Quah v Parramatta Park Trust

NCAT Administrative and Equal Opportunity|2017-02-03

Background

Andrew Jason Quah ("the Applicant") seeks access under the Government Information (Public Access) Act 2009 ("the GIPA Act") to information held by Parramatta Park Trust ("the Respondent").
On 25 September 2015, the Applicant made an application under the GIPA Act seeking the following from the Respondent: Copies of tender documents received by the PPT in response to the call for EOIs for use of Mays Hills Gatehouse and relevant minutes of meetings held by PPT in regards to the ill-informed decision to award the site to a private tender.
On 22 October 2015 the Respondent determined to impose a processing charge for the application, which the Applicant objected to on internal review.
On 29 December 2015, the Respondent varied its determination and released some of the documentation sought without charge. It gave the Applicant access to four documents with redactions, being: 1. Tenant evaluation sheet: Western Sydney Creative Centre 2. Tenant evaluation sheet: Think Planners pty ltd 3. Tender evaluation scoresheet 4. 12 August 2015 Board Meeting Minutes.
The Respondent refused access to three additional documents.
The Applicant sought review of the Respondent's decision from the Information Commissioner, which issued a report on 1 June 2016 recommending that the Respondent reconsider its decision and issue a new decision.
On 29 July 2016, the Respondent issued a new decision under section 58 of the GIPA Act which granted access to three documents, withheld four documents, and granted access to five documents with redactions.
The following table identifies those documents partially withheld (redacted) or withheld, and the claimed basis for doing so by the Respondent. Those documents will be referred to in these reasons by their numbering in this table, unless otherwise specified: No Document description Action Basis for action by the Respondent s14 Table Clause 1 Cover letter and Expression of Interest Form - Think Planners Pty Limited Released with redactions a) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, 1(d) b) prejudice the effective exercise by an agency of the agency's functions, 1(f) c) Found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, 1(g) d) Reveal an individual's personal information, 3(a) e) prejudice any person's legitimate business, commercial, professional or financial interests 4(d) 2 Mays Hill Gatehouse - Tender Evaluation for Think Planners Pty Limited Released with redactions a) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions 1(d) b) prejudice the effective exercise by an agency of the agency's functions, 1(f) c) Found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, 1(g) d) Reveal an individual's personal information, 3(a) e) prejudice any person's legitimate business, commercial, professional or financial interests 4(d) 3 Tender Evaluation Scoresheet Consolidated Scoring Assessment Released with redactions a) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency; 1(e) b) prejudice the effective exercise by an agency of the agency's functions; 1(f) c) prejudice any person's legitimate business, commercial, professional or financial interests; 4(d) d) some information is not relevant to your application 4 Parramatta Park Trust Board Meeting of 24 June 2015 Released with redactions Some information is not relevant to your application 5 Parramatta Park Trust Board Meeting of 12 August 2015 Released with redactions Some information is not relevant to your application 6 Expression of Interest form - Tony Moussa Withheld a) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions 1(d) b) prejudice the effective exercise by an agency of the agency's functions, 1(f) c) Found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, 1(g) d) Reveal an individual's personal information, 3(a) e) prejudice any person's legitimate business, commercial, professional or financial interests 4(d) 7 Mays Hill Gatehouse - Tender Evaluation for Tony Moussa Withheld a) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions 1(d) b) prejudice the effective exercise by an agency of the agency's functions, 1(f) c) Found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, 1(g) d) Reveal an individual's personal information, 3(a) e) prejudice any person's legitimate business, commercial, professional or financial interests 4(d) 8 Cover letter and Expression of Interest Form - Bennetton Design and Construction Pty Limited Withheld a) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions 1(d) b) prejudice the effective exercise by an agency of the agency's functions, 1(f) c) Found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, 1(g) d) Reveal an individual's personal information, 3(a) e) prejudice any person's legitimate business, commercial, professional or financial interests 4(d) 9 Mays Hill Gatehouse - Tender Evaluation for Bennetton Design and Construction Pty Limited Withheld a) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, 1(d) b) prejudice the effective exercise by an agency of the agency's functions, 1(f) c) Found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, 1(g) d) Reveal an individual's personal information, 3(a) e) prejudice any person's legitimate business, commercial, professional or financial interests 4(d)

The Respondent placed significant weight in reaching its decision on the specific public interest considerations against disclosure at Clauses 1(d), 1(e), 1(f), 1(g), 3(a) and 4(d) of the Table at section 14 of the GIPA Act, and on third party objections to the release of certain documents. In assessing the public interest considerations in favour of disclosure, the Respondent specifically discounted the weight to be given to certain considerations on the basis that the successful tenderer and use of the land was already publicly disclosed, and also determined that the Applicant had not identified any personal factors under s55 of the GIPA Act.
By application received 11 August 2016, the Applicant sought administrative review of the Respondent's decision dated 29 July 2016 ("the decision").
The Tribunal hearing on 3 February 2017 was adjourned to allow the parties to file evidence in support of their positions, which they did. On 8 March 2017 the parties requested, by consent, that the matter proceed to determination on the papers.
The Applicant provided the following documents by way of written evidence and submissions to the Tribunal: 1. Application dated 11 August 2016, with attachments: 1. IPC report dated 1 June 2016; 2. Internal review decision dated 29 December 2015; 3. Documents released to the Applicant; 4. Correspondence between the parties (February 2016); 5. Decision dated 29 July 2016; 1. Submissions received 10 October 2016 (via letter dated 29 September 2016); 2. Correspondence to the Respondent dated 2 December 2016, including an additional GIPA application; 3. Affidavit of Andrew Jason Quah dated 24 February 2017;
The Respondent provided the following documents by way of written evidence and submissions to the Tribunal: 1. Submissions received 21 October 2016, attaching: 1. IPC Report dated 1 June 2016; 2. the Decision of 29 July 2016; 3. Documents provided to the Applicant pursuant to the access application (including redactions). 1. Redacted affidavit of Suzie Khnano dated 21 February 2017, including 102 pages of annexures; 2. Confidential bundle of unredacted documents and affidavit.
I was satisfied that the issues for determination could be adequately determined in the absence of the parties by considering the written submissions and other material provided to the Tribunal, in circumstances where the hearing was adjourned to allow the parties to file evidence to support their positions, which they did. Accordingly, an order has been made dispensing with a hearing pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013 ("the CAT Act") and the matter is to be determined on the basis of the material filed.

Tribunal's jurisdiction and powers

The Tribunal's jurisdiction to conduct this review derives from s. 100 of the GIPA Act read with s. 28 of the CAT Act 2013 and s. 9 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act").
In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s. 63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s. 105(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59].
In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s. 63(3).

The GIPA Act

Section 3(1) of the GIPA Act provides: 3 Object of Act (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.
Section 3(2)(a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object.
Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. An access applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: section 9(1) of the GIPA Act.
Section 12 of the GIPA Act sets out the general public interest consideration in favour of access to government information. Section 12(1) of the GIPA Act sets out a general public interest in favour of disclosing government information. Section 12(2) provides that the agency may take into account any other considerations in favour of disclosure which may be relevant.
Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure. Before deciding whether to release or withhold information, an agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists in regard to the information sought. Section 13 requires the decision maker to: 1. identify relevant public interest considerations in favour of disclosure, 2. identify relevant public interest considerations against disclosure, 3. attribute weight to each consideration for and against disclosure, and 4. determine whether the balance of the public interest lies in favour of or against disclosure of the government information.
The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act. This includes considerations set out in schedule 1 to the GIPA Act.
Considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the effect outlined in the table to section 14 of the GIPA Act.
The Agency must apply the public interest test in accordance with the principles set out in section 15 of the GIPA Act: (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.
Pursuant to section 105 of the GIPA Act the burden of establishing that the decision is justified lies on the Respondent.
The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74]. In undertaking this exercise the Tribunal is to be guided by section 15 of the GIPA Act.
Under section 55 of the GIPA Act, the Tribunal is entitled to consider the Applicant's motives for making the application to the extent that it is relevant to whether disclosure could reasonably be expected to have any of the effects referred to in clauses 2 - 5 of the Table to section 14. The personal factors of the application can also be taken into account as factors in favour of providing the Applicant with access to the information.

"Could reasonably be expected…"

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 [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42] and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]. 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 [35]-[36] and the cases there cited. 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 of course a question of fact": Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45].
In Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont J interpreted the term in the following way: In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like...
The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at [106].

Public Interest Considerations in favour of disclosure

Section 12 of the GIPA Act provides some examples of public interest considerations in favour of disclosure of information. The considerations in favour of disclosure of information are not limited and are weighted in an applicant's favour.
The public interest considerations in favour of disclosure identified by the Respondent are: 1. All documents identified in the Table at 8 above: There is a public interest in disclosure of proposals to lease land owned by the government; 2. Document 3 in the Table at 8 above: 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; 3. Documents 1, 2, 3 in the Table at 8 above: Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public resources.
The Applicant submitted that documents previously released by the Respondent "strongly supports the possibility of impropriety on the part of one or more trustees and staff. Any further action to be taken in regards to this matter, if any, can only take place if un-redacted access to the sought documents is granted". I infer from that submission that the Applicant contends that the public interest consideration at s12(2)(e) of the GIPA Act may also be relevant, being: 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.
The Applicant's evidence and submissions also expressed his personal reasons for seeking access to the information, which are relevant considerations in favour of disclosure pursuant to s55(2) of the GIPA Act. They are his position as one of the unsuccessful tenderers for the lease subject to the access application, and his motivation to uncover alleged corruption and misconduct in the tender process.
I do not agree that the evidence before me supports a finding that the public interest consideration at s12(2)(e), regarding misconduct or negligent, improper or unlawful conduct applies. On the evidence before me, the public interest considerations in favour of disclosure of each of the documents identified in Table 8 above include the general public interest (s12(1)) and more specifically, that the information would promote open discussion of public affairs such as the tendering for government land leases and the use of public land, could reasonably be expected to inform the public about the operations of the Respondent in leasing public land and dealing with a tender or procurement process for a heritage listed building, and could reasonably be expected to ensure effective oversight of the expenditure of public funds. In those matters, the information sought as expressed in Documents 1 to 9 inclusive could reasonably be expected to enhance Government accountability and contribute to positive and informed debate on those matters.
Those factors, combined with the Applicant's personal interest in the documents sought as the unsuccessful tenderer, support my finding to afford significant weight to the public interest in favour of disclosure for each of the documents identified as relevant to the access application.

Public Interest considerations against disclosure

Section 14(1) provides that there is a conclusive presumption that there is an overriding public interest against disclosure of the government information described in Schedule 1. The Respondent did not rely on Schedule 1.
Section 14(2) provides that the public interest considerations in the Table to s. 14 are the "only other considerations that may be taken into account" as public interest considerations against disclosure. The Respondent relied on clauses 1(d), 1(e), 1(f), 1(g), 3(a) and 4(d), whereby the disclosure of the information could reasonably be expected to: 1(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, 1(e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, 1(f) prejudice the effective exercise by an agency of the agency's functions, 1(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, 3(a) reveal an individual's personal information, 4(d) prejudice the Respondent's legitimate business and commercial interests.

Clause 1(d): prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions

The Respondent relied on Clause 1(d) to the Table at Section 14 of the GIPA Act to redact material from documents 1 and 2, and withhold documents 6, 7, 8 and 9. The Respondent submitted that: Parramatta Park Trust has the function of managing government owned land in the Western Sydney Region. Pursuant to section 12 of the Parramatta Park Trust Act 2001: (1) The Trust may, with the approval of the Minister, grant: (a) leases of parts of the trust lands, ln order to exercise this function effectively, the Parramatta Park Trust must be able to call for expression of interests to private sector businesses in a manner that allows for a frank and open exchange of information in order to maximise the public benefit of the Trust Lands. This function would be prejudiced if private sector proposals would not remain confidential.
The Respondent relied on the decision of Cianfrano v Director General, Department of Commerce (2005) NSWADT 282 at [38] to support its submissions regarding Clause 1(d). The finding at [38] of Cianfrano was made with respect to the release of third party information involving a negotiation process, which that third party engaged in on a confidential basis, and which that third party did not want disclosed. The circumstances and evidence in those proceedings do not support a finding to the same effect in these proceedings.
The Respondent did not provide evidence to support a finding that the process engaged in by the Respondent to "call for expression of interests to private sector businesses" was stated or understood to be confidential at the time they sought those expressions of interest. There is no such statement, for example, on the Expression of Interest form completed by the prospective interested businesses.
The Respondent also did not provide any evidence to support its statement that this function would be prejudiced if private sector proposals would not remain confidential. To the contrary, the evidence filed in the form of annexures to the affidavit of Suzie Khnano included a statement by one of the private sector tenderers allowing the release of their material. Whilst there was another statement from a third party stating "we don't want our information disclosed to any third party", there was no suggestion that disclosing that information would prevent a third party from applying for a lease of the trust lands. I therefore reject this submission. To the extent that Clause 1(d) to the Table at section 14 of the GIPA Act is a relevant consideration, I assign it minimal weight.

Clause 1(e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency

The Respondent relied on Clause 1(e) to the Table at Section 14 of the GIPA Act to redact material from Document 3, stating: I find a public interest consideration against disclosure of some information contained in this document as it contains information that reveals the deliberative process of the Parramatta Park Trust in selecting the preferred tenderer. The Parramatta Park Trust have different standards and requirements for each tender process to ensure that the agency maximises the public benefit of the land. Accordingly, there is a public interest in ensuring that this function is maintained. I am satisfied that the disclosure of this information would prejudice the Parramatta Park Trust's future deliberation processes.
The Respondent submitted: In the Decision, paragraph 2.11a) explains that it can reasonably be expected that the release of certain information contained in the document would prejudice the future deliberations of the Respondent. The Respondent submits that these documents are deliberative documents pursuant to the description outlined in Re Waterford and Department of the Treasury (No 2). In that decision, it was held that an agency's deliberative processes are 'Its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action'. The Respondent submits that disclosure of this information would prejudice the Respondent's deliberative process, as it was held in Luxford v Department of Education and Communities.
The public interest factor against disclosure is applicable where the information reveals the deliberation in such a way as to prejudice a deliberative process. The release of Document 3 in its entirety would reveal the Respondent's deliberative process in selecting the preferred tenderer, but there is no evidence before me, or submissions, which suggest that the deliberative process would be prejudiced in the future if that process was made public. Luxford v Department of Education and Communities [2016] NSWCATAD 118 at [105] confirms that "it is necessary for the Respondent to demonstrate that disclosure could reasonably be expected to have the nominated effect", which I find it hasn't done. I therefore reject that submission. To the extent that Clause 1(e) to the Table at section 14 of the GIPA Act is a relevant consideration, I assign it minimal weight.

Clause 1(f): prejudice the effective exercise by an agency of the agency's functions

The Respondent relied on Clause 1(f) to the Table at Section 14 of the GIPA Act to support redactions or withholding of material in Documents 1, 2, 3, 6, 7, 8 and 9, with submissions including: … the Parramatta Park Trust has the function of managing government owned land in the Western Sydney Region pursuant to section 12 of the Parramatta Park Trust Act 2001. In order to exercise this function effectively, the Parramatta Park Trust must be able to call for expression of interests to private sector businesses in a manner that allows for a frank and open exchange of information in order to maximise the public benefit of the Trust Lands. … if the deliberative process of the Parramatta Park Trust is disclosed, prospective tenderers may base their tender submissions on the requirements and standards of the Mays Hill Gatehouse tender considerations and may prevent or limit the submission of tenders that provide maximum public benefit of the land. I am satisfied that this would prejudice the effective exercise of the agency's function if the Parramatta Park Trust could not receive tenders which offer maximum public benefit. … In order for the Parramatta Park Trust to receive expression of interest responses that include potentially commercially sensitive information and value for money proposals, private sector tenderers will want to keep that information confidential. I am satisfied that disclosure of … would prejudice the Trust's ability to procure proposals that maximise the public benefit of the Trust land and there is a public interest in ensuring that the Trust can effectively exercise this function.
Again, the Respondent did not provide any evidence to support its submission that its function of leasing and managing government owned land would be prejudiced if private sector proposals did not remain confidential. Nor did it provide evidence to support the submission that prospective tenderers in future tenders might base their submissions on this particular tender's considerations and the Respondent could thereby miss out on potential tenders. In any event, a statement to prospective tenderers that each tender's considerations weren't necessarily the same could resolve that issue. As for third party commercial sensitivities, there was no specific evidence filed that any third party would reconsider tendering for a lease if their information was to be made public. I therefore reject this submission. To the extent that Clause 1(f) to the Table at section 14 of the GIPA Act is a relevant consideration, I assign it minimal weight.

Clause 1(g): found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

The Respondent relied on Clause 1(g) to the Table at Section 14 of the GIPA Act with respect to Documents 1, 2, 6, 7, 8 and 9. The Respondent's submissions included: …. was submitted to the Parramatta Park Trust in confidence and carried a legal obligation to keep the tender documents confidential. I am satisfied that disclosure of the information would open the Parramatta Park Trust to a cause of action for breach of confidence and would also involve disclosing information that was provided in confidence.
However, as noted above at [42], there was no evidence before me that the expressions of interest were, in fact, submitted with an expectation of confidentiality. The Expression of Interest Form provided by the Respondent does not refer to confidentiality. It requests that documents be delivered to a third party (Knight Frank Parramatta) rather than the Respondent. None of the responses to third party inquiries included in the Respondent's evidence refer to an expectation of confidentiality, which could reasonably be expected to be referred to if such expectation existed. On the basis of the evidence before me, I therefore find that there was no expectation of confidence which could reasonably be expected to found an action against the Respondent for breach of confidence. I therefore reject this submission. To the extent that Clause 1(g) to the Table at section 14 of the GIPA Act is a relevant consideration, I assign it minimal weight.

Clause 3(a): reveal an individual's personal information

The Respondent relied on Clause 3(a) of the Table to Section 14 of the GIPA Act with respect to Documents 1, 2, 6, 7, 8 and 9. The Respondent found that, with respect to each of those documents: Due to the nature of [name of document], I am satisfied that the release of some information would reveal an individual's personal information.
The Respondent did not explain with any specificity which parts of those documents were said to constitute personal information within the meaning of the GIPA Act.
"Personal information" is relevantly defined to mean "information or an opinion… about an individual… whose identity is apparent or can reasonably be ascertained from the information of opinion": Schedule 4, Clause 4(1) of the GIPA Act. To "reveal" information "means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)": Schedule 4, Clause 1 of the GIPA Act.
On the evidence before me, I find no basis for the Respondent's submission and so reject it.

Clause 4(d) Prejudice legitimate business or commercial interests

The Respondent relied on Clause 4(d) to the Table at section 14 of the GIPA Act with respect to documents 1, 2, 3, 6, 7, 8 and 9. The Respondent found that, with respect to those documents: [The document] contains information that would prejudice the third party's legitimate business interests and also prejudice their commercial and financial interests as it contains basic information in relation to a third party's financial strength.
The Respondent placed minimal weight on this consideration with respect to the third party expressions of interest and evaluation sheets (Documents 1, 2, 6, 7, 8 and 9) on the basis that the information was brief and of a general nature. It placed significant weight on this consideration when considering Document 3 on the basis that "...some of the information contains information of unsuccessful tenderers". In making that submission, the Respondent relied on the decision in Australians for Sustainable Development Inc v Barangaroo Delivery Authority (2013) NSWADT 252 ("ASD") at [150] which stated: In my opinion considerable weight should be given to these grounds of public interest consideration against disclosure. While the majority of the information on these pages has been disclosed, it is the deleted information, which BM asserts to be commercially sensitive. Additionally, as BM was not the successful tenderer, this justifies more weight to be placed on these public interest considerations against disclosure. In this regard, I note that under para 32(1)(b) of the GIPA Act, the details of an unsuccessful tender is expressly stated to be information that is not required to be disclosed on an agency's public register of government contracts.
The decision in ASD is not a general authority for ascribing more weight against disclosure to unsuccessful tender bids. In that matter, it was determined by the Tribunal to be appropriate to do so in the relevant circumstances, which included extensive evidence of the claimed prejudice. On the evidence before me in these proceedings, the information contained within Documents 1, 2, 3, 6, 7, 8, and 9 does not identify a third party's financial strength. The information withheld by the Respondent contains third party tender offers, disclosure of which could potentially prejudice that party's business or commercial interests. However no specific evidence or submissions were provided to the Tribunal identifying how or in what circumstances or to what extent such prejudice would or could occur. None of the third parties contacted by the Respondent identified any such prejudice. I therefore accept the Respondent's submission that clause 4(d) applies to the information withheld in Documents 1, 2, 3, 6, 7, 8, and 9, but I do not place significant weight on that consideration.

Additional considerations

The Respondent submitted that additional weight should be given to the public interest considerations against disclosure on the basis that the information falls within section 32(1)(b) of the GIPA Act, which states: (1) A requirement of this Division to include information or a copy of a contract in the government contracts register does not require the inclusion of: … (b) details of any unsuccessful tender, or
Section 32 of the GIPA Act is contained in Division 5 of the GIPA Act, titled "Government Contracts with Private Sector". The Division is concerned with the creation of a register and public reporting requirements for government tenders to the private sector worth over $150,000. The evidence before me does not support a finding that the lease relevant to these proceedings was worth over $150,000, or that the lease was included in such a register, and so I do not agree that section 32(1)(b) of the GIPA Act is a relevant consideration in these proceedings.
Two of the eleven parties contacted by the Respondent objected to the release of their information. I assign minimal weight to those objections on the basis that the reasons provided for their objection were simplistic, undetailed and unrelated to the public interest considerations against disclosure.

Balancing exercise

It is the Respondent's obligation under s105 of the GIPA Act, in withholding information validly sought under the GIPA Act, to justify its basis for doing so. In these proceedings, it has failed to provide sufficient or cogent evidence to support its decision to withhold the relevant information in Documents 1, 2, and 3, and to withhold documents 6, 7, 8 and 9. Identifying a consideration found in the Table at section 14 to the GIPA Act as a basis for its decision without providing sufficient evidence or submissions as to how that consideration specifically applies to the withheld information is not adequate.
On the evidence before me, and taking into account the parties' submissions, I consider that with respect to each of Documents 1, 2, 3, 6, 7, 8, and 9 as identified in the Table at 8 above, the public interest considerations in favour of disclosure far outweigh those against disclosure.

Documents redacted for relevance

The Respondent relied on section 74 of the GIPA Act to redact certain parts of Documents 4 and 5 which were not relevant to the access application. The redactions in those documents were not specifically pressed by the Applicant.
Having viewed those documents in their entirety, I agree that the redacted portions are not relevant to the access application.

Conclusion

Whilst I agree with the Respondent's decision with respect to Documents 4 and 5, its consideration in relation to those documents was addressed minimally in its reasons for the decision and was concerned only with relevance.
The correct and preferable decision is to set aside the Respondent's decision with respect to Documents 1, 2, 3, 6, 7, 8 and 9, and instead order that those documents be released.
I considered whether remittal to the Respondent would be appropriate. In my view, in these proceedings, it would not. The decision was the Respondent's second attempt to refuse access to information sought under the access application, made following a decision of the Information Protection Commissioner which explained in some detail how the provisions of the GIPA Act were to be applied by the Respondent. In these circumstances, it is preferable that the Tribunal substitutes its own decision, rather than remit for further reconsideration.
The order for access has been drafted to include the "relevant requested information", so as to allow the relevance redactions to Documents 4 and 5 to be maintained. All other documents sought should be released unredacted.

Orders 1. The Respondent's decision is set aside. 2. The application for access to the relevant requested information is allowed.

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: 24 May 2017

At a glance

Court

Decision date

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)