South Coast Hunters Club v Eurobodalla Shire Council

Security and risk of harm

1. In its written submissions the Club submitted that: "It is reasonable to expect that, in addition to personal and business identifying details, information as to the event structure, planning and safety considerations, authorities notified, measures taken, types of activities planned, and types of local businesses involved (particularly in a small rural community), separately or together, could expose a person to a risk of harm and/or prejudice a system or procedure for preventing same. The test is not whether the risk of harm is reasonable but rather it is reasonable to expect the information to expose any person to any risk of harm.
2. At the hearing Dr Lee submitted that disclosure of the "Event Hazard Risk Assessment" undertaken in relation to the event may have the effect of prejudicing public safety. He emphasised that the requirement of the GIPA Act in relation to the assessment of public interest is whether the disclosure would be "reasonably be expected" to have the relevant effect. Dr Lee submitted that the only relevant question is whether the disclosure of the document could reasonably be expected to facilitate an attack on the HuntFest.
3. Dr Lee relied upon the decision of Deputy President Hennessy in the Administrative Decisions Tribunal in Hutchinson v Roads and Traffic Authority [2006] NSWADT147 which found that the disclosure of photographs of the Sydney Harbour Bridge "showing structural detail not normally visible by or accessible to the public" could reasonably be expected to facilitate the commission of a terrorist act.
4. Dr Lee also referred to the decision of a Senior Member of this Tribunal in Wordsworth v Roads and Maritime Services [2017] NSWCATAD 201 where it was found that disclosure of information concerning "major technical engineering studies affecting the entire structure" of the Sydney Harbour Bridge could reasonably be expected to have the effect of facilitating an a terrorist attack on the Bridge. In that decision the Senior Member cited the decision of the Appeal Panel of the Administrative Decisions Tribunal in Electoral Commissioner, State Electoral Office v McCabe [2003] NSWADTAP 28 at [36]. We simply note that it is a very serious matter for an agency to invoke an exemption based on 'endangerment'. In our view, agency opinions making such a grave assessment must be closely scrutinised and not easily accepted. The Tribunal is, we consider, obliged to bring some scepticism to the task of assessing what are necessarily self-serving statements by agencies as to the availability of grounds for exemption which involve matters of judgment. The question is always whether the material, statements of opinion and submissions put forward by the agency justifies reliance on the exemption
5. Dr Lee also submitted that the fact that a risk or hazard was not addressed in the Club's tender submission might give inspiration to an ingenious mind seeking to cause harm.

Commercial interests and competitive advantage

1. In relation to this group of considerations the Club's written submissions were as follows: It is not merely business, commercial, financial, and personal information included in a private tender that are confidential in nature. The methodology, structure, planning, considerations, and implied strengths and weaknesses of a tender are all information of a competitive and commercial value to tenders participating in a tender process. It could reasonably be expected that the disclosure of the Document, in whole or in part, would: (a) prejudice the future provision of information to the Council; (b) reduce the Club's competitiveness in future tenders vis-a-vis other tenderers; (c) give an advantage to competitors and potential competitors to the Club in staging identical or similar events to the Event; and (d) thus directly or indirectly prejudice the legitimate commercial and financial interests of the Club (and the Council).
2. The part of the Document, the disclosure of which Dr Lee submitted would be particularly likely to have the effect of disclosing valuable commercial information was the section of the Document disclosed as the "Business Plan".
3. Dr Lee submitted that the commercially sensitive and commercially valuable parts of this part of the Document were not limited to the identification of sponsors, exhibitors and organisers, details of which have been redacted from the Document.
4. Dr Lee submitted that the structure and planning of the event is itself of commercial significance.
5. Dr Lee also submitted that the disclosure of the report would "diminish the competitive commercial value of information to the Club". In this context Dr Lee referred to Retain Beacon Hill High School Committee Inc v Department of Commerce [2006] NSWADTAP 58. That decision involved consideration of provisions of the Freedom of Information Act 1989 (NSW) comparable to items 1(d), 4(c) and 4(d) in the Table to s 14 of the GIPA Act. The Appeal Panel of the Administrative Appeals Tribunal held, at [27] - [31]: 27 As to cl 7(1)(b), the agency first (see (b)(i)) must show that the matter for which protection is sought has 'commercial value' to the agency. There can be no doubt, we consider, that confidential valuation methodologies, confidential valuations and confidential material relevant to formulation of a sale price is matter of 'commercial value' to an agency, just as it would be for a private sector business. …The agency must then demonstrate (see (b)(ii)) that the disclosure of the information 'could reasonably be expected to destroy or diminish the commercial value of the information'. 28 The Tribunal noted the need to take an essentially objective approach (see, for example Vincent Neary v State Rail Authority [1999] NSWADT 107 at [35]) when determining whether there is a reasonable expectation and whether the assertions made by the agency that disclosure might 'destroy or diminish' that commercial value were persuasive. This is an exercise essentially of a discretionary kind. 29 As to cl 7(1)(c), the first element (see (c)(i)) is broader than the first element of cl 7(1)(b). It is enough to show that the matter for which protection is sought would if disclosed reveal 'information concerning the business, professional, commercial or financial affairs'. 30 The more difficult task for the agency is to bring the case within the second requirement ((c)(ii)) - to show that disclosure can 'reasonably be expected to have an unreasonable adverse effect on those affairs or … prejudice the future supply of such information to the Government or to an agency'. The judgement required of the decision-maker (initially, the agency, and, on review, the Tribunal) is one involving relatively factual matters (adverse effect) and matters more of an evaluative kind based on the evidence ('unreasonable' adverse effect, 'prejudice … future supply').
6. Dr Lee submitted that the disclosure of the tender document would destroy or diminish the commercial value of the information set out in the document by providing guidance to potential competitors.

Breach of confidence

1. The Club also submitted: Further, the Council did not but ought to have taken into account the public interest consideration against disclosure that doing so could reasonably be expected to found an action against the Council for breach of confidence or otherwise result in the disclosure of information provided to the Council in confidence.
2. Dr Lee submitted that "it was common ground that the documents were provided on a confidential basis" and referred to the tendering guidelines for NSW Local Government, issued by the NSW Department of Premier and Cabinet, Division of Local Government in October 2009, which had been tendered by Mr Bright. Paragraph 1.3 of the guidelines provided that "Councils must not disclose tender information received from tenderers that is … commercial in confidence or otherwise confidential without their prior consent".
3. Dr Lee submitted that the guidelines therefore suggested that a tender was a commercial-in-confidence document. Dr Lee further submitted that tenderers will have an expectation that a tender submission for a commercial purpose will be kept confidential because it will contain confidential commercial information.
4. Dr Lee cited Australians for Sustainable Development v Barangaroo Delivery Authority [2013] NSWADT 252 at [222] and [228]: 222 For the reasons I have already stated, I am satisfied that the information in the Report was supplied in confidence and there is no question that the information, being part of BDA's competitive tender processes, is treated as being confidential and a disclosure of that information could reasonably prejudice the supply to BDA of such information which facilitates the effective exercise of its functions. That is, I am satisfied that BDA has established that the public interest considerations against disclosure in cl 1(d) and 1(g) apply. … 228 While I accept that there is a strong public interest in understanding the comparisons made between the LL bid and that of BM, in my view, given the sensitive commercial nature of the information, the public interest consideration against disclosure should be given considerable weight. That is, more weight than the public interest in favour of disclosure. As pointed out by Mr Brooke, the information in the report is analytical in nature, based on the detailed commercially sensitive information LL and BM had provided in their respective bids and it does not recommend one bid above the other. Accordingly, I find, on balance, that the public interest consideration against disclosure outweighs the public interest in favour of disclosure.
5. In understanding these passages it is necessary also to have regard to paragraph 68 of that decision 68 Clause 1(g) disclose information provided to the agency in confidence It is well established that even where information has not expressly been provided to an agency in confidence, this can be inferred from the circumstances in which it was provided. In these applications, I accept that the disputed information, to the extent it is information provided in the course of the tender process by LL, BM or KPMG, was provided in confidence.
6. Dr Lee submitted that the fact that the tender submission had been submitted in confidence can be inferred from the context in which it was submitted.

The Council's submissions

1. Ms Nevin for the Council relied upon the decision under review and the reasons for that decision. The decision under review was largely directed to the consideration of the public interest considerations which the decision determined warranted redaction of parts of the documents. The decision under review did not specifically address the issues raised by the Club on this application.
2. Ms Nevin submitted additionally that Dr Lee's submission, that the fact that the disclosure of the risk assessment would disclose what matters had not been considered and that the disclosure of what had not been considered in the risk assessment might give ideas to persons minded to attack the event, was a "bold assertion". Ms Nevin submitted that the risk of such attack exists regardless of the risk assessment undertaken by the Club.
3. Ms Nevin also submitted in relation to clause 1.3 of the tender guidelines that the obligation not to disclose tender information was limited to that material which was commercial-in-confidence. Ms Nevin submitted that the mere fact that information had been submitted as a part of a tender did not make that information commercial-in-confidence, it was first necessary to establish that information submitted as part of a tender was commercial-in-confidence.
4. It is apparent from these submissions that it was not, as Dr Lee submitted, "common ground" that the Document was provided on a confidential basis.

Mr Bright's submissions

1. Mr Bright submitted, in relation to the suggestion that the disclosure of the Document would create a risk of harm, that the HuntFest has been held at Narooma for the last five years and there was no evidence before the Tribunal of any incident of violence since the HuntFest has been occurring.
2. In relation to the allegation that the Document contained commercially valuable information, Mr Bright submitted that the Hunt Club was a not for profit organisation and in particular that it was incorporated under the Associations Incorporation Act, and that its objects must therefore be limited to small scale commercial activity. Mr Bright questioned the extent to which the protection of the commercial operations of the Club deserves any weight.
3. In response to the submission that the tender submission was commercial-in-confidence, Mr Bright submitted that the Council had not provided any document to the applicant at the time of tender which might have suggested that the tender would be treated as confidential. Mr Bright submitted there was no evidence that either the Council or the Club had stated at the time of submission that the tender was submitted in confidence.
4. In respect of the suggestion that there could be an inference of confidentiality Mr Bright submitted that that might be a reasonable inference in a business transaction but this was an application to use a public facility at a fee to be set by Council. Mr Bright submitted that none of the essential characteristics of a tendering process were present. Mr Bright referred to the Council's call for expressions of interest for the conduct of activities on the NATA Oval and the Council's Code of Practice for the licensing of Council controlled public reserves and associated buildings, both of which are in evidence before the Tribunal.
5. Mr Bright submitted that the expressions of interest process was not covered by the tendering guidelines. He submitted that, although the Council might have used the nomenclature of tendering in the course of calling for submissions or expressions of interest, it was not in fact conducting a tendering process. Mr Bright pointed out that the Council's Code of Practice in relation to the licensing of reserves set out the structure required of a submission, including:

• A description of the activity, its longevity and sustainability, its future growth potential and expected community benefits.
• A description of the proponent's management experience, financial viability and other relevant experience.
• Activity Marketing Plans. This may include information on whether the activity will be advertised locally or more broadly, and what mechanism will be used, such as print and/or social media.
• Activity Budgets. This may include such documents as profit and loss statements, balance sheets, or financial projections.
• Risk Management Plan.
• Fee tendered, if the activity is not covered by Council's adopted fees and charges for the use of the public reserve.

1. Mr Bright submitted that the Code of Practice needs to be understood in considering whether the tender submission and in particular the structure of the Document could be considered commercial in confidence.

The Club's submissions in reply

1. Dr Lee submitted that it was the content of the Document, rather than the structure of the Document and the headings within the Document that were commercial-in-confidence.
2. Dr Lee submitted that it was not to the point whether the submission was a tender, the question is whether the information was provided on a confidential basis and what could be inferred from the circumstances in which the document was provided.

Risk of harm

1. I have reviewed the Document, in particular the Event Hazard Identification and Risk Assessment section and other sections of the document addressing issues relating to security.
2. As recorded in the Council's notice of decision, those parts of the Document which record "specific details which would reveal security arrangements" have been redacted from the Document. In particular, any specific details relating to the security of firearms have been concealed. The fact that there are likely to be firearms at the HuntFest is implicit in the nature of the event and is explicitly referred to in public advertising of the events held in 2015 and 2016 which was included in the Document. Dr Lee did not suggest there was any public interest against disclosure of those advertisements.
3. All personal information including names and contact details of any individual has also been redacted from the Document.
4. In my view, after the redactions proposed by the Council, there is nothing in the remaining parts of the Document the release of which is likely to involve a risk of harm to any person. As noted above, Mr Bright was required to leave the hearing for a period. One of the justifications for that course was to enable Dr Lee to draw my attention to any specific parts of the document which he submitted created a particular risk without having to disclose such content to Mr Bright. Dr Lee did not draw my attention to any particular part of the document which he submitted the disclosure of which would create a particular risk of harm.
5. As the Appeal Panel noted in the passage from Electoral Commissioner v McCabe quoted above, it is appropriate to bring a measure of scepticism to a claim of endangerment. There is no detail in the Document which in my view could provide any assistance to any person seeking to cause harm. The Club did not seek to make an argument that any such detail existed in the material which the Council has decided to release.
6. I acknowledge Mr Bright's submission that there has been no incident of harm or threat at the HuntFest since it commenced. I do not consider this circumstance effects the assessment I am required to undertake in any degree.
7. I do not accept that the fact that any matter is not referred to in the Document generally or in the Risk Assessment in particular is likely to provide either inspiration or assistance to any person wishing to do harm or create a risk to persons at the HuntFest. As Ms Nevin submitted on behalf of the Council the submission that the release of the Document might have that effect is a "bold assertion". It is not in this case supported by any evidence. There is always a risk of attack at any event by persons aiming to create harm or alarm or disruption. I am not persuaded that there is any likelihood that any person so minded would be assisted in any material way or to any degree by the release of the information set out in the Document.
8. Accordingly I find that it could not reasonably be expected that disclosure of the information in the document would have the effects identified in items 2(d), 2(e) and 3(f) of the Table to Section 14 of the GIPA Act that is: endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person; endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle; or expose a person to a risk of harm or of serious harassment or serious intimidation,

Disclosure of information of commercial value

1. I accept that the Club has a commercial interest in the success of the HuntFest and in continuing to have access to the NATA Reserve for that purpose. The Club is an incorporated association and as such prohibited by s 40 of the Associations Incorporation Act 2009 (NSW) from conducting its affairs so as to provide pecuniary gain for its members, but that does not prevent the Club seeking to ensure that the HuntFest is financially viable, or from seeking to profit from the HuntFest.
2. Nevertheless, I am not persuaded that the information set out in the Document has any commercial value. All monetary amounts not on the public record have been redacted from the Document. Much of the layout of the Document follows the Code of Practice issued by the Council and cannot be said to be confidential. Dr Lee did not point to any particular element of the text included under the various headings required by the Code of Practice that he submitted was in itself of commercial value. Nor did the Club submit any evidence to establish that the material in the Document or its structure and layout had commercial value.
3. As noted above, Dr Lee referred to the business plan included in the Document as having particular commercial value. I have reviewed the business plan carefully and am not satisfied that any of the material contained in that part the Document could have any commercial value. It is in my view all material that is either self-evident or mundane. In my view, there is no comparison between the "confidential valuation methodologies, confidential valuations and confidential material relevant to formulation of a sale price" which were found to have commercial value in Retain Beacon Hill and the prosaic descriptions of the HuntFest event contained in the Document.
4. I accept that the disclosure of the Document as a successful application for the use of the NATA Reserve might provide a template for a potential competing applicant for the same reserve in preparing their application. However I am not satisfied that either the content of the Document or its structure and layout is so unusual or specialised that access to the Document would provide a real advantage to such a competitor.
5. Accordingly I am not satisfied that the Club has established that it could reasonably be expected that disclosure of the information in the Document would have the effect of diminishing the competitive commercial value of that information to the Club (or any other person) or that disclosure of that information would have the effect of prejudicing the Club's (or any other person's) legitimate business, commercial, professional or financial interests.
6. Although the Club's written submissions asserted it could reasonably be expect that the disclosure of the Document would prejudice the future provision of information to the Council, Dr Lee did not expand upon that submission at the hearing and did not suggest any way in which the disclosure of the Document might inhibit the future provision of information to the Council. I am not persuaded that there is any rational basis upon which it could be said that disclosure of the Document could have that effect. Future applicants or tenderers for the use of Council reserves will follow the Code of Practice and could be expected to "put their best foot forward" to support their application.

Disclosure of material provided in confidence

1. I am not satisfied that the Document was provided in confidence to the Council. It was not expressly provided as a confidential document. In my opinion there is no reason arising from the circumstances in which the Document was submitted to the Council that it should be inferred that the Document was provided in confidence. As Mr Bright submitted, the "tender" process conducted by the Council for the use of the NATA Reserve for the June long weekend was not a commercial price-based tender. The Council in calling for tenders was engaging in its public function of managing its reserves in the interests of the community. In that context, there is no reason why, in the absence of a specific indication or statement that the Document was submitted in confidence, it should be inferred that the Document was submitted in confidence.
2. I do not accept the submission that the tendering guidelines indicated that the Document would be treated as a confidential document. The tendering guidelines only indicate that documents provided in confidence will be treated confidentially. The tender guidelines do not indicate when a document will be considered to be provided in confidence, the guidelines do not create any presumption that material submitted with a tender is provided in confidence.
3. I do not need to consider whether specific commercial information such as the names of sponsors and exhibitors or the budgets for revenues and expenses were provided in confidence, as such elements have been redacted from the Document.
4. Accordingly, I am not satisfied that the disclosure of the Document could reasonably be expected to have the effect referred to in item 1 (g) of the Table s 14 of the GIPA Act, that is, found[ing] an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.

Conclusion

1. I find that the Council's decision to release the Document was the correct and preferable decision. I note that my finding in this regard is not intended to and does not determine the question whether the Council's decision to redact parts of the Document was appropriate. My decision solely relates to the disclosure of the information included in the parts of the Document that have not been redacted.
2. Accordingly I order that: 1. The decision of the Respondent Eurobodalla Shire Council to provide access to the "Huntfest Tender for Narooma Leisure Centre and NATA Oval 2018 - 2022" with certain information redacted is affirmed.

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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: 15 February 2018