Transport for NSW v Searle

The information to which access is sought

1. The information sought by the access application was that contained in the following four documents (Documents) about the SLRP prepared at the request of INSW: 1. A draft "Gateway Review Report, Gate Health Check 3 - [In Delivery]" dated 25 October 2016, the status of which was described on the front page as "DRAFT for Discussion 0.3". 2. A draft "Gateway Review Report, Gate Health Check 3 - [In Delivery]", the status of which was described on the front page as "Draft for Agency Fact Checking Version 0.2". Although not as obviously dated as the first document, it appears from the revision history on page 1 that it is dated 24 October 2016. 3. A draft "Gateway Review Report, Health Check - In Delivery", the status of which was described on the front page as "DRAFT for Discussion 0.4". The date of the document is not clear but the revision history on page 1 suggests that it is not dated before 27 October 2016. 4. A draft "Gateway Health Check Report", the status of which on the front page was described as "Preliminary Draft". The document is undated but the references on the front page to review dates indicate that it must have been prepared in about February 2016.
2. Without disclosing what the appellant does not wish to disclose, the following can be seen from the Documents: 1. The first three reports referred to above are marked as "SENSITIVE NSW CABINET" and the fourth report was marked "Cabinet in Confidence". 2. Each of the first three reports state that the "Gateway Review Report" is delivered to INSW by the review team, is strictly confidential, is to be provided by INSW to the agency's senior responsible officer and that the outcomes are to be reported through to the NSW Cabinet Standing Committee on Infrastructure. 3. Each of the first three reports state that their purpose is to provide an independent peer review that assesses the development and delivery of the project at a point in time, and that the report includes recommendations from the review team intended to enhance the agency's ability to deliver the project. 4. The fourth report stated that its purpose was to provide point in time insight into areas of the project which may compromise its timely completion or affect other project outcomes and to provide recommendations on improvement opportunities. 5. The reports contain assessments about several topics concerning the performance of the development of the project in which comments are made upon the level of performance in those areas. 6. These assessments are based upon an investigation by the review team which includes interviews of persons connected with the project (as listed in an appendix to the reports). Those interviewed include those in the Sydney Light Rail Delivery Office (SLRDO) within the appellant as well as representatives of contractors and stakeholders.
3. The following findings by the Tribunal about these four documents were not in dispute on the appeal: 1. The SLRP is being developed pursuant to a public-private partnership. The public sector parties are the appellant and the Treasurer and there are a number of private sector parties. In addition to the public-private partnership, there are thirteen other major stakeholders involved, including Councils and the University of New South Wales, with each of whom the appellant has a contract: at [9]. 2. The first three documents relate to a "health check" of the project undertaken in October 2016 and are drafts of a report that was finalised in November 2016: at [8]. 3. The reports were prepared by an expert panel (review team) and form part of the system of "gateway reviews and health checks" which are conducted pursuant to the Infrastructure Investor Assurance Framework (IIAF); at [10]. 4. The IIAF (see further below) is an independent risk-based assurance process for the State's capital projects having as its objective to ensure that the government's key infrastructure projects are delivered on time and on budget. It establishes a system of reporting in relation to capital projects by which Cabinet, through the Cabinet Standing Committee on Infrastructure, and the Minister for Infrastructure, are able to monitor the government's infrastructure program. It was not the usual practice to supply a full copy of a gateway review or health check to Cabinet; at [12] and [13]. 5. The IIAF was developed by INSW which is a government agency the functions of which include overseeing and monitoring the delivery of major infrastructure projects and assessing and managing risks involved in delivering infrastructure: at [12]. 6. The information provided to the review team who conduct the gateway reviews and health checks is confidential information. Much of the information contained in the Documents was provided to the review team panel in confidence. Interviewees are informed that the discussions with the review team will be kept strictly confidential and provided only to INSW. The IIAF requires that a review be undertaken under strict conditions of confidentiality between the review team and the project delivery team: at [71]. 7. It could reasonably be expected that disclosure of information about problems the SLRDO was having with stakeholders would detrimentally affect that Office's ongoing relationship with stakeholders and this would prejudice the Office's effective exercise of its functions: at [101]. 8. Disclosure of the following categories of information could reasonably be expected to prejudice the effective exercise by the appellant of its functions, namely the information referred to in (7), commercial-in-confidence information and information containing criticisms of particular stakeholders: at [106]. 9. If it was reasonable to expect that senior public servants would consider that they have a conflict of duties between, on the one hand, being frank and candid with the review team and, on the other hand, providing the review team with information that was commercial - in-confidence and/or could adversely affect stakeholder relationships then it could be that it would be reasonable to expect a public servant to be less than frank when communicating with a review team about such information: at [87].
4. In addition, it is plain from the reasons that parts of the Documents were justifiably treated by the appellant as containing "commercial-in-confidence" information and criticisms of stakeholders: at [132], [136] and [138]. (Reasons in relation to these matters included not for publication reasons).
5. The IIAF was in evidence before the Tribunal. The IIAF stated that its purpose was: …to ensure that Cabinet and the Minister for Infrastructure are supported by effective tools to monitor the NSW Government's infrastructure program, receive early warning of any emerging issues, and to act ahead of time to prevent projects from failing.
6. As to the review team, the IIAF stated: Reviews are to be conducted by a highly experienced Independent Review team where independent refers to the individuals being independent of a delivery agency and a project team. The review team should be selected so that it possesses the skills, capability and experience to enable it to provide relevant assessment and advice. For Tier 1 - High Profile/High Risk projects, independent reviewers forming the Review Team should not include individuals that are currently employed by the NSW Government and should include high profile industry experts…
7. As to confidentiality, in s 2.6 of the IIAF one of the "Framework Principles" was stated to be: 2.6 Confidentiality It is in the public interest that project confidentiality is retained so that issues can be openly identified and 'best for project' mitigations can be developed and actioned immediately. Government as the investor also needs transparency to take decisions. Infrastructure investor assurance is a confidential process seeking to provide value to both the project and the investor whilst balancing the project confidentiality and government transparency requirements. Gateway Review and Health Check reports are confidential between the nominated delivery agency Senior Responsible Officer (SRO) and Infrastructure NSW. Regular project reporting and the reporting of findings from final Gateway Review and Health Check reports are also provided to Cabinet and are therefore 'Sensitive NSW Cabinet' documents. Regular project reporting for Tier 1 - High Profile/High Risk (HPHR) project (monthly) and Tier 2 projects (quarterly) is provided to IIAC for endorsement before presentation to the Infrastructure NSW Board (by exception report only) and to Cabinet. A summary of the outcomes of Gateway Reviews and Health Checks for Tier 1 - High Profile/High Risk projects is provided to IIAC for noting and presented to Cabinet only once finalised. In addition to the delivery agency and Cabinet, Infrastructure NSW will only distribute reports for the following as indicated in Table 1: Final regular project reports; Summary of the outcomes of Gateway Reviews and Health Checks; and Full final Gateway Review and Health Checks reports.
8. As indicated by a circular from NSW Treasury dated 25 July 2016 in evidence before the Tribunal, the IIAF was endorsed by the Standing Cabinet Committee on Infrastructure on 30 June 2016 and relevant infrastructure delivery agencies were required to adhere to the protocols outlined in the IIAF. The circular stated that the IIAF applied to all capital projects being delivered by NSW Government agencies and Government Businesses and that the IIAF operated alongside NSW Treasury's existing budget and project approval processes.
9. Additional uncontroversial aspects concerning the Documents was the subject of evidence given to the Tribunal by Ms Levy and Mr Summers.
10. Ms Levy is the Deputy Chief Executive of INSW. She oversees the development, implementation and ongoing operation of the IIAF.
11. Mr Summers is the Project Director of the SLRDO. He is the point of contact for that office for the purposes of the IIAF.
12. The SLRDO was established for the purpose of delivering the SLRP. It is an agency within the appellant. Officers within the SLRD participate in gateway reviews and health checks by giving interviews to the reviewers. The SLRDO is provided with a draft of the reviewer's report for fact-checking and after review by INSW a draft is again supplied to SLRDO for comment: at [11].
13. Those additional uncontroversial aspects concerning the Documents were: 1. The objective of confidentiality was to ensure that issues could be openly identified and "best for project" mitigations developed and actioned immediately. In order for INSW to undertake its functions effectively it is crucial that agencies are entirely honest and open about capital projects they are managing and any difficulties they are encountering: Ms Levy at [46], affidavit sworn 22 March 2017; Mr Summers at [28] - [29], affidavit sworn 22 March 2017. 2. Ms Levy was not aware of any analogous infrastructure investment assurance process in other jurisdictions being undertaken in conditions other than of the strictest confidentiality: Ms Levy at [48], affidavit 22 March 2017 and at [16], affidavit 28 April 2017. 3. The infrastructure assurance models that operate in the various Australian jurisdictions, including the IIAF, are all based upon a model that was developed in the United Kingdom's Office of Government Commerce in 2001. Under this model, the review is undertaken under strict conditions of confidentiality between the review team and the project delivery team: Ms Levy at [4], affidavit 28 April 2017.

The key provisions of the GIPA Act on the appeal

1. By virtue of s 14(2) of the GIPA Act, cll 1(d) and 1(f) referred to in the grounds of appeal (see below) are two of: The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
2. Those clauses provide: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, … (f) prejudice the effective exercise by an agency of the agency's functions, …
3. Other key provisions are: 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. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. … 5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. … 9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information. … 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. … 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. … 100 Administrative review of decision by NCAT A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an NCAT administrative review). … 105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. 106 Decisions about Cabinet and Executive Council information (1) On an NCAT administrative review of a decision by an agency that there is an overriding public interest against disclosure of information because the information is claimed to be Cabinet or Executive Council information (as described in Schedule 1), NCAT is limited to deciding whether there were reasonable grounds for the agency's claim and is not authorised to make a decision as to the correct and preferable decision on the matter. … (3) If NCAT is still not satisfied after considering the evidence produced that there were reasonable grounds for the claim, NCAT is to reject the claim when determining the review application and may then proceed to make a decision as to the correct and preferable decision on the matter.

The reasons for decision of the Tribunal relevant to the appeal

1. Having rejected the claim based upon Cabinet information, the Tribunal followed the course set out in s 106(3) of the GIPA Act and proceeded to determine what was the correct and preferable decision resulting from weighing the competing considerations for and against disclosure: at [62].
2. As to this determination, absent error in relation to impact upon the effective exercise by INSW of its functions, no challenge is made on the appeal to the Tribunal's conclusion that the public interest considerations in favour of disclosure of the information in the Documents outweighs the public interest consideration against disclosure due to prejudice to the effective exercise by the appellant of its functions: at [124] and [146].
3. As we have already mentioned, in examining the consideration against disclosure in cl 1(d), the Tribunal found that the information supplied by interviewees to the review team was confidential information because interviewees were told that it would be kept strictly confidential and provided only to INSW: at [71]). In this regard, the Tribunal found that the infrastructure assurance model required that a review be undertaken under strict conditions of confidentiality between the review team and the project delivery team: at [71].
4. The Tribunal also found that the supply of information from interviewees facilitated the exercise of INSW's assurance functions: at [72].
5. However, it decided that the consideration against disclosure in cl 1(d) had not been established because the concerns expressed by Mr Summers and Ms Levy about the future supply of information to review teams were negated by a combination of two matters, so far as public servants were concerned, and by the second of these two matters, so far as other sources of information were concerned.
6. The first of these two matters was the duty of public servants to be frank and honest. In this connection the Tribunal concluded (at [86]): Except in extraordinary circumstances (which I cannot currently envisage), it would not be reasonable to expect that disclosure of the information sought would cause public servants, and particularly senior public servants, to fail to fulfil their duties to be candid and frank with the reviewing team.
7. The second matter was that the evidence of Ms Levy and Mr Summers lacked a "factual" basis for their opinions that less frank information would be supplied to the review teams if the information was disclosed: at [89]-[90] and see additional passages below. In arriving at this conclusion, the Tribunal indicated it was acting upon the obligation to bring some scepticism to the task of assessing the necessarily self-serving statements of agencies referred to by the Appeal Panel in Electoral Commissioner, State Electoral Office v McCabe [2003] NSWADTAP 28.
8. As will be seen below, it is clear that the evidence of the appellant's two witnesses (Ms Levy and Mr Summers) went beyond mere opinion and included the basis for the views they expressed about the impact of disclosure on the future supply of information from interviewees to the review team. In this context, as appears from the references below, the reference to a "factual" basis seems to be predominantly a reference to the absence of specific evidence from interviewees, or directly sourced from interviewees, as to the impact of disclosure on the future supply of information they would give to the review team.
9. In this regard, the references in the reasons we have in mind are: (at [80])…Mr Summers acknowledged [in cross-examination] that he had not had any conversations with stakeholders and contractors about the potential release of the Documents. He also agreed that he could not provide a clear and factual basis for his concerns. (at [82])…[Ms Levy] agreed that public servants had a duty to be frank and honest, but said they would have to talk about relationship issues, and would be concerned about how this might impact the ongoing ability to manage the project or deal with stakeholders. She anticipated that interviewees would 'filter information". However, Ms Levy accepted that no individual had told her that they would not provide information in the future or would provide less information, if the information sought by Mr Searle were to be disclosed. (at [90]) Mr Searle submitted that McCabe established that there had to be a firm basis to accept the arguments of Ms Levy and Mr Summers that people would be reluctant to provide information to the review team frankly if the information sought were to be disclosed. Mr Searle said (and I generally accept) that Mr Summers could not articulate a factual basis for his opinion that people would be less frank in the provision of information if the information sought were disclosed. (at [94])…nor has it [the respondent] provided any evidence from private contractors as to how the disclosure of the information sought by Mr Searle would impact upon their willingness to be frank with the review team. Neither Ms Levy nor Mr Summers spoke to any private contractor about the possibility of disclosing this information, and how it would affect their participation. All the Tribunal has is the views of Ms Levy and Mr Summers as to the effect of disclosure on the contractors' willingness to speak freely. (at [95])…However, the lack of evidence about the position of private contractors means that the respondent has not discharged its onus of establishing that this consideration applies, in the case of information provided by private contractors. (at [96])…There has been no evidence as to what sort of information these categories of persons [utility providers, property owners and "private operators"] are likely to supply and why they would be inhibited in providing information, when providing information to the review team. Accordingly, I find that the respondent has not discharged its onus in respect of the information provided by private parties.
10. The following aspects of the cross-examination of Ms Levy and Mr Summers support this meaning of the reference to "factual" basis: Ms Levy (page 114) Q…. So, again, given the sensitivities you've expressed about what might happen if these four documents were released to me, and to the wider public, your - you don't have any factual basis. Like, people from these different agencies, no-one's said to you, "if this was revealed we just - you know, we wouldn't provide as much information in the future? No-one's --- A. No. Q. No-one's said that to you? A. No-one has - no-one has said that to me, but they are all reassured --- Q. Yeah. A. --- at the start of a review that - that the information they give is confidential. Mr Summers (pages 39 -40) Q ….I'll ask you to think about this, government bodies often don't want documents to be released because they think release will have a certain effect. So, one of the jobs we're trying to do today is trying to work out whether that's just a fear, or whether that - there is actually a proper, factual foundation for that view. Have any of the stakeholders said to you that release of this information would have a real and substantial negative impact on the project? A. No…. Q…..None of those bodies have expressed any concerns to you about the release of these documents, have they? A. Not specifically, no ….. Q….So, what we're left with at the moment, in terms of your evidence, is all you're expressing here is your personal view about what impact the release of four documents might have on the project. A. No, you - you walked me down the path of hypotheticals about 20 minutes ago. Q…..So, to assist you, I will rephrase this. You have given evidence that none of the stakeholders involved in this project have expressed to you any concerns about the release of these four documents. That's correct, isn't it? A. Specifically against these four documents, no.
11. Because the consideration in cl 1(d) had not been established, the Tribunal concluded that the public interest consideration against disclosure in cl 1(f) could not be established in so far as it concerned the effective exercise by INSW of its functions: at [99].
12. The Tribunal did not accept that if disclosure occurred it would affect the way review teams reported because they would be reticent to include information in their reports regarding stakeholder relations and commercial-in-confidence matters. This was because the Tribunal did not have sufficient evidence about this, including evidence from witnesses who prepared review reports: at [103].
13. So far as the impact of disclosure on the functions of the appellant was concerned, including the functions of SLRDO which was part of the appellant, the Tribunal concluded that it could reasonably be expected that disclosure of problems with stakeholders would detrimentally affect SLRDO's ongoing relationship with them and this would prejudice the effective exercise of the appellant's functions: at [101]. Disclosure of commercial-in-confidence information and information containing criticisms of particular stakeholders could also be reasonably be expected to prejudice the effective exercise by the appellant of its functions: at [106].
14. In weighing the considerations for and against disclosure and concluding in favour of disclosure the Tribunal reasoned as follows: 1. The public interest considerations in favour of disclosure include: 1. The general public interest in favour of disclosure of government information; 2. That access to the information contained in the Documents is of public importance and public interest; 3. That disclosure could reasonably be expected to enhance the maintenance and advancement of a system of responsible and representative government that is open, accountable, fair and effective: at [123]. 1. The public interest consideration against disclosure is that disclosure of the following information could reasonably be expected to prejudice the effective exercise by the SLRDO, being part of the appellant, of its functions: 1. Information concerning problems the SLRDO is having with stakeholders; 2. Commercial-in-confidence information; 3. Information containing criticisms of particular stakeholders. 1. There was a very strong public interest in the disclosure of the information sought by Mr Searle: at [126]. In so finding, the Tribunal noted that, as the respondent acknowledged, it was not necessary for it to determine the correctness of allegations made by the respondent about the increased cost of the project above budget, why this had occurred, that the reasons for the increase were contrary to a media release by the former Minister for Transport, now Premier, that the assurance framework did not provide the independent assurance required for such a project and that tight time frames meant that planning was inadequate and that normal governance systems were not in place. The Tribunal reasoned that these allegations did, however, underline the public interest in the disclosure of the information contained in the Documents because of the reasons set out in (4) below: at [127] and [128]. 2. The information may have relevance to public controversies about a major infrastructure program involving a significant amount of taxpayers' money. Considerable weight in the circumstances of this case is to be given to the consideration that disclosure could reasonably be expected to enhance the maintenance and advancement of a system of responsible and representative government that is open, accountable and effective. Where the information sought is contained in reviews which monitor an infrastructure project of considerable cost and public importance, advancing the openness and accountability of such a system of government has particular significance. The release of the information would promote transparency on issues concerning a project with a high public profile and which comes at a high cost to the taxpayer. Public accountability is therefore of particular importance: at [128] - [129]. 3. It did not accept that it was required to choose between the effectiveness of the IIAF and the public interest considerations in favour of disclosure. This was because it had not accepted that interviewees could not reasonably be expected to provide full and frank views to a review team should the information be disclosed and it did not accept that disclosure of the information would render the IIAF process ineffective: at [131]. 4. For reasons that included reasons that were not for publication it gave some but not significant weight to the consideration that disclosure of information identified by the appellant as commercial-in-confidence information could reasonably be expected to prejudice the exercise by the appellant of its functions. On balance, the strong public interest consideration in the disclosure of such commercial-in-confidence information outweighed the public interest consideration against such disclosure: [136] - [137]. 5. A reasonable amount of weight was to be given to the public interest in favour of the disclosure of information which was critical of stakeholders as this was relevant to the management of a public-private partnership in which the government has invested a significant amount of money and disclosure could reasonably be expected to enhance the openness and accountability of government: at [139]. 6. On the other hand, for reasons that include reasons that were not for publication, no significant weight was to be given to the fact accepted by the Tribunal that, in general terms, disclosure of the information could damage the appellant's relationship with stakeholders and that this could make the SLRDO less effective in managing the project. This was because of the absence of evidence of a more specific nature as to how SLRDO would be rendered less effective: at [143] - [145].

The Tribunal's order for access

1. The order appealed from (made by the Tribunal on 14 September 2017, as modified by the subsequent order made on 21 September 2017) was contained in Order 1 as follows: The decision of Transport for NSW to refuse access to the information the subject of the applicant's access application is set aside and, in substitution for that decision, Transport for NSW is to provide the applicant with access, within 28 days, to the information the subject of his access application.
2. A stay of this order was granted pending the determination of the appeal.

Nature of the decision under appeal

1. As appears from s 100 of the GIPA Act and s 30(1) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), the decision of the Tribunal was an exercise by the Tribunal of its administrative review jurisdiction.
2. As prescribed by s 63 of the Administrative Decisions Review Act (ADR) the role of the Tribunal in respect of the administrative review was as follows: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
3. Accordingly, the task of the Tribunal was to determine what was the correct and preferable decision based upon the material before it.

Grounds of appeal

1. The grounds of appeal were as follows: 1. That the Tribunal erred at law by requiring that there be "factual" evidence as to the likely effect of disclosure of information, in order for a respondent agency to satisfy the "could reasonably be expected" standard in cll 1(d) and 1(f) of the Table to s 14 of the GIPA Act. 2. Leave be granted to raise further or alternative grounds of appeal going to the merits of the decision as follows. 3. That the Tribunal erred in finding that disclosure of the information the subject of the access application could not reasonably be expected to: 1. prejudice the supply to INSW of confidential information that facilitates the effective exercise of its functions for the purpose of cl 1(d) of the Table in s 14; and 2. prejudice the effective exercise by INSW of its assurance functions for the purpose of cl 1(f) of the Table in s 14, to the extent that: 1. a positive finding with respect to cl 1(d) would have flow on effects for cl 1(f); and/or 2. such disclosure would be likely to affect the contents of reports and other documents prepared by INSW. 1. That the Tribunal erred in finding that there was not an overriding public interest against disclosure of the information.
2. From the grounds of appeal and submissions of the appellant it is apparent that the focus of the appeal was upon error in relation to the impact of disclosure upon the assurance function of INSW. However, it was contended that if such error was found then in carrying out any reconsideration of the balancing exercise required by s 13 of the GIPA Act such impact upon the effective exercise of INSW's assurance function needed to be assessed in conjunction with the public interest considerations against disclosure falling within cl 1(f) that the Tribunal had identified concerning the effective exercise of the appellant's functions.
3. It was also apparent from the submissions of the appellant that the main emphasis was upon the adverse impact of disclosure upon the supply of information to the review team of experts rather than upon any constraint that the review team would feel about what they would include in their reports to INSW.

A limited appeal right

1. By virtue of s 80(2)(b) of the NCAT Act, an internal appeal (as this is) may be made in the case of "any other kind of decision" of the Tribunal at first instance (other than an interlocutory decision): as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
2. In a passage that has been followed in many cases, following what was said by the Court of Appeal in BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19], the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 set out the approach to the grant of leave to appeal under s 80 (2)(b) in the following terms: In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
3. We adopt that approach to the application, in the alternative to the appeal based upon error of law, for leave to appeal in this case.

Submissions

1. As to the question of law, the appellant submitted that the Tribunal asked the wrong question and/or applied the wrong principle of law by proceeding on the basis that there was a legal requirement or standard that a respondent agency must provide "factual" evidence in order to satisfy the "could reasonably be expected" standard. In oral submissions, the appellant submitted that instead, as indicated by Owen J in Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G, in a passage approved by the Tribunal in Raven v The University of Sydney [2015] NSWCATAD 104 at [52] - [53], the right question to ask was whether the view expressed was sufficiently supported to be persuasive in the sense that it was based upon real and substantial grounds.
2. The appellant submitted that the Tribunal went beyond that requirement and applied an unrealistic forensic standard.
3. The question whether the Tribunal asked the wrong question or applied the wrong principle is a question of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [15]-[16].
4. The appellant submitted that its contention that the wrong question was asked (as well as its contention that the Tribunal erred on the merits) was supported by the following: 1. The question whether the consideration in cl 1(d) was established involved the Tribunal in a relatively abstract analysis: Commissioner of Police, NSW Police Force v Cammilleri (GD) [2012] NSWADTAP 19 at [26]. 2. Furthermore, the issue to be decided was predictive about a future consequence from unspecified persons based upon a hypothetical. The approach applied by the Tribunal overstated the significance of specific evidence from actual or potential interviewees. 3. As is commonplace, the Tribunal should have, but did not, make its own assessment of the likelihoods based upon the material before it and ordinary human experience. The views of witnesses were capable of assisting but were not vital. The situation was analogous to the approach adopted in public interest immunity cases where inhibition to supply of information was readily inferred from the fear of disclosure. 4. The Tribunal did not, but should have, considered for itself the obvious implications of the established facts that the information provided to the review team was provided confidentially, that confidentiality was a feature of the IIAF and of similar assurance frameworks in other Australian jurisdictions and in the UK, such supply of information was critical to the way the review worked and central to the function of INSW and that disclosing information involving criticisms of stakeholders would damage relations with stakeholders. 5. The Tribunal's conclusion was counter-intuitive when considered in the light of the matters referred to in (4) and as well that it was an elementary proposition that people who have confidential information will be less likely to divulge the information if it may be disclosed. This points to a flaw in the Tribunal's approach.
5. The respondent submitted that no question of law as framed arose and that this was a spurious contention raised to support what was, in truth, an attempt to have a review of the merits on appeal.
6. The respondent submitted that the Tribunal did not require that there be "factual" evidence - the absence of such material was merely a factor weighed by the Tribunal in determining whether the appellant had discharged its onus.
7. The respondent submitted that the Tribunal's conclusion about cl 1(d) was the result of a conventional weighing of the material following a vigorous testing of the witness evidence in cross-examination in which the witnesses were unable to articulate (at least in open court) why they held the opinion they did and on what basis.
8. The respondent submitted that, accordingly, the conclusion about cl 1(d) was no more than the result of applying well understood and accepted legal principles to the facts as found and circumstances regarding the sufficiency of the evidence in the case.

Consideration

1. We do think it is implicit that the Tribunal did set an overly demanding evidentiary requirement as identified by the appellant. In this regard, we are, particularly, persuaded by the weight of the references (as referred to in paragraphs 36 and 37 above) to the lack of specific evidence as to what suppliers of information would actually do in the hypothetical in issue. Given the administrative nature of the decision and the abstract and hypothetical subject matter, it does seem to us that the emphasis the Tribunal gave to such evidence not only overstated its potential significance but was also too stringent in approach.
2. In arriving at this conclusion, we do not agree with the respondent that the absence of "factual" evidence was merely a factor in the weighing of the material. On the contrary, the inference we draw from the Tribunal's reasons is that the absence of such evidence was of considerable significance, if not fatal to the appellant's case, leaving the Tribunal, as it saw it, with little or nothing more than the unsupported, self-serving views of witnesses.
3. In our view, this did not accord with an ordinary weighing of the material before the Tribunal of the kind set out in paragraphs 66 to 87 below which would give prominence to inferences drawn from the objective and otherwise established facts rather than the subjective views of witnesses, including the considered and understandable confidentiality to the process, the rationale for such confidentiality and the natural implication for future supply if such confidentiality was to be undermined.
4. The preparedness of a court or a Tribunal to rely on a natural implication that the flow of future information is likely to be adversely affected without direct evidence from the providers of information is reflected in the decisions in Commonwealth v Northern Land Council (1992) 176 CLR 604 at 615; Attorney - General (NSW) v Stuart (1994) 34 NSWLR 667 at 674-675; Betfair Pty Limited v Racing New South Wales (No 7) [2009] FCA 1140; 181 FCR 66 at [24] - [25]; Woolley v Lismore City Council [2013] NSWADT 10 at [73] - [74].
5. For these reasons, we agree with the appellant that in its approach to the question whether cl 1(d) applied the Tribunal made an error of law.

Reconsideration of the merits - public interest against disclosure, cl 1(d)

1. In view of the significance of the error to the determination whether cl 1(d) applied, and, as a consequence, whether cl 1(f) applied and, potentially, to the merits of the Tribunal's ultimate decision we have decided that we should reconsider the merits of the question whether cll 1(d) and (f) applied.
2. In so deciding, we think it is also convenient and efficient for us to do so in circumstances where in dealing with the appellant's arguments about an error of law we have necessarily given close consideration to the merits of the claims that these public interest considerations against disclosure are applicable, the facts and evidence concerning these issues are not extensive, no credit issues arise in relation to the witnesses and all of the material that was before the Tribunal has been provided to us. We did not understand either party to object to us proceeding in this way in the event that we agreed with the appellant's contention as to an error of law.

(a) The "could reasonably be expected" test

1. There was no dispute between the parties that: 1. The appellant bore the onus of establishing the existence of one or more of the relevant public interest considerations against disclosure in cl 1 of the Table in s 14 of the GIPA Act: see s 105. 2. The words "could reasonably be expected" are to be given their ordinary meaning. 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 disclosure would have the relevant effect: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] - ... when their Honours said, as they did, that the words required 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 certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act." 1. In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22]. 2. It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53]. 3. "Prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. 4. The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: Cammilleri at [21], [22] and [26].

(b) Support for the conclusion as to prejudice to the future supply of information

1. In our opinion, the support for concluding that the public consideration in cl 1(d) existed was real and substantial and it was sufficient to conclude that the effect referred to in the clause could reasonably be expected. Such support went considerably beyond the proffering of the views of witnesses and it was far from irrational, absurd or ridiculous to expect that there could be prejudice to the future supply of information as required by the provision. In our opinion, irrespective of the views of Mr Summers and Ms Levy as to prejudice to future supply of information (as distinct from their uncontroversial evidence as to the nature of the information supplied to review teams, the context in which such information is supplied and the rationale for confidentiality), the objective and otherwise established facts about the nature of the documents and the assurance process set out in paragraphs 14 to 24 above were sufficient to demonstrate the existence of the public interest consideration against disclosure in cl 1(d).
2. The following findings are readily drawn from those objective and otherwise established facts : 1. There was a considered, formal process for identifying the real facts about the status of infrastructure projects, which was approved at a high level within the NSW government. The process included, as a principle of operation, an assurance of confidentiality for information supplied to the review team. 2. Such an assurance of confidentiality was a feature of like infrastructure processes in other jurisdictions. 3. No experience was pointed to where such a feature had been shown to be unnecessary, including because public servants had a duty of honesty which required frankness in the supply of information to the review team. 4. There was no suggestion that such a provision for confidentiality was contrived for purposes other than to facilitate the flow of full and accurate information. 5. That the flow of full and accurate information from a range of sources both within and outside the SLRDO was important to the effective exercise of INSW's function in respect of the early detection of problems and formulation of solutions. 6. The likelihood or real prospect that some of the information needed for the function in (5) would require individuals to communicate information that they would be naturally loathe to communicate unless it was to be kept confidential because the information was commercial-in-confidence information or commercially sensitive, or justifiably treated as having that character, or because it required information to be divulged that would damage ongoing working relationships in the carrying out of the project, or was justifiably regarded as likely to have that effect. 7. There was no suggestion that it was fanciful or absurd to think that some of the information to be communicated to review teams would be of the nature referred to in (6).
3. In our opinion, those facts and matters provide a persuasive case for the existence of the public interest consideration against disclosure in cl 1(d).
4. In addition, we attribute some but not decisive weight to the views of Ms Levy and Mr Summers as to prejudice to future supply of information. We discount the weight to be given to their views in this way because of the necessarily hypothetical nature of their evidence.
5. On the other hand, whilst we take account of the need for an appropriate degree of scepticism to be applied to the views of agencies (as expressed in McCabe), the basis of the views of the witnesses in this case was explained, such basis was rational and they were the views of senior persons with relevant, albeit distinct, experience to the views expressed (although, understandably, no witness was speaking from any particular experience of the impact on the flow of information to the review team where there was no specification of confidentiality). We also note that no credit issues arise in respect of their evidence.
6. It can be seen that the views of Ms Levy and Mr Summers concerning prejudice to the supply of future information were based upon the prospect that members of the project delivery team and other stakeholders will be disclosing under the cloak of confidentiality information that if released would or may have an adverse effect on the ongoing conduct of the project by, for example, damaging relationships and/or information that was commercial-in-confidence or commercially sensitive: Ms Levy at [10] - [11] and the not for publication reasons in [13] and [14], affidavit sworn 28 April 2017; Mr Summers at [29] and [32] and the not for publication illustrations in [30] and [33], affidavit sworn 22 March 2017.
7. Ms Levy's view was also based upon the rationale for confidentiality in the assurance project, and that confidentiality was a feature of the original model for the IIAF and of all other infrastructure assurance processes elsewhere: at [46] and [48], affidavit sworn 22 March 2017 and at [4] - [7], affidavit sworn 28 April 2017.
8. Mr Summers' view was also based upon the fact that information disclosed to the reviewers by the SLRDO included commercially sensitive information in the sense that if known to others involved in the project would provide them with leverage or competitive advantages in dealing with the SLRDO and, hence, impact on the ability of the SLRDO to administer the project in a manner that delivers the best and most efficient outcomes for all stakeholders: Mr Summers at [32], [33] and [36] and the not for publication illustrations in [31], [34] and [37], affidavit sworn 22 March 2017.
9. We do not think that the cross-examination of Ms Levy and Mr Summers detracted from the above weight that we have attributed to their evidence. Concessions made and difficulties they had in answering questions about their views of prejudice arose from the hypothetical nature of their evidence and a premise, with which we do not agree, that their evidence lacked a foundation. There was also a difficulty caused by constraints in providing support from material that was to be kept confidential and not to be disclosed to the applicant without an order for access.
10. In our opinion, the cross-examination did not undermine the basis of their evidence that appears from their affidavits, as explained above.
11. The following extracts for the cross-examination support our conclusion. Ms Levy's cross-examination included the following: (5 May 2017, at pages 103 - 104, 111-115) APPLICANT: So, why is it that you think the release of these four documents would suddenly cause all of those persons who you've agreed are under those legal and ethical obligations to suddenly withhold information that the review processes need? MS LEVY: Because --- APPLICANT: What basis do you say that on? MS LEVY: On the basis of particularly in relation to relationships that they may have with contracted parties and with stakeholders where they have to talk about contract issues, relationship issues with those people and the behaviour, sometimes, of some of the parties involved in a project where they may have to refer to those things and they would be concerned about how it might impact their ongoing ability to manage the project or deliver the project or deal with those stakeholders if they, sort of, said anything in - that - that might jeopardise that, and they'd be considered - they'd be thinking about the best for the project. And, I don't think that's saying that they would tell a lie. There's a lot of information provided for a review. Sometimes we have boxes and boxes of - of information. And, so, it depends - you know, we rely on the project teams to bring forward all of the information that's relevant to that review, and we - we have to go through that information and often it's about talking to - to parties to understand what the key documents are and get an explanation of those…. (At page 111 to 112) APPLICANT: …So, again, not wishing to put words in your mouth, and I'm sure you'll feel free to disagree with me, the concerns you're expressing are potentially possibly - you know, you have an apprehension and you've said you've got a - a basis in the redacted paragraphs for that. But, it seems, from what you've said, the way you've expressed yourself, that it's - it's a - a relatively slight possibility. MS LEVY: No, I don't think it's relatively slight. I mean, the reason I say possibly and use language like that is because we have operated this framework under - under the strictest confidentiality, so we haven't tested what would happen if we removed that confidentiality. So, when I say possible I'm - I am - I - I am predicting what could happen if we removed that confidential nature of - of - of the - the process. But, what I have absolutely seen evidence in this review and other reviews is of some very, you know, potentially contentious and- and - and - information that could be difficult if - if out in the public realm. APPLICANT: Sure. MS LEVY: That could impact on those types of things I talked about. APPLICANT: Sure. But, in the way you've expressed yourself of necessity your opinion that it's speculative. You don't have any benchmark by which to assess the possibility of these --- MS LEVY: No, the benchmark --- APPLICANT: --- downsides? MS LEVY: The benchmark I assess myself is - is that confidentiality is an - is an underpinning element of all gateway review processes and that we have upheld the same benchmark. And, have we tested what would happen if that - the confidentiality wasn't there? No - no, we haven't. APPLICANT: Okay. And, you also haven't been told by any of these people, "Oh, well, if this becomes public we will clam up and we won't cooperate in future". They haven't said anything like that, have they? MS LEVY: No, they haven't. But, the reviewers very specifically talk to the parties involved and explain to them the confidential nature of the review and - and even the non-attribution of specific comments to individuals is explained to participants of the review. And, as for the agencies it is - it is a commitment that we make to them in our - in our framework where there is a piece in there dedicated to confidentiality. So, they come to these reviews not needing that reassurance because they, as government agents, are familiar with the framework within which - they operate… (At page 114 to 115) APPLICANT: Mm. So, again, given the sensitivities you've expressed about what might happen if these four documents were released to me, and to the wider public, your - you don't have any factual basis. Like, people from these different agencies, no-one's said to you, "if this was revealed we just - you know, we wouldn't provide as much information in the future? No-one's --- MS LEVY: No. APPLICANT: No-one's said that to you? MS LEVY: No-one has - no-one has said that to me, but they are all reassured --- APPLICANT: Yeah. MS LEVY: --- at the start of a review that - that the information they give is confidential. … APPLICANT: No-one in that - in any of those categories has approached you and said, "Well, if these documents are re, you know, we'll stop giving you information or there'll be any kind of impairment of our relationships? MS LEVY: No, they've never said that. But, they are also reminded of the confidential nature of the review at the start of …their interviews. APPLICANT: Sure. But, again, your apprehension about what you have expressed as the consequence of revealing the documents are just - they're your - your belief and your judgment, but it's not based on any hard facts of, for example, someone saying to you, "Well, this is what's going to happen?" MS LEVY: That's - that - no-one has said that to me, no. APPLICANT: It's based on your - your reading of the four documents and your understandable apprehension about damage to relationships if certain information was made public? MS LEVY: It is. But, I - I also believe that it is because we are very proactive and - forthright in our confidentiality piece. And, as I said, that's why it features in our document and that's why it's stated at the beginning of the reviews, that's why reports have the - the confidential sensitive New South Wales Cabinet on them, because the intent is always for them to be confidential and we don't even - we don't get to a point where anybody would question that because we're proactive in telling them about the confidentiality within which a review is conducted at the start. So, I believe we subvert the need for them to make any comments of that nature.
12. Mr Summers was an actual supplier of information to the review team. In his affidavit he said that if he was not confident that what he told the review team would be kept confidential this would impact upon the level of detail he could provide to them.
13. His cross-examination included the following: (2 June 2017, at pages 12 - 15) Q. And, again, I'm not trying to put words in your mouth, but it seems to me that your evidence there is, well, if what I tell the review team is going to be made public, there's at least a possibility that you wouldn't speak openly and frankly, and do your job in a thorough and diligent manner. That's what you seem to be saying there, sir, that you would actually hold information back that you know the review needs. A. No, I would object to that point, that you saying I - I would knowingly withhold information. That's not the case. Q. Okay. So, I'm just trying to be very clear about what you are saying in para. 32, because you say here, "At the least I would need to consider the extent of the risk of disclosure of what I was reporting to the reviewers." And, I think, in the previous sentence you say, "If I was not confident that whatever I told the reviewing team would be kept confidential, and would not be released to the public, that would impact on the level of detail that I could provide the reviewing team." That does sound to me like faced with the potential that what you say may be disclosed later you would at least consider withholding information from the review team. A. No, that's not what I said. Q. Well, what are you saying, sir? A. I'm saying I have an obligation also to the stakeholders whom I have a confidentiality undertaking to. I'm obliged to follow that as well, so --- Q. Sure. A. --- I balance a number of factors. Q. Yes. But, your overriding obligation is, as a public official, is to do your job openly, honestly, thoroughly and diligently to the best of your ability, isn't it? A. Absolutely. Q. And, if, as you say in para. 29, the review process for the project requires openness and candour to the review team, it has to be your evidence, doesn't it, sir, that you would always be open and candid with the review team in all circumstances? Q. I have an obligation to multiple parties, including the 13 stakeholders who I have confidentiality undertakings with. So, I have to consider that in light of what information I - I share with them… Q. So, it has to be your evidence that notwithstanding your consideration of obligations to other persons, that at the end of the day you would always be fully open and frank with the review team, irrespective of whether these documents are to be released or not. A. You keep forgetting that I still have an obligation to the - the 13 stakeholders and the contractor who have signed confidentiality undertakings with me. Q. Sir, I'm not asking you to go around town revealing this information. We're talking about the way in which you say, in para. 32, that you might conduct yourself in future. You see, you come here today trying to suggest in your evidence - or, in fact, suggesting in your evidence that if these four documents are released, and documents of their nature may potentially be realised in the future, you would have to review the way you do your business. You'd have to review the way in which you interact with the review team because you have obligations to other parties, correct? A. Correct… Q. Well, I'm not asking you - I'm not suggesting that you would ever breach a confidence. I know you keep saying you've got confidentiality obligations to other parties. But, I'm just trying to establish that you would always be open and frank with the review team in the future, even if there is a possibility that gateway or review documents were to be subsequently released? A. I would have to consider very carefully the confidentiality obligations that I have… Q. Sir, I don't believe I am confusing you. You're a senior and serious professional. At para. 32 you appear to be saying that if these documents are released in the future there is the possibility that you would have to withhold from the review team information that you know to be necessary in that process. Now, is that what you are saying? A. No. Q. So, the concomitant of that must be that in your interactions with review teams in the future you would always be fully candid and tell them what you think they need to know for the review process. A. Again, subject to my obligations for multiple parties. Q. Well, what does that mean, sir? Would you - would you tell the review team everything you believe it needs to know, or not? A. Absolutely. Q. So, you wouldn't withhold information from the review team? A. I would - I would tell the review team what as you - as you put it, what they need to know. …. (At page 39 ) Q. Sure. But, try and explain it otherwise. Look, okay, well, I'll ask you to think about this, government bodies often don't want documents to be released because they think the release will have a certain effect. So, one of the jobs we're trying to do today is trying to work out whether that's just a fear, or whether that - there is actually a proper, factual foundation for that view. Have any of the stakeholders said to you that release of this information would have a real and substantial negative impact on the project? A. No. I - I - I have had a specific member of City of Sydney, or Sydney Water, approach me in relation to these documents. Q. Okay. And, you haven't had any discussions either with the OpCo Group, or --- A. That's the contractor. Q. Yeah, or ACCIONA? None of these bodies have expressed any concerns to you about the release of these documents, have they? A. Not specifically, no. Q. So, again - and, feel free to --- A. But - but --- Q. --- have a look at your para. 9, and your para. 12 and 13, you've mentioned the City of Sydney. Have any stakeholders in this project expressed to you directly any concern about the release of these documents? A. No, they haven't. But --- ….. (At pages 40- 41) Q. Have any stakeholders expressed to you any concerns they have about the release of these four documents? A. The issue arises when the - when and if the documents are released. So, until such time that that were to happen, should it happen, I would not expect a commentary from them, other than the fact that they would rely upon the confidentiality undertakings that I have with them, and they have within themselves. Q. Okay. So, what we're left with at the moment, in terms of your evidence, is all you're expressing here is your personal view about what impact the release of four documents might have on the project. A. No, you - you walked me down the path of hypotheticals about 20 minutes ago. Q. Well, no, sir, with respect, we're talking about the release of these four documents, and I have been asking you quite directly about the potential impact of the release of these specific four documents. So, to assist you, I will rephrase this. You have given evidence that none of the stakeholders involved in this project have expressed to you any concerns about the release of these four documents. That's correct, isn't it? A. Specifically against these four documents, no. Q. And, it's also the case that the concerns you have been expressing in your Affidavit, and here today in your oral evidence, about the impact release of the documents might have, or could have, are your personal views? A. I think I'm in a pretty good position to have an opinion. Q. Sure. I understand that, and I'm not - not disputing that. But, it's your opinion, correct? A. It's my opinion that if any of these documents were to be released there - there is an enormous risk of a break down in communications, engagement of the project.
14. In our opinion, the submission put to the witnesses, and found to be significant by the Tribunal, that no prejudice would or could occur because of the duties of honesty of public servants does not overcome the matters referred to above supporting the conclusion that the cl 1(d) consideration had been established
15. This is because we do not think this argument addresses the complexities involved.
16. The forces constraining disclosure to the review team could well be quite powerful. As Mr Summers' cross-examination revealed, one constraint was confidentiality undertakings. It is not difficult to see how a senior public servant might regard such undertakings as taking priority over disclosure to the review team in the application of a general duty to behave honestly, in the absence of a confidentiality assurance covering the information to be supplied to the review team.
17. Furthermore, the motive to maintain good relations in the interests of delivering the project can readily be seen as likely to be influential. It is not difficult to see how a senior public servant might perceive that he or she could comply with a duty of honesty in the supply of information to the review team without expressing all that could be said on a particular subject, including the degree of any criticism. Such an inhibited approach appears to be reflected in Mr Summers' answer (see above) that he would tell "what they need to know".
18. The same applies to stakeholders and private contractors who may also think they have a responsibility to be honest in the supply of information to review teams even though they were not governed by the same duties as public servants. So far as these private contractors are concerned, we do not give any weight to the idea that they might welcome the opportunity to have any concerns about the project aired publicly: see the reasons at [95]. We think this is too speculative for us to do so.
19. That the reality is that there is a degree of discretion and choice in such a situation is supported by the fact that the assurance model contains the protection of confidentiality in circumstances where those wanting and approving such a feature must have been aware of a duty of honesty favouring disclosure.
20. Such reality is also supported by other settings where duties of honesty do not displace the need to maintain confidentiality. One example is the public interest immunity area where the making of a successful claim means that the information comprising the subject matter of the claim is unavailable in the relevant proceedings even though that means that not all relevant or potentially relevant evidence is available to the Tribunal of fact. Another is the making of confidential complaints in an employment context: see Ansoul v City of Sydney [2017] NSWCATAD 65 at [39] and [45].
21. The Tribunal accepted that such an argument based upon duties of honesty would not prevail where it was reasonable to expect that senior public servants would consider that they had a conflict of duties: at [78]. In our opinion, it is reasonable to so expect. Mr Summers' evidence about confidentiality undertakings supports this, as does Ms Levy's evidence that the public servants would "be thinking about the best for the project".
22. For the above reasons, we are satisfied that the appellant has discharged its onus to establish the existence of the public interest consideration against disclosure in cl 1(d).

Reconsideration of the merits - public interest consideration against disclosure - cl 1(f)

1. In our opinion, because the cl 1(d) consideration has been established in respect of the supply of information to review teams it must follow in this case that the public interest consideration in cl 1(f) has also been established. 'This is because it is plain that the supply of the information to review teams is important to the effective exercise of INSW's infrastructure assurance function.
2. In view of this conclusion we do not think it is necessary to deal with the contention on the appeal in relation to the merits of cl 1(f) that review teams would be reticent to include information in their reports regarding stakeholder relations and commercial-in-confidence matters. However, we do think that the force of this contention is weakened by our conclusion that disclosure could reasonably be expected to prejudice the supply of confidential information to review teams. It logically follows from this conclusion that in the hypothetical circumstances under consideration the review teams would be less likely to be apprised of commercially sensitive information in the first place.

Reconsideration of the merits - s 13 public interest test - balance of interests for and against disclosure

1. In view of our decision that the public interest considerations against disclosure in cll 1(d) and (f) do apply, it is clear that a new balancing exercise as to the public interest considerations for and against disclosure needs to be carried out.
2. Both parties took the position that should we reach this point we should carry out this exercise rather than remit the issue to the Tribunal at first instance for re-determination. We have decided that it is convenient and efficient for us to do so for similar reasons to those above concerning the re-determination of the merits of the questions whether cll 1(d) and (f) apply.
3. We recognise that the question here is whether there is an overriding public interest against disclosure because there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interests in favour of disclosure: ss 9(1) and 13 of the GIPA Act.
4. Both parties indicated that in large part they relied upon their written submissions to the Tribunal at first instance in relation to the balancing exercise.
5. In summary, the appellant's written submissions were that: 1. The GIPA Act proceeds on the basis that sometimes, releasing information, far from supporting the efficiency of the systems of responsible and representative government, risked undermining them. 2. The information relates to a high profile, highly complex project in which there are multiple stakeholders, relationships with all of whom have to be managed by the SLRDO; and the information was gathered to feed into a process designed to facilitate Cabinet oversight of State infrastructure projects. The effective discharge of the functions of both INSW and SLRDO in managing the construction and delivery of the SLRP outweighs the public interest considerations in favour of disclosure. 3. Consistently with its scale, as the respondent's submissions had made clear, the SLRP has been the subject of scrutiny both as a matter of appropriate government oversight and general political and media attention. 4. The IIAF recognises that ensuring that the government, as the investor, can be confident in the progress of large scale projects like the SLRP will, in turn, foster public confidence in the delivery of such projects. 5. The Appeal Panel will take into account not only the public interest considerations in cll 1(d) and (f) with respect to the functions of INSW, but also those public interest considerations against disclosure identified by the Tribunal as prejudicing the functions of the appellant.
6. In oral submissions on appeal, two matters were emphasised by the appellant. First, the task of keeping very expensive projects on track (not just the SLRP) is a very important one and if the chilling effect of disclosure on the flow of information is accepted then one has to accept that damage to the integrity of the assurance process can reasonably be expected and that it can reasonably be expected that the process will not be as effective. Secondly, the appellant does not say that this automatically trumps the considerations in favour of disclosure but it is submitted it does where there are other ways in which the public can be informed.
7. We understand this latter submission as to other ways in which the public can be informed to be the same point as made in paragraph 96(3) above which, in turn, included, but was not limited to, a reference to a report by the Auditor General dated 30 November 2016 (the content of which we have not seen).
8. We take it as implicit in the appellant's submissions that, where these interests are in competition, a very high value is to be placed upon achieving the delivery of the SLRP and other large infrastructure projects as close to time and cost requirements as possible such that this is more important than the public interest in knowing more about the status of these projects, including their problems and the cause of problems, whilst the project is under construction.
9. The respondent's written submissions reiterated the points made in favour of disclosure as outlined by the Tribunal, to which we have already referred. The emphasis was placed upon transparency and maintaining and advancing a system of responsible and representative government that is open, accountable, fair and effective.
10. In oral submissions the respondent emphasised the high importance of the matters of transparency and accountability and submitted these override the cll 1(d) and (f) considerations (assuming these were applicable), particularly where the degree of prejudice to the functions of INSW was not clear.
11. Neither party's submissions contained any detailed argument as to why the balance of public considerations was or was not against disclosure by reference to the competing considerations and the weight to be attributed to such considerations.
12. In resolving this issue: 1. We note that whilst a very broad value judgment is required to be made it is not one to be made in a vacuum. It is a judgment to be made having regard to the objects of the legislation, the general presumption in favour of disclosure of government information and the principles set out in s 15 of the GIPA Act. 2. We have borne in mind that the objects of the GIPA Act are to maintain and advance a system of representative government which is not only open, accountable and fair but also effective and that to achieve these objectives the GIPA Act does not set out a scheme for access to government information at any cost - access is to be restricted where there is an overriding public interest against disclosure and this includes considerations that are concerned with effective government: s 3(1)(c) and cl 1 of the Table in s 14 which is concerned with the topic of "Responsible and effective government". 3. We note that the respondent did not seek to establish that INSW's role in the risk management of infrastructure projects in New South Wales under the IIAF was of low or no utility. 4. We have had regard to the contents of the Documents as part of our consideration of their importance to the public interest in disclosure. In this regard, we also note that no point is made by the appellant that the fact that the documents are drafts and not final documents is a factor in support of the balance being against disclosure. Nor is any point made by the appellant to the effect that the importance of the information has been diminished because it has been superseded. 5. We recognise the disadvantage to the respondent in his ability to address in any specific way the importance of the documents to the public interest in disclosure. Nevertheless, we are having to consider the importance of the information in a very general way by reference to a well known and largely self-evident public interest in the progress of the SLRP, the delay in its delivery and it's cost and allegations made by the appellant about these matters that are referred to in the Tribunal's reasons at [127]. 6. In essence, we adopt the approach of the Tribunal below which was to set out the competing public interest considerations for and against disclosure, attributing weight to each consideration and to determine the balance in the light of such weighting: see also Williams v Department of Industry and Investment (NSW) [2012] NSWADT 192 at [22].
13. On appeal, neither party took issue with the Tribunal's identification of the public interest considerations in favour of disclosure as outlined above, namely: 1. The general public interest in favour of disclosure of government information; 2. That access to the information contained in the Documents is of public importance and public interest; 3. That disclosure could reasonably be expected to enhance the maintenance and advancement of a system of responsible and representative government that is open, accountable, fair and effective: at [123].
14. We accept these as being the public interest considerations in favour of disclosure.
15. As to the weighting of these public interest considerations in favour of disclosure, we acknowledge the force of the Tribunal's weighting that there is a very strong public interest in the disclosure of the information contained in the Documents.
16. Nevertheless, we think the weight is lessened to some degree by the following: 1. It is apparent that there are other means by which the SLRP project is being and could be subjected to public scrutiny. 2. The level of generality involved in the assessment of the importance of disclosure of the information, to which we have already referred. 3. It is not apparent that disclosure of the information would or could reasonably be expected to reveal improper or unlawful conduct by any public servant or Member of Parliament, nor has there been any suggestion that this is a relevant consideration. 4. There is no suggestion that non-disclosure will or could reasonably be expected to prejudice the administration of justice.
17. As to the public interest considerations against disclosure, we have found that there are public interest considerations against disclosure relating to the functions of INSW, namely that disclosure could reasonably be expected to: 1. Prejudice the supply to INSW through the reports of the review teams of confidential information that facilitates the effective exercise of INSW's functions; 2. Prejudice the effective exercise by INSW of its functions because of the prejudice referred to in (1).
18. As to the weighting of these considerations against disclosure, these should be given very considerable weight because: 1. Disclosure poses a real threat to the integrity of the reports by the review teams and, hence, to the utility of INSW's risk management function. 2. The effective exercise of the risk management function of INSW is of considerable importance because it is directed at achieving benefits to the public that are self-evidently of high importance, namely that taxpayers' funds are carefully and responsibly used and waste is avoided or minimised. 3. This function is not confined to the delivery of the SLRP but also applies to other infrastructure projects in NSW that are subject to the IIAF.
19. Furthermore, on appeal, neither party took issue with the Tribunal's identification of the public interest considerations against disclosure as they related to the functions of the appellant as outlined above (as distinct from the functions of INSW), namely that disclosure of the following information could reasonably be expected to prejudice the effective exercise by the SLRDO, being part of the appellant, of its functions: 1. Information concerning problems the SLRDO is having with stakeholders; 2. Commercial-in-confidence information; 3. Information containing criticisms of particular stakeholders.
20. We accept these as being additional public interest considerations against disclosure. As to the weighting of these additional public interest considerations against disclosure concerning the functions of the appellant, no submissions have been made to us by the appellant against the limited weighting that the Tribunal gave to these considerations, which weighting was in part based upon not for publication reasons and evidence. Accordingly, although with some reservation, we think we should adopt those weightings in respect of these public interest considerations. Our reservation arises because of some reticence to diminish the weight to be given to a consideration against disclosure based upon the risk of damage to the SLRDO's relationship with stakeholders. However, as will be seen below, this weighting is not decisive to the outcome.
21. In view of the importance that we have attributed to the considerations against disclosure and the discount we have applied to the considerations in favour of disclosure, in our opinion, the considerations against disclosure which are concerned with the effective exercise of INSW's functions (as distinct from the appellant's functions) are sufficient to outweigh the public interest considerations in favour of disclosure.
22. We think that the disclosure of the information carries with it a sufficient risk of too great a cost to the public than the public interest in disclosure would justify.
23. It will be seen that so far in the above balancing exercise we have not brought into account the two public interest considerations against disclosure concerning the functions of the appellant that the Tribunal found did exist and to which it attributed some, but not significant weight.
24. Despite the limited weight to be attached to these considerations concerning the functions of the appellant, when account is taken of them they do increase the combined weight of the public interest considerations against disclosure and strengthen the conclusion we have arrived at as to the balance of the public interest considerations.

Alternative case - Leave to appeal

1. In the event that we are wrong in concluding that the Tribunal made an error of law, we now deal with the appellant's alternative argument that the Tribunal was wrong in fact in concluding that cll 1(d) and (f) did not apply and, as a consequence, was wrong in concluding that there was not an overriding public interest against disclosure of the information. The appellant requires leave to appeal on these grounds. .
2. In opposition to the grant of leave the respondent submitted that: 1. If the appellant cannot satisfy the Appeal Panel of relevant legal error then there should be no appellate review of the merits. 2. None of the factors identified in Collins v Urban have been identified in the present matter. 3. The case did not raise any question of principle or as to the appropriate approach by the Tribunal in assessing the "could reasonably be expected" test. 4. Nor does the present matter raise any questions as to the extent of evidence required by a respondent agency and ramifications as the cost and efficiency of the Tribunal process do not arise. This is because the Tribunal did not create some new evidentiary threshold or do other than engage in the process of evaluating the evidence before it and applying settled law to the evidence. 5. Permitting the appellant to agitate these issues again would be contrary to the guiding principle in s 36 of the NCAT Act
3. In oral submissions the respondent also submitted that leave should not be granted unless it was shown that the decision was clearly wrong and that a substantial miscarriage of justice had occurred. As to this, we accept that satisfaction of those matters would justify a grant of leave to appeal but as appears from the above passage from Collins v Urban these are not the only circumstances in which leave to appeal will be granted.
4. For the reasons set out below, we do not agree with the respondent's submissions against the grant of leave to appeal and we think leave to appeal should be granted. In so concluding, we have applied the approach to the grant of leave set out in the above passage from Collins v Urban.
5. Firstly, if not an error of law, in our view, the Tribunal erred in the manner in which it approached the fact finding as to the considerations in cll 1(d) and (f). It did so by its emphasis on the absence of "factual" evidence and the absence of analysis of the established facts and their implications, to which we have already referred. This approach was apt to lead to error and undermines the correctness of the conclusions that cl 1(d) and (f) did not apply and, as a consequence, the correctness of the decision that access to the information should be provided.
6. In these circumstances, we do not regard the constraints on upsetting findings of fact on appeal as outlined by the High court in Robinson Helicopter Company Incorporated v Mc Dermott [2016] HCA 22 at [43], relied upon by the respondent, as applicable.
7. We should also say that, contrary to the respondent's submission, we do not regard the conclusions that the considerations in cll 1(d) and (f) have not been established as a discretionary conclusion in respect of which the rules for intervention on appeal set out in House v King (1936) 55 CLR 499 at 505 are applicable.
8. Secondly, we agree with the appellant that the challenge to the Tribunal's approach to the sufficiency of the material presented to establish that cl 1(d) applied raises a question of principle and raises a question of public importance and matters of administration which are of general application because of the potential impact of the decision on the scale of the evidence that needs to be assembled in the administration of the scheme under the GIPA Act.
9. As to the potential impact of the decision on future matters, we accept the submissions of the appellant that the manner in which the Tribunal goes about determining the "could reasonably be expected issue" is of considerable importance to the scheme and also as to how agencies determine that matter. In this respect, this phrase is used in relation to a large number of the considerations set out in the Table to s 14.
10. We do think that the practical effect of the Tribunal's reasons about the deficiency of proof may be to increase the extent of the evidence to be marshalled in the administration of the scheme under the Act where Table 14 considerations arise both at the decision-making and review stage. It can readily be seen that this has cost and resource implications for agencies and the Tribunal.
11. Thirdly, in our opinion, the question raised by the appeal as to whether there was an overriding public interest against disclosure in circumstances where it was established that cll 1(d) and (f) do apply raises a question of public importance, as can be seen from our analysis of the balancing exercise when dealing with that issue on our reconsideration of the merits in the context of an error of law.

Alternative case - leave to appeal granted - review of the merits

1. For the reasons given above in respect of our reconsideration of the merits concerning the applicability of cll 1(d) and (f), we conclude that those public considerations against disclosure do exist and that the Tribunal erred in not coming to these conclusions.
2. For the reasons given above in respect of our reconsideration of the merits of the balancing exercise required under s 13 of the GIPA Act, we conclude that there is an overriding public interest consideration against disclosure of the information sought and that the Tribunal erred in not coming to this conclusion.

Orders on appeal

1. For the above reasons, we make the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. Order 1 of the orders made by the Tribunal on 14 September 2017 (as modified by the order made by the Tribunal on 21 September 2017) is set aside. 4. The decision made on behalf of the appellant to refuse access to the documents sought by the respondent is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2018