Ryan v NSW Minister for Planning and Open Spaces

Jurisdiction

1. The Tribunal has jurisdiction to review the agency's decision under s100 GIPA Act (which provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 NSW(ADR Act)); ss9 and 63 of the ADR Act; read together with s30 of the Civil & Administrative Tribunal Act 2013 NSW (CAT Act). The Tribunal is required to determine what is the correct and preferable decision having regard to the material then before it including any relevant factual material and any applicable written or unwritten law (s63(1) ADR Act). The Tribunal makes its own decision in place of the respondent without any presumption that the agency's decision is correct.
2. The role of the Tribunal is to review the merits of the refusal decision of the agency on the access request, taking account of the scope of information that falls within the request and has been considered for access, the information which has been provided to the applicant, and any further relevant material. It is not a review of the decision of the agency on any internal review of the original access decision requested by the applicant.

Determination of a GIPA application.

1. The process of determination of a GIPA application in a standard case such as is well known and discussed in detail in various cases including (Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19). There is no need to repeat this. (I put aside the special cases where information is excluded from the GIPA Act (e.g. by Schedules 1 and 2).
2. In summary the process of decision making involves balancing the public interest in favour of disclosure against the public interest against, to determine whether the negatives outweigh the positives (sec 13 GIPA Act). Only then can non- disclosure be justified.
3. There is a presumption in favour of disclosure and a legal right to information enshrined in the GIPA Act (see secs 3,5,9, and 12).
4. The only negative factors against disclosure which may be relied on by an agency are listed in the Table in sec 14 GIPA Act. The agency carries the burden of establishing the grounds it relies on to withhold information (sec 105 GIPA Act).
5. Various principles for decision making, including matters which cannot be taken into account, are contained in sec 15 GIPA Act.

The Evidence

1. The respondent relies on an affidavit of Mr T Loomes of 19 October 2020. Mr Loomes is an experienced ministerial advisor and Director of Parliamentary Business in the office of the respondent Minister. He was involved in development of the Orders.
2. He outlines the background to development of the Orders and the determination of the GIPA applications. He sets out the concerns surrounding the Covid 19 pandemic in its early stages. He states that government responses require a rapid and timely response, and that the Minister needs advice of a frank character which, in Mr Loomes' opinion, if it was required to be publicly disclosed would significantly fetter the deliberative and decision-making process, especially where decisions are required to be rapid in response to public health emergencies.
3. He attests to a similar view held by his counterpart who advised the Minister for Health and Medical Research. In his affidavit he spoke of his concern that disclosure could undermine the quality of consultations and deliberations and the timeliness with which they occur (para 30 Affidavit). He says that he is concerned that public release of information could have the result that ministerial advisors would feel constrained in raising issues and identifying the full range of options and that this will impede the full and free exchange of ideas as part of the consultation process (para 31 Affidavit).
4. Further there is concern that if required to provide public access to information of this kind that advisers may prefer to carry out can consultations by way of oral discussions rather than correspondence, so that the records would not reflect all of the issues and options considered, so that the basis on which a minister exercises there functions could decline in quality. It was submitted that by using discussions 'off the record' there will be a likelihood of decisions of lesser quality. It was submitted that was keeping a record of decision making would lead to better decisions which are better thought out.
5. Mr Loomes also expressed his concern that decision-making would be less timely. Further Mr Loomes stated that (at the time of making his affidavit) other orders had been and were expected to be made by the respondent Minister so that policy deliberations are ongoing are not a completed process.

The Submissions

1. The applicant's submissions are that here there is a weightier than usual public interest in the information in the light of the extraordinary power given to the Minister to override the provisions of the EPAA for public health reasons, subject to a requirement to consult with the Health Minister. He further submits that the respondent has not established that there was an expectation that discussions would be confidential.
2. He also submits that now that the emergency response to the Covid 19 has passed that the disclosure of the deliberation in relation to the Orders will not prejudice the process involved in promulgating future Orders. The applicant submits that the respondent has provided insufficient evidence of prejudice to consultation in the future.
3. He further submits that decision-making should be routinely transparent. He submits that it could be appropriate to redact some of the material in the documents withheld.
4. Finally, he submits that respondent agency may not have responded fully to the GIPA Act application. He takes this view based upon Mr Loomes' statement (para 23 Affidavit) that different options were considered and draws from that a conclusion that there were more documents held. Examining the notices of the decisions which were taken it can be seen that a number of search terms were used to identify relevant information in the written records, and that any reference to both paragraphs (a) and (b) of the new section 10.17(5) EPAA were searched.
5. In my view there is nothing in the material before me which suggests that all relevant documents have not been properly searched for and considered.
6. The respondent states in its submissions that it recognises the various public interest factors in favour of disclosure. It says in respect of the contested documents that the positive factors are outweighed by the considerations against disclosure.
7. It relies on the following items in the Table in sec 14: a. Item 1 (e) that disclosure could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency b. Item 1 (f) That disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions. (There is a submission on another point which is not controverted and therefore irrelevant).
8. In relation to Table item 1 (e) it has been held in Re Waterford and Department of Treasury (No. 2) (1984) 1 AAR 1 that deliberative processes are equivalent to an agency's thinking process in determining a course of action.
9. Mr Loomes' affidavit indicates that there are ongoing deliberative processes in relation to the Minister's portfolio responsibilities in relation to the Covid 19 response, and in his opinion those would be prejudiced by the release of the information.
10. Whether that disclosure would reasonably be expected to have the prejudicial effect is an objective test, but in applying such a test weight should be given to the view of the agency's decision maker in this case who was also the author or recipient of the information in the documents in question.
11. That officer also made it clear that in his opinion the parties involved in the exchange of emails held the expectation that their consultation would be confidential. This is a factor to be taken into account, but by now employees of agencies must surely realise that in the vast bulk of cases that the government information which they deal with in the course of performing their duties is able to be the subject of a GIPA application
12. In relation to table item 1(e) there are two elements. First one must look to see whether information involves or contains a deliberation, consultation, opinion, advice or recommendation. Then the second element is that one looks to see whether the revelation of such information could be reasonably expected to prejudice a deliberative process of government or an agency. Use of the expression "in such a way" in the item leaves open the possibility that there may be some way of disclosing information which would not be prejudicial e.g. by appropriately redacting the document.
13. Also, there must be an appropriate connection established between the information in the deliberation, consultation etc and the prejudice to the deliberative process Wall v University of Sydney (2008) NSWADT 213 at (36).
14. Mr Loomes' evidence is that the advisers deliberated in the expectation of confidentiality and that disclosure of their "thinking" could lead in the future to ministerial advisers feeling constrained in raising issues, and suggesting options which are committed to writing, and lead to longer timeframes for consultation and deliberation because of the feeling of constraint presented by the prospect that their work may be disclosed. This is particularly the case in a situation where the government must move rapidly in response to the pandemic, and new issues must be addressed in an uncertain future.
15. The task of the Tribunal as the present decision-maker is to determine whether in this case the positive factors in favour of disclosure are outweighed by the specific considerations in the relevant items in the Table in sec 14 GIPA Act.
16. In order to provide the context in which the refused documents were created, I note that that Mr Loomes sent an email to his counterpart at the office of the Minister for Health (Mr Clapin) on Sunday, 29 March 2020 seeking comments on a draft of the Orders to be issued imminently. The relevant parts of this document have been released.
17. The first confidential document to which access was refused is a reply from Mr Clapin very early on the morning of Tuesday, 31 March 2020. This gives some indication of the urgency of the matter. It attached a document setting out 'Issues Raised by NSW Health'.
18. The second confidential document to which access was refused is an email from Mr Loomes to Mr Clapin sent later on Tuesday, 31 March 2020 setting out in tabular form each Issue raised by NSW Health, and the Amendment made to the draft Order to accommodate that Issue of concern.
19. The third confidential document to which access was refused is a reply email from Mr Clapin to Mr Loomes sent shortly afterwards on Tuesday, 31 March 2020 thanking the respondent Minister for his consultations and setting out in tabular form the NSW Health Issues, the Amendments to resolve the NSW Health concerns, and some further commentary from NSW Health indicating how the amendments could be implemented in practice.
20. It seems to me that the documents do contain material related to the deliberations (or thinking processes) of government in relation to development of the relevant pieces of legislation. In my view the respondent has made out its ground in respect of Table item 1(e). Mr Loomes' evidence persuades me that government processes could reasonably be expected to be impeded if such deliberations were to be made public. I consider that policymakers would feel more inhibited in putting ideas on paper, if they knew that such information was to be made public and that they may be expected to be slower in their work of developing policy, particularly in a fast changing situation such as responses to the Covid 19 pandemic. The connection between the information and the prejudice is clear.
21. Redacting the material would take most of the meaning out of the document, and thus does not seem to be an appropriate solution. Furthermore the documents which have been released provide the gist of the discussions and consultations that took place. For example document 6 (being an email dated 1 April 2020) states (page 3 of the 5 attached pages) reveal the feedback in relation to both Orders received from the Ministry of Health
22. The next step is what weight is to be given in balancing the public interest for and against disclosure of the documents?
23. I agree with the applicant's submission that because of the context in which these documents were created as a response to the Covid 19 pandemic and in recognition that the provisions override the usual rules concerning environmental planning and assessment there is a particularly high public interest in disclosure of information to ensure that the appropriate processes have been followed. The GIPA Act is one of the few avenues available to the New South Wales general public to oversee the operation of these laws of New South Wales.
24. However, the presumption in favour of disclosure is not conclusive (e.g.it is not open access information contemplated by sec 6 GIPA Act). If
25. The public interest considerations against disclosure must be weighed. The matters set out in the affidavit that revelation of these documents would inhibit the free and timely flow of ideas within the forums of government which need an opportunity to provide frank and fearless advice are compelling.
26. As Mr Loomes puts it, government advisors would feel reluctance in providing their input if they knew that their deliberative and consultative work was likely to be revealed to the public through the GIPA process.
27. I am cognisant of the principles contained in sec 15 GIPA Act which require that I wholly ignore a number of matters such as that the government could be embarrassed by disclosure. I do not consider that this is a matter which arises here. There is no suggestion that reliance is placed on such matters.
28. In the end I am persuaded by the evidence and submissions that the reliance on Table item 1 (e) of S 14 GIPA Act is established and is of such substance as to outweigh the public interest considerations in favour of disclosure. I would therefore affirm the decision of the agency in relation to the contested documents.
29. This is sufficient to dispose of the matter. The respondent Minister also relied on Table item 1 (f) (that disclosure would prejudice the effective exercise by an agency of the agency's functions), and although the evidence did not go directly to that point, it is submitted that this ground is available because one of the functions of the agency is to provide advice to the responsible Minister. It is submitted that the Department may feel impeded in providing advice to the Minister if these consultations and deliberations are disclosed and thus that there might be a prejudice to part of the functions of the agency.
30. I prefer not to rely on this ground. It seems to me that Table item 1 (f) is of a more general nature and deals more widely with functions of the agency which may be prejudiced. The previous more specific Table item 1 (e) is drafted in a manner more tailored to the thinking process of government in relation to particular matters, such as those in issue here.

Orders 1. The decision of the agency concerning the confidential documents is affirmed. 2. Pursuant to sec 64 of the Civil and Administrative Tribunal Act 2013 I order that the publication, or disclosure to the applicant, of evidence given before the Tribunal related to or contained in confidential documents lodged with the Tribunal be prohibited

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

Amendments 08 March 2021 - Additional related case number added (2020/00236213) 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: 08 March 2021