McNeill v Clarence Valley Council [2025] NSWCATAD 281;

1. I am satisfied that the correct and preferable decision is to:

(1) Remit the respondent's decision to refuse to deal with various access requests to the respondent for reconsideration in accordance with these reasons.

(2) Remit the respondent's decision that it does not hold information and/or the information is already held by the applicant in relation to various access requests to the respondent for reconsideration in accordance with these reasons.

(3) Remit the respondent's implied decision that it does not hold information in relation to various access requests to the respondent for reconsideration in accordance with these reasons.

(4) Set aside the respondent's decision in part and release information contained in various documents referenced in the schedules filed by the respondent 27 August 2025 in accordance with these reasons.

(5) Otherwise affirm the decision under review.

1. The GIPA Act facilitates access to NSW government information to the public by application for access unless there is an overriding public interest against disclosure (s 3).
2. The provisions of the GIPA Act 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, that the information requested was 'government information' and that the respondent is an agency for the purposes of the GIPA Act.
3. Section 5 creates a presumption in favour of the disclosure of the government information to the applicant unless there is an overriding public interest against disclosure. Section 9(1) gives the applicant a legally enforceable right to be provided with the information in accordance with Part 4, unless there is an overriding public interest against disclosure.
4. Section 12 clarifies that the public interest considerations are weighted in favour of disclosure of government information (s 12(1)) and that there is no limit on the public interest considerations supporting such disclosure that may be taken into account (s 12(2)).
5. Section 13 is key for the operation of the public interest test under the GIPA Act and provides:

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.

1. The public interest considerations against disclosure are set out in a Table to s 14 of the GIPA Act. Section 14 provides:

14 Public interest considerations against disclosure

(1) 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.

(2) 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.

1. Section 14 limits the public interest considerations able to be relied upon in determining whether there is an overriding public interest against disclosure of government information to those listed in the Table to s 14 of the GIPA Act. The respondent in this case relies on the following public interest considerations against disclosure from the Table:

(1) Clause 1(d) - 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,

(2) Clause 1(e) - 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,

(3) Clause 3(a) - that disclosure of the information could reasonably be expected to reveal an individual's personal information, and

(4) Clause 4(b) - that disclosure of the information could reasonably be expected to reveal commercial-in-confidence provisions of a government contract.

1. Section 15 lists five principles that must be complied with when a determination as to whether there is an overriding public interest against disclosure of government information is to be made:

(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.

1. Section 53 of the GIPA Act requires an agency to undertake reasonable searches for government information in response to an access application that was held by the agency when the application was received:

53 Searches for information held by agency

(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.

(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.

(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.

1. Section 55(2) of the GIPA Act makes provision for the personal factors of the application (as defined in s 55(1)) to be taken into account as factors in favour of providing the applicant with access to the information.
2. Section 58 of the GIPA Act confirms how applications are to be decided:

58 How applications are decided

(1) An agency decides an access application for government information by -

(a) deciding to provide access to the information, or

(b) deciding that the information is not held by the agency, or

(c) deciding that the information is already available to the applicant (see section 59), or

(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

(e) deciding to refuse to deal with the application (see section 60), or

(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.

1. Section 60 of the GIPA Act provides that an agency may to refuse to deal with an access application in certain circumstances. Section 60(1)(a) is relevant to these proceedings:

60 Decision to refuse to deal with application

(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason) -

(a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources,

...

(2) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided.

(3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications.

(3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency may, without limitation, take into account the following considerations -

(a) the estimated volume of information involved in the request,

(b) the agency's size and resources,

(c) the decision period under section 57.

(3B) Any consideration under subsection (3A) must, on balance, outweigh -

(a) the general public interest in favour of the disclosure of government information, and

(b) the demonstrable importance of the information to the applicant, including whether the information -

(i) is personal information that relates to the applicant, or

(ii) could assist the applicant in exercising any rights under any Act or law.

(4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application.

(5) Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal.

(6) An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application.

1. Section 61 of the GIPA Act details what must be included an agency's decision to refuse to provide access where there is an overriding public interest against disclosure:

61 Notice of decision to refuse to provide access

Notice of an agency's decision to refuse to provide access to information because there is an overriding public interest against disclosure of the information must state the following -

(a) the agency's reasons for its decision,

(b) the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based,

(c) the general nature and the format of the records held by the agency that contain the information concerned.

1. Section 72 confirms the forms of access that may be provided to the information sought unless it would unreasonably interfere with the operations of the agency or result in unreasonable additional costs, it would be detrimental to the proper preservation of the record, it would involve infringement of copyright, or there is an overriding public interest against disclosure of the information in the way requested by the applicant. Section 72(2)(c) provides as follows in relation to copyright:

72 Forms of access

...

(2) The agency must provide access in the way requested by the applicant unless -

...

(c) to do so would involve an infringement of copyright

1. The role of the Tribunal is to decide whether the decision under administrative review is the correct and preferable decision: Administrative Decisions Review Act 1997 (ADR Act), s 63(1). In determining this question, the Tribunal is to have regard to the material before it, including any relevant factual material and any applicable written or unwritten law. The Tribunal may exercise all functions conferred or imposed by any relevant legislation on the administrator who made the decision: ADR Act, s 63(2).
2. The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG & GG v Minister for Community Services [2002] NSWCA 247 at [25].
3. Section 105(1) of the GIPA Act places the onus of proof on the respondent to justify its decision. The respondent is not limited to arguing its case on the same basis as it made its original decision: Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department [2002] NSWADT 277 at [57] and [59].

1. The application to review the respondent's decision in this Tribunal was filed on 18 June 2024 and within the time limit under s 101(1) of the GIPA Act.
2. On 8 July 2024 the Tribunal ordered the applicant to provide a summary of the 300 items in his access application that he sought for the respondent to provide a specific response to or engagement with at a scheduled mediation.
3. On 14 July 2024 the applicant emailed the respondent 8 pages which outlined the applicant's concerns about the respondent's response to his access application arising from the respondent's searches and lack of documentation provided. The applicant stated that of the original 300 requests, he had received no response to 142 of the requests, the response to 41 of the requests was inadequate and that the responses to 12 of the requests referenced emails and other documents that were not provided with the respondent's response.
4. On 17 July 2024 the respondent's legal representative emailed the applicant advising that it was unclear from the revised request what specific information was requested.
5. On 17 July 2024 the applicant replied attaching a document of 217 pages purporting to be an analysis of the respondent's response to his access application with a single page cover letter.
6. On 6 August 2024 the parties attended a mediation that was terminated.
7. Between 6 August 2024 and 23 September 2024, following further engagement with the applicant (including the applicant providing a draft Revised request dated 9 August 2024 with 105 requests), the respondent conducted further searches and provided the applicant with additional documents and further answers to the requests in response to his access application. On 23 September 2024 the respondent confirmed by email to the applicant that the decision of 31 May 2024 was varied as per the Schedules that were attached to the email.
8. There was further engagement between the applicant and respondent in relation to the matter, including following the hearing. As will be seen below:

(1) Further documents were provided by the respondent to the applicant in response to his access application following the hearing.

(2) The complete documents considered by the respondent to be relevant to the access application, including the confidential documents that it withheld, were not filed with the Tribunal together with complete Schedules until after the hearing.

1. In the applicant's documents and in submissions made to the Tribunal, he raised issues such as the respondent's purported failure to comply with flood planning requirements, matters of public safety, alleged breaches of various legislation such as the Local Government Act 1993, State Records Act 1998, Disability Inclusion Act 2014, Environmental Planning and Assessment Act 1979 and other guidelines such as the Flood Risk Management Manual 2023 (for example the applicant's access application Requests 61, 249 and 269 and associated submissions tended to focus on such issues) and that he found the format of the documents provided by the respondent difficult to work with.
2. At the outset of the hearing the Tribunal explained to the applicant that the scope of the Tribunal's review is limited to the applicant's access application under the GIPA Act. The Tribunal is only able to consider matters relevant to the determination of this issue.
3. During the hearing, and in material filed by the applicant in accordance with directions following the hearing, the applicant agreed that the Tribunal's review is limited to whether the respondent has complied with the GIPA Act.

1. The applicant provided his original GIPA request and written submissions to the respondent and Tribunal filed on 20 December 2024.
2. The respondent provided an Affidavit of Alexandra Moar (with copies of the written communications between the parties referred to above annexed) and written submissions to the applicant and Tribunal.
3. Both parties made oral submissions at the hearing.
4. One witness, Ms Alexandra Moar, Director of Corporate and Community of the respondent, was required for cross examination by the applicant at the hearing.
5. Ms Moar gave evidence at the hearing by AVL.
6. The applicant sought to file material late with the Tribunal, which is addressed below.
7. The Tribunal required the respondent to file further material with the Tribunal following the hearing, which is addressed below.

1. The applicant seeks detailed information from the respondent under the GIPA Act relating to flood modelling, emergency planning and community consultation for managing flood risks. The applicant submitted that the respondent's refusal to provide the information sought is not justified under the GIPA Act.
2. The applicant contended that reasonable searches have not been conducted by the respondent and submitted that when documents sought are not held that the respondent should provide reasons as to why it does not hold the documents.
3. The applicant filed an Application for miscellaneous matters for orders that he did not pursue at the hearing, except for costs.

1. The respondent submitted that it has provided the applicant with access to information in response to his application in accordance with its obligations under the GIPA Act. The respondent submitted that undertaking further searches would be an unreasonable diversion of the respondent's resources and that the respondent cannot provide information that it does not hold.
2. The respondent submitted that its decision is the correct and preferable one.
3. Both parties sought an order for the other party to pay costs.

1. The applicant sought to file material with the Tribunal, namely a document titled "Urgent request to substitute corrected submission document for hearing" with annexures, encompassing some 336 pages. This material had been posted by the applicant to the Tribunal but had not been received by the Tribunal at the time of the hearing. Directions were made at the hearing for the parties to provide any written submissions as to whether the Tribunal should consider this material in its final determination within 14 days. The Tribunal received and considered submissions from both parties on this subject.
2. The applicant submitted that it is imperative for the Tribunal to consider the document titled 'Categorization of GIPA Requests Based on Council Responses and Legal Obligations V2' that was filed late because the document:

(1) Provides the applicant's comprehensive and structured analysis of the respondent's responses to his GIPA application (in preference to and substitution of his prior submissions).

(2) Directly responds to the respondent's submissions that the applicant's submissions relate to matters outside of the Tribunal's jurisdiction and categorises the applicant's case around the GIPA Act.

(3) Provides the Tribunal with a means of ensuring that the applicant is provided with procedural fairness in relation to the proceedings: Civil and Administrative Tribunal Act 2013 (CAT Act), s 38(5)(c).

(4) Enhances the Tribunal's ability to exercise its function to facilitate the just, quick and cheap resolution of the real issues: CAT Act, s 36.

(1) The entirety of the additional information (subject to 'Annexure P' and 'Annexure Q') should not be admitted on the grounds of relevance.

(2) Over 300 pages of information served two days before the hearing is not acceptable.

(3) The entire submission (apart from 'Annexure P' and 'Annexure Q') does not relate to the GIPA request.

(4) In relation to Annexure P headed 'Schedule of Released documents not provided (from Schedule of documents from Planning.pdf)':

(a) The respondent undertook to review its records, and if the documents were not provided they would be re-sent.

(b) The documents from Annexure P were subsequently sent to the applicant by the respondent on 9 March 2025, following the hearing.

1. After considering the submissions, I formed the view that the material sought to be filed late by the applicant should be available for consideration by the Tribunal in reaching its decision. However, as the respondent has pointed out, certain parts of the information provided is not relevant to these proceedings. The Tribunal has therefore limited its consideration to the documents titled 'Categorization of GIPA Requests Based on Council Responses and Legal Obligations V2', 'Annexure P' and 'Annexure Q'.

1. Following the hearing, the Tribunal made orders for the respondent to file material in compliance with orders made by the Tribunal dated 18 November 2024. The respondent had been in default of these orders and this was identified by the Tribunal after the hearing. This resulted in the respondent filing complete records (some 229 documents) with the Tribunal that have been identified as relevant to the applicant's access request, including confidential documents, subject to confidentiality orders.
2. Although the respondent filed confidential documents with the Tribunal in an envelope marked 'conclusive presumption documents' for which it relied variously on cll 1(d), 1(e) and 4(b) of the Table to s 14 of the GIPA Act, these are not conclusive presumptions against disclosure under the GIPA Act. According to s 14(1) of the GIPA Act the conclusive presumptions against disclosure are described in Schedule 1. There is no conclusive presumption against disclosure that arises in this case.

1. The applicant's GIPA access request seeks information held by the respondent in relation to flooding issues. In general it reads more like a submission to Council than a GIPA access request. It provides extensive background explanations, photographs and diagrams, additional commentary and requests a wide range of information often lacking in specificity. The background explanations and commentary were likely included because of the complexity of the subject matter. However, the lack of specificity in certain requests have caused some confusion as to the information the applicant was seeking access to. This is not a criticism of the applicant. Access requests under the GIPA Act can only be made in regard to information held by the agency at the time of the application. It is not a mechanism for seeking answers to questions a person might have concerning administrative action taken by a government agency or seeking an explanation by an agency why particular action was or was not taken: Davison v NSW Department of Education and Training [2013] NSWADT 25 at [3], [24].
2. Perhaps as a consequence of this, the Tribunal has found it difficult at times to decipher the respondent's response to the access request, to ascertain what has been released to the applicant and what has been withheld, and identify the basis relied upon for the withheld information.
3. The applicant issued a Revised access request dated 9 August 2024 with 105 requests (reduced from 300) after liaising with the respondent. Even though the Revised request was stated to be a draft, from that point on both parties acted consistently with this being an amendment to the original access application. It is clear from the applicant's submissions that he is no longer seeking responses to the additional requests in his original access application.
4. As noted above, there is information in 229 documents the respondent identified as coming within scope of the applicant's access request. Each of these documents were referenced and allocated a unique number in four Schedules filed by the respondent on 27 August 2025 (the respondent's Schedules). The Schedules identify whether the respondent has released the information to the applicant and the basis under the GIPA Act relied upon where it has not done so.
5. The numbers allocated to the documents in the respondent's Schedules have been used as a reference point for each document in the reasons for this decision. The tables below record the decisions in respect of each of the documents.

1. The applicant made various submissions about the operation GIPA Act that it is convenient to deal with before the substantive matters. The applicant referred to these matters as 'systemic issues' which he says demonstrate that the respondent has breached the GIPA Act.

Failure to conduct thorough searches, including metadata, which could reveal additional relevant documents (s 53(3))

1. The applicant did not elaborate in any detail on what he meant by 'metadata' searches.
2. The adequacy of the searches undertaken by the respondent in this matter is considered further below.

Clause 2(d) of the s 14 Table in the GIPA Act may act as a 'public safety override'

1. The applicant referred to clause 2(d) of the s 14 Table as a factor which is able to be considered in favour of providing access to the documents sought. The applicant's submission appeared to be that cl 2(d) may be used to override other public interest considerations against disclosure in the GIPA Act where matters of public safety are present.
2. The GIPA Act states at clause 2 and cl 2(d) in the s 14 Table:

2 Law enforcement and security

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) endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person,

1. From a plain reading of s 14, and the factors in the Table to that section, including cl 2(d), it is clear that the factors in the table to s 14 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 government information. The GIPA Act does not permit a public interest consideration against disclosure from the Table to s 14 being used in the way the applicant contends.
2. The applicant did not provide any authority for this interpretation of the operation of cl 2(d) and it must be rejected as being wrong.

Providing incomplete or misleading responses across multiple GIPA requests (s 60(1)(a))

1. The parties made the Tribunal aware of other Tribunal decisions involving GIPA applications made by the applicant for information held by the respondent: McNeill v Clarence Valley Council [2024] NSWCATAD 325 and McNeill v Clarence Valley Council [2024] NSWCATAD 382. The applicant submitted that the Tribunal should take into account the similarities in the respondent's response to those applications and the current case to examine the common issues of inadequate searches, misrepresentation or incomplete disclosure of critical information and whether they are 'systemic'.
2. Neither of the cited decisions made findings about such issues. By the time of the publication of these reasons, the first of these decisions had been overturned by the Appeal Panel in McNeill v Clarence Valley Council [2025] NSWCATAP 184, which included consideration of sufficiency of searches. This is considered further below.
3. The Tribunal's jurisdiction in these proceedings is enlivened by the applicant's application under the GIPA Act and the respondent's reviewable decision in this case. This Tribunal is not empowered to make inquiries or to investigate 'systemic' issues in the manner suggested by the applicant.
4. Section 111 of the GIPA Act enables the Tribunal to refer any matter to the Information Commissioner that is considers indicative of a systemic issue concerning the determination of GIPA applications by a particular agency. However s 111 does not give the Tribunal power to undertake inquiries that an agency has breached the GIPA Act separate from its administrative review functions: see Taylor v Destination NSW [2020] NSWCATAD 137 at [12]- [13]. An agency making an error in determining access under the GIPA Act is ordinarily insufficient, without more, to fall within the meaning of systemic issues contemplated by s 111: see for example Zonnevylle v Secretary, Department of Education [2022] NSWCATAD 121 at [31].
5. Section 112 of the GIPA Act enables the Tribunal to refer an officer of an agency who has not acted in good faith in the officer's exercise of a function conferred on them by or under the Act to the Minister who appears to have responsibility for the agency.
6. The applicant has not identified any systemic issues that would justify referral to the Information Commissioner or the Minister responsible for the agency under s 111 or s 112 of the GIPA Act respectively. The respondent has engaged extensively with the applicant's application, even though there were some inadequacies, which are dealt with further below. There is no evidence before the Tribunal that the relevant officers of the respondent, or that the respondent generally, failed to exercise its obligations under the GIPA Act in good faith.

1. The respondent provided evidence of how it dealt with the access application including a copy of communications with the applicant about this, in the affidavit of Ms Alexandra Moar. Ms Moar deposed in her affidavit as follows:

(1) Ms Moar has been employed as Director of Corporate and Community of the respondent since 12 December 2022 and is authorised by the principal officer for the purposes of s 9(3) of the GIPA Act to decide access applications.

(2) The applicant's access application was initially dealt with by Lohraine Souza, Council Governance Officer, who was also duly authorised by the principal officer.

(3) On 8 April 2024 Ms Souza emailed the applicant advising the initial assessment indicated the access application would require an unreasonable and substantial diversion of resources and offered an opportunity to amend the application. On 11 April 2024 Ms Souza again asked the applicant to amend his application via email. On 15 April 2024 the applicant replied with an additional 35-page document.

(4) The respondent's notice of decision dated 31 May 2024, emailed to the applicant on 6 June 2024, provided partial access to the requested information and confirmed that the respondent refused to deal with part of the access application as it would require unreasonable and substantial diversion of the agency's resources as per s 60(1)(a) of the GIPA Act.

(5) The respondent conducted searches of its electronic records (Electronic Management System (ECM)) and consulted with seven staff with knowledge of the subject matter (to provide documents in response to the most specific and comprehensible of the applicant's requests). The staff consulted were:

(a) Coordinator Emergency Management and Resilience.

(b) Customer Service Officer (RFI and GIPA).

(c) Development Planner.

(d) Manager Development and Land Use Planning.

(e) Manager Technical Services.

(f) Insurance Officer.

(g) Communications Officer.

(6) The respondent maintains all documents in accordance with Council's Information Management Policy (a copy of which was annexed to Ms Moar's affidavit). Any document relevant to the request would be stored within the ECM in accordance with the Policy. Searches were undertaken using key words from the requests including but not limited to "flooding", "coastal", "run-up", "flood risk", "insurance". All found documents were provided, subject to relevant public interest considerations against disclosure.

1. Ms Moar was cross examined by the applicant at the hearing. Ms Moar gave evidence under cross examination as follows:

(1) There was reference to the search terms used by the respondent to interrogate the ECM in relation to the access application in the notice of the decision and in her affidavit.

(2) Searches of the ECM system were recorded in the notice of decision.

(3) The access application raised 300 requests with unspecific questions and locating actual documents in response was beyond the resourcing of Council. The majority of the documents located were taken from consultations with the relevant staff.

(4) Searches of email correspondence were undertaken to locate information held by the respondent responsive to the access application. Ms Moar searched her email database. Requests were also sent to the seven relevant staff asking them if they held relevant information and they then each performed their own searches of their email databases to identify whether information was held or not. It was the responsibility of the staff member responsible to find the information in their own email databases and Ms Moar was not present when they entered the search terms.

(5) The respondent has used the ECM since 2004. As a result, there was a large number of search results returned from searching the ECM for general search terms related to the requests in the access application. For example, in relation to the search term 'flood insurance', (referred to in original Request 299 / revised Request 104), the ECM identified 377 records. There was a detailed process of then going through those results to refine them for the relevant request, e.g. 'flood inquiries'. After concluding the search process in this fashion for each request, together with the email database searches, the decision was made that locating anything further in relation to that search was unreasonable.

(6) Ms Moar took notes of her search terms and key words inputted into the ECM and referred to her affidavit in that regard.

1. The applicant questioned Ms Moar about whether the respondent's ECM allows for 'meta data searches'. The applicant did not explain what he meant by 'meta data searches' apart from it being a search of the features of a record, such as date and time and title. Ms Moar's responses indicated that the capability of the ECM to undertake such searches was limited, and she did not confirm that such searches were undertaken in response to the access request.
2. The applicant submitted that the lack of 'meta data searches' was evidence that the respondent had failed to conduct adequate searches in response to the access application. The significant shortcoming with this submission, apart from questions about whether and to what extent the respondent's ECM system is actually capable of such searches, is in what way 'meta data searches', as described by the applicant, would have assisted the respondent to conduct searches in response to requests that were in many cases extremely broad and generalised. This is not something that the applicant addressed or established by evidence.
3. I considered Ms Moar to be a truthful and earnest witness. I accept her evidence about the searches undertaken by the respondent regarding the access application and the information collated and produced as a result, such as it was. However, it would have benefited the Tribunal to have far more information about the searches, search methods and resources of the respondent in responding to the access requests than Ms Moar provided or was able to provide. Ms Moar stated that searches of the ECM system were recorded in the notice of decision and her affidavit - however little information was included about this in either in the notice of decision or her affidavit and a detailed list of the actual search terms used was not provided.

Refusal due to an unreasonable and substantial diversion of the agency's resources under s 60(1)(a) of the GIPA Act

1. Section 60(1)(a) was considered by the Tribunal in Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186 where it described the requirements of the section in the following terms (at [81]):

"What will be considered an excessive or unreasonable amount of processing time will depend on the circumstances of each case and [...] is a matter for the decision maker or the Tribunal to determine with reference to the objects of the Act."

1. The respondent's position was that nine of the applicant's requests for access (Requests 69/28, 70/29, 111/39, 170/70, 184/72, 185/73, 226/76, 290/100 and 299/104 in the respondent's Schedules - in the format original Request number / revised Request number) should be refused under s 60(1)(a) of the GIPA Act because they would require an unreasonable and substantial diversion of the agency's resources.
2. An agency is to undertake reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received: s 53 of the GIPA Act. This obligation extends to 'searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically': s 53(3). The obligation to search does not extend to searches that would require a 'substantial and unreasonable diversion of the agency's resources.'
3. The non-exhaustive list of factors in s 60(3A) and the two factors set out in s 60(3B) of the GIPA Act must be considered by the Tribunal to determine whether an agency's refusal to deal with an access request on the ground of substantial and unreasonable diversion of the agency's resources under s 60(1)(a) is made out.
4. The Tribunal has held that the factors in s 60(3A) and (3B) are informed by two previous cases concerning the matters relevant to an assessment of whether an application would require an unreasonable and substantial diversion of an agency's resources: Cianfrano v Director General, Premier's Department [2006] NSWADT 137 and Colefax v Department of Education and Communities No 2 [2013] NSWADT 130 (see Gates v Port Macquarie-Hastings Council [2022] NSWCATAD 193 at [72] (Gates) and Ruyters v Commissioner of Police [2020] NSWCATAD 223 at [18] (Ruyters).
5. As Senior Member Ransome, as she then was, stated in Gates at [73]:

"The tasks to be undertaken in considering whether dealing with an application would require an unreasonable and substantial diversion of the agency's resources are to identify and take into account any matters falling within s 60(3A) and then to determine whether, on balance, those matters outweigh the factors set out in s 60(3B). It is only where the matters in s 60(3A) outweigh those in s 60(3B) that an agency can refuse to deal with an access application on the basis that it would require an unreasonable and substantial diversion of an agency's resources (Ruyters at [24])."

1. The salient parts of the requests refused by the respondent are as follows:

"69) Selected Modelling Approach: Clarification on the modelling approach selected (simplistic, general, or detailed) for the flood impact assessment within the WYURA and the rationale behind this choice.

70. Reasoning for Approach Selection: Detailed reasoning on why the chosen modelling approach is deemed fit for purpose for the WYURA, taking into account the degree of investigation required against potential implications.

...

111. Gauge Data Clarification and Discrepancies:

Detailed information on the gauge data used for model calibration for each specified map, explaining discrepancies or modelling assumptions, particularly concerning flood directions and interactions between riverine and oceanic conditions.

...

170. Flood Prediction and Evacuation Timing Strategies: Insights into the predictive models and criteria used to determine the timing for evacuation orders, including the lead time required to effectively mobilize the community and emergency services.

...

184. Road Closure Duration Projections for 1% AEP CC1 Flood Events: Analytical projections or studies estimating the duration of road closures in the event of a 1% AEP CC1 flood, based on hydrological models, past flood data, and current infrastructural capacities. This should also include contingency planning for prolonged isolation periods.

...

185. Resupply Strategies During Flood Events: Detailed plans for ensuring continuous supply of essential goods and services to the affected population, especially considering the rapid depletion of fresh food supplies observed in previous events like the 2022 flood, where fresh food shelves were emptied three days before roads reopened. Strategies should include coordination efforts with local businesses addressing logistical challenges, potential airlift operations and partnerships with commercial suppliers.

...

226. Documents or correspondence discussing potential liability issues for the Council concerning flood risk management and compliance with Sect 733 of the Local Government Act 1993.

...

290. Professional Due Diligence: Records of professional due diligence practices recommended or required by the council for staff and external consultants in using the flood model report.

...

299. Engagement with the Insurance Sector: Communications with insurance entities regarding flood risk management, highlighting any adjustments in policies or premiums based on flood risk assessments."

1. In summary, the applicant submitted that the respondent's refusal to respond to these requests breaches its obligations under the GIPA Act because:

(1) The respondent has failed to demonstrate workload estimates on responding to these requests.

(2) The respondent did not provide evidence that retrieving relevant records would cause an unreasonable diversion of resources as required by s 60(1)(a).

(3) The respondent failed to demonstrate that it conducted a thorough search for the documents requested (e.g. evacuation and resupply documentation relevant to Requests 170/70 and 185/73 respectively) under s 53(3) of the GIPA Act. Refusing to disclose evacuation and resupply strategies without clarifying their existence or adequacy constitutes incomplete information.

(4) In relation to Requests 69/28 and 70/29: there is evidence in a BMT email dated 29 August 2023 that details the rationale for revising inflow estimates using a log-normal distribution method. This approach was selected to align with Probable Maximum Flood guidelines, which emphasise conservative estimates for extreme flood events. The email demonstrates that the methodology was discussed and justified internally, contradicting the respondent's claim of no available information. In addition, the respondent failed to locate or provide peer-reviewed reports, such as those from JBP, which are critical for validating modelling methodologies. This omission suggests inadequate searches or deliberate withholding of information. Given the availability of emails and peer review documents, the respondent's claims lack credibility.

"The 9 refused requests were not specifically related to any document within the respondent's possession. Responses would require preparation of new documents not yet created, requiring an unreasonable deviation of resources and extending the request beyond the scope of GIPA Act.

Questions comprise vague requests including:

1. "rationale" [Q69].

2. "detailed reasoning" [Q70].

3. "explaining discrepancies or modelling assumptions" [Q111].

4. "criteria used to determine the timing for evacuation orders" [Q170].

5. "studies estimating the duration of road closures" [Q184].

6. "detailed plans for ensuring continuous supply of essential goods and services" [Q185].

7. "discussing liability... and compliance with Sect 733 of the Local Government Act 1993" [Q226].

8. "records of professional due diligence practices" [Q290].

9. "communication with insurance entities regarding flood risk" [Q299]."

1. The respondent submitted that it has provided written answers to queries where possible and provided links or references to sources of further information. Providing any further information in response to the requests would require creation of new documents, being outside the scope of the GIPA Act: s 53(1). The respondent did locate and provide the applicant with access to a JBP peer review report as part of its decision.
2. Under s 75 of the GIPA Act, an agency's obligations in response to an access application do not require it to:

(a) make a new record of information held by the agency,

(b) update or verify information held by the agency,

(c) create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency.

1. The respondent has refused to deal with nine requests in the applicant's access application.
2. The applicant submits that the respondent has provided little or no information to prove that dealing with the nine requests would require a significant and unreasonable diversion of the respondent's resources. He states the applicant failed to demonstrate that it conducted a thorough search for the documents or confirm what documents were found and provided no evidence of workload estimates on responding to these requests. The notice of decision dated 31 May 2024 confirmed that the respondent had spent 40 hours dealing with the access application up to that time. It is clear from the documents before the Tribunal that there has been extensive interactions and engagement between Ms Moar and the applicant, and Ms Moar and various other staff members of the respondent in relation to the access application since 31 May 2024. However the respondent has not provided any calculations of the additional time the staff of the respondent have spent dealing with the access application since the original notice of decision or estimates of the further time that would be required to respond to the outstanding requests. Ms Moar's evidence, referred to above, went some way towards addressing the issues, although the information that she provided was limited.
3. Section 60(4) of the GIPA Act requires an agency to give the applicant a reasonable opportunity to amend the access application before refusing to deal with it because dealing with it would require an unreasonable and substantial diversion of resources. Section 60(5) requires an agency to give reasons for a refusal to deal with an access application in the notice of decision.
4. I am satisfied that the respondent gave the applicant a reasonable opportunity to amend his access application in the emails sent by Ms Souza to the applicant dated 8 and 11 April 2024.
5. Subsection 60(3B) provides that any consideration under s 60(3A) must, on balance, outweigh the general public interest in favour of the disclosure of government information and the demonstrable importance of the information to the applicant.
6. Relevant to the size of the agency, two officers of the respondent dealt with the access application (Ms Moar, Director of Corporate and Community and Ms Souza, Council Governance Officer). Determining such requests is likely just one aspect their duties in relation to governance and other matters at the Council. Ms Moar referred to one other employee, a Customer Service Officer (RFI and GIPA) who likely assists in responding to access applications. The evidence establishes that various areas of the respondent's offices would be required to have input into locating information relevant to the requests. Ms Moar referred to seven other members of staff who were consulted. These personnel are from other operational areas of the respondent contributing to the ordinary functions and business of Council. Inquiries arising from an access request would be in addition to the normal operations of the respondent.
7. I surmise from the evidence of Ms Moar that considerable time would need to be taken to deal with the applicant's outstanding access requests. The respondent did not provide evidence as to the time needed across its various divisions in addition to the 40 hours already spent on dealing with the other requests in the access application. The respondent did not provide evidence of the volume of the information involved apart from Request 299/104 (referred to at [72(5)] above).
8. The respondent also submitted that the imprecision of the outstanding requests meant that they were, in effect, not capable of being responded to or would require the creation of documents not held by the respondent. In such circumstances, I accept that it is difficult to specify how much time would be involved in dealing with a particular access request. The type of requests made by the applicant are complex and wide ranging. Such aspects of the requests, together with the span and analysis in the information he seeks, mean that the information sought is unlikely to be readily available and considerable time would need to be spent in dealing with these requests. The additional time needed to respond would result in the offices of the respondent being diverted from the usual business of Council at the expense of its services the community.
9. I accept that the resources of the respondent are finite and dealing with the nine requests would exhaust significant resources. As a general rule, requests involving more than 40 hours of work by an agency are likely to involve 'an unreasonable and substantial diversion of resources': see Cianfrano v Premier's Department [2006] NSWADT 137.
10. This is not matter where the information concerned is the personal information of the applicant. The applicant seeks the information in order that the respondent is accountable for its flood risk management. The applicant is keenly interested in this issue and has been persistent in his pursuit of it. The applicant submits that the information is flood risk information relevant to public safety. He states that there is great importance in the transparent functioning of the respondent and the reliability and accuracy of information it provides. As stated by the Tribunal in Gates at [108]:

"Transparency and the proper functioning of an agency are important matters and what is relevant for the purposes of s 60(3B)(a) is the inherent public interest in the release of any government information rather than any particular public interest in release of the information concerned (Ruyters at [47])."

1. I am satisfied there is a general public interest in favour of the disclosure of government information and that the information is of significance to the applicant. It is likely that dealing with the nine requests from the access application would require an unreasonable and substantial diversion of the agency's resources. However, on balance the respondent has provided insufficient evidence for the Tribunal be satisfied that the s 60(3A) matters outweigh the matters referred to in s 60(3B). The Tribunal would need further evidence such as the time needed to deal adequately with the outstanding requests and the volume of information involved and the cost of doing so, in order to make a positive finding in this regard.
2. Accordingly I am not satisfied that dealing with Requests 69/28, 70/29, 111/39, 170/70, 184/72, 185/73, 226/76, 290/100 and 299/104 of the revised access application would require an unreasonable and substantial diversion of the respondent's resources pursuant to s 60(1)(a) of the GIPA Act.
3. Pursuant to s 63(3)(d) of the Administrative Decisions Review Act 1997, the respondent's decision to refuse to deal with Requests 69/28, 70/29, 111/39, 170/70, 184/72, 185/73, 226/76, 290/100 and 299/104 is remitted to the respondent for reconsideration in accordance with these reasons.

Information not held by the agency under s 58(1)(b) or otherwise, or already available to the applicant under ss 58(1)(c) and 59(1)(2) of the GIPA Act

1. A decision that information is not held by an agency (s 58(1)(b)) is a 'reviewable decision' within s 80(e) of the GIPA Act. An agency's compliance with the obligations imposed by s 53 of the GIPA is a relevant factor in reviewing such a decision, and a further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exists and is held by the agency: Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [43].
2. The Appeal Panel in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 summarised the task for the Tribunal when reviewing a decision that the requested information is not held by the agency at [44]:

"(1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) - (5);

(2) determine whether the agency has proved any relevant factual issues on the balance of probabilities;

(3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency;

(4) applying those findings, decide what the correct or preferable decision is;

(5) affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act."

1. In McNeill v Clarence Valley Council [2025] NSWCATAP 184 (McNeil), the approach taken in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 was affirmed as correct. The Appeal Panel also stated in McNeil (at [82]) that:

"Depending on the particular access application, a reasonable search (for the purposes of s 53) may require the searching of relevant staff email accounts, and/or the making of proactive inquiries of Councillors about emails held on their Councillor email accounts, notwithstanding internal Council information management policies."

1. A decision that information is already available to the applicant (s 58(1)(c)) is a 'reviewable decision' within s 80(f) of the GIPA Act.
2. The respondent submitted that 48 of the requests for access relate to information that is either not held by the agency under s 58(1)(b) or is already available to the applicant under ss 58(1)(c) and 59(1)(2) of the GIPA Act via publicly available Council minutes, policies and plans on the respondent's website.
3. However, the respondent's own Schedules record outcomes in relation to at least 62 requests that may be relevant to either or both of these categories (s 58(1)(b) and s 58(1)(c)). In these instances it is extraordinarily difficult to discern from the respondent's Schedules what decision the respondent has made in relation to which request.
4. The 62 likely relevant requests identified by the Tribunal are noted in the respondent's Schedules, as follows (in the format original Request number / revised Request number):

(1) Schedule 1: Requests 16/8, 19/9, 22/10, 25/11, 28/12, 29/13, 41/16, 42/17, 47/20, 52/21, 56/23, 60/24, 61/25, 83/31, 92/32, 94/33, 99/35, 100/36, 104/37, 113/40, 115/41, 118/42, 119/43, 126/45, 127/46, 129/47, 130/48, 138/49, 142/50, 145/51, 147/52, 148/53, 149/54, 150/55, 160/61, 161/62, 162/63, 166/67, 169/69, 242/79, 249/80, 250/81, 254/82, 256/83, 262/84, 263/85, 264/86, 265/87, 266/88, 267/89, 268/90, 269/91, 271/92, 272/93, 273/94, 274/95, 275/96, 277/97, 278/98, 279/99, 292/101 and 298/103.

1. The applicant submitted that the respondent failed to undertake adequate searches in relation to many of these requests.
2. The applicant raised issues with the following additional requests that are not included above (in the format original Request number / revised Request number):

(1) Schedule 1: Requests 4/1, 5/2, 6/3, 32/14, 33/15, 54/22, 79/30, 83/31, 163/64, 164/65, 165/66, 167/68.

1. The respondent provided access to documents in relation to each of those requests. The applicant submitted that the respondent failed to locate or disclose further information relevant these requests and provide redacted summaries if exemptions apply.
2. The respondent submitted that it has undertaken all reasonable searches and consultation in an attempt to satisfy the applicant, and that the applicant's requests are unreasonable.
3. The question of whether an agency has carried out all reasonable searches is not a reviewable decision under s 80 of the GIPA Act. Nevertheless, the Tribunal does have power to review an implied decision that an agency does not hold any additional information that was responsive to the request beyond that which has been provided: Amos v Central Coast Council [2018] NSWCATAD 101 at [33].
4. The approach of the Tribunal in reviewing an implied decision was explained by the Tribunal in Webb v Port Stephens Council [2020] NSWCATAD 91 at [47]- [48]:

"In relation to an implied decision that information is not held by the Respondent, there are two questions for the Tribunal to consider:

(1) whether there are reasonable grounds to believe that the documents exist and are documents of the Respondent; and

(2) if so, whether the search efforts to locate the documents had been reasonable in all circumstances; Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201.

Where there is relevant and credible material presented in support of the Respondent's implied decision, the burden, in practical terms, falls on the Applicant to challenge the Respondent's case: Webb v Port Stephens Council [2018] NSWCATAP 224, at [36]."

1. In relation to whether an agency has carried out reasonable searches, the Tribunal in Ireland v Central Coast Council [2022] NSWCATAD 366 stated (at [32]):

"An agency is required to carry out reasonable searches to locate information responsive to an access request. What constitutes a reasonable search will vary with the circumstances, however, key factors include the clarity of the request, the way the agency's record keeping system is organised and the ability to retrieve any information that is the subject of the request: Miriani v Commissioner of Police (NSW) [2005] NSWADT 187 at [30]; Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30]. That there may be some weaknesses in an agency's searches or failures in recordkeeping within the agency, does not necessarily lead to the conclusion that the search has not been reasonable: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15]; Saggers v Environment Protection Authority [2013] NSWADT 109 at [49]."

1. The respondent submits that it has undertaken all reasonable searches in accordance with its obligations under the GIPA Act (s 53(2)). I accept that the respondent has undertaken extensive searches, including Ms Moar (and initially Ms Souza) utilising key word searches to search the respondent's electronic database (ECM database) and to refine the results to locate information of relevance. Seven staff members across the different areas of the Council's operations were also consulted, with some of these consultations being at length (such as with the planning area), to search their email databases for relevant information. Ms Moar also searched her own email database for relevant information and followed up and coordinated with the other staff members consulted to collate the responses to the access request and provide information to the applicant as applicable.
2. The respondent cannot produce information or documents requested by the access application that it does not hold. The respondent's obligation to undertake reasonable searches extends to searches using 'any resources reasonably available to the agency' (s 53(3) of the GIPA Act). However, the following matters were of concern to the Tribunal:

(1) the limited evidence provided by the respondent to the Tribunal about the actual searches of the ECM undertaken, including the lack of provision of any detailed list of search terms and key words used, even though Ms Moar deposed that she took notes of her search terms and key words inputted,

(2) in the case of the staff email databases, no direct evidence about the specific searches that were conducted at all, apart from Ms Moar herself, who conceded that she did not oversee these searches but left the responsibility for this the staff member concerned to find the information in their own email databases,

(3) the brevity and scarcity of information provided in response to a number of the applicant's specific requests, that did not lend much (if any) weight to support a conclusion that reasonable searches in relation to those requests had in fact been undertaken.

1. These matters lead me to question whether the respondent has undertaken 'such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received' (s 53(2)).
2. I have decided that due to the lack of clarity in relation to the respondent's decisions noted above, the volume of the requests involved, and the need to resolve the real issues in the proceedings, that the appropriate way forward is to focus on the responses to the access requests that the applicant has taken issue with, to determine the correct and preferable decision in relation to them.
3. Each of the disputed requests is listed below, with what I consider to be the respondent's decision, a summary of the applicant's submissions and the Tribunal's assessment. The applicant has grouped various requests together and where appropriate I have taken the same approach.

Request 4/1 - implied decision further information not held

Sought copies of DA conditions and flood risk assessments for DA2018/0553 and date filling of lot commenced. BMT Flood Impact Assessment (2021) referenced but not provided.

R provided documents but no Flood Impact Risk Assessment for the site. T is satisfied that R's response to Request 4/1 lacked evidence of reasonable searches so as to determine whether such a document exists. Pursuant to s 63(3)(d) of the ADR Act R's decision is remitted to R for reconsideration.

Request 5/2 - implied decision further information not held

Sought information for DA2019/0181 of site-specific Flood impact Risk Assessment, Velicity/Depth Analysis, Hazard Classifications and Flood Storage/Floodways. Date filling commenced not provided.

R provided documents but no Flood Impact Risk Assessment for the site. T is satisfied that R's response to Request 5/2 lacked evidence of reasonable searches so as to determine whether such a document exists. Pursuant to s 63(3)(d) of the ADR Act R's decision is remitted to R for reconsideration.

Request 6/3 - implied decision further information not held

Sought information for DA2019/0492 of site-specific Flood impact Risk Assessment, Velicity/Depth Analysis, Hazard Classifications and Flood Storage/Floodways. Date filling commenced not provided. BMT Flood Impact Assessment (2020) referenced but not provided.

R provided documents but no Flood Impact Risk Assessment for the site. T is satisfied that R's response to Request 6/3 lacked evidence of reasonable searches so as to determine whether such a document exists. Pursuant to s 63(3)(d) of the ADR Act R's decision is remitted to R for reconsideration.

Request 8/5 - implied decision further information not held

Sought information for. DA2018/0373 of site-specific Flood impact Risk Assessment, Velicity/Depth Analysis, Hazard Classifications and Flood Storage/Floodways. Date filling commenced not provided. BMT Flood Impact Assessment (2018) referenced but not provided.

R provided documents but no Flood Impact Risk Assessment for the site. T is satisfied that R's response to Request 8/5 lacked evidence of reasonable searches so as to determine whether such a document exists. Pursuant to s 63(3)(d) of the ADR Act R's decision is remitted to R for reconsideration.

Requests 16/8 and 42/17 - decision that information not held (s 58(1)(b))

Request 16/8 sought 'documentation that explores the relationship between fill and the surge event's impact' by reference to the Flood Risk Management Manual.

Request 42/17 sought extensive details on methodologies employed for flood risk assessment.

An officer of R, the Manager of Technical Services, referenced peer reviews and modelling results in response to the Requests without providing supporting documentation or disclosing critical methodologies and correspondence with external consultants (e.g. post June 2023 correspondence with BMT and peer review findings).

R provided limited commentary in response. However A has not requested any specific documents. The wording of the Requests are broad and would likely require the creation of documents in order for R to respond further. R's decision in relation to Requests 16/8 and 42/17 is affirmed.

Request 19/9 - decision that information not held (s 58(1)(b)) and/or already available to A (s 58(1)(c))

Requests 22/10 and 25/11 - decision that information not held (s 58(1)(b))

Request 25/11 sought details on Oyster Channel's role including 'comprehensive analysis demonstrating' that it is 'the principal conduit for floodwater flow into and out of Lake Woooloweyah...'

Request 19/9 sought 'the latest data and projections' on sea level rise and Request 22/10 sought 'documentation on the cumulative effect of prolonged high-volume inflow into Lake Woooloweyah...'

R provided limited commentary and references. However A has not requested any specific documents. The wording of the Requests are broad and would likely require the creation of documents in order for R to respond further. R's decision in relation to Requests 19/9, 22/10 and 25/11 is affirmed.

Request 29/13 - decision that information not held (s 58(1)(b))

Request 41/16 - decision that information not held (s 58(1)(b)) and/or already available to A (s 58(1)(c))

Request 29/13 sought analysis of floodways in Yamba. Request 41/16 sought comprehensive Flood Modelling documentation by reference to Lower Clarence Flood Model Update report 2022. R's response refers to Section 3.3 of the report which was provided to A. R's further response to both requests conformed that R does not have further information in addition to what has been provided.

T does not agree with A that R has provided inadequate responses to Requests 29/13 and 41/16 in A's GIPA application. R's decision in relation to Requests 29/13 and 41/16 is affirmed.

Request 28/12 - decision that information not held (s 58(1)(b))

No documentation on unnamed creek conveyance provided. Lower Clarence Flood Model Update 2022 (referenced in Resolution 06.23.2009a) included detailed flood modelling for all watercourses including unnamed creeks and BMT's email dated 29 August 2023 confirming hydrologic assessments were conducted for 'catchment inflows' which would include conveyance data.

On balance T is satisfied that R's response to Request 28/12 lacked evidence of reasonable searches and information to satisfy the request. Pursuant to s 63(3)(d) of the ADR Act R's decision is remitted to R for reconsideration.

Request 32/14 and 33/15 - implied decision further information not held

No cumulative flood impact analysis for the West Yamba Urban Release Area (WYURA). 2021 BMT Flood impact Assessment 2021 omits analysis of flow velocities, hazard categories and inundation duration/frequency (explicitly requested in Request 32/14). 20170922 Rootsey Update re Carrs Drive Flood Report which is referenced in R's response but not provided which appears critical for understanding cumulative impacts at Carrs Drive.

R located several documents relevant to Requests 32/14 and 33/15 that were listed in Schedule 4 of R's schedules. This included R.B21482.001.02 West Yamba FIA_lowres.pdf (Document 4.45) and ECM 1236210v1 SUB2014 0016 (Document 4.163) that A claimed to be missing. The 20170922 Rootsey Update re Carrs Drive Flood Report specifically referred to by A was not located. However this document was not specified in these requests. R has produced various documents in response. R's decision in relation to Request 32/14 and 33/15 is affirmed.

Request 47/20 - decision that information not held (s 58(1)(b))

No hydrodynamic studies for Clarence River entrance classification provided. A acknowledged the information R provided in response to this request confirms that no such studies have been done. A sought for T to require R to fully disclose all correspondence related to entrance classification decisions.

Request 47/20 did not specify that all correspondence was sought. R's decision in relation to Request 47/20 is affirmed.

Request 54/22 - implied decision further information not held

Environmental considerations for Type A entrance not provided. A acknowledged the information R provided in response to this request appears to be a deficiency in the R's environmental considerations for Clarence River entrance classifications. A sought for T to require R to fully disclose all correspondence related to Sea Level Rise assumptions.

Request 54/22 did not specify that all correspondence was sought. R's decision in relation to Request 54/22 is affirmed.

Request 56/23 - decision that information not held (s 58(1)(b))

The cited studies use outdated climate scenarios instead of current NSW guidelines requiring RCP 7.0 scenarios. T should require R to extract and provide relevant sections from each study addressing the request.

R referred A to specific relevant information on R's website from a Flood Study Report in response to the Request. R is not required under the GIPA Act to create documents in order for R to respond further. R's decision in relation to Request 56/23 is affirmed.

Requests 94/33, 104/37, 113/40, 115/41, 119/43, 127/46, 138/49, 145/51, 161/62 and 162/63 - decision that information not held (s 58(1)(b)) and/or already available to A (s 58(1)(c))

R's responses are generic and refer to the Council website without providing specific details or a link to access (or sufficiently identify) the information or document being referred to.

R's responses do not provide adequate identification of the relevant information or document (or part of the document) on the R's website that is referred to in the response to the request in order for the information to be accessed. T is satisfied that R's responses to Requests 94/33, 104/37, 113/40, 115/41, 119/43, 127/46, 138/49, 145/51, 161/62 and 162/63 lacked evidence of reasonable searches and information to satisfy these requests. Pursuant to s 63(3)(d) of the ADR Act R's decision is remitted to R for reconsideration.

Requests 79/30 and 83/31 - decision that information not held (s 58(1)(b))

No wave runup study documentation provided. A sought for T to require R to confirm whether a wave runup study exists or has been planned. R confirmed it is yet to commence such a study at the time of the response to the GIPA application, although a grant was received under the Coast and Estuary Grant Program for this (relevant correspondence from DCCEEW was attached). R stated in its further response that 'in discussion with funding partner DCCEEW it was agreed to finalise the Open Coast CMP (which should hopefully occur at today's meeting) before calling consultant tenders for the Estuary CMP Page 2.'

T is satisfied that R has confirmed that a wave runup study has not been conducted but that plans are underway for a study to be conducted via the grant received for the study. A's request in this respect should therefore be declined. R's reference to discussions with DCCEEW suggest that other documentation may exist that has not been produced. The applicant's GIPA application at Request 79/30 was wide and included correspondence between R and any external agencies or consultants regarding the necessity, planning or execution of the wave runup study. A sought for T to require R to provide all documents related to coastal hazard assessments, including funding agreements and work plans for CMP Stages 2-4. Although 'funding agreements' were not specified the GIPA application, T agrees that it is likely that R has further documents relevant to Requests 79/30 and 83/31 that have not been provided. Pursuant to s 63(3)(d) of the ADR Act R's decision is remitted to R for reconsideration.

Requests 92/32 and 118/42 - decision that information not held (s 58(1)(b))

Calibration/validation data for model alignment not provided.

T agrees with A's submissions. On balance T is satisfied that R's responses to Requests 92/32 and 118/42 lacked sufficient details and information to show that reasonable searches have been undertaken to satisfy these requests. Pursuant to s 63(3)(d) of the ADR Act R's decision is remitted to R for reconsideration.

Request 100/36 - decision that information not held (s 58(1)(b))

Request 129/47- decision that information not held (s 58(1)(b)) and/or already available to A (s 58(1)(c))

Request 297/102 - decision that information already available to A (s 58(1)(c))

Request 100/36 sought gauge data information. R's response to deflects A to State Government. A says R's response fails to confirm whether it holds gauge data or has a right to access it. A submitted that the Lower Clarence Flood Model Update 2022 requires validation of flood models using observed data (e.g., gauge readings), which R must hold or have access to for compliance with the Flood Risk Management Manual 2023. A submitted that if the data is not held by R, it must explicitly state this and provide contact details for the State Government agency.

Request 129/47 sought information on analysis of gauge data. R's response directed to a report on Council's website with brief comment and no data.

Request 297/102 sought emergency plan information. R's response to deflects A to the State Emergency Service website.

T agrees with A's submissions. On balance T is satisfied that R's responses to Requests 100/36 and 297/102 lacked sufficient details and information to show that reasonable searches have been undertaken to satisfy these requests. Pursuant to s 63(3)(d) of the ADR Act R's decision is remitted to R for reconsideration.

Request 130/48 - decision that information not held (s 58(1)(b))

Request 130/48 sought information on choice of gauge data and its impact on flood risk assessments. A submitted that R's response provides brief comment by reference to the response to Request 99 and does not provide documentation or correspondence detailing how specific gauges were selected for use in flood risk assessments.

The wording of Request 130/48 is vague and unspecific. Request 130/48 did not specify that documentation or correspondence detailing how specific gauges were selected for use in flood risk assessments was sought. R's decision in relation to Request 130/48 is affirmed.

Request 220/75 - implied decision further information not held

Request 220/75 sought information of Council Meeting Minutes where non-compliance with the 2009 study recommendations were discussed. Links to Council's website for Council meetings and the study were provided. R's response stated 'Discussion / debate / questions in Council meetings are not in the minutes' and 'ECM search non-compliance with flood management recommendations - nothing located.' A submitted that R's response failed to demonstrate that it had conducted a thorough search for documentation in response to the request.

A's submission that R's response failed to demonstrate that it had conducted a thorough search for documentation in response to the request is not supported by persuasive reasons. A provides no basis for concluding that Council discussed 'non-compliance with the 2009 study recommendations' at any stage. Further, it would not be uncommon for the minutes of meetings not to include detailed discussions of such matters. R's decision in relation to Request 220/75 is affirmed.

Requests 242/79, 249/80, 250/81, 254/82, 256/83, and 262/84 - decision that information not held (s 58(1)(b)) and/or already available to A (s 58(1)(c))

Requests 264/86, 267/89, 268/90, 269/91, 271/92, 272/93, 273/94, 274/95 and 275/96 - decision that information not held (s 58(1)(b))

Request 45/19 - implied decision further information not held

Community consultation, engagement and communications of flood study and information records sought. R's response redirected to Council publications and reports. A submitted that R's responses were inadequate because they referred to general community engagement processes but did not provide detailed records such as Coast and Estuary Management Committee records. Request 45/19 sought evidence of community engagement processes 'in discussions related to flood modelling practices and the consideration of river entrance conditions.' Request 256/83 sought evidence of compliance with the Environmental Planning and Assessment Act 1979.

These requests are vague, generalised and unspecific and would likely require the creation of documents in order for R to respond further. T does not agree with A that R has provided inadequate responses to Requests 45/19, 242/79, 249/80, 250/81, 254/82, 256/83, 262/84, 264/86, 267/89, 268/90, 269/91, 271/92, 272/93, 273/94, 274/95 and 275/96 in A's GIPA application. R's decision in relation to these requests is affirmed.

Requests 263/85, 265/87 and 266/88 - decision that information not held (s 58(1)(b))

Community engagement records sought. R's response redirected to Council reports. A submitted that R's responses were inadequate because they referred to general community engagement processes but did not provide detailed records of public submissions, meeting minutes or consultation outcomes. A submitted that R failed to demonstrate that it conducted a thorough search for documents in response to these requests.

This request is vague. Although T does not accept all of A's submissions in relation to the requests, on balance T is satisfied that R's responses to Requests 263/85, 265/87 and 266/88 lacked evidence of reasonable searches and did not provide sufficient details and information to satisfy these requests. Pursuant to s 63(3)(d) of the ADR Act R's decision is remitted to R for reconsideration.

Requests 277/97, 278/98 and 279/99 - decision that information already available to A (s 58(1)(c))

No documentation of flood model limitations communicated to the public was provided. A further response from R was 'All relevant documents are before a Council meeting and feedback is noted in the council report. The applicant has not been specific and can review all Council reports on CVC website.' A submitted that R's responses were inadequate because they made general statements about Council efforts and general references to Council reports and stated that no further information was available beyond what had been provided and directed the applicant to review Council reports on its website.

This request is vague. The reference in the R's response to documents being before 'a Council meeting' without confirming what the documents are, how they are relevant to the request, and what Council meeting is being referred to is an incomplete and imprecise response to the request. A made similar submissions in relation to R's response Requests 277/97, 278/98 and 279/99 in the context of those Requests. Although T does not accept all A's submissions in relation to these matters, on balance T is satisfied that R's responses to Requests 277/97, 278/98 and 279/99 lacked evidence of reasonable searches and information to satisfy these requests. Pursuant to s 63(3)(d) of the ADR Act R's decision is remitted to R for reconsideration.

Request 292/101 - decision that information not held (s 58(1)(b))

No flood prediction methodologies provided. R did not locate records in the ECM of Flood prediction methodologies. A referred to BMT's TUFLOW models, PMF scaling factors, JB Pacific critiques as being relevant.

R provided very little information in response to this Request. On balance T is satisfied that R's response to Request 167/68 did not provide evidence of reasonable searches or information to satisfy this request. Pursuant to s 63(3)(d) of the ADR Act R's decision is remitted to R for reconsideration.

Request 298/103 - decision that information not held (s 58(1)(b))

No evidence of flood prediction uncertainties in planning policies provided. An officer of R, the Manager of Technical Services, provided general statements regarding evidence of flood prediction uncertainties influencing planning policies and stated that no further information was available. No records or documents were provided. It is unclear what searches were conducted by R in response to the request. A submits that consideration of flood prediction uncertainties in the development of local planning policies and development standards is a requirement of State Environmental Planning Policy (Flood Prone Land) 2021.

Although it is not the role of T to consider whether R has complied with state environmental planning policy, T agrees there is no basis on the available material for it to be satisfied that R has conducted adequate searches in response to Request 298/103 it is reasonably likely that R has documents relevant to Request 298/103 that have not been located or produced. Pursuant to s 63(3)(d) of the ADR Act R's decision is remitted to R for reconsideration.

Request 166/67 - decision that information not held (s 58(1)(b))

Request 163/64, 164/65 and 165/66 - implied decision further information not held

JBP peer review findings withheld pending governance review.

The peer review omits specifics on validation methodologies etc (Request 165/66).

T should require R to disclose all documents related to the implications of review findings on flood risk management strategies (Request 166/167).

According to R's Schedules the JBP review has been provided (e.g. in response to Request 163/64 and 164/65). Request 163/164 seeks a 'comprehensive summary of the JBP review findings' and similar analysis. A has not requested a specific document. The wording of the Requests are broad and would likely require the creation of documents in order for R to respond further. R's decision in relation to Requests 163/64, 164/65 and 165/66 is affirmed.

Request 167/68 - implied decision further information not held

Require R to disclose all correspondence between the Department of Planning and Environment and R confirming that the JBP peer review and validation of the Lower Clarence Flood Model 2022 update did not significantly alter the model (as per Council meeting minutes).

Request 167/68 asks for 'details' not 'correspondence'. An email has been provided with relevant information in response to the Request. On balance T is satisfied that R's response to Request 167/68 did not provide evidence of reasonable searches or information to satisfy this request. Pursuant to s 63(3)(d) of the ADR Act R's decision is remitted to R for reconsideration.

1. The respondent's decision that it does not hold information responsive to Requests 16/8, 22/10, 25/11, 29/13, 42/17, 47/20, 54/22, 56/23, 130/48, 166/67, 220/75, 264/86, 267/89, 268/90, 269/91, 271/92, 272/93, 273/94, 274/95 and 275/96 is affirmed.
2. The respondent's decision that it does not hold information and/or that information is already held by the applicant responsive to Requests 19/9, 41/16 242/79, 249/80, 250/81, 254/82, 256/83 and 262/84 is affirmed.
3. The respondent's implied decision that it does not hold information responsive to Requests 32/14, 33/15, 45/19, 163/64, 164/65 and 165/66 is affirmed.
4. Pursuant to s 63(3)(d) of the ADR Act, the following decisions are remitted to the respondent for reconsideration in accordance with these reasons:

(1) The respondent's decision that it does not hold information and/or information is already held by the applicant responsive to Requests 94/33, 104/37, 113/40, 115/41, 119/43, 127/46, 129/47, 138/49, 145/51, 161/62 and 162/63.

(2) The respondent's decision that information is already held by the applicant responsive to Requests 277/97, 278/98, 279/99 and 297/102.

(3) The respondent's decision that it does not hold information responsive to Requests 28/12, 79/30, 83/31, 92/32, 100/36, 118/42, 167/68, 263/85, 265/87, 266/88, 292/101 and 298/103.

(4) The respondent's implied decision that it does not hold information responsive to Requests 4/1, 5/2, 6/3 and 8/5.

1. The respondent made various submissions about the accuracy of the information produced the respondent in response to his access application, for example, the applicant submits that an officer of the applicant, the Manager of Technical Services, misrepresented in various responses to his access requests (for example, Request 263/85) that the Lower Clarence Flood Model Update 2022 report was adopted on 27 June 2023. The applicant claims that this misrepresents Council's resolution 06.23.009a which only authorised the conditional adoption of the report. The applicant requested for the Tribunal to require full disclosure of correspondence related to resolution 06.23.009a.
2. As the Tribunal stated in Ireland v Central Coast Council [2022] NSWCATAD 366 at [21]:

"Mr Ireland makes a number of submissions in which he contests the accuracy of the information with which he has been provided in response to his request. He also criticises the Council for providing him with information he did not in fact seek. He also questions the professionalism of the Council. As was pointed out to Mr Ireland at the hearing, the Tribunal is not concerned with whether there are errors in the information provided in response to an access request or whether an agency's decisions, as revealed through that information, were reasonable: see Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAP 211 at [26]. In addition, the right to information given in s 9 of the GIPA Act is a right to access existing information, not a right to have questions about that information answered: Shvetsova v University of New England [2015] NSWCATAD 49 at [33]."

1. The Tribunal is unable to take further action in relation to the above submissions from the applicant about the accuracy of the information produced the respondent in response to his access application. Such matters are not reviewable decisions under the GIPA Act.

Partial disclosure due to copyright under ss 6(6) and 72(2)(c) of the GIPA Act

1. The respondent submitted that full disclosure of 28 documents should not be provided under s 6(6) and 72(2)(c) of the GIPA Act because of copyright. However, taking into account the applicant's revised access request, there were 27 documents in this category.
2. The applicant seeks copies of 27 documents for which he has been provided with inspection access only, in reliance upon s 72(2)(c) of the GIPA Act. The respondent decided that the documents were unable to be released due to copyright protections but were made available to be reviewed in the administration office of the respondent in Grafton or Maclean. These documents were noted in the respondent's Schedules, as follows:

(1) Schedule 2: Documents 2.8, 2.9, 2.11.

(2) Schedule 4: Documents 4.129, 4.130, 4.141, 4.150, 4.153, 4.154, 4.162, 4.164, 4.165, 4.167, 4.168, 4.174, 4.175, 4.176, 4.180, 4.181, 4.184, 4.187, 4.188, 4.193, 4.194, 4.198, 4.199, 4.206.

1. The applicant submitted that the respondent owns the flood model but licenced the velocity data to a third party. The applicant submitted that 'copyright cannot override s 14(2)(d) when public safety is at risk'. The problem with this particular submission has been dealt with earlier in these reasons. The Tribunal accepts that the applicant is of the view that copyright should not prevent the document from being released to him under the GIPA Act.
2. The respondent submitted that the applicant was invited to inspect the documents at Council but has not availed himself of the opportunity to do so. The applicant did not dispute this.
3. The Tribunal has examined each of the documents that the respondent has identified as falling within this category.
4. The Tribunal is satisfied that 16 documents, namely Documents 2.8, 2.9, 2.11, 4.141, 4.150, 4.153, 4.154, 4.162, 4.164, 4.174, 4.175, 4.184, 4.193, 4.194, 4.199 and 4.206 are reports or documents that have been authored by external consultants (such as BMT, JBP, Risk Frontiers and Outline Planning Consultants). These documents would fall into the category of 'literary works' in which copyright subsists as they are original expressions of work under ss 10 and 32(1) of the Copyright Act 1968 (Cth).
5. Section 31 of the Copyright Act provides for the holder of copyright in a literary work to have exclusive right to reproduce the work in material form, publish the work, and communicate the work to the public (ss 31(1)(a)(i), 31(1)(a)(ii) and 31(1)(a)(iv)). The copyright holder of each of these documents is the external consultant that authored them. The copyright holder is not the respondent.
6. The GIPA Act does not provide for conditions on the use or disclosure of information once it has been released (s 15(e)). If a copy of the documents were to be given to the applicant, there would be no limit on their use or dissemination, which would amount to a breach of the copyright holder's exclusive right to publish the work or communicate it to the public.
7. The Tribunal finds that the respondent's procedure of arranging for the applicant to access the 16 documents through inspection only viewing was a permissible use of the exception in s 72(2)(c) of the GIPA Act. Similar means of access was affirmed in other cases involving copyrighted documents (examples include Sandy v Kiama Municipal Council [2019] NSWCATAD 49, Amos v Central Coast Council [2018] NSWCATAD 101, Webb v Port Stephens Council [2022] NSWCATAD 404).
8. The Tribunal is not satisfied that the following documents are literary works (or other defined works) under the Copyright Act:

(1) Documents 4.165 and 4.187: these documents are internal memo referrals to the Engineering area of the respondent concerning subdivision 2014/0016 and 2019/0030 respectively.

(2) Documents 4.176 and 4.188: these documents are emails from Engineering staff of the respondent regarding development conditions for subdivision 2014/0016 and 2019/0030 respectively.

(3) Document 4.206: this document is a table listing the Council's requirements for subdivision 2019/0030.

(4) Documents 4.167, 4.168, 4.180, 4.181 and 4.199: these documents are emails from Engineering staff of the respondent to other stakeholders, including the Joint Regional Planning Panel regarding review of flood studies.

1. Many of these documents have personal information redacted, consisting of surnames and emails addresses of external stakeholders. The information in one of the documents, Document 4.167, has been redacted so as not to reveal commercial-in-confidence provisions of a government contract. These documents are internal and external communications sent by staff of the respondent in the ordinary course of the business of Council. They are not literary works in which copyright subsists or for which the copyright exclusion under the GIPA Act may be relied upon.
2. Document 4.198 consists of civil drawings by Manage Design Engineer Pty Ltd for a manufactured housing estate 'Clifton Yamba' at the Corner of Carrs Drive and Miles Streets, Yamba NSW (DA2018/0373) showing construction certificate approval. Clause 3(1)(ii) of Sch 1 of the Government Information (Public Access) Regulation 2018 (GIPA Reg) prescribes that 'construction certificate' information received by the agency associated with a development application is 'open access information' falling within s 6 of the GIPA Act. The Tribunal considers that information in Document 4.198 would constitute such information and is therefore 'open access information'. The Tribunal is not satisfied that the provision of Document 4.198 to the applicant would involve an infringement of copyright in such circumstances.
3. The respondent's decision to provide access to information in Documents 2.8, 2.9, 2.11, 4.129, 4.130, 4.141, 4.150, 4.153, 4.154, 4.162, 4.164, 4.174, 4.175, 4.184, 4.193 and 4.194 by providing a reasonable opportunity to inspect a record containing the information is affirmed.
4. The respondent's decision to provide inspection only access to information in Documents 4.165, 4.167, 4.168, 4.176, 4.180, 4.181, 4.187, 4.188, 4.198, 4.199 and 4.206 is set aside and the Tribunal will make orders for a version of these documents with only information that would reveal personal information (and in the case of Document 4.167, information that would reveal commercial-in-confidence provisions of a government contract) redacted to be released to the applicant after 28 days of the order.

1. The respondent must satisfy the threshold for each public interest consideration against disclosure from the Table to s 14(2) of the GIPA Act that it relies upon, being that the disclosure of the relevant information 'could reasonably be expected to' have one or more of the stated effects (whether in a particular case or generally). The words 'could reasonably be expected to' require something which is more than a mere risk or a chance. It must be based on real and substantial grounds, assessed objectively, and it must not be purely speculative, fanciful, imaginary, or contrived: Taylor v Destination NSW [2017] NSWCATAD 272 (Taylor) at [23].
2. The correct approach of the Tribunal in determining whether there is a public interest against disclosure (s 13 of the GIPA Act) is to:

(1) consider the public interest considerations in favour of disclosure,

(2) consider the public interest considerations against disclosure, and

(3) determine where the balance lies between them (Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, [23]-[30] (Camilleri)).

1. This balancing exercise is 'a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation': Hurst v Wagga City Council [2011] NSWADT 307 at [94].

Public Interest considerations in favour of disclosure

1. In this case there are clear public interests in favour of disclosure in addition to the general public interest in favour of disclosure: GIPA Act, s 12(1). As stated previously the applicant seeks the information in order that the respondent is accountable for its flood risk management. The applicant submits that the information is flood risk information relevant to public safety. He states that there is great importance in the transparent functioning of the respondent and the reliability and accuracy of information it provides to the community.
2. The Tribunal accepts that the disclosure of the information could reasonably be expected to inform the public about the operations of the respondent in relation to flooding issues and its policies and practices for dealing with members of the public in relation to such matters. These factors weigh in favour of disclosure.

Public interest considerations against disclosure

1. The public interest considerations against disclosure relied upon by the respondent are considered below.

1. The issue for determination relating to cl 1(d) is whether the release 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'.
2. As the Tribunal said in Guimaraes v Commissioner of Police, NSW Police Force [2022] NSWCATAD 372 (at [45]), cl 1(d) is concerned with:

"... the future supply of confidential information, in determining whether disclosure would prejudice the supply of information. The test is not whether the particular person would, in future, refuse to supply that information but whether information of the kind in question facilitates the exercise of the respondent's functions, and, where the disclosure of such information could reasonably be expected to prejudice the supply of such information; see Flack v Commissioner of Police, New South Wales Police (2011) NSWADT 286 at [52]. Prejudice is to be determined at a broader operational level and whether disclosure of the type of information would impair the general ability of the agency to obtain that type of information in the future...."

1. The respondent has determined that there is a public interest against disclosure of six documents (Documents 4.22, 4.25, 4.26, 4.27, 4.45 and 4.46) in reliance on cl 1(d). The respondent did not provide detailed submissions or evidence to justify its decision. The applicant did not provide submissions specifically addressing this aspect of the respondent's decision.
2. Document 4.22 is a minute of a record of an Ordinary Council Meeting of the respondent dated 27 July 2021 and its consideration of an attached Development Application DA2020/0725 at Carrs Drive, Yamba, including community submissions received, and the resolution of Council in response.
3. Clause 3(1) of Sch 1 to the GIPA Reg prescribes that:

3 Information about development applications

(1) Information contained in the following records (whenever created) is prescribed as open access information -

(a) development applications (within the meaning of the Environmental Planning and Assessment Act 1979) and any associated documents received in relation to a proposed development including the following -

(i) home warranty insurance documents,

(ii) construction certificates,

(iii) occupation certificates,

(iv) structural certification documents,

(v) town planner reports,

(vi) submissions received on development applications,

(vii) heritage consultant reports,

(viii) tree inspection consultant reports,

(ix) acoustics consultant reports,

(x) land contamination consultant reports,

(b) records of decisions made on or after 1 July 2010 on development applications (including decisions made on appeal) ...

1. Clause 3(2) of Sch 1 to the GIPA Reg states that cl 3(1)(a) does not apply to so much of the information as consists of:

(a) the plans and specifications for any residential parts of a proposed building, other than plans that merely show its height and its external configuration in relation to the site on which it is proposed to be erected, or

(b) commercial information, if the information would be likely to prejudice the commercial position of the person who supplied it or to reveal a trade secret.

1. Where information is open access information, this is an important factor in favour of disclosure, in addition to other relevant factors in favour of disclosure: Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286 at [77].
2. In my opinion, much of the information in Document 4.22 is open access information as provided by cl 3(1) of Sch 1 to the GIPA Reg. Document 4.22 concerns a development application, various documents received in association with the application, and a record of a decision of the respondent in regard to a development application. It is not clear why the respondent has determined that the entirety of Document 4.22 is confidential, and the basis for its reliance on cl 1(d). I accept that at least some of the documents included in Document 4.22 are confidential, such as the West Yamba Urban Release Area Flood Impact assessment report of BMT dated January 2018 marked 'confidential' and that copyright subsists in some of the documents, such as the Douglas Partners Interim Report Preliminary Groundwater study dated June 2021.
3. Documents 4.25, 4.45, 4.46 are three versions of the same document, a flood impact assessment for West Yamba, authored by BMT for the West Yamba development consortium. The respondent submitted that these documents were not prepared for the respondent and were provided to the respondent in confidence by the development consortium. Document 4.26 consists of drawings of plans for a West Yamba Development Control Plan prepared by Mortons Urban Australia and J.E. Australia for West Yamba Land Owner's Group. Document 4.27 is a covering email from a Development Engineer of the respondent regarding flood development controls and upgrades to roads in Yamba with the draft West Yamba Flood Impact Assessment study dated May 2014 prepared by BMT for West Yamba Land Owner's Consortium attached. It is not clear from the documents whether the consortium and the land owner's group are the same organisation.
4. Although the Tribunal is without the benefit of detailed submissions from the respondent explaining the arrangements for the provision of the documents to it, I am satisfied that:

(1) Documents 4.25, 4.45, 4.46 were commissioned by and prepared for the West Yamba Landowners Consortium, which provided them to the respondent in relation to a proposed development. Each document is clearly marked 'confidential' on the front cover and also have a 'draft' watermark across many of the pages therein.

(2) Document 4.26 was commissioned by and prepared for the West Yamba Land Owner's Group, which provided the document to the respondent in relation to a proposed development. Each plan included in the document bears a 'draft' watermark.

(3) Document 4.27 includes the draft West Yamba Flood Impact Assessment study dated May 2014 (with attachments) that are in various draft states with comments. The study was commissioned by and prepared for the West Yamba Land Owner's Consortium, which provided the document to the respondent in relation to a proposed development. Many of the pages bear a 'draft' watermark.

(4) The documents are not the respondent's documents and were likely provided to it on a confidential basis. This is because they are not final versions of the documents. Additionally, Documents 4.25, 4.45, 4.46 and the draft West Yamba Flood Impact Assessment study dated May 2014 included in Document 4.27 are marked 'confidential'.

(5) Although the respondent has not listed these documents as being subject to copyright and unable to be provided to the applicant on that basis under s 72(2)(c), this would be a relevant consideration should the Tribunal decide that cl 1(d) does not apply.

1. The function of the respondent agency in this case is its consideration of developments, including development applications and consent conditions (Document 4.22), associated drainage, flood impacts and planning (Documents 4.25, 4.45, 4.46) and development controls for roads, flooding, drainage and services (Documents 4.26 and 4.27).
2. I find that the consideration in cl 1(d) of the table to s 14 is a public interest consideration against disclosure of the relevant information in Documents 4.22, 4.25, 4.26, 4.27, 4.45 and 4.46.
3. There was no evidence that disclosure would prejudice the supply of information by developers as part of future development processes. The suggestion that disclosure 'may prejudice the supply of confidential information' to the respondent on the basis that developers would be reluctant to provide the respondent with their confidential material in the future is insufficient to establish this without evidence to support such a proposition.
4. The Tribunal is able to make provision in its orders to deal with confidential or copyright issues (or third party any objections) that may arise from giving the applicant access to the documents as appropriate.

Clause 1(e) of the s 14 Table

1. In FKH v Murrumbidgee Local Health District [2023] NSWCATAD 313 the Tribunal summarised the elements of the ground for public interest against disclosure in cl 1(e) as follows (at [131]-[132]):

"There are two elements to the consideration under cl 1(e) of the Table. First, the information must reveal a deliberation, consultation, advice or recommendation - the internal thinking - of an agency: Fire Brigade Employees' Union v Fire & Rescue (NSW) [2014] NSWCATAD 113. Second, the disclosure of that information must reasonably be expected to prejudice a deliberative process: South Dural Residents and Ratepayers Group Inc v Roads and Maritime Services [2019] NSWCATAD 83 at [42]-[47].

Where a process of deliberation has concluded, unless there is clear prejudice demonstrated (including as to future conduct - as the Tribunal found in Murphy v Broken Hill City Council [2015] NSWCATAD 135), it is unlikely that the onus can be discharged with respect to this consideration: Watts v Department of Planning and Environment [2016] NSWCATAD 42; AQJ v University of NSW [2013] NSWCATAD 306; McCrystal v Commissioner of Police (NSW) [2020] NSWCATAD 122."

1. The respondent submitted that eight documents were withheld because 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 (cl 1(e) of the Table to s 14 of the GIPA Act). However, according to the respondent's own Schedules, there were nine documents in this category.
2. The respondent has determined that there is a public interest against disclosure of nine documents (Documents 4.2, 4.6, 4.7, 4.11, 4.20, 4.27, 4.37, 4.155, 4.177) in reliance on cl 1(e). The respondent did not provide detailed submissions or evidence to justify its decision. The applicant did not make submissions specifically in relation to these documents, apart from stating that Document 4.37 should be released.
3. The respondent referred to Document 37 in Annexure Q (referred to in the respondent's Schedules as Document 4.37) as being an internal email which relates to Council deliberations about flood model outputs and flood planning levels for West Yamba. I accept this to be an accurate description of that document. Document 4.27 appears to be an internal email which relates to Council deliberations about flooding and drainage for Carr's Drive to which a draft West Yamba Flood Impact Assessment study dated May 2014 is attached. The draft study includes comments from Engineering.
4. In these instances I accept that the 'deliberative processes' of the respondent relate to the deliberation or consideration of flood model outputs and flood planning levels for West Yamba (Document 4.37), flooding and drainage issues for Carr's Drive, and the Engineering's comments about the draft West Yamba Flood Impact Assessment study (Document 4.27). The draft West Yamba Flood Impact Assessment study document appears to be an early draft of the document and includes numerous handwritten comments, notations and questions from Engineering.
5. Documents 4.2, 4.6, 4.7, 4.20, 4.155 and 4.177 are memos (and Document 4.11 is an email) of internal referrals to 'engineering' within the respondent's planning division. The documents relate to various development applications in Yamba, including for a manufactured home estate, senior living units, subdivisions, road works, filling of land and include draft conditions and recommendations. The documents contain detailed internal advice and suggestions related to development applications under consideration within the planning division of the respondent. Most of the documents include mark-ups, highlighting and different coloured text. The documents are sensitive because they are what may be described as internal 'working documents' and would constitute 'internal thinking' documents of the respondent.
6. These documents relate to development applications but do not fall within the definition of any of documents prescribed to be 'open access information' which the Council has received and is required to make publicly available under s 6 of the GIPA Act (pursuant to cl 3(1) of Sch 1 of the GIPA Reg).
7. I accept that the 'deliberative processes' of the respondent relate to the deliberation or consideration of the development applications and advice regarding the appropriate conditions and requirements for the work the subject of their approval. Although the respondent has not stated this, I accept that some staff of the respondent may be reluctant to provide full and frank views and advice in relation to the matters to which the documents relate or may withdraw from participation in the deliberative process altogether if sensitive deliberations are released.
8. I accept that there is a public interest consideration against disclosure of this information, as it could reasonably be expected to prejudice the deliberative processes of the agency.
9. For the disclosure to be relevant to cl 1(e) it must be one that 'could reasonably be expected' to have the relevant effect, 'in such a way as to prejudice a deliberative process of government or an agency'. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance and must be based on real and substantial grounds (Taylor at [23]).
10. After reviewing the withheld information, this factor should be afforded limited weight in the circumstances. The respondent has not provided evidence as to how or why disclosure of the information in question would be prejudicial to a deliberative process. Most of the documents relate to decisions and issues that appear to be concluded. The documents span a period of time starting in 2014, with the most recent being from 2020. That such time has passed since these deliberations reduces weight to be afforded to this factor. The withheld information does not add substantially to the information that has already been released to the applicant and in my view the risk that the release would have such an effect is small.
11. In Camilleri the Appeal Panel considered (at [25]-[26]) that s 14 considerations need to be examined at a broad operational level and that those considerations 'are concerned with systemic features of the operation of government', even though the specific process the subject of the deliberations has concluded. The Tribunal considered these issues in Lamont v Central Coast Council [2025] NSWCATAD 163 at [128]- [141].
12. In Cameron v Commissioner of Police, NSW Police Force [2014] NSWCATAD 13 it was held that the release of records revealing sensitive deliberations could be reasonably expected to inhibit future communications, which adversely affected the ability of the respondent to effectively address such issues. As noted previously, the consideration of the adverse effect must be considered objectively in each case (Taylor at [23]).
13. I find that part of Document 4.27, specifically the draft West Yamba Flood Impact Assessment study dated May 2014 (with attachments) that includes comments from Engineering reveals such deliberations or equally, consultation, as it seems to be an early draft with numerous handwritten comments, notations and questions. I find that cl 1(e) applies to those parts of Document 4.27 and that disclosure of this material would reveal the 'initial thinking' and would reasonably be expected to prejudice the process of sharing such ideas in future deliberations by the Council.
14. I consider the information in Documents 4.2, 4.6, 4.7, 4.11, 4.20, 4.37, 4.155, 4.177 and the covering email included in Document 4.27 to be of a more general nature. The evidence in these documents did not persuade me that what was 'revealed' by them would be reasonably expected to prejudice future deliberations. Neither was it clearly established what future deliberations would be prejudiced if the information in those documents was released.

1. The issue for determination relating to cl 3(a) is whether the release of the information could reasonably be expected to 'reveal an individual's personal information'.
2. The terms 'reveal' and 'personal information' are defined in the GIPA Act.
3. Clause 4(1) of Schedule 4 to the GIPA Act sets out the definition of 'personal information' as follows:

In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

1. Clause 1 of Schedule 4 to the GIPA Act defines 'reveal' information to mean 'to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).'
2. The respondent submitted that 50 documents were partially released because disclosure of the information could reasonably be expected to reveal an individual's personal information (cl 3(a) of the Table to s 14 of the GIPA Act). However, according to the respondent's own Schedules, there were 44 documents in this category.
3. The respondent provided 44 documents in relation to which it submitted that personal details were redacted in accordance with cl 3(a). These were noted in the respondent's Schedules, as follows:

(1) Schedule 2: Documents 2.2, 2.4, 2.7.

(2) Schedule 3: Documents 3.1, 3.2, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9.

(3) Schedule 4: Documents 4.4, 4.10, 4.14, 4.16, 4.18, 4.19, 4.21, 4.28, 4.29, 4.30, 4.31, 4.32, 4.33, 4.34, 4.36, 4.38, 4.101, 4.125, 4.151, 4.156, 4.159, 4.161, 4.163, 4.166, 4.182, 4.185, 4.186, 4.192, 4.201, 4.202, 4.203, 4.204, 4.205.

1. The majority of the respondent's redactions relied upon this provision. These redactions consisted of the removal of personal information (surnames and addresses (including email addresses) of those corresponding with the respondent and signatures of persons in general). I am satisfied that this information is 'personal information' for the purposes of the GIPA Act.
2. In relation the following documents, the Tribunal was unable to find any redactions in the material filed with the Tribunal and it appears the entirety of the documents have been released: Documents 4.10 and 4.159.
3. The applicant did not make submissions indicating that he objected to the information being withheld by the respondent on the basis of cl 3(a). In any event, it is not clear to the Tribunal why the applicant would require the personal information that has been redacted and what value this would provide to the documents sought. The redacted information does not appear to be directly relevant to the terms of the applicant's access application.
4. I find that the consideration in cl 3(a) of the table to s 14 is a public interest consideration against disclosure of the relevant information in 42 documents.

1. The issue for determination relating to cl 4(b) is whether the release of the information could reasonably be expected to 'reveal commercial-in-confidence provisions of a government contract'.
2. Clause 1 of Schedule 4 to the GIPA Act defines 'government contract' to mean a contract between an agency and a private sector entity including '(a) a contract under which a party agrees to undertake a specific project (such as a construction, infrastructure or property development project).' The GIPA Act defines 'commercial-in-confidence provisions' of a contract to mean any provisions of the contract that disclose '(d) any intellectual property in which the contractor has an interest' among other things: cl 1 of Sch 4.
3. The respondent relied on cl 4(b) in response to Requests 153, 154, 155, 156 from the applicant's access application. The respondent relied upon the commercial in confidence consideration in cl 4(b) to withhold access to Documents 1.153, 1.154, 1.155, 1.156, 4.39 and 4.40 and to partially release Document 4.157 with redactions.
4. Document 1.153 is a 14-page Supplementary Report 6, titled 'Physical climate Risk Assessment - Coastal Flood and sea Level Rise dated October 2021' (S6 Report), prepared for the respondent by an organisation called Risk Frontiers. The document is marked 'commercial in confidence' on the footer on each page. The applicant's access Request 153 specifically seeks access to the S6 Report. The applicant submitted that the S6 Report provides critical data on storm tide levels, sea level rise projections, coastal flood risks and essential inputs for the Lower Clarence Flood Model Update 2023.
5. Documents 1.154, 1.155 and 1.156 comprise an email trail between the Governance Officer of the respondent and the Managing Director of Risk Frontiers dated September 2022 in response to another unrelated GIPA request (GIPA2022/0026). The emails relate to a third party consultation under s 54 of the GIPA Act for access to the S6 Report. A document with Risk Frontier's 'Project Terms and Conditions of Engagement' are attached to the emails. A copy of the respondent's notice of decision for the unrelated GIPA request (GIPA2022/0026) was also included together with the confidential documents provided to the Tribunal. It is evident from the documents that:

(1) Risk Frontier's terms and conditions include secrecy conditions relating to 'confidential information'. The secrecy conditions state that they do not apply to confidential information that is required to be disclosed under appliable law, so long as all available notice is provided to enable the party to attempt to remove that requirement, and only the minimum information required is disclosed.

(2) Risk Frontiers, through its Managing Director, was of the view that the S6 Report comprises confidential information and its disclosure would diminish the competitive commercial value of Risk Frontiers and prejudice its legitimate business, commercial, professional or financial interests.

(3) Risk Frontiers objected to the S6 Report being released in response to the unrelated prior GIPA application (GIPA2022/0026).

1. The applicant submitted that the Tribunal should require the respondent to disclose a redacted version of the S6 Report that excludes commercially sensitive details but retains transparency in data usage constraints.
2. The applicant's access Request 153 seeks access to the terms and conditions for Risk Frontiers' S6 Report and Request 156 seeks access to a copy of the contract detailing ownership of the study information. The applicant submits that refusing to disclose contractual terms raises concerns about whether commercial constraints limit the model's applicability for transparency in flood risk management processes, community engagement and public safety purposes. As referred to above, a document headed 'Project Terms and Conditions of Engagement' for Risk Frontiers is included with documents 1.154, 1.155 and 1.156. The Project Terms and Conditions of Engagement produced are executed by an authorised representative of the respondent. They appear to be standard terms and conditions with Schedules. Schedule A specifies the services Risk Frontiers will deliver to the respondent in relation to the Climate Change Impact Assessment.
3. I have examined the S6 Report and accept that part of the document comprises confidential information that would reveal commercial-in-confidence provisions of a government contract pursuant to cl 4(b). I do not accept that the entirety of the S6 Report comprises confidential information that would fall within cl 4(b). The Tribunal is satisfied that the summary on page 2 of the S6 Report does not fall within cl 4(b), and at a minimum page 2 should be released in response to the applicant's access application, in addition to so much of the balance of the report that is able to be released without disclosing Risk Frontiers' confidential information. Such confidential information should be redacted by the respondent from the S6 Report prior to its release. The orders of the Tribunal will make provision for the information to be released after 28 days, which will allow Risk Frontiers to consider its position and whether it seeks for the requirement for the release of this information from the S6 Report to be varied.
4. The Tribunal considers that the release of the Terms and Conditions of Engagement for Risk Frontiers would reveal commercial-in-confidence provisions of a government contract pursuant to cl 4(b), and therefore the respondent's decision to withhold this document is affirmed.
5. According to the notice of decision in the unrelated GIPA request (GIPA2022/0026), that was included together with the confidential documents provided to the Tribunal, a redacted version of the email trail between the Governance Officer of the respondent and the Managing Director of Risk Frontiers in September 2022 (documents 1.154, 1.155 and 1.156) was released by the respondent in response to the unrelated GIPA request that sought access to the climate Change Impact Assessment Report. The Tribunal can see no reason why a redacted version of documents 1.154, 1.155 and 1.156 should not also be released to the applicant in response to Requests 153 and 156, with information redacted that would reveal commercial-in-confidence provisions of a government contract.
6. Document 4.39 is a draft West Yamba Development Control Plan and Document 4.40 is an email dated 24 October 2014 from a professional government advisor with NSW preferred tender status attaching the document. The email is marked 'Commercial in Confidence'. The respondent has not specified or made submissions about which parts of documents 4.39 and 4.40 relate to 'commercial in confidence provisions' of a 'government contract' and has not provided an explanation for why these entire documents should be withheld. Documents 4.39 and 4.40 should be released to the applicant subject to the redaction of any information that discloses the commercial in confidence provisions of a government contract.
7. I find that the consideration in cl 4(b) of the table to s 14 is a public interest consideration against disclosure of the relevant information in Documents 1.153, 1.154, 1.155, 1.156, 4.39 and 4.40.
8. Document 4.157 has been partially released with redactions. It is comprised of email communications with the subject line 'Request for Quote of Drainage Studies Review', reference to a 'scope of works' and 'fee proposal' with a contractor. Upon a close inspection and comparison with Document 4.158, also partially released with redactions (but limited to personal information under cl 3(a)), Documents 4.157 and 4.158 are the same. The redacted information in document 4.157 withheld under cl 4(b) has been released by the respondent to the applicant in document 4.158. Therefore its reliance on cl 4(b) to withhold information must be rejected as this information has already been released to the applicant.

1. It is now necessary to attribute weight to the relevant considerations and balance the factors for and against disclosure to determine whether there is an overriding public interest against disclosure.

The public interest considerations in favour of disclosure

1. In weighing the competing public interest considerations, I have taken the general public interest in favour of disclosure and the public's legally enforceable right to government information into account. In particular, I have taken the matters referred to at [142]-[143] into account. The personal factors of the application are also relevant. I find that each of these considerations to be of significant weight.

The public interest considerations against disclosure

1. As noted at [157] I have found that the consideration in cl 1(d) of the table to s 14 is a public interest consideration against disclosure of the relevant information in six documents.
2. This consideration should be given limited weight in relation to the information in Documents 4.22, 4.25, 4.26, 4.27, 4.45 and 4.46.
3. I have concluded, having regard to the factors in favour and against disclosure, that there is an overriding public interest against full disclosure of redacted information under cl 4(d), subject to the matters referred to in the table below.

Inspection only access should be provided to the applicant in accordance with these reasons. Accordingly, I set aside the respondent's decision to refuse access and will make orders for viewing only access to these documents to be provided to the applicant after 28 days of the order.

I find that cl 1(d) has limited application to Document 4.27. Access to be determined subject to cl 1(e) considerations below.

1. As noted at [168] I have found that the consideration in cl 1(e) of the table to s 14 is a public interest consideration against disclosure of the relevant information in nine documents.
2. This consideration should be given significant weight in relation to the information in the draft West Yamba Flood Impact Assessment study dated May 2014 included in Document 4.27.
3. This consideration should be given low weight in relation to the information in Documents 4.2, 4.6, 4.7, 4.11, 4.20, 4.37, 4.155, 4.177 and the covering email included in Document 4.27.
4. I have concluded, having regard to the factors in favour and against disclosure, that there is an overriding public interest against disclosure of redacted information under cl 1(e) in relation to in the draft West Yamba Flood Impact Assessment study dated May 2014 included in Document 4.27 and I affirm the respondent's decision in this regard.
5. Having regard to the considerations in favour of, and against disclosure, I have determined that for the balance of the documents withheld in reliance on cl 1(e), it is in the public interest that the respondent's decision is varied as per the table below.

A redacted version of the documents should be released to the applicant in accordance with these reasons. Accordingly, I set aside the respondent's decision to refuse access and will make orders for a version of these documents with only information that would reveal personal information redacted to be released to the applicant after 28 days of the order.

A redacted version of the covering email included in Document 4.27 should be released to the applicant in accordance with these reasons. Accordingly, I set aside the respondent's decision to refuse access and will make orders for a version of this document with only information that would reveal personal information redacted to be released to the applicant after 28 days of the order.

I have concluded, having regard to the factors in favour and against disclosure, that there is an overriding public interest against disclosure of the draft West Yamba Flood Impact Assessment study with attachments dated May 2014 that includes comments from Engineering under cl 1(e).

The decision not to release this document, is affirmed.

1. As noted at [184] I have found that the consideration in cl 3(a) of the table to s 14 is a public interest consideration against disclosure of the relevant information in 42 documents. This consideration should be given significant weight.
2. I have concluded, having regard to the factors in favour and against disclosure, that there is an overriding public interest against disclosure of redacted information under cl 3(a), in accordance with the respondent's Schedules, with the exception of the Documents in the table below. Accordingly, I affirm the respondent's decision in this regard.

Contrary to the respondent's schedules, it appears that these documents have been released in the original decision without redactions. Accordingly, the documents are to be released in full to the applicant within 28 days of the Tribunal's orders.

1. As noted at [196] I have found that the consideration in cl 4(b) of the table to s 14 is a public interest consideration against disclosure of the relevant information in six documents. This consideration should be given significant weight.
2. I find that the public interest considerations against disclosure of the unredacted Documents outweigh the public interest considerations in favour of disclosure of this information. However, only the relevant information under cl 4(b) should be redacted, with the balance of the information to be released to the applicant under the GIPA Act.
3. I have concluded, having regard to the factors in favour and against disclosure, that there is an overriding public interest against disclosure of redacted information under cl 4(b), with the exception of the Documents, of parts of the Documents, referred to in the table below.

Inspection only access to a redacted version of document 1.153 should be provided to the applicant in accordance with these reasons. Accordingly, I set aside the respondent's decision to refuse access and will make orders for inspection only access to a version of this document with only information that would reveal commercial-in-confidence provisions of a government contract redacted to be provided to the applicant after 28 days of the order.

A redacted version of documents 1.154, 1.155 and 1.156 should be released to the applicant. Accordingly, I set aside the respondent's decision to refuse access and will make orders for versions of these documents with only information that would reveal commercial-in-confidence provisions of a government contract redacted to be released to the applicant after 28 days of the order.

I have concluded, having regard to the factors in favour and against disclosure, that there is an overriding public interest against disclosure of the Terms and Conditions of Engagement for Risk Frontiers document under cl 4(b).

The decision not to release this document, is affirmed.

Inspection only access to a redacted version of documents 4.39 and 4.40 should be provided to the applicant. Accordingly, I set aside the respondent's decision to refuse access and will make orders for inspection only access to versions of these documents with only information that would reveal commercial-in-confidence provisions of a government contract redacted to be provided to the applicant after 28 days of the order.

I find that cl 4(b) does not apply to Document 4.157 because the information on which the respondent's claim is based has already been released to the applicant in Document 4.158. No order is necessary because the information has already been released to the applicant in document 4.158, subject to redactions in accordance with cl 3(a).

1. I am satisfied that the correct and preferable decision is to:

(1) Remit the respondent's decision to refuse to deal with various access requests to the respondent for reconsideration in accordance with these reasons.

(2) Remit the respondent's decision that it does not hold information and/or the information is already held by the applicant in relation to various access requests to the respondent for reconsideration in accordance with these reasons.

(3) Remit the respondent's implied decision that it does not hold information in relation to various access requests to the respondent for reconsideration in accordance with these reasons.

(4) Set aside the respondent's decision in part and release the redacted information contained in various documents referenced in the schedules filed by the respondent 27 August 2025 in accordance with these reasons.

(5) The decision under review should otherwise be affirmed.

1. The applicant was not legally represented before the Tribunal. Nevertheless, the applicant advised the Tribunal at the hearing that he sought costs, being the cost of the application to this Tribunal in the sum of $350 and the filing fee of $200 for the summons on Greg Mashiah. The applicant submitted, in effect, that the respondent's failure to comply with its obligations under the GIPA Act resulted in these proceedings, and these costs being incurred. The applicant submitted that 'procedural delays and incomplete responses justify costs under GIPA s 112' and the Tribunal should 'award costs for procedural unfairness' for failing to provide information to request for access.
2. Section 112 of the GIPA Act does not provide an entitlement for costs. The applicant's other submissions concerning this section have been dealt with earlier in these reasons.
3. The respondent submitted that the applicant has now made three access applications under the GIPA Act involving the respondent, by which he has pursued matters outside the jurisdiction of the GIPA Act, and that the legal fees of the respondent in dealing with these matters are escalating as a result. The respondent submitted that its decision is the correct and preferable one. The respondent submitted that pursuit of these proceedings is frivolous and vexatious and the applicant decided that the respondent's response was inadequate before reviewing the extensive information provided.
4. Section 60 of the CAT Act provides the following in respect of costs:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party's own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following -

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

1. In Grande v Lismore City Council (No 2) [2025] NSWCATAD 47 at [31]- [35] the Tribunal helpfully outlined the approach to be taken to s 60 of the CAT Act:

"The onus to satisfy the Tribunal that there are special circumstances warranting an award of costs lies with the party making the application: Styles v Wollondilly Shire Council [2017] NSWCATAP 108.

The special circumstances specified in s 60(2) of the CAT Act are circumstances that are out of the ordinary and do not have to be extraordinary or exceptional: see Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 (Youssef) at [108].

Merely because one or more s 60(3) criteria are satisfied does not necessarily mean special circumstances exist: The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [11]- [13].

However, it does not follow that a costs order should be made simply because one or more of the factors in s 60(3) are made out. Even if satisfied that there are special circumstances, there must be circumstances "warranting an award of costs" - Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [21]; Youssef at [108].

The exercise of the discretion requires the Tribunal "to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the general rule that each party bear their own costs": BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [9]; Obieta v Australian College of Professionals Pty Ltd (2014) NSWCATAP 38 at [81]; Khalafv Commissioner of Police [2019] NSWCATOD 178 at [29]; Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [35]."

1. The application for review was filed by the applicant at an early stage, and before the application had been finally determined by the respondent.
2. The applicant's application to issue a summons on Greg Mashiah, officer of the respondent, to attend to give evidence at the hearing was refused by the Tribunal on 17 February 2025 due to relevance not being established.
3. As previously noted, the applicant sought to file a substantial amount of material late with the Tribunal (some 336 pages). This was well outside the date set for the applicant to file of material in this matter (16 December 2024). This material was not received by the Tribunal until after the hearing, and the service of such voluminous material gave the respondent less than two business days to review the material and obtain instructions.
4. As noted previously in these reasons, the respondent released further documents to the applicant following the hearing that had been missed. The respondent did not comply with orders of the Tribunal for filing confidential material dated 21 October 2024. This was the subject of three further orders following the hearing that were necessary due to the respondent's non-compliance. It is not clear why the respondent did not file this material without being followed up by the Tribunal three times.
5. The applicant sought to ventilate matters with the Tribunal that do not fall within the purview of this review, but these matters were largely abandoned by the applicant after this was pointed out by the Tribunal, as shown in the applicant's submissions following the hearing.
6. It is clear that both of the parties have conducted the proceedings in a manner which has led to delays in its finalisation.
7. I am not satisfied that the circumstances of the matter give rise to special circumstances for an award of costs for either party. This finding is in no way intended to limit any future consideration of costs in other matters.

(1) Pursuant to s 63(3)(d) of the Administrative Decisions Review Act 1997:

(a) the respondent's decision to refuse to deal with Requests 69/28, 70/29, 111/39, 170/70, 184/72, 185/73, 226/76, 290/100 and 299/104 is remitted to the respondent for reconsideration in accordance with these reasons.

(b) the respondent's decision that it does not hold information and/or information is already held by the applicant responsive to Requests 94/33, 104/37, 113/40, 115/41, 119/43, 127/46, 129/47, 138/49, 145/51, 161/62 and 162/63 is remitted to the respondent for reconsideration in accordance with these reasons.

(c) the respondent's decision that information is already held by the applicant responsive to Requests 277/97, 278/98, 279/99 and 297/102 is remitted to the respondent for reconsideration in accordance with these reasons.

(d) the respondent's decision that it does not hold information responsive to Requests 28/12, 79/30, 83/31, 92/32, 100/36, 118/42, 167/68, 263/85, 265/87, 266/88, 292/101 and 298/103 is remitted to the respondent for reconsideration in accordance with these reasons.

(e) the respondent's implied decision that it does not hold information responsive to Requests 4/1, 5/2, 6/3 and 8/5 is remitted to the respondent for reconsideration in accordance with these reasons.

(2) The respondent's decision to provide access to information in Documents 2.8, 2.9, 2.11, 4.129, 4.130, 4.141, 4.150, 4.153, 4.154, 4.162, 4.164, 4.174, 4.175, 4.184, 4.193 and 4.194 by providing a reasonable opportunity to inspect a record containing the information is affirmed.

(3) The respondent's decision is set aside in part in accordance with these reasons and in substitution the applicant is to be given access to the information in the following documents 28 days from the date of these orders:

(a) Documents 4.165, 4.167, 4.168, 4.176, 4.180, 4.181, 4.187, 4.188, 4.198, 4.199 and 4.206 with only information that would reveal personal information (and in the case of Document 4.167, information that would reveal commercial-in-confidence provisions of a government contract) redacted.

(b) Documents 4.22, 4.25, 4.26, 4.45 and 4.46 by providing a reasonable opportunity to inspect a record containing the information.

(c) Documents 4.2, 4.6, 4.7, 4.11, 4.20, 4.37, 4.155 and 4.177 with only information that would reveal personal information redacted.

(d) The covering email included in Document 4.27 with only information that would reveal personal information redacted.

(e) Documents 4.10 and 4.159 in full.

(f) Documents 1.154, 1.155, 1.156 (except for the Project Terms and Conditions of Engagement for Risk Frontiers) with only information that would reveal commercial-in-confidence provisions of a government contract redacted.

(g) Documents 1.153, 4.39 and 4.40 by providing a reasonable opportunity to inspect a record containing the information with only information that would reveal commercial-in-confidence provisions of a government contract redacted.

(4) The decision under review is otherwise affirmed.

(5) The costs application made by the applicant is dismissed.

(6) The costs application made by the respondent is dismissed.

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.