which it conducts the service within which the information was received and the extent to which the information in issue facilitates the effective exercise of that agency's functions. The experience of the witnesses who expressed the relevant opinions is a significance factor".
3. Insufficient evidence was placed before the Tribunal that banks and other finance providers would cease to respond to expressions of interest from local government authorities seeking to borrow or otherwise limit responses to expressions of interests in the event of disclosure. Merely asserting that these consequences would follow, without further supporting evidence, is not sufficient to allow me to give significant weight to the matters set out in clause 1(d), in the balancing exercise that I am required to carry out.
4. In Meriton Property Services Pty Limited & Ors v UrbanGrowth NSW [2017] NSWCATAD 71, the Tribunal found that the provision of confidential information supplied by tenderers in connection with a significant urban land development was information of competitive and commercial value to the tenderers. The information may have included an analysis about "the perceived strengths and weaknesses of the tenders". In relation to the list of tenderers, the Tribunal said that it was likely that the simple fact that an entity's direct market competitor does not know whether the entity took part in the tender was information of a competitive and commercial value to the entity. The tender evaluation process also adopted methodology that was "unique" to its tender processes.
5. The circumstances in the present case can be distinguished from that of tenderers for an urban development project of the kind considered in Meriton. The relevant tenders in that case appear to have contained significant detail about the tenderer's capabilities. The evaluation process was also unique. Information as to the best interest rates and other terms available from a lender is different to information containing a detailed analysis of the perceived strengths and weaknesses of tenderers for a large urban development project. There was also no evidence of any unique characteristics of the Respondent's tender evaluation process. I am not therefore satisfied that the type of information sought by the Applicant in this matter gives rise to the kinds of commercial sensitivities under consideration in the Meriton case.
6. In Sergent v Land and Property Management Authority [2010] NSWADT 50, the Administrative Decisions Tribunal considered an application under the Freedom of Information Act 1989 (NSW) for information concerning the redevelopment of Wollongong Harbour and foreshores.
7. The following findings in Sergent are apposite, as to whether disclosure could prejudice the future supply of information to government: "I agree with the Applicant that the EOIs were supplied voluntarily for commercial purposes and that prejudice to the future supply of EOIs is not made out. In my view, it is implausible that the current proponents or other potential proponents will not submit expressions of interest in relation to future developments if the opportunity for considerable commercial gain exists. It is reasonable to expect that potential proponents may reconsider the basis on which they are prepared to submit an expression of interest and it is conceivable that potential proponents would require and be offered agreements as to confidentiality. However, I do not accept that expressions of interest would not be made. The need to reconsider the basis on which proponents are prepared to submit an expression of interest would not present significant obstacles to a future development and therefore it is my view that any prejudice to the future supply of such information would not be unreasonable. For this reason, it is my view that those exemptions that require provisions the Department to establish that release of to the EOIs would prejudice the future supply of such information are not made out".
8. There was insufficient evidence that disclosure would prejudice the supply of information by financiers or other service providers as a part of future tender processes. Merely asserting that disclosure "may prejudice the supply of confidential information" to the Respondent on the basis that the business community would be reluctant to provide the Respondent with their commercial in confidential material in the future, does not establish that this is so, without evidence to support such a proposition. It would be surprising if financiers would turn down the opportunity for business with government, merely because the terms of borrowings could be publicly disclosed. Indeed, where the borrower is a government entity, a situation where the terms of borrowings are not to be disclosed to the public does not sit well with the statutory intent of open and accountable government underlying the GIPA Act.
9. For the reasons set out at [41] to [46] above, I am unable to give significant weight to the considerations set out in clause 1(d) of the Table under s 14 of the GIPA Act. The Respondent indicated that information on monthly repayments of the borrowings from Westpac would, in due course, be publicly disclosed during the term of the loan, allowing members of the public to derive some information on the terms of the Westpac loan. These circumstances also assist me in my conclusion as to the limited weight to be allowed to matters of confidentiality.

In confidence provision of information - cl 1(g) of Table under s 14 of GIPA Act

1. The Respondent submits that the relevant information was provided by financers in confidence, and that disclosing details would reveal the commercial in confidence provisions of the contract with the successful tenderer, Westpac and commercial in confidence information of other tenderers. There was no specific evidence provided as to what obligations of confidentiality existed in the relevant tender documents. What was submitted was that there was a general expectation of confidentiality. Even if such an expectation of confidentiality existed, I am unable to place significant weight on considerations of confidentiality under clauses 1(g), in the absence of specific evidence of obligations or expectations of confidentiality, when balancing considerations of confidentiality against the public interest considerations in favour of disclosure. Even if such evidence were adduced, greater weight, in my opinion, attaches to the considerations in favour of disclosure.

Prejudice - cl 1(f) and 4 of Table under s 14 of GIPA Act

1. No evidence was otherwise provided to show that the disclosure of the information in Document 1 as to the terms of financing could prejudice the effective exercise of the Respondent's functions within clause 1(f) or clause 4 of the Table under s 14 of the GIPA Act.
2. In Sergent, the Administrative Decisions Tribunal said: "There are a number of cases where the Tribunal has accepted that the commercial value in particular documents could reasonably be expected to be destroyed or diminished if disclosure would give a competitor an insight into the business of the documents' owner. This is particularly in the context of a tendering process. In Zagami v Waste Services New South Wales [2005] NSWADT 217, I accepted that the commercial value of the information in question would be destroyed or diminished because disclosure would allow a person with sufficient technical knowledge to ascertain aspects of the agency's operations and, in doing so, a competitor could obtain a commercial advantage in a tendering process". There was no evidence in the present case that disclosure of the terms of borrowing, such as interest rates and repayment dates and instalments, to a person would allow that person to ascertain information about aspects of the Respondent's operations and thereby obtain commercial advantage. There was also no evidence to indicate that disclosure would diminish the competitive commercial value of any information. That information as to repayments would in due course be made public assists me in coming to this conclusion.
3. Accordingly, having balanced considerations in favour of disclosure against considerations going against disclosure, I find that the balance favours disclosure of that part of Document 1, being section 2.3, that the Respondent wishes to redact. I place significant weight on the following considerations in favour of disclosure; 1. disclosure of the information in question 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, such as the terms of public borrowings and the way in which public funds are spent, and 2. disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
4. The correct and preferable decision is therefore to provide access to part 2.3 of Document 1 without redaction, other than the information identifying tenderers other than Westpac. The decision of the Respondent as set out at [7] and [9] above is otherwise affirmed.

Orders 1. The decision of the Respondent is set aside. 2. Document 1 to be provided to the Applicant within 28 days of this decision, with no redactions to part 2.3 other than redactions of information identifying unsuccessful tenderers, with other parts to be provided as redacted by the Respondent. 3. The decision of the Respondent not to provide Document 48 is affirmed. 4. The decision of the Respondent to provide Documents 18, 21, 22, 23, 24, 25, 31, 32 and 44 in the form redacted by the Respondent is affirmed. 5. The decision of the Respondent to provide the remaining documents without redaction 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

Amendments 05 July 2024 - No amendments made 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: 05 July 2024