Miskelly v Transport for NSW

LEGAL PRINCIPLES

1. The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(1) - In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
2. "Government information" is given a wide meaning under s4 of the GIPA Act being "information contained in a record held by an agency." Transport for NSW is such an agency: see s 4 and the definition of "public authority" in Schedule 4, clause 2 to the GIPA Act.
3. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9).
4. With respect to other government information, the Act establishes a principle that there is public interest in favour of disclosure (s 12(1)).
5. Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides - Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
6. There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It 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.
7. The approach the Tribunal should take to applying section 13 has been discussed in a number of decisions including Flack v Commissioner of Police, NSW Police [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307. The consistently applied approach is that the test in section 13 of the GIPA Act requires decision makers to:

• identify relevant public interest considerations in favour of disclosure,
• identify relevant public interest considerations against disclosure,
• attribute weight to each consideration for and against disclosure, and
• determine whether the balance of the public interest lies in favour of or against disclosure of the government information.

1. In considering whether there is an overriding public interest against disclosure, s16 of the GIPA Act provides that the following principles apply: (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.
2. The public interest considerations against disclosure are limited to those set out in the Table to s 14 of the GIPA Act. Section 14(2) provides that - 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.
3. In order for the considerations against disclosure set out in the table to section 14 of the GIPA Act to be raised as relevant, the agency must establish that the disclosure of the information could reasonably be expected to have the effect outlined in the table.
4. The words "could reasonably be expected to" are to be given their ordinary meaning: see Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 28 and Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words - ...require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
5. Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] that it is necessary for the Agency to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect.
6. In this case, four public interest considerations against disclosure have been raised by Transport for NSW as relevant:

• disclosure could reveal a deliberation so as to prejudice the deliberative process of the agency (clause 1(e) in the table to section 14 of the GIPA Act);
• disclosure could prejudice the effective exercise of an agency's functions (clause 1(f) in the table to section 14 of the GIPA Act);
• disclosure could prejudice the conduct of any review by revealing its results (clause 1(h) in the table to section 14 of the GIPA Act).
• disclosure could prejudice the conduct of research by revealing its results (clause 4(e) in the table to section 14 of the GIPA Act).

1. Section 15(d) of the GIPA Act stipulates that the fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.
2. Furthermore, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by s105 of the GIPA Act (s105 (1)).
3. The mere fact that disclosure of the withheld information could reasonably be expected to lead to the identified outcome is not sufficient to allow the consideration against disclosure to override the presumption in favour of disclosure. It is necessary to determine what weight should be given to the various criteria having regard to the general terms of the GIPA Act, and the presumption in favour of disclosure.

Mr Nikolai Mark Prince

1. Mr Prince is the principal manager, Rail Service Planning, Transport for NSW. He has provided a statement in relation to the earlier proceedings and a further statement in relation to the current proceedings. He also gave oral evidence before the Tribunal on 29 November 2016. His evidence dealt both with the earlier application by Mr Miskelly and the application that is the subject of these proceedings. Both Transport for NSW and Mr Miskelly agree that all of Mr Prince's evidence should be relied on in these proceedings.
2. Mr Prince described the RailSys database as follows: RailSys is a computer software package used for rail simulation and modelling. It can be used to create timetables, model infrastructure and rolling stock, and analyse reliability impacts of all three.
3. In a written statement dated 13 September 2016, Mr Prince advised that Transport for NSW was developing amendments to the Standard Working Timetable to commence in 2018.
4. According to Mr Prince: Rail Service Planning uses RailSys to investigate and evaluate timetable options in developing the 2018 timetable. As a result there are many different versions of concept timetables in various stages of development at all times. Information is updated daily as it is a working system. The information stores in these concept timetables is constantly being superseded. Rail Service Planning backs up concept timetable information at various points in the development process. The most recent back up prior to 12 April 2016 occurred on 8 April 2016. Accordingly, there is an electronic record of the information that was on RailSys at 8 April 2016. The electronic record of the information that was on RailSys on 8 April 2016 is not an operational timetable. It was in concept stage at that point of the 8 April 2016 back up. It was still going through the option evaluation and review process at that time.
5. Mr Prince is of the view that the expected effects of releasing the information contained on RailSys as at 8 April 2016 would be same as the expected effects upon the disclosure of the information in dispute in the earlier proceedings, namely it would prompt a very large number of complaints and requests for information which Transport for NSW would then need to manage. According to Mr Prince, these complaints and requests for further information would not be well founded given the length and complexity of the task of developing the 2018 timetable.
6. Mr Prince gave evidence that the 2018 timetable was under development with the process having begun in 2014. He explained that the planning stage of the process involves the production of a 'Concept Design Timetable' which is modelled against customer demand. The 'Concept Design Timetable' is documented into a specification from which a Standard Working Timetable is produced and handed over to Sydney Trains. He advised that the Standard Working Timetable for the 2018 timetable would be produced in 2017.
7. According to Mr Prince: There are minor changes made to the timetable in the 6-12 months before it commences, and in the final 6 months, the timetable is effectively locked down. During the final 6 months, crews are rostered on and negotiations with staff take place to move them around the network as necessary…Until the Rail Service Planning team provides the specification and RailSys file to the Timetable Production and Intelligence team, the Concept Design Timetable has not been locked down. Until that point, it is still in the planning phase.
8. Mr Prince clarified that consultation with agencies and passengers is gauged at an earlier stage in the process and that 'there is no meaningful input that..an individual could have at this stage of timetable development given the length and complexity of the process.'
9. Mr Prince highlighted the fact that information relating to the 2018 timetable is highly confidential. He explained that in 2013, the last major change was made to the Standard Working Timetable, which was leaked approximately six months ahead of its commencement. This resulted in media articles and over 1500 complaints or queries that Transport for NSW was unable to respond to individually. Resources from Transport for NSW were instead expended on responding to the Minster's office and the media. There was an expectation that the timetable could be changed to accommodate concerns raised. At the time of the leak, however, it was too late to make any major changes.
10. In oral evidence, Mr Prince expressed the view that if the information requested in the current proceedings - namely the RailSys database as at 12 April 2016 - were to be disclosed, there was the potential for staff to misunderstand the proposed changes to timetabling.
11. In summary, Mr Prince expressed the following concerns about disclosing the information requested in the earlier proceedings and that requested in the current proceedings:

• the material is not current and does not reflect Transport for NSW's current thinking regarding the 2018 timetable;
• most if not all of the information in dispute has been superseded and simply reflects what was held by Transport for NSW at the time;
• the information in dispute reflects a number of different ideas or approaches that had been floated at some point before the time the application was received and reflects some preliminary steps that preceded the rigorous planning process which followed;
• if the information in dispute were made to be made public, it would prompt a large number of complaints and requests for further information which would not be well founded given the length and complexity of the task of developing the 2018 timetable. Transport for NSW would be obliged to deal with these complaints and requests;
• a major change to the Standard Working Timetable has industrial implications. For example, crews might need to turn back at different points. Consultation with unions and staff representative will occur at a later stage in a methodical way. Premature disclosure of information relating to possible changes in the 2018 timetable could lead to staff being unnecessarily concerned about possible changes to staffing levels, available shifts, hours of work and their start and finish locations.
• disclosure of draft timetable information could also threaten the construction of major infrastructure projects, if unwarranted concerns about possible changes to the 2018 timetable were to lead to projects being postponed.

1. In oral evidence before the Tribunal, Mr Prince confirmed that he has thirty staff and some sub-contractors. Mr Prince told the Tribunal that the large majority of the information requested under this application by Mr Miskelly would now have been superseded. He told the Tribunal that the information requested in the current proceedings would be closer to the final timetabling solution although changes could still be made up until six months before its implementation.
2. In response to the suggestion that further ad hoc consultation with the public might be of benefit if it were to identify a major or minor problem with the timetable, Mr Prince said that customer outcomes are incorporated in the earlier stages of planning. He told the Tribunal that any ad hoc consultation with the public would only be useful if it was provided within the relevant time periods. Outside of such a time period, any problems identified would be too late to be able to be incorporated into the timetable. He agreed that public input could be useful, but only at the start of the timetabling process when the input could be considered in the development of the timetable. Once the timetable had been locked down, public input would be futile.
3. He agreed that confidentiality procedures were introduced in relation to timetable planning after details of the 2013 draft timetable were leaked. Mr Prince wasn't sure how this leak had occurred and was unsure if any changes had been made to the draft 2013 timetables following the leak: he couldn't remember any being made.
4. He told the Tribunal that confidentiality was important because customers are impacted by change and until a product has been settled, it's hard to know which customers will be impacted and to what degree. Keeping the information confidential aims to avoid confusing the customer with information that is not current.
5. He told the Tribunal that in 2013, as a result of the leak, 1500 complaints had been received over the following four-week period. This required staff having to be taken off other duties to respond to the complaints. If information about the timetable were to be released to the public, Mr Prince told the Tribunal that he anticipated that there might be even more complaints than in 2013 because of the greater scale of change and the greater impact on the travelling public.
6. He reiterated his view that the release of the requested information would be of minimal use in terms of changes to the timetable given that significant changes have already been made since those dates nominated in the GIPA application. He was unsure whether Transport for NSW could inform the public that the information in question was no longer relevant, as he is not responsible for the communication area of Transport for NSW.
7. He confirmed his view that the disclosure of the requested information would have industrial implications, as is always the danger when information is released in an uncontrolled way and can be misunderstood by staff. He didn't agree that a press conference would allay concern by staff. He told the Tribunal that the planning division did not want to confuse staff by consulting with unions prior to a detailed timetable solution having been developed. The relevant consultation would occur 12 months prior to the implementation.

• in the customer service division, by way of questionnaires;
• in the planning division, by way of consultation and freight strategy;
• through public talks;
• through analysis of Opal card data.

1. In his first statement on 26 July 2016, Mr Prince confirmed that as at 26 July 2016, the government had not fully approved the funding for the operational costs associated with the 2018 timetable. According to Mr Prince, the 2018 timetable is not considered to be finalised until the funding required to make the operational changes necessary to implement it has been fully committed.

Considerations against disclosure

1. According to Transport for NSW, the following considerations against disclosure apply to the current proceedings:

• disclosure could reveal a deliberation so as to prejudice the deliberative process of the agency (clause 1(e) of the table in section 14 of the GIPA Act);
• disclosure could prejudice the effective exercise of an agency's functions (clause 1(f) of the table in section 14 of the GIPA Act);
• disclosure could prejudice the conduct of any review by revealing its results (clause 1(h) of the table in section 14 of the GIPA Act).
• disclosure could prejudice the conduct of research by revealing its results (clause 4(e) of the table in section 14 of the GIPA Act).

1. These are the same considerations held to be applicable in the earlier proceedings. According to Transport for NSW, however, the cumulative effect of releasing the information in dispute in the earlier proceedings and the information in dispute in these proceedings would means that the effects set out in clauses 1(e), 1(f), 1(h) and 4(e) of the table in section 14 of the GIPA Act would be even more likely.
2. In making this submission, Transport for NSW relies on Saleam v Commissioner of Police, NSW Police Service [2002] NSWADT 40. In this case, the Tribunal affirmed the respondent's decision to withhold information on the basis that the applicant could use the results of numerous access applications to piece together the identity of police informants. This would have allowed the applicant to obtain information that would otherwise be a breach of confidence and may have allowed the applicant to recognise that particular persons had assisted the police, including the nature and extent of that assistance and the police knowledge and response to that information.
3. According to Transport for NSW, if the information in dispute in these proceedings (Item 7) were to be released, it could be compared to the information ordered to be released in the earlier proceedings. This comparison would enable Mr Miskelly to work out which of the various ideas or approaches to timetabling had been retained. This in turn would more clearly reveal the deliberative processes of Transport for NSW. For this reason, Transport for NSW submits that the considerations against disclosure as set out in clauses 1(e), 1(f), 1(h) and 4(e) of the s14 table should be accorded significant weight.
4. By contrast, Mr Miskelly is of the view that Saleam v Commissioner of Police, NSW Police Service does not apply to the current proceedings. According to Mr Miskelly: There is a vast difference between information relating to train timetables and information relating to the identity of criminal informants. Obviously, any information that would lead to the establishment of the identity of a criminal informant would not only hamper police in the efficient and effective discharge of their responsibilities and duties, given the need for absolute secrecy, but also place the informant's life at peril. Therefore, a high level of secrecy was appropriate in Saleam. Train timetables are an entirely different matter, logically and obviously.
5. It is also Mr Miskelly's submission that as the RailSys database is being updated and superseded on a daily basis, the effects of disclosure in the current proceedings would be no more consequential than the release of the relevant information in the earlier proceedings. To the extent the information is not superseded, it is Mr Miskelly's submission that it could not reasonably be expected to prejudice the deliberative processes of Transport for NSW given the last stage of the planning process.
6. It is common ground that the RailSys database is updated and superseded on a daily basis and that the information requested is now over a year old and therefore historical. On this basis, I am satisfied that its propensity to reveal current deliberations of Transport for NSW is low.
7. Given the constant updating and superseding of the RailSys database, I am not satisfied that the information requested could be used to a 'mosaic effect' as described in Saleam v Commissioner of Police, NSW Police Service. There is no evidence before me to rebut the possibility that the information contained in Item 7 has now been entirely superseded and so bears little or no resemblance to the current timetabling plans for Transport for NSW. For this reason, Saleam v Commissioner of Police, NSW Police Service is of little application to these proceedings.
8. On the evidence before me, I am satisfied that the information requested in the current proceedings (Item 7) is of historical value only and that the effects of its disclosure would be no more consequential than the release of the requested material in the earlier proceedings. For this reason, I am not satisfied that my decision in Miskelly v Transport for NSW [2017] NSWCATAD 75 can be distinguished from the current proceedings.
9. Given that Item 7 is of historical value in light of the fact that it is updated and superseded on a daily basis, I am similarly not satisfied that the information contained in Item 7 could be used 'to mosaic effect' together with the information released in the earlier proceedings in order to either prejudice the effective exercise of the functions of Transport for NSW, or to prejudice the conduct of research or the conduct of any review by revealing its results, or to reveal a deliberation so as to prejudice the deliberative process of the agency.
10. I will now turn my mind to the four public interest considerations against disclosure put forward by Transport for NSW.

(e) disclosure could reveal a deliberation so as to prejudice the deliberative process of the agency.

1. There is a public interest consideration against disclosure of information if disclosure 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 an agency: GIPA Act, section 14 table, clause 1(e).
2. The 'deliberative process' of an agency has been described as its 'thinking processes…including those by which it seeks internal input and discussions as to different courses of action, evaluates the wisdom of them, and the relative benefits and detriments of them: Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13 at 66, or its 'internal thinking': Fire Brigade Union v Fire and Rescue (NSW) [2014] NSWCATAD 133.
3. 'Prejudice' has its ordinary meaning, i.e. 'to cause detriment or disadvantage' or 'to impede or derogate from': Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60], Sobh v Police Force (Vic) [1994] 1 VR 41.
4. Transport for NSW uses the RailSys database to enable concept design timetables to be developed. This concept design timetable is then tested and developed, modelled against customer demand. The concept design timetable is developed into a specification, which is then 'locked down' (i.e. no longer subject to amendment) when it is given to the Timetable Production and Intelligence team to be developed into the Standard Working Timetable.
5. The Standard Working Timetable provides specifications for the frequency of services, daily service periods, size and carrying capacity of trains, buses and ferries, the movement of trains, buses and ferries when not in service and access and non-operational times for maintenance and other operational purposes, for the daily provision of rail, bus and ferry services by public transport agencies.
6. At the time of hearing on 29 November 2016, the NSW Government had not yet fully approved funding for the operational costs associated with the 2018 timetable.
7. According to Transport for NSW, the information relating to the 2018 timetable is highly confidential. This, it seems, is the consequence of a leak to the media in 2013 of changes to the Standard Working Timetable, which led to over 1500 complaints or queries from the public as a time when it was already too late to make changes to the timetable. This required Transport for NSW to expend resources responding to these complaints and to inquiries from the Minister's office and the media.
8. It is Transport for NSW's submission that disclosing the information in dispute in the current proceedings would prejudice its deliberative process because it:

• would result in a very large number of complaints and requests for further information being made, which Transport for NSW would have to deal with;
• could have adverse industrial implications;
• could threaten the construction of major infrastructure projects, if unwarranted concerns about possible changes to the 2018 timetable were to lead to projects being postponed and thereby impede the whole Sydney Metro project.

1. In submissions in relation to the earlier proceedings, Mr Miskelly stated that Transport for NSW has not provided any evidence that the release of the requested material would lead either to projects being postponed or cancelled. It was Mr Miskelly's submission that Transport for NSW will continue to develop the timetable irrespective of whether information is released through the GIPA process. Mr Miskelly relies on these submissions in relation to the current proceedings.
2. For the following reasons, I am not satisfied that the disclosure of the requested documents could reveal a deliberation so as to prejudice the deliberative process of Transport for NSW.
3. On the evidence of Mr Prince, the information requested in the current proceedings (Item 7) consists of a 'snapshot' of the RailSys database as at 12 April 2016. On Mr Prince's own evidence, this information will now have been superseded by more recent information, informed by the more recent ideas put forward by the Rail Service Planning unit of Transport for NSW. Item 7 is therefore outdated. On the evidence before me, I cannot be satisfied that the release of outdated information such as this could reasonably be expected to reveal a deliberation so as to prejudice the deliberative process of the agency.
4. The evidence before me is that the deliberative process of the agency has since progressed to such an extent that, according to Mr Prince, 'it does not reflect Transport for NSW's current thinking regarding the 2018 timetable.' Given these changes, even if the requested information were to reveal the preliminary steps that preceded the rigorous planning process that followed, I cannot be satisfied that, at this late stage of the planning process, the release of the requested material could reasonably be expected to prejudice the deliberative process of the agency.
5. On the evidence before me, I am not satisfied that the deliberative process of Transport for NSW could reasonably be expected to be disadvantaged by anticipated complaints or requests made by the public in relation to the requested information. Whilst responding to the public may be inconvenient for Transport for NSW, given that any input by the public would be futile at this stage of the planning process, I am not satisfied that the responses could not be simply handled by Transport for NSW by way of form letter or media release. I am not satisfied that the resources required to provide such responses would be such as to prejudice Transport for NSW's deliberative process.
6. I do not accept that the release of the requested material would prejudice Transport for NSW's deliberative process because it could have adverse industrial implications. On the evidence of Mr Prince, the information contained in Item 7 is not current. On this basis, it does not disclose reliable information in relation to any implications for the rail workforce. The fact that disclosure of the information may be misinterpreted or misunderstood (for example, seen to be current rather than historical) is irrelevant and cannot be taken into account in my determination (s15(d) GIPA Act).

1(f) disclosure could prejudice the effective exercise of an agency's functions.

1. There is a public interest consideration against disclosure of information if disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency's function: GIPA Act, section 14 table, cl. 1(f)
2. One of the roles of Transport for NSW is to use the RailSys database to determine the Standard Working Timetable for the delivery of transport services by public transport agencies for all modes of transport in the metropolitan rail area, in consultation with the various public transport agencies concerned, which include RailCorp, RMS, the State Transit Authority and Sydney Ferries.
3. According to Transport for NSW, such information has not been released under the GIPA Act previously. Transport for NSW is of the view that disclosure of the information in dispute could prejudice the effective exercise of an agency's functions because:

• the information in dispute is highly confidential;
• its release would result in a very large number of ill-founded complaints and requests for information which Transport for NSW would have to deal with;
• the time and resources required to deal with any resulting backlash would be considerable;
• any requests by individuals to have a say in timetable development or to have personal preferences accommodated would be futile;
• disclosure could result in industrial action;
• disclosure could threaten the construction of major infrastructure projects;
• because Transport for NSW is a single integrated authority with responsibility for a Standard Working Timetable, its functions are complex and could reasonably be expected to prejudice the effective exercise by the respondent of its functions.

1. It is the view of Mr Miskelly that the Tribunal should give little weight to the submission that Transport for NSW would be forced to reply to many enquiries and complaints from the public were the requested material to be disclosed. This is because, according to Mr Miskelly, Transport for NSW has the resources to deal with such issues. Furthermore, Mr Miskelly submits that if, as Transport for NSW has stated, the material requested is historical, it is difficult to understand how it would generate large numbers of complaints.
2. I am satisfied that the relevant function of Transport for NSW encompasses the need to deliver transport services including timetabling various modes of transport (see 1(e), 1(f), 1(h) and 5(1) of Schedule 1 to the Transport Administrative Act 1988.)
3. For the following reasons, I am not satisfied that the disclosure of the information contained in Item 7 (namely the RailSys database as at 12 April 2016) could reasonably be expected to prejudice the effective exercise of these functions.
4. Transport for NSW has submitted that the release of the requested information 'would result in a very large number of ill-founded complaints and requests for information which Transport for NSW would have to deal with.'
5. By 'ill-founded' I understand Transport for NSW to mean that the information may be misunderstood and that the public may wrongfully believe that its input could be taken into account by Transport for NSW when, on the agency's own evidence, it would be too late for it to do so. That the requested information might be misinterpreted or misunderstood by any person is, however, irrelevant and must not be taken into account in my determination (s15(d) of the GIPA Act.).
6. Given that, on Mr Prince's evidence, any feedback by the public would be futile at this stage of the proceedings, I am not satisfied that the release of the requested information could reasonably be expected to affect the effective exercise of Transport for NSW's functions, including delivering transport services and timetabling various modes of transport.
7. Transport for NSW has submitted that the disclosure of the requested information could prejudice the effective exercise of the agency's functions as it could result in industrial action.
8. There is no evidence before me that the leak of the 2013 Standard Working Timetable either caused industrial action or threatened the construction of major infrastructure projects, nor is there any evidence before me as to why this could reasonably be expected to be the case now, particularly as the requested material is no longer current.
9. On the evidence before me, the public interest consideration against disclosure of the requested information on the basis that it could reasonably be expected to prejudice the effective exercise by Transport for NSW of its functions has not been made out.
10. For the reasons set out above at paragraphs 60 to 69 of this decision, there is nothing about the current proceedings to satisfy me that they should be treated differently to the earlier proceedings, the decision for which is set out in Miskelly v Transport for NSW [2017] NSWCATAD 75.

1(h) disclosure could prejudice the conduct of any review by revealing its results.

1. It is the submission of Transport for NSW that the Standard Working Timetable, as developed through the RailSys database, is akin to a review, the disclosure of which would prejudice its conduct or effectiveness by revealing its purpose or results.
2. This is because:

• the information in dispute is highly confidential;
• its release would result in a very large number of ill-founded complaints and requests for information which Transport for NSW would have to deal with;
• the time and resources required to deal with any resulting backlash would be considerable;
• any requests by individuals to have a say in timetable development or to have personal preferences accommodated would be futile;
• disclosure could result in industrial action;
• disclosure could threaten the construction of major infrastructure projects;
• disclosure could affect the co-operation of staff members given that the timetable had been produced for internal use only, had limited circulation and is highly confidential, even within Transport for NSW.

1. For the following reasons, I am not satisfied that the disclosure of the requested material could reasonably have the effect of prejudicing the conduct of any review by revealing its results.
2. On the evidence before me, I accept that the information contained in the RailSys Database is a snapshot of timetable options that is constantly updated and has been updated since 16 April 2016. As this material is now outdated, I am not satisfied that its release is akin to revealing the actual results of finalised timetables.
3. In relation to the submission by Transport for NSW that disclosure of the requested information could affect the co-operation of staff members, I am not satisfied that, given the information requested is now outdated, this would be such as to reasonably be expected to prejudice the conduct of the review.
4. In relation to the other considerations raised - namely that the information contained on the RailSys timetable is highly confidential; the time and resources required to deal with any resulting backlash would be considerable; any requests by individuals to have a say in timetable development or to have personal preferences accommodated would be futile; disclosure could result in industrial action; disclosure could threaten the construction of major infrastructure projects - Transport for NSW has not clarified how these issues could reasonably be expected to prejudice the conduct of any review by revealing its results. On the evidence before me, I am not satisfied that any of these issues show that the disclosure of the requested material could be reasonably expected to prejudice the conduct of the review by revealing its results.
5. On the evidence before me, the public interest consideration against disclosure of the requested information on the basis that it could reasonably be expected to prejudice the conduct of any review by revealing its results has not been made out.
6. For the reasons set out above at paragraphs 60 to 69 of this decision, there is nothing about the current proceedings to satisfy me that they should be treated differently to the earlier proceedings, the decision for which is set out in Miskelly v Transport for NSW [2017] NSWCATAD 75.

4(e) Disclosure of the information could reasonably prejudice the conduct of research by revealing its results.

1. According to Transport for NSW, revealing the RailSys Database could prejudice the conduct of research by revealing its results.
2. For the following reasons, I am not satisfied that the disclosure of the requested documents could reasonably prejudice the conduct of research by revealing its results.
3. The requested information is simply a snapshot of material that is now out-dated. It does not include any background research material and there is no evidence before me that the release of the requested material would prejudice any further research.
4. On the evidence before me, it appears that the research has been conducted and completed at an earlier time and that the process is now at the end of the planning stage. Given that the RailSys database is requested as at 16 April 2016, and relates to material that is historical and not current, I am not satisfied that it could reasonably be expected to prejudice the conduct of research by revealing its results.
5. On the evidence before me, the public interest consideration against disclosure of the requested information on the basis that it could reasonably be expected to prejudice the conduct of any review by revealing its results has not been made out.
6. For the reasons set out above at paragraphs 60 to 69 of this decision, there is nothing about the current proceedings to satisfy me that they should be treated differently to the earlier proceedings, the decision for which is set out in Miskelly v Transport for NSW [2017] NSWCATAD 75.

Considerations in favour of disclosure

1. There is a general public interest in favour of the disclosure of government information: s12(1) of the GIPA Act.
2. Nothing in the Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.
3. Examples of public interest considerations in favour of the disclosure of information are that the disclosure of the information could reasonably be expected to inform the public about the operation of agencies, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
4. There is no dispute between the parties that, in this matter, disclosure of the information could reasonably be expected to inform the public about possible options for train timetabling as contained in the RailSys database.
5. It is the view of Mr Miskelly that disclosure would be in the public interest given that the relevant train timetables as developed through the RailSys database will affect many people and given that transport is crucial to people's lives.
6. It is the view of Transport for NSW, however, that:

• the public interest is negligible because the data requested is not current;
• there is little that its disclosure could do in a meaningful way to assist the timetable itself; and
• there is no evidence that it is reasonably likely that major or minor problems could be revealed as a result of public input.

1. I accept that the information contained in the RailSys database and the relevant timetabling changes it may reveal - even if no longer up to date - could affect many residents for whom public transport is crucial.
2. I am satisfied that this is a consideration in favour of the disclosure of the requested information in that it could reasonably be expected to inform the public about possible options for train timetabling.
3. I accept that the value of the information - and its consequential public interest - is reduced because the requested information is not current and because there is little that, at the late stage of the planning process, its disclosure could do to influence the finalised train timetables.

Attributing weight - considerations in favour of disclosure & against disclosure

1. As set out above, I am not satisfied that the arguments against the disclosure of the requested information have been made out. I accept that the release of the material may be misinterpreted or misunderstood by the public but this is not something I can take into account in my determination. On the evidence before me, I am not satisfied that there is an overriding public interest against disclosure of the requested material.
2. If, however, I am wrong and there is enough to establish the factors- namely 1(e), 1(f), 1(h) and 4(e) in the Table to s14 of the GIPA Act - as considerations to be weighed, I would give them each low weight.
3. I am satisfied that the disclosure of the information contained in the RailSys database could reasonably be expected to promote open discussion of public affairs, enhance government accountability and contribute to positive and informed debate on issues of public importance.
4. I accept that the public interest is reduced (but not removed) by the fact that the requested information is no longer current and that any input by the public would be unlikely to be taken into consideration in the development of the new Standard Working Timetable.

Whether the balance of the public interest lies in favour of or against disclosure of the government information.

1. Having considered all the evidence before me, I am not satisfied that there is an overriding public interest against disclosure of the requested material. Rather, I am satisfied that the balance of the public interest lies in favour of disclosure of the information. The presumption in favour of the disclosure of the information has therefore not been displaced.
2. For this reason, the determination by Transport for NSW should be set aside and the information requested by the applicant as contained in Item 7 should be released.

ORDERS 1. The decision of the respondent is set aside. 2. In addition to the information already provided to the applicant, the following information is to be released: the information requested by the applicant as contained in the RailSys database as at 12 April 2016.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 14 July 2017 - Amendment to Order 2 to correct inconsistency in reasons and orders DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 July 2017