North Coast Environment Council v Environment Protection Authority [2021] NSWCATAD 29 | Case summary

NCAT Administrative and Equal Opportunity|2020-09-10

Introduction

This is an application for review of a decision by the Environment Protection Authority ("the EPA") to refuse an access application by the North Coast Environment Council Inc. ("the Applicant") under the Government Information (Public Access) Act 2009 ("the GIPA Act").
The access application was made to the Office of Environment and Heritage ("the OEH") and the OEH forwarded the request to the EPA. The access application requested: The records of sources and volumes of biomass inputs to Cape Byron Power. We seek data on volumes or each biomass source for each year, and for each of Broadwater and Condong, for the last 10 years Information to cover the period from 01/01/2009 to 27/10/2019.
The Applicant subsequently limited the application and advised that it was only seeking biomass fuel sources and volumes information and that other information is excluded.
The documents requested under the access application relate to the operations of two power stations, located at Broadwater and Condong, which generate electricity using biomass fuels. Both these power stations are owned and operated by Cape Byron Management Pty Ltd ("CBM").
CBM has been joined as a party to these proceedings.
As the owner of the relevant power stations CBM has business and financial interests that could be affected by the release of the requested information.
The EPA has provided 10 documents to the Applicant pursuant to the access application. However, access was refused in part in respect of some information contained within each of the 10 documents ("the withheld information"). The EPA concluded that there was an overriding public interest against disclosure of the following withheld information: 1. Fuel percentages; 2. Fuel volumes (tonnage), except where no fuel was consumed, and 3. The amount of power generated and power generation in general.

Background

The background to the application is not in dispute. The EPA has provided a reasonable summary which I will adopt.
Prior to 2015, the Broadwater and Condong power stations were operated by the NSW Sugar Milling Co-Operative Limited ("Sunshine Sugar"). Some of the documents subject to these proceedings were provided by Sunshine Sugar. The EPA has served them with notice of these proceedings and invited them to participate.
At all relevant times, the plants at Broadwater and Condong operated under an exemption from clause 97 of the Protection of the Environment Operations (General) Regulation 2009. This exemption allowed CBM, subject to certain conditions, to generate electricity from native forest bio-material.
CBM and Sunshine Sugar were required to provide the EPA with details of native forest bio-material received by the Broadwater and Condong power stations for which an exemption applied.
The exemption was granted under section 248 of the Protection of the Environment Operations Act 1997. The gazetted conditions of the exemption included that CBM (and its predecessor Sunshine Sugar): "must keep records and must submit those records monthly to the EPA. These records must include details of the volume, source and type (chipped or logs) of all native forest biomaterial received from each source."
The documents provided to the EPA pursuant to the above conditions constitute the majority of the documents falling within the scope of the access application.
Ms Janelle Bancroft, a Senior Operations Officer with the EPA conducted a search of the agency's files and records in response to the access application. Ms Bancroft provided an affidavit in which she set out the process that she adopted in dealing with the access application and stated that she had identified ten documents as falling within the scope of the request.
Ms Bancroft gave the ten documents to the EPA's Senior Governance Officer, Ms Sylvia Lowe, who was responsible for processing and deciding formal applications under the GIPA Act. Ms Lowe consulted with CBM and Sunshine Sugar in relation to that issue and both raised objections to the release of some of the information.
Following the consultation Ms Lowe determined the access application. She determined to release, in part, the information that was found to be within the scope of the access application. She provided the Applicant with ten redacted documents which the Applicant described as: a. Documents 3-10 are from the period 2010-2011 b. Document 2 is undated and the schedule provided no information as to when it was produced, and c. Document 1, is a letter from the Second Respondent to the First Respondent dated July 2019.
In relation to the redacted information Ms Lowe advised: Access is refused as follows: • Access is refused to fuel percentages information (document 1) • Access is refused to volumes (tonnage) information (documents 1-10) (except for "nil" volumes) • Access is refused to power generation information i.e. the amount of power generated from the use of the bio-material. Although I consider such information to be excluded by you and is irrelevant information, for the sake of clarity, this information is considered to be information for which there is an [overriding public interest against disclosure] (documents 3-10) (except for "nil" power generation information).
In her reasons for that decision Ms Lowe considered the public interest considerations against disclosure set out in the table to section 14 of the GIPA Act. She advised: I have identified the following public interest considerations against disclosure that require examination i.e. release of the information could reasonably be expected to: Prejudice the future supply of confidential information to an agency that facilitates the effective exercise of that agency's functions (clause 1(d) of the section 14 Table of the GIPA Act) Prejudice the effective exercise of an agency's functions (clause 1(f) of the section 14 Table) Found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence (clause 1(g) of the section 14 Table) Diminish the competitive commercial value of any information to any person (clause 4(c) of the section 14 Table) Prejudice any person's legitimate business, commercial, professional or financial interests (clause 4(d) of the section 14 Table).
The EPA no longer relies on clauses 1(d) and 1(f) of the section 14 Table.
The Applicant was not satisfied with that decision and has applied to the Tribunal for external review. It disputes the findings and contends: The Applicant seeks access to the information about the volumes of native forest bio-material that has been redacted in the GIPA documents released. It has not sought the information about the nett power, only the volume. Both nett power and volume are needed to do the calculation of power output and generation efficiency.

Applicable legislation

The Applicant applied to the Tribunal under section 100 of the GIPA Act. The burden of establishing that there is an overriding public interest against disclosure of information lies on the Respondent: section 105(1) of the GIPA Act.
Section 107(1) of the GIPA Act provides that the Tribunal must ensure that information in which there is an overriding public interest against disclosure is not disclosed. Section 107(2) of the GIPA Act provides that the Tribunal must receive evidence and hear argument in the absence of the applicant and the public, if necessary, to prevent the disclosure of such information.
Accordingly, the Applicant has not been given a copy of the redacted information as I am of the view that to do so would disclose the information that is in dispute.
Pursuant to section 63(3) of the Administrative Decisions Review Act 1997 the Tribunal may decide to: (a) affirm the reviewable decision, (b) vary the reviewable decision, (c) set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) set aside the reviewable decision and remit the matter for consideration by the administrator in accordance with any directions or recommendations of the Tribunal.
Section 5 of the GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 9 of the GIPA Act provides that applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure.
Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information that is not covered by overriding secrecy laws. The category of public interest considerations in favour of disclosure is not limited. Subsection 12(2) sets out several examples of public interest considerations in favour of disclosure.
The EPA identified a number of public interest considerations in favour of disclosing the withheld information. These included that disclosure of the information may improve public awareness of environmental issues and provide public assurance that a party is complying with the conditions of a legal requirement. I agree that those considerations are applicable in this matter.
Section 13 of the GIPA Act provides that 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.
Section 14(1) of the GIPA Act provides that 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 to the GIPA Act. The public interest considerations listed in the Table to section 14 of the GIPA Act 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.
The EPA relies on clauses 1(g), 4(c) and 4(d) of the Table to section 14 of the GIPA Act.
Clause 1(g) of the Table provides: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to … (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,
Clause 4(c) of the Table provides: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to … (c) diminish the competitive commercial value of any information to any person,
Clause 4(d) of the Table provides: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to … (d) prejudice any person's legitimate business, commercial, professional or financial interests,
The words "could reasonably be expected to" have been held to require "something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived": Leech v Sydney Water Corporation [2010] NSWADT 198 at paragraph [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at paragraphs [41] - [42]. While it must be a 'real' risk, the chance of it materialising need not be more probable than not: Neary v State Rail Authority [1999] NSWADT 107 at paragraphs [35] - [36]. The phrase "'simply calls for an objective assessment, on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is a question of fact": Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at paragraph [45].
As noted above, the Applicant is only seeking access to the redacted information about the volumes of native forest bio-material. While the Applicant had expressed surprise and concern that some particular information had not been identified, it does not now assert that the EPA has failed to comply with its obligations to conduct reasonable searches or that the EPA holds information that is captured by the scope of the access application which it has not located.

Issues for determination

The remaining issue to be determined is whether the decision to refuse to provide the Applicant with access to the redacted information is the correct and preferable decision.

Material before the Tribunal

The withheld documents have been provided to the Tribunal on a confidential basis. Each of the parties has provided written submissions and presented oral submissions at the hearing. The Applicant relies on the evidence of its Vice President, Ms Susan Russell. Ms Russell provided a written statement however much of the statement was excluded following objections from the EPA and CBM. Her evidence primarily expresses the concerns that she has in regard to CBM's compliance with applicable environmental legislative requirements and concerns that others have expressed to her. Ms Russell was not required for cross-examination.
The EPA relies on the evidence of Ms Lowe and Ms Bancroft. CBM relies on the evidence of its Chief Financial Officer, Mr Anthony Lount. Mr Lount provided an affidavit and also appeared at the hearing and was cross-examined. CBM objects to the release of the withheld information.
The EPA also relies on the evidence of Mr Lount as support for its submission that the public interest considerations against disclosure of the withheld information outweigh the considerations in favour of its release.

Public Interest Considerations in Favour of Disclosure

As noted above, the EPA identified some public interest considerations in favour of disclosure. The Applicant has provided detailed submissions in relation to these interests. In its submissions the Applicant also made assertions regarding the exemptions given to CBM and in regard to CBM's compliance with conditions imposed on its activities.
In regard to the public interest considerations in favour of disclosure the Applicant submitted: It is fundamental to the functioning of our system of environmental laws and the well-being of our communities that members of the community have access to information, in relation to the way the environment is managed and the pollution and the sources of pollution that are emitted. The information sought relates to an activity, namely the burning of native forest bio-materials … Fundamental to any consideration by the community as to whether or not to seek to uphold the law, like with any legal enforcement, is the question of utility. The information sought, namely the volumes of the native forest bio-material goes to nub of this issue. There is a strong public interest consideration in the release of information that would reveal whether the law is being or has been broken and whether there is utility in seeking to uphold the law. The particular issue of non-compliance in this regard relates to traffic and road safety and is a strong public interest consideration in favour of disclosure. The information sought relates directly to an activity that is unlawful under the general law. For reasons the regulator determined to grant an exemption to the undertaking of the activity. The prohibition as it stands, relates to the health of the community and the environment. .... There is a strong public interest consideration in the release of information that would enhance government accountability as well as compliance with our environmental laws. … There is a strong public interest consideration in the release of information that would inform the community how much native forest bio-material is actually being burnt for the production of electricity in relation to these power plants. The activity is about the use of natural resources, some of which are public resources and the pollution that occurs through the combustion of native forest bio-material for electricity. …
I agree with the Applicant that there is a public interest in the release of information that would inform the community in relation to the way the environment is managed and information which would enhance government accountability and compliance with environmental laws.
In my view, these public interest considerations in favour of disclosure of the withheld information are to be given significant weight.

Public Interest Considerations against Disclosure

The public interest considerations against disclosure are to be weighed against the public interest considerations in favour of disclosure. In regard to the public interest considerations against disclosure the Applicant submitted: While the Tribunal may accept that there may be some risk that the Second Respondent's business, commercial or financial interests might be prejudiced if the information is disclosed it is the Applicant's view that there is considerable doubt about the extent of those risks. There is significant speculation about the identified competitors, to the extent they do not actually appear to be competitors. The information sought is limited both in its scope and in terms of the business of the Second Respondent. There are other ways competitors could obtain the information if they were in fact true competitors. Much of the information is now dated and the particular source locations are now exhausted of the resource.
As noted, the onus lies on the EPA to establish its contention that there is an overriding public interest against disclosure of information. The EPA, with the support of CBM, primarily relies on clauses 1(g), 4(c) and 4(d) of the Table to section 14 of the GIPA Act.

Clause 1(g) - disclosure of information provided to an agency in confidence

Both the EPA and CBM contend that the withheld information was provided in confidence.
Mr Lount provided evidence in regard to CBM's obligations to provide information to the EPA. His evidence is that the withheld information was provided to the EPA because it was obliged to do so and that it would not have been provided if it were not for that obligation. In his affidavit he stated: March 2010 Exemption and March 2010 Exemption Material On 19 March 2010 by government gazette, NSW Sugar Milling Co-Operative Limited was granted a temporary exemption under section 284 of the Protection of the Environment Operations Act 1997 (POEO Act) to use native forest bio-material, which has been approved to be cleared for major infrastructure, industrial or/and housing developments, as fuel to generate electricity at the Facilities (March 2010 Exemption … Following a review of CBM's records, I am aware that certain documents were provided by CBM to the First Respondent in accordance with condition 9 of the March 2010 Exemption (March 2010 Exemption Material) I understand that these documents are the documents numbered 3 to 10 in the First Respondent's notice of decision to the Applicant dated 7 February 2020, which is the subject of these proceedings. The March 2010 Exemption Material was provided to the EPA in accordance with the requirements of the March 2010 Exemption. The business would not have provided this information to the EPA if not for the requirement to do so in the condition. The March 2010 Exemption Material now sought by the Applicant without redaction relates to native vegetation fuel reports from when Sunshine Sugar owned the Facilities. These reports identify, among other matters, the nett power which is generated from the volume of fuel set out in the reports. The nett power which can be generated by the Facilities has not changed since the creation of these reports. For this reason, this data is still important data for the Facilities today. If CBM suppliers became aware of the nett power generated by the Facilities by reference to the volume of fuel supplied they could easily calculate the fuel volumes required by our Facilities to operate. June 2014 Exemption and June 2014 Exemption Document On 6 June 2014 by government gazette, CBM was granted a temporary exemption under section 284 of the POEO Act for the Facilities to use native forest bio-material which had been cleared for infrastructure provision subdivision, housing development road clearing, power line clearing and dam construction, as fuel to generate electricity at the Facilities (June 2014 Exemption… Following a review of CBM's records I am aware that CBM provided a document to the First Respondent in accordance with condition 6 of the June 2014 Exemption. Having obtained the Exemption CBM was required to provide this document to the First Respondent (June 2014 Exemption Document). I understand that this document is the document numbered 2 in the First Respondent's notice of decision to the Applicant dated 7 February 2020, which is the subject of these proceedings The June 2014 Exemption Document, if unredacted, contains recent commercial information about volumes of fuel received by the Facilities and the source of this fuel. The June 2014 Exemption Document was provided to the EPA as required as a condition of the June 2014 Exemption. The June 2014 Exemption Document discloses commercially sensitive information regarding the volume of fuel required by our Facilities CBM would simply not have provided this information to the EPA if not for the obligation to comply with the exemption condition. Application for further exemption under Section 284 (July 2019 letter) On 29 July 2019 CBM wrote to the First Respondent (July 2019 Letter). I understand that this document is the document numbered 1 in the First Respondent's notice of decision to the Applicant dated I February 2020, which is the subject of these proceedings. The redacted information in the July 2019 Letter is of particular value to CBM because it contains a the volumes of bagasse material received at the Facilities; b the volumes of alternate materials required for the Facilities; c the specific sources and volumes of native biomaterials received at our Facilities; d the volumes of fuels required by our Facilities; e the total fuel portfolio for the Facilities; and f information relating to the commercial viability of our Facilities.
Mr Lount's evidence in regard to the circumstances in which the information was provided to the EPA was not altered in his evidence before the Tribunal. The information relating to volumes is not in the public domain and it would not have been provided to the EPA other than in compliance with CBM's obligations.
Nevertheless, the Applicant submitted that the EPA has not established that any confidentiality attaches to the withheld material and therefore clause 1(g) is not applicable.
I do not agree with the Applicant in this regard.
The confidentiality of information can be inferred from the circumstances in which it was provided, even if not expressly stated: Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 at paragraph [68].
I accept that the withheld information was provided in compliance with CBM's obligations to provide information to the EPA and that it was provided in confidence. CBM would not have provided this information to the EPA if was not obliged to do so. The public interest consideration against disclosure in clause 1(g) is established in respect of the withheld information.
In my view, this public interest consideration against disclosure of the withheld information is to be give significant weight.

Clause 4(c) - diminish the competitive commercial value of any information

CBM contends that the withheld information is information of commercial value that has been gained in, and relates to, a competitive commercial context and that disclosure would diminish its competitive commercial value.
Mr Lount has explained that the information regarding the volumes of fuel acquired from each supplier is not publicly available. He has also stated that if competitors became aware of the identity the suppliers and the nature of CBM's agreements with those suppliers, the competitors would be able to use that information to negotiate with those suppliers to CBM's detriment. Competitors could seek to outbid CBM and come to an arrangement with CBM's current suppliers. This would prejudice CBM's commercial and financial interests, as well as providing its competitors with a commercial advantage
Mr Lount's evidence is that the price of fuel is a significant factor in CBM's commercial operations. There is significant competition for fuel supply in the vicinity of CBM's facilities. There are a number of operations with which CBM directly competes for fuel.
He stated that disclosure of the volume of fuel required by CBM's facilities would put CBM's competitors at a commercial advantage. Disclosure of the withheld information would provide CBM's competitors with an understanding of CBM's cost base (from fuel volumes), demand for fuel, as well as disclose CBM's other suppliers of fuel and the volumes they provide. Mr Lount's concern is that this would unfairly prejudice CBM's business interests and would affect its ability to obtain fuel from suppliers under favourable terms. This would place competitors for the purchase of fuel at a considerable advantage over CBM.
Mr Lount's evidence on these issues was challenged under cross-examination however it was not altered in any significant way. I am satisfied that within the industry in which CBM operates, the knowledge of the volume of fuel required by the facilities is sufficient to impact on CBM's operating costs. I am satisfied that this information has commercial value to CBM. I am also satisfied that the disclosure of this information could potentially place CBM's competitors at a commercial advantage.
Ms Russell disputes Mr Lount's evidence in regard to the level of competition for fuel. Much of the information that she included in her affidavit which goes to this issue was struck out. However, her submission remains that Mr Lount's evidence of the level of competition is extremely exaggerated.
I do not agree with Ms Russell's submission. I accept Mr Lount's evidence in regard to the level of competition for fuel. On the evidence before me I am satisfied that the public interest consideration against disclosure in clause 4(c) is established in respect of the withheld information.
In my view, this public interest consideration against disclosure of the withheld information is to be give significant weight.

Clause 4(d) - prejudice business, commercial, professional or financial interests

The Applicant disputes the contention that the release of the withheld information could reasonably be expected to prejudice CBM's business commercial or financial interests. It submits that much of the information is old and it only relates to a minor aspect of CBM's overall business. It says that release of the withheld information will not reveal information that has a competitive commercial value. Ms Russell submitted that the supply source specific to the information is now redundant and the competitors that CBM has identified are not in fact competitors in the true sense of the term.
The Applicant submits that a supplier has limited power to manipulate the market by controlling supply of fuel as the waste needs to be removed quickly.
Ms Russell further argued that it might be possible to obtain the details contained within the withheld information by means of satellite imaging and counting the trucks entering the power stations. If a competitor had wanted the information, it could have undertaken those exercises to obtain it.
I do not agree with the Applicant's contention that CBM does not have serious competition for the fuel that it needs to operate its facilities. I am satisfied that there are a number of competitors who are competing for the same wood waste notwithstanding the fact that those entities require the fuel for different purposes and require different amounts of fuel.
I am also satisfied that the release of the information relating to CBM's volume requirements would allow those competitors to determine how to deal with CBM's suppliers to achieve the best price for the fuel. I accept Mr Lount's evidence that the information remains relevant despite its age and it is valuable to both CBM's suppliers and its competitors. I am satisfied that the release of the information has the potential to distort the market. For example, if a supplier became aware that it was the sole supplier of CBM's fuel requirements it would be in a position to manipulate the availability of the fuel in order to increase the price that CBM would have to pay for the fuel.
For the reasons already discussed I am satisfied that the disclosure of the volume of fuel required by CBM's facilities would put CBM's competitors at a commercial advantage. I am satisfied that the disclosure could be expected to prejudice CBM's legitimate business, commercial, or financial interests because it could result in the need to pay higher prices for the fuel that it needs to operate its facilities. The public interest consideration against disclosure in clause 4(d) is established in respect of the withheld information.
In my view, this public interest consideration against disclosure of the withheld information is to be give significant weight.

Balancing the public interests

Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure". Section 13 provides that there is an overriding public interest against disclosure if, and only if, the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure.
Disclosure cannot be made subject to any conditions on the use or disclosure of information and so it cannot be assumed that it is only the use that CBM's competitors might currently be able to make of the information that is relevant.
Having identified the public interest considerations in favour of, and against, disclosure, the Tribunal must attribute weight to each consideration, which depends on the effect of disclosing each particular piece of information: Destination NSW v Taylor [2019] NSWCATAP 123 at paragraph [69].

Public interest considerations in favour of disclosure

The Applicant has set out a number of public interest considerations in favour of release. I agree that significant weight should be attributed to those considerations. I agree that it is a significant public interest that the information may assist in effecting the proper administration of the law, enhance government accountability and inform the public in regard to compliance with environmental laws.

Public interest considerations against disclosure.

As noted above, I have found that the public interest considerations against disclosure set out in clauses 1(g), 4(c) and 4(d) of the Table to section 14 of the GIPA Act are made out. I have also found that each of those public interest considerations against disclosure is to be given significant weight.
The Applicant submits that the public interests against disclosure as they arise in this matter do not outweigh the very strong public interests in favour of disclosure. I do not agree.
It is apparent from the evidence before me that the Applicant is primarily concerned with the fate of native forests whereas CBM's concern is the market for wood waste.
Most of the material put forward by the Applicant supports its concerns however there is no evidence before me on which I could conclude that CBM has failed to meet its obligations in relation to the exemptions or that it has failed to comply with applicable environmental legislation.
While I accept that the considerations in favour of disclosure are important, I am not satisfied that the release of the withheld information would have a significant impact on government accountability or compliance with environmental laws.
In contrast, it is my view that the potential prejudice to CBM's business, commercial, and financial interests from the release of the information is significant and that should be given greater weight than the considerations in favour of release of the withheld information.
Accordingly, it is my view that the EPA's decision is the correct and preferable one and it should be affirmed.

Order 1. The decision under review is affirmed.

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

Amendments 12 February 2021 - Typographical Errors corrected. "Loundt" corrected to "Lount". 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: 12 February 2021

North Coast Environment Council v Environment Protection Authority

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Cases Cited (1)