Moran v Shellharbour City Council

The Access Applications

1. On 23 December 2019, the Applicant lodged an access application with the Respondent.
2. The relevant parts of that application sought: 1. whether any landing fee relief has been provided to Fly Corporate to date, and 2. if so, details of the actual and expected fee relief provided.
3. In a social media post on 23 December 2019, the Applicant referred to his GIPA application referencing a purported fee reduction of $237,000 in a table contained in the Income and Expenses Budget Review Statement put before council and a confidential attachment. He further commented: "Today I put in a formal GIPA (the new freedom of information request) request to Council. If granted it would allow me to share with the community which is currently not allowed to be shared."
4. As part of processing the Applicant's request, the Respondent sought the views of Vee H. Vee H's Chief Operating Officer, Mr Andrew Webb, in an email dated 17 January 2020, to the Respondent, opposed the release of the information being sought by the Applicant. Relevantly, Mr Webb said: "Release of the terms on which the air services are provided would reveal commercial-in-confidence material to market competitors which would disadvantage Fly Corporation."
5. On 11 February 2020, the Respondent made a decision (the first decision), which was amended on 12 February 2020, to refuse access to the information sought on the basis that there was an overriding public interest against disclosure. The Respondent relied on the public interest considerations against disclosure and clauses 1(d), 1(f), 4(b), 4(c) and 4(d) of the Table to s 14 of the GIPA Act.
6. On 2 March 2020, the Applicant requested the Respondent to internally review its first decision.
7. In March 2020, the Respondent on reviewing the first decision (the first internal review decision) determined that there was an overriding public interest against disclosure of the information. The Respondent again relied on the same public interest considerations against disclosure referred to in the first decision.
8. The Applicant sought external review of the Respondent's first internal review decision. On 4 May 2020, the Information and Privacy Commission (IPC) found the Respondent's reliance on the public interest considerations (clauses 1(d), 1(f), 4(b) and 4(c) of the Table to s 14 of the GIPA Act) was not justified. The IPC further found that the Respondent's reliance on clause 4(d) was justified (but the extent and impact of the effect under clause 4(d) was unclear). The IPC recommended under s 93 of the GIPA Act that the Respondent make a new decision.
9. On 24 August 2020, the Respondent made a new decision (the second decision) in accordance with the IPC's recommendation. The second decision determined that there was an overriding public interest against disclosure of the information. The Respondent again relied on the same public interest considerations against disclosure found in the Table to s 14 of the GIPA Act as it did in its first decision.
10. The Applicant made a further application for an internal review of the Respondent's second decision on 27 August 2020.
11. On 2 October 2020, the Respondent made an internal review decision (second internal review decision) agreeing to disclose the existence of land fee relief to Vee H to 31 March 2020. In respect of the remaining information sought, the second internal review decision found there continued to be an overriding public interest against disclosure. The Respondent relied upon clauses 1(f), 4(c) and 4(d) of the Table to s14 of the GIPA Act.
12. Following an application to the IPC for an external review of the Respondent's second internal review decision (27 November 2020) the IPC made an external review decision (second external review decision) on 2 February 2021.
13. The IPC found that the Respondent misinterpreted the scope of the Applicant's access application. The second external review decision noted that the 'quantum of fee relief' as referred to in the access application was the specific monetary amount of relief that the Respondent provided. The second external review recommended that the Respondent make a new decision under s 93 of the GIPA Act and clarify the scope of the access application with the Applicant.
14. On 17 February 2021, the Applicant sent an email to the Respondent clarifying that he was seeking 'both the expected and actual fee relief provided'.
15. On 16 March 2021, the Respondent made a new decision (the third decision) in accordance with the IPC's recommendations. The third decision determined that the information would be provided with redactions where there was an overriding public interest against disclosure of some of the information. Following the redaction of the material, the Respondent did not rely on any of the public interest considerations against disclosure in the Table to s 14 of the GIPA Act that it had previously relied on. Instead, the Respondent relied only on clause 6(1).
16. On 15 April 2021, the Applicant lodged with this Tribunal an application seeking administrative review of the third decision under s100 of the GIPA Act.

Procedural Background

1. On 22 June 2021, the Tribunal ordered that Vee H appear and be heard in the proceedings pursuant to s104(3) of the GIPA Act. Orders were also made for Vee H to file submissions and evidence.
2. The Tribunal made other orders for the parties to file their evidence and submissions which were varied from time to time prior to hearing the substantive application.

The Respondent's application that the proceedings are frivolous, vexatious, misconceived or lacking in substance

1. As set out above, the Respondent contends for the Tribunal to make a finding under s109 of the GIPA Act that the proceedings are frivolous, vexatious, misconceived or lacking in substance. Similarly, the Respondent seeks an order be made that the proceedings be dismissed under s 55(1)(b) of the NCAT Act. This section gives the Tribunal a discretionary power to dismiss proceedings in similar circumstances.
2. The words 'frivolous, vexatious, misconceived or lacking in substance' are well recognised legal terms. When considering such terms, the legal and legislative context in which the proceedings arise are to be taken into consideration.
3. In Fernley v Health Care Complaints Commission [2020] NSWCATAD 30 (at [64]), the Tribunal referred to Attorney-General v Wentworth (1998) 14 NSWLR 481 (at [491]): '1 Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2 They are vexatious if they are brought for collateral purposes, and not for the purpose of having the Court adjudicate on the issues to which they give rise. 3 They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.'
4. In Fernley at [65], the Tribunal found that the "first category covers conduct that falls within the meaning of 'frivolous''', while the "third category embraces the kind of cases to which the expressions 'misconceived' and 'lacking in substance' are directed".
5. The Appeal Panel of this Tribunal in BDK v Department of Education and Communities [2015] NSWCATAP 129 at [59]-[62], found in the context of an appeal against a summary dismissal of a claim for anti-discrimination on the grounds that they were vexatious: 66 In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s55(1)(b). The intent of the provision, as we said, is to seek to give the Tribunal a broad power to deal with the abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While 'misconceived' and 'lacking in substance' may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are 'frivolous' or 'vexatious', conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings.
6. In Walker v Pittwater Council [2016] NSWCATAD 78, Hennessy DP (as she then was) considered the provisions of s110(5A)(b) of the GIPA Act and found: "In the context of the GIPA Act, if the Tribunal does not have jurisdiction or the application lacks merit because of a restriction or qualification on the applicant's rights under the GIPA Act, then the application will be lacking in substance. For example, an application will be lacking in substance if it meets any of the tests in s110(2), if there is an overriding public interest against disclosure or if the information is not held by the agency. But it must always be borne in mind that an applicant has an enforceable right to access government information and the discretions conferred by the Act are to 'be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information': GIPA Act, s3(2)(b)."
7. The onus is on the Respondent to establish that the administrative review application is wholly misconceived, lacking in substance, frivolous or vexatious. That is, either that there is no legitimate request by the Applicant or, if there is, it is vexatious for being brought for a collateral purpose: see, Zonnevylle v NSW Department of Justice [2021] NSWCAT 175 at [39].
8. Section 55(1)(b) of the NCAT Act has been summed up by Senior Member Maloney in Choi v University of Technology Sydney [2009] NSWCATAD 176 as follows and which I adopt: 37. The words 'frivolous, vexatious, misconceived or lacking in substance' are well recognised legal terms that can be found in a broad spectrum of statutes dealing with summary dismissal in a wide variety of forms. In each case, it is important that the legal and legislative context in which those proceedings arise be taken into consideration. … 40. Reviews under the GIPA Act are a good example of the nature of the proceedings, and applicable legislation, having a significant impact on whether proceedings are frivolous, misconceived or lacking in substance. This is so because the GIPA Act has among its objects the conferral on members of the public of a right to access government information; restricted only where there is an overriding public interest against disclosure; see s3. In aid of that right is s105(1) of the GIPA Act provides: 'In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that decision is justified lies on the agency, except as otherwise provided by this section.' 41. As a consequence, applications for summary dismissal based on an argument that review applications are without merit and destined to fail (and therefore frivolous, misconceived or lacking in substance) are likely to succeed, as the burden of justifying that the decision is correct lies with the respondent agency. Thus, the submission by UTS in this case that Ms Choi's attempt to review the not held decision (which it is now clear she is not pursuing) had 'no prospects of success' because UTS 'has already conducted reasonable searches' could not succeed. This is because the onus of proving that the searches were adequate falls on UTS.
9. The Respondent sets out the following reasons for which it says the application should either be dismissed pursuant to s55(1)(b) of the NCAT Act or the Tribunal ought refuse to deal with it under s109 of the GIPA Act.

The implication of s664 of the LG Act

1. In considering whether the claim should be dismissed pursuant to s55(1)(b) of the GIPA Act or if the Tribunal should refuse to deal with the application under s109 of the GIPA Act, the following parts of the Local Government Act are apposite.
2. A council, or a committee of the council, of which all the members are councillors may close to the public pursuant to s10A of the LG Act on the following basis: 10A Which parts of a meeting can be closed to the public? (1) A council, or a committee of the council of which all of the members are councillors, may close to the public so much of its meeting as comprises- (a) the discussion of any of the matters listed in subclause (2), or (b) the receipt or discussion of any of the information so listed. (2) The matters and information are the following- … (c) information that would, if disclosed, confer a commercial advantage on a person with whom the council is conducting (or proposes to conduct) business, (d) commercial information of a confidential nature that would, if disclosed- (i) prejudice the commercial position of the person who supplied it, or (ii) confer a commercial advantage on a competitor of the council, or (iii) reveal a trade secret, …
3. As a Councillor of the Respondent, the Applicant is required to comply with s664 of the LG Act which relevantly provides: '(1) A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made- (a) with the consent of the person for whom the information was obtained, or (b) in connection with the administration or execution of this Act, or (c) for the purposes of any legal proceeding arising out of this Act or of any report of any such proceedings, or (d) in accordance with the requirement imposed under the Ombudsman Act 1974 or the Government Information (Public Access) Act 2009, or (e) with other lawful excuse. (1A) In particular, if part of a meeting of a council or a committee of a council is closed to the public in accordance with s10A(1), a person must not, without the authority of the council or the committee, disclose (otherwise than to the council or a councillor of the council) information with respect to the discussion at, or the business of, the meeting.'
4. It does not appear that the exception in s 665(1)(d) of the LG Act would apply, because, even if the Applicant is successful in the information being disclosed to him, there is no requirement imposed on him to disclose it. Prima facie, if the Applicant discloses information he seeks in this application he may be in breach of the LG Act. I note in the Applicant's oral submissions he contends an alternative position and stated: "If NCAT releases this information and I become aware of it, it is up to me to decide what to do with it. Whether I do something lawful, or not, is up to me."
5. The Respondent also contends that as a Councillor, the Applicant must comply with the Council's Code of Conduct (see s 440(5) of the LG Act). The Respondent submits that the following provisions of the Code of Conduct are applicable to the information which is the subject of these proceedings: 'Use and security of confidential information 8.10 You must maintain the integrity and security of confidential information in your possession, or for which you are responsible. 8.11 In addition to your general obligations relating to the use of council information, you must: a) only access confidential information that you have been authorised to access and only do so for the purposes of exercising your official functions b) protect confidential information c) only release confidential information if you have authority to do so d) only use confidential information for the purpose for which it is intended to be used e) not use confidential information gained through your official position for the purpose of securing a private benefit for yourself or for any other person f) not use confidential information with the intention to cause harm or detriment to council or any other person or body g) not to disclose any confidential information discussed during a confidential session of a council or committee meeting or any other confidential forum (such as, but not limited to, workshops or briefing sessions).'
6. The Respondent also relies upon clause 8.20 (c) which provides that a councillor 'must not use social media to post or share comments, photos, videos, electronic recordings or other information that c) divulges confidential council information.'
7. Prima facie, a failure to comply with the Council's Code of Conduct gives rise to a breach of s 440(5) of the LG Act. Unlike the provisions of s 664 of the LG Act, there are no exceptions to s 440(5).
8. The expected quantum of fee relief is addressed in the July 2019 report and the November 2019 confidential attachment, considered by the Respondent in closed sessions of Council meetings. Prima facie, the Applicant does not have the authority to disclose information with respect to the fee relief where that information was obtained in his role as a Councillor. The Respondent also argues that recently discovered information relating to actual quantum of fee relief is also to be considered confidential information and caught by the Council's Code of Conduct. The Respondent contends that the Applicant is in a conflicted position with respect to this application and the information he obtained in his role as a Councillor. In particular: 1. the July 2019 report and the November 2019 report containing information relating to the estimate fee relief which information was dealt with in closed Council meetings; 2. the actual fee relief being confidential information which is protected from release by the Applicant pursuant to s440 of the LG Act and the Code of Conduct.
9. I am not satisfied that the application should be dismissed either under s109 of the GIPA Act or s 55(1)(b) of the NCAT Act. I accept that the Applicant may himself be in a position of conflict where he is acting in two roles which relate the information. The first, being in his role as a Councillor of the Respondent. Clearly, and a position in which the Applicant accepts, he is constrained by the operation of s 664 of the LGA and the Code of Conduct in what information he can disclose. It may be that this is one of the reasons he chose to make the GIPA application. Be that as it may, when acting as a private citizen, the Applicant maintains the same rights as another person in making an application for access to information under the GIPA Act. The proceedings in my view can not be considered wholly misconceived or lacking in substance or frivolous or vexatious. I find there is a legitimate request by the Applicant as a member of the public for access to both expected and actual fee relief. I am not satisfied that the proceeding is vexatious as it is not being brought for a collateral purpose. The Applicants perceived conflict is a personal one which attaches to him as a Councillor of the Respondent and one which he must give very careful consideration. His request under the GIPA Act as a citizen, is in my view not a request that has been made vexatiously for a collateral purpose. Section 9 of the GIPA Act confers on the Applicant when making an access application a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information. How he uses the information, if released, is a matter for the Applicant. Having considered all of the circumstances before me, that position should be maintained.
10. The application that the proceedings be dismissed is refused.

Legislative framework of the GIPA Act

1. The Information Commissioner has provided useful submissions which set out, amongst other things, the legislative framework. I set out some of those submissions below.
2. Section 3(1) of the GIPA Act states the object of the Act. The object is to open government information to the public. Parliament's intention is that the GIPA Act is to be interpreted and applied so as to further its object: s 3(2)(a). Agencies are required to authorise and encourage proactive public release of information (s 3(1)(a)); and give members of the public an enforceable right to access government information (s 3(1)(b)).
3. The GIPA Act reinforces these overriding objects through the 'presumption in favour of disclosure' of government information in s 5, and the legal entitlement under s 9 given to an individual to access information through the making of an access application.
4. These provisions are qualified by the limitation on access recognised on s 3(1)(c) that access is restricted only when there is an overriding public interest against disclosure. The Tribunal has affirmed that an overriding public interest against disclosure is the only restriction on access: see, Taylor v Destination NSW [2020] NSWCATAD 137 at [6].
5. Only information identified in Schedules 1 and 2 to the GIPA Act is removed from this access regime, by the Act's provision of a conclusive presumption of an overriding public interest against disclosure (see s 14(1) of the GIPA Act).
6. Section 9 of the GIPA Act confers on a person making an access application a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.
7. Section 12 provides, for public interest considerations in favour of disclosure.
8. The public interest is not a defined or fixed concept, including in the GIPA Act regime. It is a concept which is core to agency decision-making about access to government information.
9. Individual interests in seeking information may coincide with the public interest. In McKean v Attorney-General and Justice [2015] NSWCATAD 176 at [34], the Tribunal found that an applicant's interest in seeking access to information for reasons extraneous to himself, coincided with the benefits that arise from public scrutiny as enhancing government accountability, and the applicant being a member of the public.
10. A private interest may highlight a public interest, it does not constitute public interest; see, JY v Commissioner for Police, New South Wales (2008) NSWADT 306 at [55].
11. Sections 13 and 14 provide: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 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. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).
12. The relevant parts of the Table to s14 of the GIPA Act in this application are: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, … (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, … 4 Business interests of agencies and other persons There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - (b) reveal commercial-in-confidence provisions of a government contract, (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests, ... 6 Secrecy provisions (1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.
13. With respect to access applications for government information, the public interest test in s 13 regulates the requirements for agency decision-making of certain types of decisions under s 58(1). The test requires that there are public interest considerations against disclosure of information only in circumstances contemplated by s 14 and, on balance, those considerations outweigh the interest considerations in favour of disclosure.
14. Section 12(2) makes clear that there is no limit to the public interest considerations in favour of disclosure of government information that may be taken into account.
15. Where the public interest test in s 13 is required to be undertaken in the exercise of the agency's function in making a reviewable decision on access applications under Part 4, the balance is always weighed in favour of disclosure - (see Taylor v Destination NSW at [17]). The presumption in favour of disclosure creates a pro-disclosure condition that requires decision makers to recognise that the presumption in favour of disclosure will only be displaced by the weight of the factors against disclosure.
16. The onus is on the Respondent to properly inform the Tribunal as to the grounds it is relying on under s 14 so as to enable the Tribunal to be 'properly informed' when approaching the s 13 stage.
17. Section 15 provides principles that apply to a determination as to whether there is an overriding public interest against disclosure of government information.
18. Section 80 of the GIPA Act sets out those decisions which are 'reviewable decisions' under Part 5. Section 80(d) requires the Tribunal as decision-maker to demonstrate how it has applied the public interest test in s 13. The Tribunal's decision must take into account the public interest considerations advanced to it by both the Applicant for release and the Respondent for withholding the information in question, the respective evidence supporting those public interest considerations for and against release and then weigh and balance those various competing public interest considerations. See, Burnett (on behalf of Burnett) v Secretary, Department of Communities and Justice [2021] NSWCATAD 114 at [21].
19. The Tribunal when conducting reviews under the GIPA Act, is not generally concerned with the motivation of applicants seeking access to government information. See, Miriani v Transport for New South Wales [2021] NSWCATAD 16 (Miriani) at [24]. The Tribunal in Miriani at [25] stated that: The GIPA Act establishes a presumption in favour of disclosure of government information and does not require that access applicants disclose their motivations for seeking access to government information, or uses to which they wish to put that information once obtained.
20. However, the Tribunal can consider personal factors of an applicant pursuant to s 55(1) of the GIPA Act.
21. A person aggrieved by a 'reviewable decision' under the GIPA Act may apply to the Tribunal for review of that decision (section 100 GIPA Act). The onus on the agency is to establish that its decision is justified (section 105(i) of the GIPA Act).
22. Section 63 of the Administrative Decisions Review Act 1997 provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Relevant chronology concerning the Service Agreement

1. I have adopted the chronology set out in the Respondent's written submissions which is not contentious but relevant for my determination in these proceedings.

Tender process for passenger transport services at the Airport

1. On 26 June 2018, the Respondent called for tenders for the provision of transport services at the Airport in a request for tender document entitled 'Supply of Regular Passenger Transport Services at Illawarra Regional Airport'. The conditions of the tendering commence at page 14. Condition 18 requires the provision of 'all such information as Shellharbour City Council reasonably requires to satisfy itself that tenders are financially viable and have the financial capability to provide the Services for which they are tendering and to otherwise meet their obligations under the Proposed Contract'. The final sentence of condition 18 states: 'The financial assessment is specifically for use by Shellharbour City Council for the purpose of assessing Tenderers and will be treated as strictly confidential.'
2. Vee H submitted a confidential proposal containing commercial-in-confidence information.
3. [Not for Publication]
4. Between 17 and 26 July 2018, the tenders were evaluated by the Respondent in accordance with the Local Government (General) Regulation 2005, the New South Wales Government Code of Practice for Procurement (2005), Shellharbour City Council's Procurement Policy and the Tender Assessment and Evaluation Criteria.
5. On 24 July 2018, the Respondent resolved to decline to accept any of the tenders received and determined that it would negotiate directly with any person with a view to entering into a contract in relation to the subject matter of the tender.
6. On 4 September 2018, the Respondent considered (in a confidential meeting) the issue of the supply of regular passenger transport services to the Airport. The meeting was closed pursuant to s 10A(2)(d)(i) of the LG Act.
7. [Not for Publication]
8. [Not for Publication]

Services Agreement and Landing Fees

1. [Not for Publication]
2. [Not for Publication].

Fee Waiver Request

1. [Not for Publication]
2. On 19 November 2019, a further ordinary meeting of the Respondent took place. Item 10.1.5 of the agenda for this meeting is headed 'First Quarter Review of the Delivery Programme and Operational Plan 2019/20 (11328925)'. Agenda item 10.15 is entitled 'First Quarter Review of the Delivery Programme and Operational Plan 2019/20 (11328925)'. At page 32 there is a reference to 'Confidential Attachment - Budget Variation (issued under separate cover)'.
3. [Not for Publication]
4. The Respondent unanimously resolved at the 19 November 2019 meeting that the Respondent adopt the: a.1. First Quarter Review of the Delivery Programme and Operational Plan 2019/20; b.2. September 2019 Quarterly Budget Review with all recommended adjustments as contained in this report and attachment 1.
5. The Respondent submits that the Applicant has therefore already been provided with the estimated quantum of the fee relief. It also contends that the Services Agreement and the fee relief which were proposed, considered and finalised, was understood by the parties to be commercially sensitive and confidential.

Information requested to be disclosed

1. The following information relates to the fee relief which falls within the scope of the Applicant's request for information. 1. [Not for Publication] 2. [Not for Publication] 3. [Not for Publication]

Application of the Considerations set out in s14 of the GIPA Act

1. The Respondent contends that the following considerations contained in the Table to s 14 of the GIPA Act are relevant in relation to the disclosure of information concerning the quantum of actual and estimated fee relief.

Consideration 1(d) disclosure of the information 'would prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions.'

1. To make out this public interest against disclosure, it is necessary to prove: 1. that the information is 'confidential'; 2. that a supplier of the information would be prejudiced; and 3. that the information facilitates the effective exercise of the agency's function.
2. 'Confidential information' is information 'which is not to be disclosed in ordinary circumstances': see, Raven v The University of Sydney [2015] NSWCATAD 104 at [62]. This is applicable where the information has been supplied under an express or implied pledge of confidentiality.
3. Whether this is so is a question of fact to be determined in light of all of the circumstances of the particular case. Labelling and treatment of information is confidential and not conclusive of this question: see, McKinnon v Blacktown City Council [2012] NSWADT 44 at [55].
4. The word 'prejudice' was given the following meaning in Ansoul v City of Sydney [2017] NSWCATAD 65 (at [33]): ''Prejudice' under the GIPA Act has been held to have the same meaning as under the repealed Freedom of Information Act 1989, which is its ordinary meaning, that is, 'to cause detriment or disadvantage, or 'to impede or derogate from'.'
5. The 'reasonable basis' for holding the opinion that the supplier of confidential information to the agency would be prejudiced must be granted in the experience of the person holding the belief (see McKinnon at [56]-[57]).
6. I am satisfied that the quantum of the fee relief, being both expected and actual, is confidential information. The tender process for passenger transport services at the Airport was undertaken on a strictly confidential basis. The tender proposal provided by Vee H was marked 'Confidential' on the front page.
7. [Not for Publication]
8. [Not for Publication]
9. At an ordinary meeting of the Respondent on 19 November 2019, budgetary review of the delivery of the programme and operational plan concerning the Airport was included in a confidential attachment issued separately to the agenda item for that meeting.
10. I am satisfied in all the circumstances that the information was not to be disclosed in ordinary circumstances as evidenced above. It is clear that in certain circumstances the Respondent conducts its business in closed meetings where sensitive confidential information is not to be disclosed to the public at large. This is a powerful factor I have considered in coming to the conclusion that the information is confidential.
11. The Respondent contends that it holds concern that the disclosure of the information sought would specifically limit its ability to negotiate with other interested parties at the Airport. It says that providers, such as Vee H, in the future may be hesitant to deal with the Council if it is known that information of commercial sensitivity provided to the Council can be accessed by the public.
12. However, I am not satisfied the Respondent has sufficiently demonstrated how disclosure of the information could reasonably be expected to prejudice the supply of such information in the future. The information sought is in relation to the grant of fee relief. In the future, applicants seeking fee relief would be motivated to provide that information to the Respondent to obtain a result in their favour. In these circumstances, I do not accept the Respondent's argument that its ability to obtain such information in the future would be prejudiced.
13. I am not satisfied that this is a relevant public interest against disclosure.

Consider 1(g) - found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.

1. The Respondent submits that the confidential nature of the information was known to the parties. For the reasons set out above, I accept that the information is of a confidential nature. That being the case, the Respondent submits that the parties understood the information to be commercially sensitive and confidential. Any such release or disclosure of that information could lead to an action against the agency for breach of confidence, or, otherwise result in, the disclosure of the information provided to it in confidence.
2. I am not satisfied the Respondent has reasonably established that a legal action could be brought in respect of the alleged obligation of confidence in which one or more of the following causes of action could be taken (see Lock the Gate Alliance v Department of Planning and Environment and Department of Premier and Cabinet [2019] NSWCATAD 6 (at [139]): 1. a cause of action for breach of an obligation of confidence; 2. a cause of action for breach of a contractual obligation of confidence; 3. a cause of action for breach of a fiduciary duty of confidence and where account is taken of the recognised defences to an action for a breach of confidence.
3. In a decision of the former Administrative Decisions Tribunal: Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier's Department [2002] NSWADT 277 (at [53]), five matters were identified by the Tribunal which are to be established for a hypothetical equitable action for a breach of confidence. The five matters include: first, the information must be capable of being specifically identifiable as information which is secret rather than generally available; second, the subject matter of the obligation of confidence must not be trivial or useless or generally known; third, the information must have been communicated in circumstances such as to fix the recipient with an equitable obligation not to use the information in an unauthorised way; four, it must be established that the disclosure of the information would constitute an unauthorised disclosure; and, five, it must be established that the giver of the information would suffer a detriment, not necessarily pecuniary, such as loss of privacy or embarrassment.
4. I find that the first two matters have been established by the Respondent. I am not satisfied that matters three to five inclusive have been established by the Respondent in these proceedings.
5. I also note the operation of s 113 of the GIPA Act that removes any legal repercussion for the Applicant if the information is released after a proper consideration of the application, irrespective of the fact that the release of information could found an action for breach of confidence.
6. I am, therefore, not satisfied that the Respondent has established that this is a relevant public interest against disclosure.

Clause 4(b) - reveal commercial-in-confidence provisions of government contract.

1. The Respondent contends that the Services Agreement is a Government contract and the disclosure of expected or actual fee relief would reveal commercial-in-confidence provisions of that Agreement and how they have been considered and implemented.
2. As it relates to Government contracts, 'confidential information' is defined in s 32(1) of the GIPA Act to include the 'commercial-in-confidence provisions' of the contract. These are defined in clause 1 of Schedule 4 to the GIPA Act as follows: 'Commercial-in-confidence provisions of a contract means any provisions of the contract that disclose: (a) the contractor's financing arrangements; or (b) the contractor's cost structure or profit margins, or (c) the contractor's full base case financial model, or (d) any intellectual property in which the contractor has an interest, or (e) any matter the disclosure of which would place the contractor at a substantial commercial disadvantage in relation to other contractors or potential contractors, whether at present or in the future.'
3. 'Government contract' is also defined in clause 1 of Schedule 4 to the GIPA Act and includes 'a contract under which a party agrees to provide specific goods or services (such as information technology services), other than a contract of employment'.
4. Having reviewed all of the evidence, I am not satisfied that the Respondent has demonstrated that the contract contains commercial-in-confidence provisions as defined in the GIPA Act.
5. The Respondent has not provided either confidentially, or otherwise, a copy of the Service Agreement. In the absence of the entire agreement, or indeed relevant parts thereof, I am unable to make positive findings of 'Commercial-in-confidence provisions of a contract' which is not before me.
6. As it pertains to (e) above, I am also not satisfied that the Respondent has evidenced that disclosure of the information would place Vee H at 'substantial' commercial disadvantage. I am satisfied that Vee H may be placed at commercial disadvantage but whether that amounts to 'substantial' to meet the definition of 'commercial-in-confidence' provisions contained within the GIPA Act remains unanswered.
7. I am not satisfied that this is a relevant public interest consideration against disclosure.

Consideration 4(c) - diminish the competitive commercial value of any information to any person.

1. The words 'commercial value' in clause 4(c) are modified by the adjective 'competitive', which therefore connotes information of commercial value gained in, or relating to, a competitive commercial or business context: see, McKinnon at [79]-[80].
2. The Tribunal, in McKinnon (at [77]-[78]) accepted the following meanings of 'commercial value': 1. if (the information) is valuable for the purposes of carrying on the commercial activity in which the entity is engaged; 2. if genuine arm's length buyer is prepared to pay (to obtain) the information; 3. if capable of being disclosed as commercial in character.
3. The Tribunal also accepted the Information Commissioner's submissions in McKinnon (at [77]-[78]) that: '66. In Cannon and Australian Egg Farms Limited the QLD Information Commissioner said (at 122) in relation to the meaning of 'commercial' that: [T]he common link is to activities carried on for the purpose of generating income or profit. I refer to income because some government agencies are established to provide goods and services to the community for a fee, but with no expectation of ever generating profits: rather the aim is to pursue some government policy objective … there is arguably a strong public interest in access to information about government activities of this kind on the basis that taxpayers who are called upon to subsidise such quasi-commercial activities should be informed about strategies and costs. 67. In addition, the following has been found to affect commercial value: (i) commercial value may expire with the passage of time (see, e.g. Re Brown and Minister for Administrative Services (1990) 21 ALD 526 at 553); (ii) the commercial value of information which is publicly available cannot be diminished by disclosure (Re: Public Interest Advocacy Centre and Department of Community Services and Health and Schering Pty Limited (1991) 23 ALD 714 at 724, cited in Cannon and Australian Quality Egg Farms Limited). 68. In Cannon and Australian Quality Egg Farms Limited, the QLD Information Commissioner said that the respondent must show why and how the information has commercial value for the respondent, including 'the commercial context in which [the respondent] operates, and the significance of the information in that context' and 'that there is a reasonable basis for the expectation' that disclosure would diminish that value (at 18).'
4. I have adopted the following relevant passages from the Information Commissioner's submissions in these proceedings as follows: 86. Information may be valuable for the purposes of carrying on the commercial activity because it is important or essential to the profitability or viability of a continuing business operation, or a pending 'one-off' commercial transaction: see, Eyes v Central Coast Council [2016] NSWCATAD 306 at [54], citing Seeney and Department of State Development [2004] Ql Cmr 4 at [36]. 87. Information that resulted from the investment of significant research, time and effort by a business may also have commercial value: see, Neary v State Rail Authority [1999] NSWADT 107 at [42]; Sergent v Land and Property Management Authority [2010] NSWADT 50 at [53].
5. The Respondent refers to and relies upon submissions made by Vee H on 27 July 2020 where it states: "… release of details provided by Vee H Aviation during that tender process would become, if made public, readily accessible to competitors. We note there were expressions of interest by competitors at the time and that these businesses still compete with Vee H Aviation for work in many instances at locations other than Shellharbour. Aviation is a highly competitive industry with high operating costs and slim margins. Release of the information would present insights into our company's commercial operations including the detailed description of the manner in which services are delivered in order to justify the cost of providing air services (i.e. including indications of financial health and profit margins). Access to this information would be prejudicial to our company's future contract negotiations not only in relation to future possible Shellharbour operations but in relation to future operations in different locations."
6. 'The commercial value in particular documents could reasonably be expected to be destroyed or diminished if disclosure would give a competitor an insight in the business of the documents' owner' see Meriton Property Services Pty Limited & Ors v UrbanGrowth NSW [2017] NSWCATAD 71 at [135].
7. The Respondent contends that disclosure of the estimated and actual fee relief would give a competitor insight into the business of Vee H which would diminish the commercial value of the information.
8. The public interest disclosure in cl 4(c) is not broad. It requires the Respondent to show how the information has commercial value for it, including the commercial context in which the Respondent operates and the significance of the information in that context. The Respondent then must show there is a reasonable basis for the expectation that disclosure would diminish the value of the information.
9. I am satisfied that the Respondent has demonstrated that the actual and estimated fee relief is 'valuable' as it pertains to the carrying on of commercial activities at the Airport. I accept the submissions of Vee H that the aviation industry is a highly competitive environment. The calculation of fees and the profitability of the Airport, which includes the estimated and actual fee relief, has commercial value for the Respondent. However, the Respondent has not demonstrated how the disclosure of the information would diminish that commercial value for the Respondent.
10. I am not satisfied that this is a relevant public interest consideration against disclosure.

Consideration 4(d) - prejudice anyone's legitimate business, commercial, professional or financial interests.

1. When considering clause 4(d), the Tribunal must be satisfied that there are reasonable grounds for an expectation that the disclosure of the information could reasonably be expected to prejudice legitimate business, commercial, professional or financial interests: see Meriton Property Services Pty Limited & Ors v UrbanGrowth at [148].
2. In Hurst v Wagga Wagga City Council [2011] NSWADT 307 the Tribunal found that 'prejudice' meant 'to cause detriment or disadvantage'.
3. In Shenhua Watermark Co Pty Limited v Department of Planning and Environment [2019] NSWCATAD 119, the Tribunal found when assessing the public interest consideration at [45]: 'The public interest against disclosure in cl 4(d) is more broadly framed than that in cl 4(c) as it refers to legitimate business, commercial, professional or financial interests. The important feature of the clause is whether a disclosure of that information could reasonably be expected to prejudice those interests.'
4. The Applicant agreed in oral submissions that there may be prejudice to business and commercial interests in some respects. However, he said the balance weighs in favour of disclosure.
5. The Applicant contends that in any event, the information is information prepared by the Respondent and therefore cannot prejudice the interests of Vee H. I reject this argument. I accept the Respondent's submissions that the calculation of fee quantum is fundamentally determined by passenger numbers. I accept that passenger numbers were provided to the Respondent by Vee H.
6. In any event, the ownership or provenance of the information is not the determinative criteria under cl 4(d).
7. I am satisfied on the evidence and particularly the submission made by Vee H on 27 July 2020, that the release of the actual or estimated fee relief could be utilised in future competitive negotiations to potentially prejudice that company's legitimate business interests.
8. The surrounding circumstances in relation to the tender itself, the provision of the Services Agreement being given in confidence and the nature of the closed Council meetings when fee relief was discussed, are all matters which in my view connote the sensitivity of that information. I find disclosure of the information would materially prejudice Vee H's legitimate business, commercial or financial interests.
9. I, therefore, find that this is a relevant public interest consideration against disclosure.

The Weighing Process

1. The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise is a question of fact and degree, requiring the weighing of competing matters. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information.
2. Section 12 of the GIPA Act sets out examples of general public interest consideration in favour of disclosing government information.
3. Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure.
4. Considerations against disclosure will only be relevant if it is established that the disclosure of information could reasonably be expected to have the asserted effect. The requested information must be released unless there is an overriding public interest against disclosure.
5. The only public interest considerations against disclosure that can be considered are those identified in s 14 of the GIPA Act. This includes considerations set out in s 14 of the GIPA Act. In the circumstances of this matter the considerations in s 14 are clauses 1(d), 1(g), 4(c) and 4(d) and clause 6 of the Table to s14.
6. The only applicable clauses to the Table at s 14 in which I have found that consideration against disclosure be given is clause 4(d). In considering balancing the public interest test I am satisfied that clause 4(d) should be given significant weight such that I find that the information should not be disclosed. I have considered the objections raised by Vee H and they are material. The public interest is not served where disclosure of sensitive fee relief information could have detrimental effects on Vee H's legitimate commercial interests and its ability to continue to provide the operational services at the Airport.
7. I have considered the Applicant's arguments that disclosure of the estimated and actual fee relief would provide government accountability and greater public awareness of the content of the contractual agreement between the Respondent and Vee H. I accept his submissions. Disclosure of that information, he contends, would better inform the public about the interactions between Vee H and the Respondent.
8. However, in my view, the two public interest considerations against disclosure, outweigh the benefit of the information in being disclosed.

Clause 6 - secrecy provisions -

1. The respondent relies on sections 10A and 664 of the LG Act as the basis on which this public interest consideration against disclosure is established.
2. Section 10A of the LG Act relevantly provides as follows: '10A Which parts of a meeting can be closed to the public? (1) A council, or a committee of the council of which all the members are councillors, may close to the public so much of its meeting as comprises: (a) the discussion of any of the matters listed in subclause (2), or (b) the receipt or discussion of any of the information so listed. (2) The matters and information are the following: (a) personnel matters concerning particular individuals (other than councillors), (b) the personal hardship of any resident or ratepayer, (c) information that would, if disclosed, confer a commercial advantage on a person with whom the council is conducting (or proposes to conduct) business, (d) commercial information of a confidential nature that would, if disclosed: (i) ... (3) ...'
3. The Respondent exercised its power, under section 10A of the LG Act, and closed its meeting to the public when discussing the fee relief.
4. Section 664 of the LG Act relevantly provides: '664 Disclosure and misuse of information (1) A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made: (a) with the consent of the person from whom the information was obtained, or (b) in connection with the administration or execution of this Act, or (c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or (d) in accordance with a requirement imposed under the Ombudsman Act 1974 or the Government Information (Public Access) Act 2009, or (e) with other lawful excuse. (1A) In particular, if part of a meeting of a council or a committee of a council is closed to the public in accordance with section 10A (1), a person must not, without the authority of the council or the committee, disclose (otherwise than to the council or a councillor of the council) information with respect to the discussion at, or the business of, the meeting. (1B) Subsection (1A) does not apply to: (a) the report of a committee of a council after it has been presented to the council, or (b) disclosure made in any of the circumstances referred to in subsection (1) (a)-(e), or (c) disclosure made in circumstances prescribed by the regulations, or (d) any agenda, resolution or recommendation of a meeting that a person is entitled to inspect in accordance with section 12. (2) ... (3) ... Maximum penalty: 50 penalty units.'
5. In his written and oral submissions the Applicant, appears to concede that section 664 of the LG Act is a provision falling within item 6(1) of the table to subsection 14(2) of the GIPA Act. However, he submits that little weight should be given to this public interest consideration against disclosure, because it is a matter for him if he is ultimately in breach of the LGA by obtaining information under the GIPA Act and later disclosing it. The Respondent, on the other hand, submitted that considerable weight should be given to this public interest consideration against disclosure on the basis of Parliament having expressly prohibited the disclosure of information of this kind.
6. In Clarke v Blacktown City Council [2013] NSWADT 36, the Tribunal (at [67]) found, which I adopt: 'In my opinion, section 664 of the LG Act is no more than an expression by Parliament that disclosure of information obtained in the administration of the LG Act is to be done in an orderly and appropriate manner having regard to the purpose for which it was obtained or created. This in my view is reflected in the breadth of the circumstances in which information can be disclosed as set out in paragraphs 664(1)(a) to (e) (including under the GIPA Act) and subsection 664(1B). Accordingly, in my view little weight can be given to this public interest consideration against disclosure.'
7. I also find that s11 of the GIPA Act prevails over those sections of the LG Act contended for by the Respondent. I find that clause 6 is not a relevant public interest consideration against disclosure.
8. I note in an email sent to the Respondent on 17 February 2021, the Applicant stated that he 'did not ask for the release of any document and it was open to the Council to create a new document which contained only information requested', being 'the expected and actual value of the fee relief'.
9. The Tribunal has previously commented that s 75 allows an agency to create a new record to 'capture' the information in issue and to bring information into existence, but that it does not make this a mandatory requirement wherever applicable (see O'Grady v Sutherland Shire Council (2020) NSWCATAD 50 at [40]).
10. In my view, whether or not the Council created a new record and disclosed the information, the disclosure of that information would have resulted in the same outcome. Clause 4(d) of the Table to s14 of the GIPA Act would also apply as public interest considerations against disclosure.
11. I have considered the personal factors of the application identified in s 55(1) of the GIPA Act. Those personal factors are only relevant to clauses 4(c) and 4(d) to the Table in s 14 of the GIPA Act as it pertains to mu findings in this application. They do not become relevant to the effects referred to in clause 6 of the Table to s 14. In my view, the Applicant's desire to 'give greater public transparency to the operations of the Respondent' do not in my mind outweigh my findings with respect to the public interest considerations against disclosure.

Conclusion

1. In my view, the public interest considerations against disclosure of information outweighed the considerations in favour of release.
2. The correct and preferable decision is to affirm the decision of the Respondent and to refuse to provide access to the information on the basis that there is an overriding public interest against disclosure.

Order 1. The decision made by the Respondent on 16 March 2021 is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 April 2022