Shenhua Watermark Coal Pty Limited v Department of Planning and Environment

NCAT Administrative and Equal Opportunity|2019-06-17

Background

In October 2008 Shenhua Watermark Coal Pty Ltd (Shenhua) was granted an exploration licence - EL7223 - in the Liverpool Plains region of NSW. The licence gave Shenhua an exclusive right to explore for resources, but not to begin mining. The exploration licence was renewed in 2012 and a further renewal was sought by Shenhua in 2016 and amended in 2017. The renewal of EL7223 was granted on 13 July 2018 for a term ending 22 October 2021.
An organisation called Lock the Gate Alliance (Lock the Gate) made an application to the Department of Planning and Environment (DPE) under the Government Information (Public Access) Act 2009 (GIPA Act) seeking access to documents regarding the application to renew coal exploration title EL7223. As a result of that application, DPE consulted with Shenhua pursuant to s 54 of the GIPA Act to ascertain whether it objected to the release of certain information in which it had an interest. Shenhua objected to the release either in full or in part of some documents.
DPE made a decision on 4 September 2017 to release some documents in full to Lock the Gate, to partially release others and to refuse access to some documents. Shenhua sought internal review of that decision which was subsequently affirmed. An application for review of DPE's decision by the Information Commissioner was then made by Shenhua. The Information Commissioner concluded that DPE's decision was justified and did not make any recommendations. Shenhua then sought review of the decision by the Tribunal.

The legislative scheme

The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
It was not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act.
There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": s 5 of the GIPA Act. There are two situations in which there will be an overriding public interest against disclosure. First, under s 14(1) of the GIPA Act, 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. Once the information is established to be of a kind specified in Schedule 1, no further inquiry is made. Shenhua does not argue that the information it states should not be released falls into this category.
In the second situation, there will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and the section sets out a non-exhaustive list of some examples of such considerations. The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act. Several are relevant to these applications and are discussed further below.
In this situation, the decision-maker's task is to determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure.
Agencies are obliged to consult with interested third parties in certain circumstances set out in s 54 of the GIPA Act to ascertain whether the person has an objection to disclosure of information and the reasons for the objection. The agency must take any such objection into account when making its decision, but does not have to decide the matter in accordance with the objection. Shenhua was consulted by DPE in this matter and Shenhua has sought review of the decision which was made by DPE following Shenhua's objections.
Normally in review proceedings under the GIPA the onus falls on an agency to establish that its decision is justified (s 105(1)). Where, as in this case, review is sought of a decision to provide access to government information, however, the burden of establishing that there is an overriding public interest against disclosure lies on the applicant for the review (s 105(2)). Shenhua bears that burden in this case.

Public interest considerations in favour of disclosure

Section 12 of the GIPA Act sets out the general presumption in favour of disclosure of government information and the Note to s 12(2) lists examples of public interest considerations that favour disclosure. The Note does not form part of the Act and the matters set out there are illustrative only (Raven v University of Sydney [2015] NSWCATAD 104 and Commissioner of Police, NSW Police Force v Barrett [2015 NSWCATAP 68). As the Appeal Panel stated in Barrett, the only limitation of factors favouring disclosure that an agency may take into account is reasonableness (at [138]).
In its submissions Shenhua states that the public interest considerations listed in the Note to s 12(2) relate to the functions of government agencies, accountability, the expenditure of public funds and government conduct. Shenhua acknowledges that transparency of public administration is a key guiding factor and that there may be a public interest in decisions made on applications for exploration licences, but goes on state that it is the decisions, and deliberations on decisions, that form part of public administration that is the relevant factor in the public interest. This would appear to be a very narrow interpretation of the public interest and fails to recognise the public interest in disclosure of information that would contribute to positive and informed debate on important issues or matters of public importance.
DPE points out that mining exploration on the Liverpool Plains is an issue that has been the subject of considerable media attention and refers to several newspaper articles on the topic. This level of interest may be taken as indicating that there is significant public interest in favour of disclosure of government information relating to the issue which indeed extends beyond the local community. The Tribunal has recognised the public interest in government information relating to mining and exploration in previous cases, for example in Watts v Department of Planning and Environment [2016] NSWCATAD 42 where the Tribunal observed at [66] - [67] that: broad issues relating to mining, exploration of the land leading to possible contamination and alienation, environmental concerns and related issues … have been afforded a high public interest position in the broader community in recent years. Coupled with this is the tension between finding alternative sources of energy, and the debate about both sustainability and short and long term impacts of practices that some in the community see as unsustainable and invasive.
DPE submits that there is a particular public interest in disclosure of information relating to the rehabilitation of land that has been the site of exploration. In this context, DPE refers to the prominence this aspect is given in the objects of the Mining Act 1992 (s 3A (f) and (g)).
I agree with DPE that there are several considerations in favour of disclosure: 1. disclosure of the information could reasonably be expected to promote open discussion of public affairs on an issue of public importance and enhance the Government's accountability; 2. disclosure of the information could reasonably be expected to contribute to positive and informed debate on issues of public interest; 3. disclosure of the information could reasonably be expected to ensure the effective oversight of a resource owned by the State; and 4. disclosure of the information could reasonably be expected to inform the public about the about the operations of DPE, specifically its policies and processes in relation to exploration licences.

Public interest considerations against disclosure

In relation to documents 1, 8, 10, 14, 15 and 17 Shenhua claims there are public interest considerations against disclosure. In summary, Shenhua submits the information it argues should not be released contains commercially sensitive information that was provided to DPE in confidence for the sole purpose of making a decision on the application for renewal.
More particularly, Shenhua submits that access to the information should be refused on the basis that disclosure of the information could reasonably be expected to result in the disclosure of information provided in confidence (cl 1(g) of the table to s 14). Access should also be refused on the basis that disclosure of the information could reasonably be expected to diminish the commercial value of any information to any person (cl 4(c)), and because disclosure of the information could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests (cl 4(d)).
Shenhua submits that cll 1(g) and 4(c) apply to all of the documents and, in addition, cl 4(d) applies to the information in documents 1, 14, 15 and 17.

"Could reasonably be expected to"

The considerations against disclosure set out in the table to s 14 of the GIPA Act and the examples of considerations in favour of disclosure in s 12 have the requirement that disclosure of the information could reasonably be expected to have the nominated effect.
The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... 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 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.
In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC."
The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42].

Information provided in confidence cl 1(g)

In Commissioner of Police, New South Wales Police Force v Camilleri [2013] NSWADT 80 the Appeal Panel stated that the question as to whether information is "confidential information" is to "be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received". The inquiry "should focus on the point of receipt, and the administrative standards and community understandings which surround it".
In Macquarie University v Howell (No 2) [2009] NSWADTAP 19 the Appeal Panel said: In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information.
When the renewal application for EL7223 was first made to DPE, cl 18 of the Mining Regulation 2010 (the 2010 Regulation) prescribed the information that was to accompany an application for renewal. The Mining Regulation 2016 (the 2016 Regulation) replaced the 2010 Regulation and, as I understand it, was in force when the documents in issue were submitted to DPE. Clause 18 of the 2016 Regulation is in the same terms as cl 18 of the 2010 Regulation.
Clause 18 prescribes the following information: 1. the licence number or other identifying code for the licence and the date of expiry of the licence, 2. the contact details of the current licence holder, 3. a rehabilitation cost estimate in relation to the licence, 4. particulars of the financial resources and relevant technical advice available to the applicant, 5. a renewal justification statement, that is, a statement that contains the following information: 1. details of the operations carried out on the land comprised in the licence during the current term of the authority, including the following: (A) the types of operations carried out, (B) a map showing the location of operations carried out, (C) any expenditure incurred in relation to those operations, 1. a summary of the results of such operations and the conclusions reached in relation to the potential resources of the land comprised in the licence, 2. a statement giving the reasons for which the applicant considers the renewal to be justified, 1. a work program for the proposed term of renewal that complies with the requirements of section 129A of the Act.
Neither the Regulation nor the Act provide for confidentiality of the prescribed information.
Shenhua contrasts this situation with that applying to the Annual Reports the holder of an authority must lodge with the Department under s 57 of the Mining Act. Unless otherwise authorised by the Act, the content of those reports must not be disclosed for five years (cl 64 of the 2016 Regulation). An Annual Report must contain the following information: 1. full particulars of all surveys and other operations or activities, including details of expenditure on operations carried out by or on behalf of the holder of the authority during the preceding 12-month period within which the authority had effect, 2. the results and conclusions of such surveys and any other operations, 3. the operations proposed to be conducted during the next 12-month period.
Shenhua submits that the provisions concerning Annual Reports evince a clear legislative intent that technical information relating to geological surveys and the financial details around expenditure are considered confidential information. Shenhua notes that the Annual Reports provision specifically does not prevent the disclosure of a summary of a work program. Shenhua submits that, taking into account the confidentiality provisions relating to the information provided in Annual Reports, it has a reasonable expectation that that any information provided that went beyond a basic summary and that related to its business and financial affairs and geological surveys and expenditure would be treated as confidential.
An affidavit has been provided by Sima Williamson, Acting Director, Regulations and Advice, Resource Operations, DPE. Ms Williamson refers to the gazetted guidelines, "Exploration reporting: A guide for reporting on exploration and prospecting in New South Wales", which, in part, address the content of Annual Reports. She states that these guidelines emphasise that the reports primarily contain geological and geoscientific data. The guidelines do not apply to environmental management and rehabilitation or community consultation reporting.
DPE submits that none of the information in issue is the type of detailed information required to be included in Annual Report to which the confidentiality provisions of the 2010 or 2016 Regulation apply and states the information is simply not of a character of information required by an Annual Report.
Ms Williamson states that the published policy "EDP10 - Public Access to Environmental Information" (EDP10) expressly provides for the accessibility of information used to support environmental decision making under the Mining Act. Under the policy, information of this nature is made publicly available either by being published online or upon request.
Shenhua states that EDP10 sets out specific documents which are accessible. Shenhua states that the relevant documents in the list were prepared by Shenhua with the knowledge that they were to be published as they form part of the public consultation process. Shenhua submits that this list is exhaustive and does not extend to any other category of document. Further, documents 15 and 17 are not of the category of document contemplated within the list and the release of a document containing portions of the same information is not the same as the information as a whole being already in the public domain.
More generally, the evidence and submissions of DPE indicates that it does not consider the information in issue was sought or provided in circumstances involving confidentiality of the information. This is relevant to a consideration of the matters as noted above in Camilleri.

Clause 4(c): diminish the competitive commercial value of any information to any person

Clause 4(d): prejudice any person's legitimate business, commercial, professional or financial interests

Shenhua claims that there is an overriding public interest against disclosure of the information at issue on the basis of cll 4(c) and 4(d). Shenhua submits that the renewal application documents reveal commercially sensitive information in relation to Shenhua's exploration activities and rehabilitation undertakings, including confidential details about company expenditures, and that this information would not otherwise be made publicly available by Shenhua.
In particular, Shenhua submits that the commercial information contained in the documents is the product of the investment of significant research, time and effort by Shenhua, applying its geotechnical knowledge and expertise in determining the financial viability of the exploration activities related to a mine in a specific location, having regard to the environmental legislative requirements.
In relation to cl 4(c), information has "commercial value" if the information is valuable for the purposes of carrying on the commercial activity in which the entity is engaged or if a genuine arms-length buyer is prepared to pay to obtain the information (see McKinnon v Blacktown City Council [2012] NSWADT 44 at [77]-[78]; Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 at [74]).
In McKinnon at [79] and [80], the Tribunal noted that the words "commercial value" were modified by the adjective "competitive" and after considering the ordinary meaning of that word, said "competitive commercial value" therefore connotes information of commercial value gained in, or relating to, a competitive commercial or business context. In Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195 at [160], the Tribunal held that the descriptor "competitive" implied that the information would need to provide the person with a competitive edge.
It has been accepted that "the commercial value in particular documents could reasonably be expected to be destroyed or diminished if disclosure would give a competitor an insight into the business of the documents' owner" (Meriton Property Services Pty Ltd & Ors v UrbanGrowth NSW [2017] NSWCATAD 71 at [135]).
The public interest against disclosure in cl 4(d) is more broadly framed than that in cl 4(c) as it refers to legitimate business, commercial, professional or financial interests. The important feature of the clause is whether a disclosure of that information could reasonably be expected to prejudice those interests.
DPE states that Shenhua's assertions as to loss of competitive commercial value and prejudice to business interests are not supported by any evidence. Indeed, DPE queries whether the information in issue can be characterised as information which reveals commercially sensitive information relating to Shenhua's exploration and rehabilitation activities as well as details of company expenditure.

Document 1

Document 1 is "Form EL5 Application to renew an exploration licence" submitted to DPE by Shenhua. The parties have agreed that certain personal information in the document should not be released. Shenhua seeks further redactions.
I am satisfied that the information sought by Shenhua to be redacted on page 3 of the document is in fact already publicly available and there is no reason it should not be released. The information is available on the Titles Administration System which is a system maintained by DPE under the Mining Act and which can be accessed online so long as the person has a user account. Ms Williamson states that a user account can be obtained by contacted DPE.
In relation to the information on pages 8 and 9 of the document "Proposed area for part renewal", I am satisfied, based on the information attached to the affidavit of Ms Williamson, that that information is also ascertainable from information already in the public domain and should be released.
DPE concedes that the information Shenhua seeks to be redacted at section 16.2 of the document is not readily ascertainable from publicly available sources. The information concerns the number of boreholes which would be completed at a certain point in time. DPE points to other obligations of authority holders which require them to provide details of their drilling activity and associated rehabilitation which would then be accessible to the public on request consistent with EPD10. Although not explicitly stated, I understand the submission to mean that this information could and would be made accessible on request.
Shenhua has in its submissions made very broad statements about the commercial value and confidential nature of the information sought to be redacted. Shenhua has stated that the document reflects the commercial value of the business of mining. Furthermore, it relies on its submission that it had a reasonable expectation that that any information provided that went beyond a basic summary and that related to its business and financial affairs and geological surveys and expenditure would be treated as confidential.
Shenhua has not, however, provided any evidence nor given any explanation beyond generalised assertions that disclosure of this information would prejudice its interests or what is in fact the competitive value of the information which could be diminished by its disclosure. Shenhua simply states that it is unnecessary to provide further evidence of why the material has commercial value and that the documents themselves are the evidence on which it relies.
As noted above, the burden of establishing that there is an overriding public interest against disclosure lies on the applicant for the review. It is not sufficient for Shenhua to simply state the information has commercial value and to provide no evidence of how that value would be diminished by disclosure or how its interests would be prejudiced. It is not up to the Tribunal to speculate upon those matters in the absence of evidence.
In relation to confidentiality, Shenhua has not provided any evidence that would support a finding that it supplied the information to DPE in confidence. It is apparent that the processes under the Mining Act attempt to provide a balance between what are genuine public interest concerns relating to mining and the protection of the legitimate commercial interests of business. Other than making general statements, Shenhua has not pointed to any reasons why it believed the information was provided in confidence. As noted above, DPE does not consider that the information was provided to it in confidence.
Shenhua has failed to establish that the information in document 1 is of such a nature that it is either analogous to the information contained within Annual Reports and thus which should be subject to the same confidentiality requirements or otherwise was provided in confidence. I am therefore not satisfied that there is an overriding public interest against disclosure of the information Shenhua seeks to be redacted from Document 1 (other than the agreed personal information).

Documents 8 and 10

Documents 8 and 10 are emails between Shenhua and DPE dated 29 and 30 June 2017. Shenhua objects to disclosure of the emails in their entirety on the basis of cll 1(g) and 4(c).
Again, there is nothing to indicate that this information was provided in confidence so as to attract the protection from release in cl 1(g). In particular, information in the emails concerning the term of the renewed licence is information which is in the public domain and so does not fall within cl 1(g).
As to other information contained in the emails and particularly that of 30 June 2017 from Shenhua to DPE, Shenhua has not provided any evidence other than generalised statements how disclosure of that information would diminish the competitive commercial value of the information or indeed what commercial value in fact attaches to that information. I therefore cannot be satisfied that there is an overriding public interest against disclosure.

Document 14

Document 14 is a Rehabilitation Cost Estimate Tool. According to the document itself its purpose is to require authority holders to assess and calculate an appropriate rehabilitation cost estimate to assist DPE to determine the amount of a security deposit required for an authority. DPE has refused to release parts of the document and Shenhua seeks further redactions on the basis of cll 1(g), 4(c) and 4(d). The parties have agreed some personal information should be redacted from the document.
The evidence before me is that Shenhua seeks to have access refused to the amount of security required. However, Shenhua did not object to release of that information in Document 1 and I am also satisfied that it is readily ascertainable from other information already publicly available in the Titles Administration System maintained by DPE.
Shenhua objects to the disclosure of the costs against individual items which make up the total rehabilitation cost estimate. The form sets out various activities and the authority holder is required to put a cost against each item if applicable. The total rehabilitation cost estimate and the fact that it was calculated by reference to the Rehabilitation Cost Estimate Tool is contained in Document 1 and Shenhua has not objected to the release of that information in Document 1.
Shenhua has not provided any explanation about what prejudice to its business or commercial interests would arise from the disclosure of the information at pages 4 to 12 of the document which sets out how the total figure is calculated. Nor has it stated other than in general terms how release of the information would diminish its competitive commercial value. Indeed, Shenhua has provided no direct evidence of any value attaching to the information of the type sought to be redacted. I note that Shenhua appears to have utilised the default costings provided on the form by DPE and it does not in any event reveal any actual expenditure incurred by Shenhua in relation to particular items.
In relation to the balance of the information in the document, again Shenhua has failed to provide any evidence how this information is commercially sensitive, would prejudice its interests or that it was provided to the Department in confidence.

Documents 15 and 17

Document 15 is "Form ESF2 Rehabilitation Completion and/or Review of Rehabilitation Costs Estimate". Document 17 is Attachment B to Form ESF2 and is headed "EL7223 Rehabilitation Objectives and Completion criteria June 2017". DPE decided to partially release Document 15 and to release Document 17 in full. Shenhua submits that both documents should not be released in their entirety again on the basis of cll 1(g), 4(c) and 4(d).
Shenhua has not addressed in any detail why the documents should not be released with the redactions as decided by DPE. I accept the submissions of DPE and the material in the affidavit of Ms Williamson that certain elements of the information Shenhua seeks to have withheld in Document 15 are in fact already in the public domain via DPE's publicly available databases. There is no reason that access to these parts of Document 15 should be refused.
DPE states that the only substantive information in Document 15 that is not currently in the public domain is in section 5.4.1 of the document. The information outlines rehabilitation activities undertaken. The information appears to be generalised in nature and DPE again states that, as with the information in Document 1, other obligations of authority holders require them to provide similar details of their rehabilitation activities which would then be accessible to the public on request.
Shenhua has not provided any evidence or made any detailed submissions about why it states there is an overriding public interest against disclosure of this information. It is not apparent how disclosure of the information could place Shenhua at a competitive disadvantage nor diminish the competitive commercial value of the information.
Similarly, in relation to Document 17 Shenhua has not addressed in any detail why there is an overriding public interest against disclosure. The document is an attachment to Document 15 and sets out in table form rehabilitation objectives, completion criteria and some related comments. Again, the document is generalised in nature. The objectives set out in the document are derived from a condition attached to EL7223.
It is not apparent from the high level information provided by Shenhua or the document itself how disclosure of the information could have the effects submitted by Shenhua. There is no evidence the information has competitive commercial value that could be diminished by disclosure or that disclosure could prejudice Shenhua's business or commercial interests. As with the other documents there is nothing to indicate that the information was provided to DPE by Shenhua in confidence.
Shenhua has not established that there are any overriding public interest considerations against disclosure in relation to the relevant information in Documents 15 and 17.

Conclusion

In general, I am not satisfied that there any public interest considerations against disclosure of the information as submitted by Shenhua. The only considerations that remain, therefore, are those in favour of disclosure and there is no need to engage in the balancing exercise envisaged by the Act. Other than in relation to some personal information which the parties agreed should not be released, Shenhua has failed to discharge the onus placed on it of establishing that there is an overriding public interest against disclosure of the information it seeks to have redacted from the documents.
The decision of the Tribunal will therefore be to make the orders sought by the parties in relation to personal information and to otherwise affirm the decision.

Orders 1. By consent, the decision under review is varied to the extent that personal information is redacted from documents 2, 3, 4, 9, 12, 13, 20, 21 and 22 in accordance with the consent agreement filed with the Tribunal on 28 August 2018. 2. By consent, the decision under review is varied to the extent that personal information as agreed between the parties is redacted from documents 1 and 14. 3. The decision under review is otherwise affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 17 June 2019

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Cases Cited (5)

Cited By (2)