Pezzano v Department of Creative Industries, Tourism, Hospitality and Sport

Background

1. Mr Pezzano is a registered lotteries player and requested certain information from "The Lott". The Lott is described as Australia's Official Lotteries online site under one banner and includes information for New South Wales Lotteries Corporation Pty Limited (NSW Lotteries). The business of operating lotteries in New South Wales is conducted by NSW Lotteries, which is a wholly owned subsidiary of TLC. TLC is a public company listed on the Australian Securities Exchange (ASX). There are other companies within the TLC group which operate lotteries in other states in Australia. Mr Pezzano requested statistics over the past five years for the revenue, percentage of jackpot and prize winners and the amounts for various lottery products, being Saturday Lotto, Monday and Wednesday Lotto, Oz Lotto, Powerball and the $2.00 and $5 Lotteries.
2. In his request Mr Pezzano noted that "[t]here seems to be some debate that the current system does not provide a genuine likelihood or fair percentage of winning jackpots and prize money." As a consumer of lottery products, Mr Pezzano is interested in ascertaining whether the system was fair.
3. When Mr Pezzano did not receive what he considered to be a satisfactory response to his request for information from TLC or NSW Lotteries, he made an application for access to the respondent on 16 August 2023 under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act). The request was assessed by Liquor and Gaming NSW (LGNSW), being the business unit within the respondent with the overall responsibility for regulating liquor, gaming, wagering, casinos and registered clubs in NSW.
4. After discussion between Mr Pezzano and officers of LGNSW, the application for access was clarified to request the following information: 1. The stats that specifically pertain to the total amount of revenue (2018-2023) that has been received from customers purchasing (not tax revenue, but how much the players themselves have spent); 2. The percentage of jackpot/prize winners; and 3. Amounts paid out to winners for; Saturday Lotto Monday and Wednesday Lotto Oz Lotto Powerball $2 Lottery $5 Lottery
5. A delegate of the respondent considered the request and decided, pursuant to s 58(1)(d) of the GIPA Act, that there is a conclusive presumption of an overriding public interest against disclosure of the information captured by Category 1 of Mr Pezzano's request. It was further noted that this was because of an overriding secrecy law in Schedule 1(1) of the GIPA Act. The delegate considered the information sought in Categories 2 and 3 of the request and decided, under s 58(1)(b) of the GIPA Act, that no information was held responding to these requests.
6. Administrative review of a decision by the Tribunal means that the Tribunal must make the "correct and preferable" decision based on the material before it at the time of the decision (s 63 of the Administrative Decisions Review Act 1997 (NSW): ADR Act). The Tribunal is not confined to the material before the decision maker at the time the reviewable decision was made, nor is administrative review confined to a review of the original decision to ascertain whether that decision contained legal or factual error. The Tribunal must decide the matter of afresh but must make the "correct and preferable" decision by applying the relevant law. This will generally be the same law applied by the original decision-maker, unless the decision-maker has incorrectly identified and applied the relevant law.
7. In this case, the reasons for the delegate's decision, which were accepted on internal review and subsequently by the Information Commissioner, raise the relevant legal principles and embody the key focus for Mr Pezzano's submissions and concerns. Accordingly, it is useful to outline these reasons for decision in some detail.
8. The delegate noted that a search had been made of the records of the Department to identify documents falling within the scope of Mr Pezzano's application. Officers from LGNSW searched its document storage system, which is called "CM10", for any record that contained the answers to Mr Pezzano's three questions. After searching the records held in CM10, it was noted that there were no records that contained answers to the three questions raised by Mr Pezzano in his application. However, it was also noted that LGNSW had located several reports which contained information about lotteries in NSW. These reports were provided by NSW Lotteries. Contained within the reports was financial data about NSW Lotteries broken down by month. LGNSW advised that it may be able to calculate the answer to the first question raised by Mr Pezzano by using the data in these reports. Section 75 of the GIPA Act provides that an agency is able to give access to government information by making a new record of that information.
9. The Information and Privacy Commission publishes guidelines about this and states that an agency may create a new record of government information by collecting information held in different electronic folders, systems or individual files. A new record will be created when using government information to generate 'non-standard' reports. According to the delegate, LGNSW used data located across its records to calculate answers to Mr Pezzano's first question and, thereby, created a new non-standard report. Even though LGNSW did not hold any record containing the answer to Mr Pezzano's first question at the time it received the application, the delegate decided to consider this record for release.
10. Because the information in the possession of LGNSW comprised information provided by NSW Lotteries, the delegate sent the request to its parent company, TLC, as part of a consultation process required under s 54 of the GIPA Act. The delegate asked whether TLC had any objection to the release of the information given that similar information about the aggregate revenue of TLC is already publicly available. Objections were raised by TLC to the release of the new record on the grounds that releasing the information would allow third party competitors sufficient insight into the business operations of TLC which would allow its competitors to obtain a commercial advantage. It was submitted that this would prejudice TLC's current business activities and any future potential tender process. The delegate noted that he had considered these objections when making his decision.
11. The delegate concluded that there were no documents to produce in respect of Mr Pezzano's second and third requests. In respect of the first request, the delegate noted that LGNSW had created a new record, being a spreadsheet, which was directly responsive to Mr Pezzano's first request. This new report was based on information acquired by LGNSW in the exercise of a function under the Public Lotteries Act 1996 (NSW) (PLA) and was information acquired concerned the business, commercial and financial affairs of a licensee. In forming this view, the delegate noted that he had taken into account the matters raised by TLC about the impact releasing this information could have on NSW Lotteries' business, commercial and financial affairs. The delegate was accordingly satisfied that this information should be withheld as there was a conclusive presumption of overriding public interest against disclosure. The basis for this conclusive presumption is that the delegate formed the view the new record created was a record specifically referred to in Schedule 1 of the GIPA Act, being information that is prohibited from disclosure by overriding secrecy laws.
12. Mr Pezzano requested an internal review of this decision the following day and a decision was made, and notified to Mr Pezzano, by decision dated 23 November 2023. In the reasons for decision, it is noted that LGNSW conducted searches of its storage system CM10 for records that contained answers to the information request. No records were located in relation to each request and the delegate was satisfied, based on the information provided by LGNSW, that there were no records outside the CM10 system. It was noted that LGNSW had created a new record based on several reports provided by NSW Lotteries and this new record responded to Mr Pezzano's first request. Like the original decision-maker, the review delegate considered whether this document, being a new record created in accordance with s 75(1) of the GIPA Act, should be released.
13. The review delegate made a decision in similar terms as the original decision maker. Relevantly, he refused access to the new record created in response to the Mr Pezzano's first request on the basis that there is a conclusive presumption of an overriding public interest against disclosure of this information. The delegate also noted that there was no information held by the Department in respect of the second and third requests for information. In forming a view about whether there was a conclusive presumption of overriding public interest against disclosure, the delegate states that he has took into account the perspective of TLC regarding the impact of the release. This is a contentious issue that was the subject of submissions by Mr Pezzano during and after the hearing.

Relevant law

1. The GIPA Act was introduced in 2009 to facilitate public access to government information.
2. Section 3 Provides that the object of the GIPA Act is as follows: (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by-- (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament-- (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
3. Section 9 provides that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information. Section 11 provides that the GIPA Act overrides secrecy provisions in other legislation, other than a provision of the law listed in Schedule 1 as an overriding secrecy law. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Examples of public interest considerations in favour of disclosure are set out in the Note to s 12 as follows: Note--: The following are examples of public interest considerations in favour of disclosure of information-- (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
4. Section 13 sets out how the public interest test must be assessed and provides that there is an "overriding public interest against disclosure of government information" for the purposes of the GIPA Act if, and only if, there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
5. Section 14 of the GIPA Act contains the public interest considerations against disclosure and relevantly provides: (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.
6. The Table to s 14 enumerates seven different grounds for public interest considerations that may be taken into account as public interest considerations against disclosure for the purposes of determining whether there is an overriding public interest against disclosure of government information. The seven grounds are: responsible and effective government (item 1); law enforcement and security (item 2); individual rights, judicial process and natural justice (item 3); business interests of agencies and other persons (item 4); environment, culture, economy and general matters (item 5); secrecy provisions (item 6) and exempt documents under Interstate Freedom of Information legislation (item 7). Relevant to the submissions in this case, item 4(d) to the Table refers to the "prejudice of any person's legitimate business, commercial, professional or financial interests".
7. Each of these grounds, with the exception of the exempt documents ground, require consideration of whether disclosure of the information "could reasonably be expected" to have one or more of the effects (or in the case of the secrecy ground, contraventions) outlined within each of the grounds. To establish one of the six grounds described in the Table it is therefore necessary to identify the listed effects (or contraventions) and make an assessment about whether disclosure of the requested information could reasonably be expected to have that effect or constitute a contravention. It is unnecessary to undertake such an assessment in respect of exempt documents because there is a provision requiring notice to be given specifying the exempt document.
8. As provided by s 14(1), there are certain documents where it is "conclusively presumed" that there is an overriding public interest against disclosure. Those documents, or classes of documents, are set out in Schedule 1 of the GIPA Act and include, for instance, overriding secrecy laws (cl 1), cabinet information (cl 2), executive council information (cl 3), contempt (cl 4), legal professional privilege (cl 5), documents affecting law enforcement and public safety (cl 7), adoption and care and protection of children (cls 9 and 10) and Ministerial code of conduct. (cl 11).
9. Clause 1(1) in Schedule1 deals with overriding secrecy laws and provides: It is to be conclusively presumed that there is an overriding public interest against disclosure of information the disclosure of which is prohibited by any of the following laws (which are referred to in this Act as "overriding secrecy laws"), whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence-
10. Clause 1(1) then continues to list specific legislation, including particular provisions, in respect of which there is an overriding public interest against disclosure of information because disclosure is prohibited by the specified legislation. Relevant to the facts of this case, s 80 of the PLA is listed. Section 80 sets out the secrecy provisions under the PLA. Because this section is central to the issues in dispute, the provisions are set out below in their entirety: 80 Secrecy (1) A person who-- (a) acquires information in the exercise of a function under this Act, and (b) directly or indirectly, makes a record of the information or divulges it to another person, is guilty of an offence unless the information is recorded or divulged in the exercise of functions under this Act. Maximum penalty--50 penalty units. (2) Despite subsection (1), information may be divulged-- (a) to a particular person or persons, if the Minister certifies that it is necessary in the public interest that the information be divulged to the person or persons, or (b) to a person who is expressly or impliedly authorised to obtain it by the person to whom the information relates, or (c) to a person or authority prescribed by the regulations. (3) It is not an offence under this section if, in legal proceedings, a person-- (a) divulges information in answer to a question that the person is compellable to answer, or (b) produces a document or other thing that the person is compellable to produce. (4) An authority or person to whom information is divulged under this section, and a person or employee under the control of that authority or person, are, in respect of that information, subject to the same rights, privileges and duties under this section as they would be if that authority, person or employee were a person exercising functions under this Act and had acquired the information in the exercise of those functions. (5) This section does not apply to the divulging of information to any of the following-- (a) the Independent Commission Against Corruption, (b) the Australian Crime Commission, (c) the New South Wales Crime Commission, (d) the Ombudsman, (e) any other person or body prescribed by the regulations for the purposes of this subsection. (6) This section does not prevent a person being given access to a document in accordance with the Government Information (Public Access) Act 2009 unless the document-- (a) contains matter the disclosure of which could reasonably be expected to do any of the following-- (i) prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case, (ii) enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, (iii) prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), or (b) is a document the disclosure of which would disclose any of the following information-- (i) information concerning the business, commercial, professional or financial affairs of a licensee, agent or key employee, (ii) information obtained in the course of an investigation of a licensee, agent or key employee. (7) In this section, a reference to the divulging of information includes a reference to the production of a document or other thing and the provision of access to the document or other thing.
11. Section 15 of the GIPA Act sets out the principles that apply to agencies, and relevantly to the Tribunal, when making a determination as to whether there is an overriding public interest against disclosure of government information. Decision-makers must make public interest determinations in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
12. Section 53 of the GIPA Act sets out the obligations of an agency and the searches it must undertake once a request for information is received. The obligation to provide access to government information is limited to the information held by the agency when the application is made. The agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held when the application was received, and those searches must be conducted using the most efficient means reasonably available: s 53(2). The obligation extends to searches using any resources reasonably available to the agency, including resources that facilitate the retrieval of information stored electronically, but this does not generally require the agency to search for information in records held in an electronic backup system or to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources: ss 53(3) to (5) of the GIPA Act.
13. Section 54 provides that an agency must take such steps, if any, as are reasonably practicable to consult with a person before providing access to the government information if the information is of a kind that requires consultation under the section, the person may reasonably be expected to have concerns about the disclosure of the information and those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information: s 54(1) of the GIPA Act. Section 54(2)(a) provides that concerns about the person's business, commercial, professional or financial interests is information of a kind that requires consultation under s 54.
14. Under s 55, an agency is entitled to take into account the personal factors of the application in determining whether there is an overriding public interest against or in favour of disclosure of government information: ss 55(1) and (2) of the GIPA Act. An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for: s 55(4) of the GIPA Act. The personal factors of the application that may be taken into account are: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant.
15. Section 58(1) provides that applications for review are to be decided by the agency: deciding to provide access to the government information sought (subs (a)); deciding that the information is not held by the agency (subs (b)); deciding that the information is already available to the applicant (subs (c)); deciding to refuse the application because there is an overriding public interest against disclosure (subs (d)); deciding to refuse to deal with the application (subs (e)) and deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact (subs (f)).
16. The decision the subject of this review was made under ss 58(1)(b) and (1)(d) of the GIPA Act.
17. Section 80 of the GIPA Act sets out the decisions of an agency in respect of an access application which are "reviewable decisions" for the purposes of Part 5 of the GIPA Act. Those decisions relevantly include a decision that the government information is not held by the agency and a decision to provide access or to refuse to provide access to information in response to an access application. Section 82 of the GIPA Act allows a person aggrieved by a reviewable decision of an agency to seek an internal review. Section 100 provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for an administrative review of the decision under the ADR Act. Section 105 provides that the onus is on the agency to justify decisions made in respect of access under the GIPA Act.

Submissions

1. The responded submits that the Department, although not obliged to do so, created a new record containing responsive information and assessed the release of that document in accordance with s 14 of the GIPA Act. The basis for refusal by the Department is that s 80 of the PLA applies to the information such that it is conclusively presumed there is an overriding public interest against disclosure, as outlined under cl 1(1) of Schedule 1 to the GIPA Act.
2. It is submitted that, in the alternative, it would be open for the Tribunal to accept the submissions put forward by TLC to find that there is a public interest against disclosure for the reasons outlined by TLC, namely, the prejudice to its business interests such that disclosure of the information could reasonably be expected to prejudice TLC's legitimate business, commercial, professional or financial interests: s 14(2), cl 4(d) of the Table.
3. To engage the conclusive presumption for the purposes of s 14(1), it is necessary to establish that s 80 of the PLA applies to the new record created by LGNSW which responds to Mr Pezzano's first request. It is submitted that there are three questions to consider. First, whether the Department acquired information in the exercise of a function under the PLA. Information acquired in these circumstances is information in respect of which strict secrecy rules apply and there are limited circumstances under which the information may be divulged. Divulging certain information is unlawful and, as such, it is conclusively presumed that there is an overriding public interest against disclosure. If divulging information is unlawful and is not permitted under the PLA, this is the end of the matter.
4. This leads to the second question, namely, whether divulging the information is permitted under s 80. Section 80(1) relevantly provides that a person who directly or indirectly makes a record of the information or divulges the information which has been acquired in the exercise of a function under the PLA, is guilty of an offence unless the information is recorded or divulged in the exercise of functions under the PLA. Section 80(2) provides that information may be divulged: to a particular person or persons if the Minister certifies that it is necessary in the public interest that the information be divulged to the person or persons; to a person who is expressly or impliedly authorised to obtain by the person to whom the information relates or to a person or authority prescribed by the regulations. There is no dispute that none of these provisions apply to permit disclosure in this case.
5. The respondent submits that the third question for consideration is whether one or more of the limbs in s 80(6) is made out. In this regard, the respondent relies on s 80(6)(b)(i) of the GIPA Act. Section 80(6)(b)(i) provides that the secrecy provisions under s 80 do not prevent a person being given access to a document in accordance with the GIPA Act unless the document is a document the disclosure of which would disclose information "concerning the business, commercial, professional or financial affairs of a licensee, agent or key employee". The respondent contends, and this is also the submission of TLC contained in correspondence to the Department, that the information provided to LGNSW, and in the new record, being the spreadsheet created from information provided by NSW Lotteries to the respondent, is information concerning the business, commercial, professional or financial affairs of NSW Lotteries. Accordingly, the respondent submits that disclosure is not permitted under s 80(6)(b)(i) of the GIPA Act.
6. The respondent submits that the information provided by NSW Lotteries is provided under the PLA and is information acquired by the respondent to exercise functions under the PLA, relevantly, in administering duty. The respondent relies on the evidence of Mr Bucktowonsing, the details of which are set out below. While it is acknowledged that the information in the spreadsheet is not the information in the form originally provided by NSW Lotteries, it is submitted that the information in the spreadsheet is nonetheless based on information acquired for the purpose of exercising functions under the PLA. There is clearly a connection between the information in the spreadsheet created by LGNSW and the business, commercial, professional or financial affairs of NSW Lotteries. As such, the respondent submits it is not necessary to consider whether the information, or its disclosure, would prejudicially affect any of the identified interests of NSW Lotteries. This is because the respondent does not rely on s 80(6)(a) but rather s 80(6)(b)(i) of the PLA. While s 80(6)(a) involves an evaluative element, s 80(6)(b)(i) requires no such evaluation. Whether s 80 applies is a question of fact which must be assessed by reference to the available evidence.
7. If the Tribunal is satisfied that the information in the spreadsheet is covered by the overriding secrecy law, it must be conclusively presumed that there is an overriding public interest against disclosure of information on the grounds that disclosure of that information is prohibited by s 80 of the PLA. As already noted, s 11 provides that the GIPA Act is not overridden by any other legislation other than an "overriding secrecy law" listed in Schedule 1. As such, it is unnecessary for the Tribunal to conduct the balancing exercise usually required under s 13 of the GIPA Act. In other words, the conclusive presumption of an overriding secrecy law prevails.
8. The respondent submits that if the Tribunal is not satisfied that the spreadsheet engages the overriding secrecy law provision in Schedule 1, it may consider the submissions made by TLC on the commercial in confidence grounds. However, it is noted that the respondent did not refuse access on this basis and does not press this alternative ground.
9. It is also submitted that the Tribunal should be satisfied, based on the evidence of Mr Bucktowonsing, that the respondent has made all reasonable searches and does not hold any information in response to the second and third requests made by Mr Pezzano.
10. Mr Pezzano, having been provided with submissions made by TLC about access to information contained in the spreadsheet, made submissions disputing the grounds raised by TLC. He submitted that aggregated financial information was already provided in TLC's 2023 annual report and as such, concerns that competitors would have an unfair advantage is not justified and does not align with the principles relating to open transparency and governance. Mr Pezzano disputes the validity of the TLC claim, as disclosed in correspondence provided by TLC dated 24 April 2024, to the effect that if the information was provided it could be used for various purposes that would be prejudicial to the interests of NSW Lotteries, including back calculating duties and taxes paid in New South Wales which could be used to reverse engineer other financial data relating to the NSW Lotteries licence. He disputes the submission made by TLC that this could directly prejudice NSW Lotteries' future commercial activity such as its ability to competitively tender for future licence opportunities. In this regard, Mr Pezzano notes that NSW Lotteries holds a licence until 2050 and any such prejudice would, in his view, appear to be remote.
11. Mr Pezzano disputes that effective and proper searches were made when his application was first being considered and submits that it was not until the matter came before the Tribunal that Mr Bucktowonsing decided to perform a more detailed and relevant search of the systems available within CM10. Mr Pezzano contends that the information he has been seeking must be available within a duty report format. He queries how it can be said that the information was not held when it was able to be extracted from existing reports.
12. Mr Pezzano also submits that TLC must have this statistical data and therefore this must be information available to the respondent or that the respondent has within its systems. Mr Pezzano states that it is not just the case whether there is any reason to think the information is held but rather whether that information is being held in some capacity by either TLC or NSW Lotteries and is not being provided to LGNSW (or by TLC to NSW Lotteries). He also submits that information must be held within reports that could be extrapolated from the CM10 system. The contention by Mr Bucktowonsing that it has been too difficult for him and his team to provide the information due to the large volume of information should be rejected.
13. Mr Pezzano relies on the decision of Destination NSW v Taylor [2019] NSWCATAP 123 about the adequacy of conducting searches, the consideration of market competitiveness and third-party advice and disclosure of information. He submits that the onus for justifying a decision to refuse access to government information lies with the respondent.
14. Mr Pezzano submits that there is evidence on The Lott website that TLC has information responding to his request for information and that this information has been made public and has been posted on the website. For instance, he notes that the Powerball jackpot of $150 million was sold and was a culmination of a five weeks' sales, with the sole winner being drawn on 23 May 2024. He also refers to information on The Lott website urging an unregistered player to come forward, which outlines in detail the winnings made by various division winners. Mr Pezzano concludes that this information on the website allows the public to confirm from the information that has been made public and posted on The Lott website that, in addition to a first prize of $150 million, there was also another $89.3 million in prizes derived from this specific Powerball lottery. This gives a total of $239 million in prize money.
15. Mr Pezzano therefore concludes that there would likely be a record either in LGNSW, or NSW Lotteries as a licensee, of the total amount of revenue received from the public for this specific period of sales the Powerball lottery. He submits that the submission made that there are no records maintained recording these financial transactions and that the relevant statistical data is not supported or held in some form or capacity within the IT system or another system operated by TLC is "fallacious to say the least".
16. Mr Pezzano addresses the claim put forward by TLC at paragraphs 50 and following of his submissions and states, at paragraph 69, that he has serious concerns about the public information provided by TLC. In his view, this raises concerns about the distinct lack of accountability and transparency in providing information by TLC. Mr Pezzano recommends that the Tribunal reject the respondent's primary submission. He seeks an independent audit t o be undertaken which would also involve performing a search of the full text of every document which contains the word "lotteries" or "prize" within the CM10 system in order to verify the claims of LGNSW, NSW Lotteries and TLC.
17. Mr Pezzano refers to the Lotteries and Art Unions Act 1901 (NSW) and, in particular the objects of the Act. He notes that one of the objects is to "set and maintain appropriate standards and levels of accountability for the conduct of lottery activities" and "to ensure that the public obtains reasonable net benefits from the conduct of lottery activities". Mr Pezzano submits that the refusal to provide the requested information is in direct breach of this legislation and any refusal does not adequately recognise the provisions of s 12 of the GIPA Act. It should be noted that the Lotteries and Art Unions Act 1901 was repealed in 2018.
18. Mr Pezzano states that it is not his intention to provide the requested information in a public form to any of TLC's competitors but rather he seeks this information to review of the prize allocation and percentage of subscriptions and other percentage margins. Mr Pezzano clearly takes issue with the rules in relation to the allocation of prizes and the publication in relation to those rules.
19. He cites examples of organisations to that do not apply considerations of overriding public interest against disclosure, which includes a number of public listed companies that provide details about their finances, including Coles, Woolworths, ALDI and a number of banks. Mr Pezzano notes that the avenue TLC has adopted to refuse access to requested information will only increase an "untrustworthy perception within amongst the major stakeholder, which is the public". Mr Pezzano submits that TLC is not acting in the best interests of the public in this regard. It is submitted that organisations such as TLC, which are solely depended on the public for their stream of revenue, should not be permitted to refuse information that will assist the consumer to make an informed financial choice.
20. Mr Pezzano rejects the interpretation of s 80 of the PLA contended by the respondent, although it is not clear why.
21. In written submissions provided after the hearing, Mr Pezzano identified two issues that he wished to address.
22. The first issue identified by Mr Pezzano, on which he submits the decisions were based and which he disputes, is as follows: There is a conclusive presumption of overriding public interest against disclosure and that the release of the information will allow third party competitor sufficient insight into the business operations of TLC, will provide sufficient business and financial information to allow third party competitors to obtain a commercial advantage over TLC.
23. The nature of this submission is unclear because neither decision by the respondent included statements to this effect. The conclusive presumption of an overriding public interest against disclosure refers to overriding secrecy laws and not to the commercial interests of TLC.
24. The second issue raised by Mr Pezzano is that he disputes the decision, and evidence of Mr Bucktowonsing, to the effect that the respondent does not hold any information responding to his second and third requests. Mr Pezzano refers to Mr Bucktowonsing's evidence that certain statistical data is within the control of the licensee, but this statistical information is only requested by the LGNSW when required, not on a proactive, systemic and ongoing basis. The inference of Mr Pezzano's submission is that the respondent should have requested this information from TLC or NSW Lotteries in response to Mr Pezzano's access request.
25. In essence, Mr Pezzano submits that he would have thought the respondent would have access to further information from TLC (or NSW Lotteries) given it has an obligation to monitor and evaluate licensee compliance with regulatory requirements, including public lotteries. The respondent is also required to ensure that licensees pay both general and licence duties, which are determined on the basis of subscriptions. The fact that financial information could be reverse engineered is not an acceptable reason to refuse disclosure. Mr Pezzano submits that the real reason for objecting to the requested information being revealed is not because it will allow a third party competitor sufficient insight into the business operations of TLC or provide a commercial advantage but rather because there is a real risk and concern that the information could be used for various purposes prejudicial to the interests of NSW Lotteries, including back calculating duties and taxes paid in NSW. Mr Pezzano submits this is the reason why there is a public interest in the disclosure of this information.

Outline of evidence

1. Mr Atish Bucktowonsing provided an affidavit affirmed 29 May 2024 on behalf of the respondent. He also gave evidence at the hearing. Exhibited to Mr Bucktowonsing's affidavit were various documents relevant to the dispute, including searches he caused to be undertaken by LGNSW. The second exhibit to his affidavit, in respect of which there are confidentiality orders, comprised the spreadsheet created by LGNSW in response to Mr Pezzano's first request for information and documents provided by NSW Lotteries to the Department from which the spreadsheet was created.
2. Mr Bucktowonsing is the Director of the Assurance and Probity Unit within LGNSW. LGNSW falls within the Hospitality and Racing group of the Department. LGNSW has overall responsibility for regulating liquor, gaming, wagering, casinos and registered clubs in New South Wales. This includes undertaking compliance and enforcement activities, providing policy advice to government, licencing certain activities and delivering industry support and education activities. The Assurance and Probity Unit is responsible for conducting revenue audit and assurance activities, including probity investigations. Mr Bucktowonsing reports to the Executive Director of Regulatory Operation and Enforcement, Ms Jane Lin. Ms Lin reports to the Deputy Secretary of Hospitality and Racing, who reports to the Secretary of the Department.
3. Mr Bucktowonsing supervises four staff and indirectly supervises approximately 33 staff. He first joined LGNSW in June 2016 and has held various roles across the Regulatory Operations branch. He was appointed to the role of Manager of what was then known as the "Assurance and Integrity" team in 2021 and was appointed to an expanded Director role in August 2022, on an acting basis, and since December 2022, on an ongoing basis.
4. Mr Bucktowonsing is familiar with the information systems used by LGNSW and as part of his role as Director of the Assurance and Probity Unit. He regularly conducts searches in the document management system for the Department, which is called "Content Manager", abbreviated to CM10, which is provided by a third-party provider. The reference to "10" signifies the version of the document management system. This is the latest version of the system. According to Mr Bucktowonsing, CM10 is used for permanent storage of Department records, including the records of LGNSW. Mr Bucktowonsing states that the other systems used by LGNSW include email, MS Teams messaging and MS SharePoint. However, those systems are not used for formal storage of documents of the kind sought by Mr Pezzano. They are generally used for day-to-day communication within the Department.
5. When carrying out searches in CM10, Mr Bucktowonsing can search documents owned by other parts of LGNSW as well as other parts of Hospitality and Racing.
6. Mr Bucktowonsing was involved in the searches for information responsive to Mr Pezzano's request. The searches undertaken by Mr Bucktowonsing, or directed by him, are set out in his affidavit.
7. Mr Bucktowonsing states that each of the lotteries listed in Mr Pezzano's application is a lottery conducted by NSW Lotteries. NSW Lotteries holds an operator licence under the PLA and also holds a product licence under the PLA for each of the listed lottery products.
8. According to Mr Bucktowonsing, one of the functions of LGNSW is to oversee the payment of various gaming duties, including duties payable under the PLA. Duty is payable to the New South Wales Treasurer under the PLA. As the regulator for the lotteries industry in NSW, LGNSW plays a role in administering the payment of duties. Revenue NSW also plays a role in administering those duties and there is a Memorandum of Understanding between those agencies setting out their respective roles.
9. Duty is payable shortly after the end of a calendar month and the way in which duty is calculated is set out in the licences for each lottery. There is a separate licence for each lottery product. Duty is generally calculated, at least in part, by reference to a percentage of subscriptions or percentage of "player loss" as provided in ss 28 and 29 of the PLA. This means that the lottery operator is generally required to report the amounts of subscriptions, that is the total amounts paid for entries in the lottery, and player loss, being subscriptions less the amount that is paid into the prize fund for the lottery and commissions paid to agents. The lottery operator calculates and self-reports to LGNSW, Revenue NSW and NSW Treasury the amount of duty they consider is payable on a monthly basis. This amount is then remitted to Revenue NSW, also on a monthly basis. LGNSW reviews the self-reported amounts to verify that they have been correctly calculated, and this is the assurance function of LGNSW. Revenue NSW manages the actual payment and receipting process with the operator.
10. The self-reporting document is generally referred to as the "duty report". Mr Bucktowonsing summarises the process for receiving duty reports in his affidavit. The duty report is submitted by the operator, in this case NSW Lotteries, to a shared email box by way of an excel spreadsheet. It is copied to some individual employees of LGNSW whose roles particularly relate to that function, together with employees of Revenue NSW and NSW Treasury. The data in the duty report is transferred to an internal working document stored in CM10, which is also an excel spreadsheet. The internal working document is a consolidation of all the monthly reports and contains a number of prefilled formulas, one of which is a "sum" function which adds the monthly subscriptions from each lottery product to create an annual total. The individual duty reports are also saved in CM10.
11. According to Mr Bucktowonsing, the duty report may be used for other purposes relating to the administration of the PLA and oversight of lottery operators more generally. However, the primary purpose of obtaining that information from operators is to ensure the correct calculation of duty.
12. The request made by Mr Pezzano is for the annual subscriptions for five years for each of the six named lottery products. LGNSW only holds within its systems monthly duty reports although the annual subscriptions may be calculated by adding all monthly duty reports together for the five-year period requested. As such, the information which is the subject of Mr Pezzano's first request, is readily accessible from the internal working document. As the internal working document contains a large quantity of data which goes beyond the request made by Mr Pezzano, Mr Bucktowonsing requested that a new spreadsheet be created to respond to the exact request made. He was involved in approving the final form of the new spreadsheet. The purpose of creating the new spreadsheet was to assist in completing the certification of the search process that he was asked to undertake for the purposes of Mr Pezzano's application. This enabled Mr Bucktowonsing to certify, by reference to a single document, that all relevant information held by the respondent had been provided. The new spreadsheet was created by copying the relevant annual totals from the internal working document.
13. The document created, which is attached as a confidential exhibit to his affidavit, was viewed by me. The spreadsheet is a document which contains two columns over a six-year period, namely from 2017 to 2023, listing each of the lottery products referred to by Mr Pezzano in his application in the first column. In the second column, adjacent to the name of each product, is a dollar figure for total subscriptions for each of the products.
14. In response to Mr Pezzano's second and third request for information, which I will refer to in these reasons as Categories 2 and 3, Mr Bucktowonsing states that there is no information held by the Department responding to these requests. This is explained further in his affidavit. Category 2 seeks information in relation to "the percentage of jackpot/prize winners". Category 3 seeks information about "amounts paid to winners" for the specified products.
15. Mr Bucktowonsing states that it is a requirement that the licensee of a public lottery to maintain a prize fund into which it pays a percentage of subscriptions as specified in the licence. Mr Pezzano has not sought information about the prize fund but rather the amount actually paid from the prize fund. According to Mr Bucktowonsing, the amount actually paid out of the prize fund is not known until the draw has been conducted, winners have been identified and the prizes are divided amongst the winners according to the threshold met by their respective winning combinations. LGNSW does not collect or receive this information in the usual course.
16. When Mr Bucktowonsing assessed the request for information falling into Categories 2 and 3 (Mr Pezzano's second and third request), he was confident that there was no information systemically received by LGNSW that would respond to these requests. This is because the information could only come from the lottery operator itself, he was generally aware of the kinds of reports provided by the lottery operator to LGNSW, and they do not include the information sought by Mr Pezzano. In other words, Mr Bucktowonsing states that he knows that the duty report submitted by the lottery operator does not contain this information.
17. Despite this, Mr Bucktowonsing decided to undertake further searches in relation to the CM10 system to confirm his understanding of the matter. If any information was held by LGNSW or the Department, it would be held in CM10 because this is where stakeholder information is required to be stored according to the Department's records management policy. Mr Bucktowonsing did not carry out the original searches himself, but they were carried out under his supervision, and he is satisfied that those searches were appropriate.
18. These searches carried out included searching for documents whose titles included the words "lotteries prize". Mr Bucktowonsing states that he is aware, from his previous use of the search function, that a search for "lotteries prize" will turn up results that include both words in the title but not necessarily the exact phrase in the given order. Mr Bucktowonsing formed the view that it was appropriate to search in the titles of documents only rather than a full text of documents because the Department's record titling conventions factsheet requires documents to be saved in CM10 with concise, but descriptive, titles. If a document contained details of lottery winners, Mr Bucktowonsing would expect that this would be reflected in the title. Given the number of documents saved in CM10, it would have been unreasonable and impractical to search the full text of every document for the words "lotteries prize" as Mr Bucktowonsing would expect this to result in an unreasonably large number of documents which were not related to Mr Pezzano's request.
19. He further states that it was appropriate to use the word "lotteries" rather than "lottery" as he believes the use of the plural word would be most likely to turn up results which contain overall data relating to several different lottery products, which is the information sought by Mr Pezzano. Mr Pezzano requests aggregate data and because all lotteries are conducted by NSW Lotteries, he considered that this would be the most appropriate search to be used. This is also consistent with the naming conventions used by the Department and is consistent with the results of Mr Bucktowonsing's further searches, each of which refer to NSW Lotteries or lotteries. He did not personally review each document, but he is satisfied on the basis of the review he had undertaken that the documents found using those search terms did not respond to Mr Pezzano's request.
20. By way of example, Mr Bucktowonsing notes that a number of documents using the words "prize" in the title related to the lotteries prize pool rather than the amount actually paid. The price pool was not requested by Mr Pezzano. In any event, the prize pool does not represent the amount of prizes paid out, which is determined by chance and is therefore unpredictable. Mr Bucktowonsing also notes that some of the documents related to unclaimed prizes come up which do not, by definition, respond to Mr Pezzano's request.
21. Mr Bucktowonsing certified the searches carried out by LGNSW staff on 13 September 2023. A copy of the record of searches certified is included in the confidential exhibit and a redacted version is included in Mr Bucktowonsing open exhibit. The exhibits, being both the redacted and confidential exhibits, refer to the duty reports and contain data on turnover. This data responds to the first request made by Mr Pezzano. In the confidential version of the searches, the amounts for each of the products, which comprises total subscriptions, player loss and prizes, is redacted. It is noted that in response to the second and third requests made by Mr Pezzano (Categories 2 and 3) the searches in CM10 included a number of unrelated results. The detail of those results from the searches are included in both the redacted and confidential version. It is clear from examining the results of these searches in the exhibits that they do not include information about "the percentage of jackpot/slash prize winners" or "the amounts paid out to winners" as requested by Mr Pezzano in his second and third questions request for information.
22. Mr Bucktowonsing states that it in the course of making his affidavit, he has considered whether further searches can be conducted to confirm that LGNSW that does not have information sought by Mr Pezzano. He personally conducted two additional searches. The first search conducted was a search for lottery winners and Mr Bucktowonsing found a document which appears to be a record of the number of winners from a series of draws over a number of products over a single week, namely between 14 and 20 January 2019. According to Mr Bucktowonsing, the existence of the single document confirms his view that LGNSW does not collect and hold information about prize winners systemically.
23. The second search conducted by Mr Bucktowonsing was a search for the words "lotteries jackpot". He states that this search turned up a large number of records, most of which were outside the time period sought by Mr Pezzano. Mr Bucktowonsing did not conduct a detailed review of all of these documents because, in his experience, "jackpot" is a technical term that refers to an accumulating prize pool that increases. Lotteries have a fixed prize pool that is not generally described as a "jackpot". For this reason, Mr Bucktowonsing did not expect LGNSW documents to describe a document containing the information sought by Mr Pezzano as a document about a "jackpot" or "jackpots". According to Mr Bucktowonsing, this view was confirmed by his preliminary review of the documents, which largely related to other gambling products. Mr Bucktowonsing referred to the results of other searches made which were attached to the open exhibit to his affidavit which referred to other gambling products or other issues that were not relevant to and did not respond to Category 2 or 3 of Mr Pezzano requests. Review of the exhibit to Mr Bucktowonsing's affidavit reveals that this is the case.
24. Mr Bucktowonsing was questioned by Mr Pezzano during the hearing. He said that the new spreadsheet was created on the basis of other information held by LGNSW and as part of his certification process. The spreadsheet, which was included in the confidential exhibit to his affidavit, directly responded to Mr Pezzano's first request for information. Mr Bucktowonsing said that he was confident that the information requested by Mr Pezzano in Categories 2 and 3 was not information that was systemically received by LGNSW because he was familiar with the information that was available in the CM10 system that was collected and provided by NSW Lotteries.
25. He said that information relating to actual prize winnings was only collected on a case-by-case basis and the additional search undertaken by him as described in paragraph 36 of his affidavit established, as far as he was concerned, that there were no documents within the CM10 system that would respond to the Categories 2 or 3. This is because the only place where the documents would be stored would be in the CM10 system, which he had interrogated by conducting the search outlined in his affidavit for lottery winners and lotteries jackpot. The fact that only one document could be found for a limited period in 2019 confirmed his view that, first, the search would have disclosed any further documents that would be responsive to Mr Pezzano's requests and, secondly, that the only document that was responsive was the one document that related to one week in January 2019.
26. This therefore confirmed his conclusion that no documents were held within the CM10 system that would respond to Mr Pezzano's further requests. He explained that this document was recorded in the system because LGNSW would have proactively sought this information from the operator in response to a complaint. Otherwise, this information is not provided, nor is it required to be provided on a systemic basis.
27. Mr Bucktowonsing was cross examined about the more limited searches undertaken as outlined in paragraph 30 off his affidavit. He was asked why all the text of the documents could not be searched and why LGNSW had confined the search to the title.
28. Mr Bucktowonsing gave evidence that if LGNSW had undertaken searches in the text of the document, this would have resulted in hundreds of documents responding to the search. He said that the reason why it was unreasonable and impractical to search the text of these documents is that many of those documents would not be directly responsive to Categories 2 or 3 of Mr Pezzano's request. It could take up to one hour to review one document because many of the documents included information beyond Mr Pezzano's request and he did not believe this would yield positive results in any event because of his understanding of the information provided by operators. He also noted that any such information found would be likely to covered by the overriding secrecy laws in any event.

Consideration

1. Mr Pezzano's written submissions, which are consistent with the arguments that he made during the hearing, can be summarised as follows.
2. First, the contention that the prejudice to the business interests of TLC or NSW Lotteries justifies the decision refuse his first request for information should be rejected. There is no evidence that their interests would be prejudiced, that competitors would be given an unfair advantage or that their future tendering rights would be affected. Secondly, Mr Pezzano submits there is a public interest in the disclosure of this information, other listed companies disclose information about their financial affairs and TLC and NSW Lotteries should be required to disclose this information. Thirdly, Mr Pezzano does not accept that the respondent does not have the information that he seeks in its records but if it does not have the information, this is the type of information that the respondent should be seeking from TLG and NSW Lotteries.
3. Mr Pezzano does not directly address the issue raised by the respondent in respect of s 80 of the PLA. This is possibly because the decision of both delegates noted that they had taken into account TLC's submissions when making a decision. When examined closely, it is apparent that the submissions made about by TLC were considered to be relevant to the question of whether the information concerned the business, commercial, professional or financial affairs of NSW Lotteries for the purposes of s 80 of the PLA. It is true that TLC made submissions about the potential prejudice of its business interests, but this was not the basis for the decision made by the respondent.
4. Mr Pezzano contends that the new spreadsheet, which is accepted directly responds to his first request for information, should be disclosed because there is an overriding public interest that it be disclosed.
5. This issue in relation to Mr Pezzano's first request for information will be resolved by determining two questions. If the spreadsheet is covered by the overriding security laws in Schedule 1 of the GIPA Act, it must be conclusively presumed that there is an overriding public interest against disclosure of this document. The balancing exercise set out in s 13 therefore does not apply and this is the end of the matter. Accordingly, it would follow that part of the delegate's decision in respect of the first request (or Category 1) should be affirmed.
6. If this is not the case, the question then arises as to whether the business interests of TLC and/or NSW Lotteries should be taken into account as public interest considerations against disclosure for the purposes of determining whether there is an overriding public interest against disclosure of government information.
7. This involves a three-stage process. First, it must be identified whether there is a relevant consideration, as referred to in the Table to s 14. Secondly, if it is sought to rely on such a consideration, it must be established that disclosure could reasonably be expected to have the effect specified in the relevant consideration listed in the Table. Thirdly, assuming disclosure has such an effect, the Tribunal must then undertake the balancing exercise referred to in s 13 by weighing these considerations against disclosure with the public interest consideration in favour of disclosure. In making this determination the Tribunal must have regard to the principles set out in s 15 of the GIPA Act. (Refer Commissioner of Police NSW Police Force v Camilleri [2012] NSWADTAP 19 at [24]-[27]).
8. In respect of Categories 2 and 3, the issue for determination is whether the respondent holds any information in response to these requests. Related to this issue is the question of whether the respondent has discharged its obligations to undertake searches in accordance with s 53 of the GIPA Act or whether additional searches should be undertaken. A further issue in respect of this matter, assuming I am not satisfied about the searches that have been undertaken, is the utility of undertaking such further searches when there is the likelihood that access to further information would be refused because it would be covered by the overriding secrecy laws.
9. Mr Pezzano has raised the issue that TLC and/or NSW Lotteries should provide this information or should have or should be requested to provide this information to the Department.
10. There are two responses to this. TLC and NSW Lotteries are not government agencies, and they are therefore not directly covered by the GIPA Act. TLC is a public company, and it is governed by the Corporations Act 2001 (Cth) and the rules that apply to companies listed by the ASX. It has no obligation to provide information under the GIPA Act and cannot be required to do so. The only circumstances in which TLC and NSW Lotteries can be requested to provide information is pursuant to the PLA. Mr Bucktowonsing has explained about the information provided by NSW Lotteries under the PLA. I accept his evidence. He notes that from time-to-time lottery operators may be required to provide information to the Department in the exercise of other functions, which involve regulatory oversight and complaints. There is no dispute that NSW Lotteries provides information to LGNSW, Revenue NSW and NSW Treasury to ensure that it complies with the payment of the relevant duties.
11. Mr Pezzano notes that one of the reasons given by TLC for being concerned about providing this information is concern competitors will use the information to back calculate from the duty paid Information about the financial affairs of TLC and NSW Lotteries. The issue raised by TLC is not a concern that a competitor, third party or a member of the public will assess whether the appropriate amount of duty has been paid (which is the contention raised by Mr Pezzano) but rather that this information would give a competitor the ability to "reverse engineer" this financial information to thereby gain confidential information about the financial affairs of TLC and NSW Lotteries. There is no issue about whether TLC and NSW Lotteries has paid the correct duty as it is clearly the role of LGNSW and Revenue NSW to verify these self-reported amounts each month. It is the evidence of Mr Bucktowonsing that this is the reason why much of this financial information is held by LGNSW.
12. While Mr Pezzano's motivation in seeking the information which is the subject of his requests is understandable. There is merit given public moneys are involved and there is a public interest in there being transparency about how the lotteries are operated. However, this is not the determinative or even critical factor in this case. Under the PLA, the lotteries are operated through a licencing system whereby operators, which are non-government corporations, are issued with licences to operate. There is regulatory oversight, but this does not extend specifically to the matters requested by Mr Pezzano in Categories 2 and 3 of his requests for information. This is the reason, and this is explained further below, why there is limited information held by the respondent in relation to these matters. It should also be noted that disclosure is not confined to disclosure to Mr Pezzano but will result in disclosure more broadly to the public.
13. Having regard to the material before the Tribunal, the submissions made and the relevant law, the issues are as follows: 1. Is any of the information requested by Mr Pezzano the subject of an overriding secrecy law under Schedule 1 of the GIPA Act? 2. If not, does any of the information requested by Mr Pezzano fall within one of the considerations enumerated in the Table to s 14, specifically item 4(d) relating to the business interest of TLC and/or NSW Lotteries? 3. If the answer to (2) is yes, could disclosure of that information reasonably be expected to have the specified effect set out in the Table, namely, could disclosure prejudice the legitimate business, commercial, professional or financial interests of TLC or NSW Lotteries and therefore be a public interest consideration against disclosure? 4. If the answer to (3) is yes, how should this consideration against disclosure be weighed against the public interest considerations in favour of disclosure? 5. Is there any information held by the respondent in respect of Mr Pezzano's second and third requests and, relevant to this issue, has the respondent undertaken all searches as required under s 53 of the GIPA Act? 6. If the Tribunal is not satisfied about (5), is there utility in directing further searches to be undertaken having regard to the matters raised in respect of (1)?
14. It should be noted that if I accept the submissions made by the respondent in respect of issue (1), it is unnecessary to consider the matters set out in issues (2) to (4). If I accept the submissions made by the respondent in respect of issue (5), it is unnecessary to consider (6) but these issues are nonetheless related for the reasons later outlined. In contrast, if I accept the submissions made by Mr Pezzano in (1), although it should be noted that he has not directly responded to the legal and factual issue about whether the provisions relating to whether overriding secrecy laws are engaged, it will be necessary to consider the issues set out in (2) to (4).

Overriding secrecy laws

1. The issue is whether the new record, which responds to Mr Pezzano's first request for information, being the spreadsheet prepared by LGNSW from financial records provided by NSW Lotteries, is covered by the secrecy provisions in s 80 of the PLA.
2. The first question that arises is whether the respondent, and more particularly LGNSW, acquired information in the exercise of a function under the PLA.
3. The evidence of Mr Bucktowonsing is that the spreadsheet was prepared on the basis of financial information acquired by LGNSW from NSW Lotteries for the purpose of assessing the appropriate duties to be paid. The respondent submits that this information was acquired in the exercise of a function under the PLA. The PLA does not expressly list the functions of any person, nor does it define a "function" for the purposes of s 80(1). Section 4 of the PLA provides that a "function" includes a "power, authority or duty". It also provides that exercise of a function includes the performance of a duty. The Minister has various powers and authorities in respect of the operation of the PLA. Part 5, Division 2 of the PLA (specifically ss 28 and 29) deals with the payment of duty to the Treasurer by licensees. Section 81 of the PLA provides that both the Minister and the Treasure may delegate all or any of their functions under the Act. Mr Bucktowonsing states that the Minister and the Treasurer are assisted in the exercise of their functions by LG NSW. LGNSW assists Revenue NSW, which in turn assists the Treasurer in respect of the calculation and collection of duties under the PLA.
4. NSW Lotteries is a licensee under the PLA and is required to provide certain information to LGNSW on a monthly basis so that LGNSW can verify the duty payable as part of the NSW Lotteries' self-report. According to Mr Bucktowonsing, the information provided comprises monthly subscription and player loss reports in relation to each of the lottery products operated by NSW Lotteries.
5. Having regard to this evidence by Mr Bucktowonsing, which I accept, I also accept that the monthly reports provided by NSW Lotteries is information acquired by LGNSW in the exercise of a function under the PLA. It follows that this information may be impacted by the secrecy provisions in s 80(1) of the PLA.
6. The information in the spreadsheet is not the information originally provided by NSW Lotteries but is information comprised from this information, which may, subject to any exceptions, be information that must not be divulged pursuant to s 80(1) of the PLA. The respondent submits that the information in the spreadsheet is still information which LGNSW has acquired exercising functions under the PLA, even though the new record is created internally on the basis of this information. It is submitted that the information does not lose the secrecy protection and this construction is supported by the "evident protective purpose of the provision" which would be ineffective if the prohibition on divulging information was avoided simply by copying that information into a new document.
7. I accept this submission and further note that s 80(1)(b) provides that the acquired information must not be directly or indirectly divulged to another person. This provision expressly extends the operation of the protection to indirect divulging of the acquired information. The new spreadsheet contains annual figures from which average monthly figures could be calculated by simply dividing the annual figures recorded in the spreadsheet by 12. While this is not precisely the same information acquired, it would be very similar and, in my view, is sufficient to engage the protection. If the secrecy provision could be avoided or nullified by creating a further document with aggregated figures, this would undermine the efficacy of the secrecy provision. As such, I find that the information in the new spreadsheet, which is based on information acquired by LGNSW in respect of which there are secrecy protections, retains its protected quality.
8. The second question that arises is whether any of the exceptions contained in s 80 apply.
9. The PLA permits the divulging of information acquired in the exercise of a function under the PLA. The first ground is in the exercise of functions under the PLA. This permits the sharing of information between LGNSW and Revenue NSW but does not permit disclosure to another party pursuant to the GIPA Act. As such, this provision does not apply.
10. There are three grounds set out in s 80(2) which permit information to be divulged. Information may be divulged under section 8(2)(a) to a person if the Minister certifies that it is necessary in the public interest that the information be divulged. There is no evidence that the Minister has made such a certification and this provision therefore does not permit disclosure. Information may be divulged under section 8(2)(b) to a person who is expressly or impliedly authorised to obtain it by the person to whom the information relates, namely NSW Lotteries. There is evidence that NSW Lotteries does not authorise access to this information and indeed opposes its release. As such, this provision does not permit disclosure. Information may be divulged under s 80(2)(c) to a person prescribed by the regulations. There is nothing prescribed in the regulations for the purposes of subs (c) and, as such, this provision does not apply.
11. Accordingly, none of the provisions in s 80(2) apply on the facts of this case to permit the information to be divulged.
12. Section 80(6) otherwise permits disclosure under the GIPA Act unless any of the matters in subss (a) or (b) are established. The respondent relies on section 80(6)(b)(i) of the PLA. It is submitted that giving Mr Pezzano, and therefore the world at large, access to the new spreadsheet would disclose information "concerning the business, commercial, professional or financial affairs of a licensee", relevantly, NSW Lotteries. I accept this submission.
13. The word "concerning" connotes a broad connection between the information and "the business, commercial, professional or financial affairs of the licensee". The information that responds to Mr Pezzano's first request for information is the new spreadsheet. TLC objects to the release of the information on the basis that this is information that relates to or concerns "the business, commercial, professional or financial affairs of NSW Lotteries". TLC also submitted that disclosure of this information could reasonably be expected to have the effect of prejudicing its legitimate business, commercial, professional or financial interests. The basis for this claim was that the data in the new spreadsheet goes beyond what is available in the public domain (because it shows a breakdown by specific game products), NSW Lotteries uses that information to make strategic and commercial decisions about the structuring of its product portfolio, pricing arrangements and marketing activities, the information is instructive for other entities which may be tendering against NSW Lotteries other TLC entities and the information might also be instructive to foreign matched lottery operators with agreements in the Northern Territory.
14. As already noted, while both delegates had regard to the submission made by TLC, this second ground raised by TLC was not the basis for the decisions to refuse access to the new spreadsheet.
15. As already noted, if a decision maker is satisfied that section 80(6)(b)(i) is engaged, it is unnecessary to undertake any evaluation about whether the information is commercially sensitive or whether there is any prejudice or unfair advantage given to competitors as required to establish item 4(d) of the Table to s 14 of the GIPA Act. All that is necessary for the exemption to s 80(6) of the PLA to be engaged is for it to be established that the information is information "concerning the business, commercial, professional or financial affairs of a licensee". In my view, it is self-evident that information about the revenue of each of the products operated by NSW Lotteries is information that concerns, at the very least, the business or financial affairs of NSW Lotteries.
16. I accept Mr Pezzano's submission about one aspect of TLC's submissions, namely the submission that disclosure of the spreadsheet would prejudice the potential tendering process the future. In this regard, I agree that providing access to this information over the past five years would hardly be likely to prejudice a tendering process which will not take place before 2048 or 2049, given NSW Lotteries has a licence until 2050. In contrast, it is possible that there may be prejudice to the commercial interests of NSW Lotteries and/or TLC in competitors having access to the spreadsheet. However, this issue could not be tested because TLC and NSW Lotteries did not take an active part in the proceedings. Ultimately, it does not matter because the question of whether this ground is established is not relevant for the purposes of determining this issue. Relevantly, the exclusion in s 80(6)(b)(i) does not require any further evaluation.
17. As such, I am satisfied that the exception under s 80(6)(b)(i) is engaged such that the provisions of s 80(6), which would otherwise permit information to be disclosed in an access application under the GIPA Act, do not apply. This being the case, I am satisfied that the spreadsheet is governed by the overriding secrecy provision in s 80(1) of the PLA and it must be conclusively presumed that there is an overriding public interest against disclosure of the new spreadsheet created by LGNSW. There is no requirement to undertake a further balancing exercise of the public interest, and this is the end of the matter.
18. Accordingly, I find that the correct and preferable decision in respect of the first request for access to the spreadsheet is that the request must be refused under s 58(1)(d) of the GIPA Act. I affirm this part of the decision under review.

Is there any information held by the respondent in relation to Categories 2 and 3?

1. The respondent submits that it does not hold any information in response to the second and third requests made by Mr Pezzano, Categories 2 and 3. Mr Pezzano does not accept this for several reasons. He believes that TLC and NSW Lotteries must have this information and they should be required to provide the information to the respondent for the purposes of providing access to this information to Mr Pezzano under the GIPA Act. For the reasons outlined previously, there is no such obligation on TLC and/ or NSW Lotteries.
2. Nor is there any obligation on the respondent to seek information from a third party for the purpose of responding to an access application under the GIPA Act. When an agency receives a request for access to information under the GIPA Act, the obligation of the agency is limited to provide access to government information held by the agency when the application is received (s 53(1) of the GIPA Act). The agency is obliged to undertake such reasonable searches as may be necessary to find any of the government information applied for that is held by the agency. This extends to searches using any resource reasonably available to the agency.
3. As observed by the Appeal Panel in Wojciechowska v Commissioner of Police 2020 NSWCATAP 173, the question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has the power to review a decision that information is not held but has no power to review the sufficiency of an agency search. However, whether an agency has complied with its obligations under s 53 of the GIPA Act is "plainly relevant to the nature and extent of the searches necessary to discharge the obligation under section 53" (Wojciechowska at [37]). Given that the burden of establishing the decision is justified falls on the agency under s 105 of the GIPA Act, Principal Member Britton (as she then was) helpfully sets out in Wojciechowska the task for the Tribunal when reviewing a decision that the requested information is not held by the agency as follows at [44]: 44. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: (1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) - (5); (2) determine whether the agency has proved any relevant factual issues on the balance of probabilities; (3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; (4) applying those findings, decide what the correct or preferable decision is; (5) affirm, set aside or vary the agency's decision: s 63(3) of Administrative Decisions Review Act.
4. The respondent relies on the evidence of Mr Bucktowonsing. Mr Bucktowonsing is a credible and thoughtful witness. He gave evidence that he was the person responsible for assessing Mr Pezzano's request for access to government information. He is in a senior position within LGNSW and has overall responsibility for approximately 40 members of staff within the Assurance and Probity Unit of LGNSW. Mr Bucktowonsing is familiar with the information provided to LGNSW as part of his role as the Director of Assurance and Probity Unit. He has been working in LGNSW since 2016 and is also familiar with the respondent's information and document management systems.
5. Mr Bucktowonsing's evidence is comprehensive. He was open and honest in his responses, and it is clear from the detail of the searches he undertook, or caused to be undertaken, that he has taken a thorough approach to searching for the information requested. For instance, he caused the new spreadsheet to be created to facilitate consideration of the request for access and to ensure that he could be satisfied about the extent of the information held. He conducted, or cause to be conducted, several searches of the CM10 system.
6. Mr Bucktowonsing's evidence is to the effect that he is satisfied there is no information held in the respondent's case management and record systems that respond to the requests made by Mr Pezzano in respect of Categories 2 and 3. He further states, and he was cross examined about this, that he would not expect this information would be held by LGNSW in any event because this is not the type of information that is routinely or systemically collected by LGNSW. It is not necessary for the information to be collected under the terms of the NSW Lotteries' licence.
7. The information routinely provided by NSW Lotteries are the monthly self-reports and financial information about subscriptions and player loss, which is used by LGNSW to verify the duties payable. LGNSW does not systemically collect information about the percentage of jackpot/prize winners, or the amounts paid to winners. The calculation for "player loss" is based on the difference between subscriptions and the amount paid into the prize fund for the lottery, less commissions paid to agents.
8. According to Mr Bucktowonsing, and I accept his evidence, LGNSW does not collect information about the prizes paid. This information is not necessary for the purposes of accessing the duty payable under the licences. The only information held that is relevant to the request, even though it did not respond directly, is the information located by Mr Bucktowonsing in one of his searches. As outlined in his affidavit, Mr Bucktowonsing personally undertook a search of CM10 which disclosed information responding to Category 3 for one week in January 2019. Mr Bucktowonsing says that the fact this search was partially successful suggests that the search terms he used were appropriate. However, the fact that the information was only available for one week also confirms his belief a broader range of similar data, relating to annual or even monthly data, is not held by LGNSW. I accept his evidence about this and the logic of his reasoning.
9. Mr Bucktowonsing states in his affidavit that he conducted these searches to confirm what he already believed to be the case, namely that there were no documents held by LGNSW in response to Categories 2 and 3 of Mr Pezzano's request. While this statement may suggest that Mr Bucktowonsing was starting from the position that he was conducting searches to substantiate his belief, I accept that what he was attempting to do was to establish a search audit trail to prove a negative, which by its nature is difficult to establish.
10. Mr Bucktowonsing was also cross examined about why he had not undertaken searches of the text of the documents held in the CM10 system, rather than confining the searches to the titles of the documents. Mr Bucktowonsing's response was that the naming conventions for the CM10 system required that titles be used for the documents and by confining the search to the titles of the documents, this would be the most efficient manner in which to conduct the electronic searches. He also stated that conducting searches of the text of the documents would be very time consuming and was unlikely to produce information that responded to Mr Pezzano's requests.
11. There are two reasons for this. LGNSW had already undertaken the document title searches, which was likely to have already produced the most targeted source of information. This search did not yield any documents that responded to the requests. In addition, Mr Bucktowonsing is very familiar with the type of information provided by NSW Lotteries because of his role, and it is his opinion that it is unlikely additional information would be found in documents by examining the text. Mr Bucktowonsing also submits that searching the text of hundreds of documents would be a "substantial and unreasonable diversion of resources" to conduct such searches in these circumstances.
12. I accept Mr Bucktowonsing's evidence that there is little prospect of finding any relevant information in response to Categories 2 and 3 by searching the text of the documents. The searches to be undertaken, as required under s 53, are "such reasonable searches as may be necessary to find the requested information". As such, searches required to be made do not need to be "excessive" (CLT v Secretary, Department of Education [2022] NSWCATAD 34 at [40]) nor is it required to undertake extensive searches where there is little prospect of finding information that responds to the request.
13. I am satisfied from the evidence given by Mr Bucktowonsing, both in his written and oral evidence, that he made extensive attempts to search for documents that may fall within Categories 2 and 3 of Mr Pezzano's request for information. According to Mr Bucktowonsing, he not only personally undertook searches but instructed his staff to undertake searches that he personally supervised. The searches that he undertook, or caused to be undertaken, were reasonable in the circumstances. I accept that requiring his staff to review hundreds of documents which were unlikely to respond to the Categories 2 and 3 would unreasonable.
14. I give significant weight to the evidence of Mr Bucktowonsing. He is familiar with the information provided by NSW Lotteries, and required to be provided, and therefore the information held by LGSW. He is very familiar with the respondent's information systems. I also note that, even though Mr Bucktowonsing did not believe the information requested in respect of Categories 2 and 3 would be information provided by NSW Lotteries, and as such would not be held by LGNSW, he undertook further searches to test this belief. He is a person in authority who is in a unique position, because of his role and oversight, to know about the information that would be provided by NSW Lotteries and therefore held by LGNSW.
15. I am therefore satisfied that the respondent, through LGNSW, has undertaken extensive and appropriate searches and has established, on the balance of probabilities, that there I no documents held by the respondent in respect of Categories 2 and 3 of Mr Pezzano's request for government information. I therefore also accept that the decision made under s 58(1)(b) of the GIPA Act in respect of these requests is the correct and preferable decision. Accordingly, I affirm this aspect of the respondent's decision under review.

Conclusion and orders

1. Having regard to the matters set out above, and the request about the change in the name of the respondent, I make the following orders: 1. The Department of Creative Industries, Tourism, Hospitality and Sport to be substituted as the respondent. 2. The decisions under review, being the decisions of the delegate of the respondent in respect of the access applications made by the applicant dated 16 August 2023 made on 23 November 2023, are 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: 23 August 2024