Turner v Department of Planning and Environment

NCAT Administrative and Equal Opportunity|2019-08-19

REASONS FOR DECISION

In mid-2017 Peter Turner made an application under the Government Information (Public Access) Act 2009 (the GIPA Act) for access to certain reports concerning the impacts arising from operations at the Dendrobium coal mine in the Illawarra. The respondent, the Department of Planning and Environment, identified information it considered was within the scope of the request and provided Dr Turner with several documents. There then followed a process in which the respondent made a supplementary decision identifying and refusing access to further documents, external reviews by the Information and Privacy Commissioner and further decisions by the respondent in light of recommendations made by the Information and Privacy Commissioner.
The final decision that was made by the respondent was made on 13 September 2018 and in that decision the respondent refused access to four documents which remained in dispute between the parties. Dr Turner sought review of that decision by the Tribunal. During the course of the proceedings the respondent released three of the four documents to Dr Turner, leaving one document to which access has been refused.
With the consent of the parties and after considering the submissions and material lodged with the Tribunal, the Tribunal made an order under s 50(2) of the Civil and Administrative Tribunal Act 2013 dispensing with a hearing. The remaining issues in dispute will therefore be determined on the papers.
Both parties made submissions on the issues and the respondent provided a statement by Clay Preshaw, Director, Resource and Energy Assessments, Department of Planning and Environment dated 11 February 2019. A confidential copy of the document in dispute has also been provided to the Tribunal. This is the material upon which my decision is based.

The document in dispute

The document now the subject of this application is a draft report dated 14 October 2016 prepared for the respondent by Pells Sullivan Meynink (PSM) and known as "the PSM height of cracking report dated 14 October 2016". Before turning to the precise nature of the document in issue, it is important to set out the background relating to the document. The following information is taken from a submission in these proceedings made by Dr Turner and the statement by Mr Preshaw.
The Dendrobium coal mine in the Illawarra west of Wollongong has been the subject of public and media interest and concern about its potential impact on the catchment area for Sydney's drinking water supply. In July 2015 the then Minister for Planning announced there would be an inspection of mining impacts in the most recent area of mining at Dendrobium (Area 3B) and that the findings of the inspection would be made public. The inspection report was prepared by the Department in consultation with other government agencies and was published in December 2015.
One of the recommendations of the inspection report was that the respondent engage an independent expert to review the models that were used to estimate the height of cracking above underground mining at Dendrobium and other mines in the Southern Coalfield. PSM was engaged in April 2016 to undertake this review.
The review was expected to be completed in about September 2016 but the timeframe was extended. PSM submitted a draft report in October 2016 and in November 2016 PSM met with the respondent and Professor Jim Galvin and Dr Colin Mackie, who had been engaged to peer review the report, to discuss the status of the report and the findings. PSM provided a further draft report dated 11 November 2016. That draft report was forwarded to the peer reviewers and they provided their reports in February 2017. PSM provided their final report titled "Height of cracking - Dendrobium Area 3B" in March 2017.
The final report by PSM is publicly available. The PSM draft of 11 November 2016 and the draft peer review reports by Professor Galvin and Dr Mackie have been provided to Dr Turner. The respondent has refused access to the October 2016 draft report and that is the document in dispute.

The legislative scheme

The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
It was not disputed that the information the subject of this application is government information that is held by an agency (s 4(1) of the GIPA Act).
There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure" (s 5 of the GIPA Act). There are two situations in which there will be an overriding public interest against disclosure. The first concerns government information described in Schedule 1 to the GIPA Act and is not relevant to these proceedings.
In the second situation, there will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and the section sets out a non-exhaustive list of some examples of such considerations. The public interest considerations against disclosure are set out in a table in s 14 of the GIPA Act.
In the second situation, the decision-maker's task is to first determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure.
In this application, the respondent refers to public interest considerations set out in the table in s 14 and submits that those considerations outweigh the considerations in favour of disclosure.

Public interest considerations in favour of disclosure

Other than the general presumption in favour of disclosure of government information set out in s 12 of the GIPA Act, the respondent in its submissions has not identified any additional public interest considerations in favour of disclosure. The decision of 13 September 2018 identified the following as considerations in favour of disclosure:

disclosure of the information could reasonably be expected to inform the public about the state of important resources; and
disclosure of the information could reasonably be expected to inform the public about the operations of agencies, specifically the regulation of important resources.

Dr Turner seems to agree with this characterisation of the public interest considerations in favour of disclosure and stresses that, in his view, it is likely that the PSM height of cracking report dated 14 October 2016 contains information and/or concerns about the potential impact of mining activity on the environment, economy and infrastructure of the state which is of considerable public interest.
I agree with the parties' characterisation of the public interest considerations in favour of disclosure.

Public interest considerations against disclosure

The respondent submits that there are three public interest considerations against disclosure of the PSM height of cracking report dated 14 October 2016. These are found in cl 1 of the table in s 14 and provide that there will be a public interest consideration against disclosure if disclosure could reasonably be expected to have the following effects:

reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (s 14 table 1(e));
prejudice the effective exercise by an agency of the agency's functions (s 14, table 1(f)); and
prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of the agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (s 14 table, cl 1(h)).

The respondent bears the onus of establishing the existence of one or more of the relevant public interest considerations against disclosure (s 105 of the GIPA Act).
Each of the considerations against disclosure set out in the table in s 14 of the GIPA Act have the requirement that disclosure of the information could reasonably be expected to have the nominated effect.
The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC."
The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]).
The public interest considerations in cll 1(e), (f) and (h) require that there be some relevant "prejudice" to the agency. The term "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]). The Appellant needs to show, however, more than a mere possibility, risk or chance of prejudice and it needs to be based on real and substantial grounds (Australian Vaccination Network v Department of Finance and Services [2013] NSWADT 60 at [22].

Evidence and submissions

Mr Preshaw states that in late 2017, based on the findings and recommendations of the various reports on the issue, the respondent established the Independent Expert Panel for Mining in the Catchment (the IEP). The IEP has three key tasks: 1. undertake an initial review and report on mining activities at the Metropolitan and Dendrobium coal mines, including a review of the PSM height of cracking report; 2. undertake a review and report on all current coal mining in the Greater Sydney Water Catchment Special Areas with a particular focus on risks to the quantity of water available; and 3. provide ongoing advice to the respondent on mining activities in the Greater Sydney Water Catchment Special Areas.
Mr Preshaw states that the IEP's initial report is complete and it's report under item (b) is expected shortly. He states that the IEP's final report will be crucial to the respondent in its assessment of underground coal mining applications in the future. He also notes that there is further work to be done in relation to the height of cracking and other issues relating to mining activities at the Dendrobium coal mine and this will inform future decision making by the respondent, the Independent Planning Commission and the IEP. He states that decisions will be made over the next year on further mining in the area and the various reports concerning height of cracking and the IEP final report will be fundamentally relevant to the respondent's decision making and, in particular, the assessment of two proposed projects. The Independent Planning Commission will be the consent authority responsible for determining the new projects.
In relation to the PSM height of cracking report dated 14 October 2016, Mr Preshaw states that, in light of delays, the report was sought by the respondent to confirm that work was progressing. This draft report has never been provided to the Independent Planning Commission or the IEP and was only read by a few people in the respondent Department. He states that the first draft is a very early version of the final report and contains various lines of inquiry which were included to test their merit as part of the expert's process. It was accepted that some lines of inquiry would not lead to conclusive findings and, indeed, some were not substantiated by scientific evidence. Mr Preshaw states that this is a common method of addressing these types of tasks where there are complex scientific and engineering issues. The inquiries were intended to inform thinking about the project but were never intended for publication.

Effect of release on current and future deliberations or reviews

Mr Preshaw states that, given the sensitivity concerning mining in the area, it is highly likely there would be considerable media attention given to the draft report if it was released. He states that the release of the draft report may have the effect of raising as issues in the IEP review the lines of inquiry or preliminary findings that were later modified or discarded in the PSM review. He further states that, if these issues were required to be addressed, this would involve the respondent in considerable cost and effort, including arranging meetings and seeking advice from PSM or the peer reviewers. He estimates this would take several months and cost $50,000.
Mr Preshaw states that there is also potential for these issues to delay completion of the IEP's work which would have a significant impact on the respondent's functions as the IEP report is critical to informing the respondent's and the Independent Planning Commission's decision making in relation to the Dendrobium and other mines in the Southern Coalfield.
The respondent submits that the IEP's review is both a "deliberative process" and a review for the purposes of cll 1(e) and (h) of the Table in s 14 and states that release of the PSM height of cracking report dated 14 October 2016 could reasonably be expected to cause undue delay and prejudice to the IEP review currently underway. The commissioning of further work would have a significant impact on the conduct of the review and would involve the respondent in additional cost.
The respondent also states that it is concerned that disclosure will cause prejudice to any future reviews conducted on its behalf, if the scope of the reviewer's task is required to encompass documents that were never intended to be put before it and which were never intended to reflect concluded views.
Dr Turner submits that the respondent has provided no tangible evidence that the effects outlined by Mr Preshaw could reasonably be expected to occur and states they are simply the opinions, without more, of Mr Preshaw. Dr Turner points to the release of other draft reports and states that the IEP would be in a better position than the respondent to determine what information is relevant to their task.

Engagement of experts

Mr Preshaw states that the respondent relies on being able to engage independent external experts to supplement internal expertise. He states there is a very small pool of experts that have the relevant expertise and are willing to provide independent advice related to matters such as the height of cracking or related issues. He notes that it is not uncommon that expert reports on issues concerning coal mining in the catchment area can be contested and somewhat controversial.
Mr Preshaw states that PSM was one of only five experts identified as being able to undertake the investigation. PSM in fact was the only expert available and free of conflicts of interest.
Mr Preshaw states that all independent experts engaged by the respondent are aware their final report will be made public. He states, however, that draft reports are not typically published and it is reasonable to assume that experts would expect that early drafts prepared throughout a long scientific process would not be made public. In Mr Preshaw's view, it is likely that, if the October draft is released, questions will arise about earlier lines of inquiry and preliminary findings and the reasons for any differences between the draft and final reports. Given the likelihood of media attention, this may lead to negative publicity about PSM's work or cause undue reputational damage to PSM or the peer reviewers. If that occurred, it is likely that other experts in the very small pool would become concerned about similar reputational damage.
Mr Preshaw states that, given the complex scientific and engineering issues involving mining at Dendrobium and other mines in the catchment, the respondent relies on a small pool of experts to provide advice. If PSM and other experts choose not to work for the respondent due to negative publicity or media attention, the respondent would experience significant difficulty in performing some of its key functions. In addition, Mr Preshaw states that draft reports are a useful way for the respondent to obtain preliminary views about an issue and to clarify the scope of an expert's work. If, as a result of negative publicity, experts are more cautious in providing draft versions of their reports and less forthcoming about their preliminary views and identifying different lines of inquiry they are investigating, there would be a detrimental effect upon the respondent's ability to rely on expert assistance in the performance of its functions, particularly in the early stages of an inquiry or project.
The respondent submits that release of the PSM height of cracking report dated 14 October 2016 could reasonably be expected to cause prejudice to its ability to secure expert assistance in a number of its decision-making functions which are highly technical in nature. It states this is not a speculative concern as the respondent already has difficulty in securing appropriately qualified experts. Dr Turner states that the respondent has not identified which of its functions could be prejudiced and again, simply provides an opinion of Mr Preshaw rather than any real or substantial grounds to demonstrate that prejudice.
Dr Turner submits that it is highly unlikely that an experienced professional consultant will have accepted a publicly funded engagement without being aware of the possibility that concerned citizens may seek information provided at all stages of the process. He also states that seasoned professional experts carrying out their work "without fear or favour" have no reason to fear public scrutiny of their work. Dr Turner points to the fact that PSM, when consulted, did not oppose the release of the document and that this would indicate that PSM is not concerned about any adverse impact on its reputation or negative publicity. The respondent states the fact that PSM has not objected to the release of the report does not assuage its broader concerns regarding its ability to obtain expert assistance.
Dr Turner submits there would be little, if any, media interest in any technical flaws which might be contained in the draft report. On the other hand, he states that the report, having been prepared by an experienced expert will contain material of substance and be of considerable interest. Dr Turner queries whether the respondent's characterisation of the PSM height of cracking report dated 14 October 2016 as embryonic or preliminary should not be accepted as it was provided in the sixth month of a seven-month project. It was also provided shortly before a further draft was provided to the respondent (which has been released). Dr Turner notes that there are few differences between that draft and the final report. He believes the PSM height of cracking report dated 14 October 2016 is in fact a well-advanced near end of project draft.

Consideration

Dr Turner has queried the nature of the October draft and casts doubt on its characterization by the respondent as being preliminary in nature. He points to the fact that a second draft was produced in November and states that the November draft is little different to final report. While that may be so, I have no reason to doubt the evidence provided by Mr Preshaw that the PSM height of cracking report dated 14 October 2016 was indeed preliminary in nature and was primarily procured for the purpose of ascertaining progress with PSM's work. I also accept his statement that the draft has never been circulated, was not relied upon and has only been seen by a few people in the Department.
The respondent submits that release of PSM height of cracking report dated 14 October 2016 would have a prejudicial effect upon the conduct of the current IEP review as it would likely necessitate further inquiries. This would involve further time and expense. Mr Preshaw estimates that to be a matter of months and $50,000.
I accept that, if the draft is released, it's disclosure may lead to questions about its content and any differences between that content and the final report. It is likely that there may be some media interest depending on the content of the draft. The evidence does not satisfy me, however, that release of the draft would have the effect of extending and delaying the IEP review as suggested by Mr Preshaw.
No evidence has been provided concerning the methodology being employed by the IEP review or why it would be compelled to extend that inquiry to include any matter contained in the October draft which was not included in the final PSM report. The final PSM report is clearly before the IEP review and it is by no means apparent why the IEP would be required to delay its own inquiry to deal with matters which were not included in the final report after a process of expert assessment and deliberation. In my view, the assertion that the IEP review would be compelled to undertake further inquiries if the October draft is released is purely speculative and not informed by any careful assessment of the process and progress of the IEP review itself.
I am therefore not satisfied that release of the PSM height of cracking report dated 14 October 2016 would reveal a deliberation, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of the respondent within the meaning of cl 1(e).
The respondent has also submitted that disclosure would cause prejudice to any future reviews if the reviewer was required to take into account documents that were never intended to be put before it and which were never intended to reflect concluded views. As I understand it, the respondent is referring to cl 1(h) and notes that it applies to a review whether or not commenced and whether or not completed. No evidence or detail has been provided to support that contention and I am therefore not satisfied that release of the PSM height of cracking report dated 14 October 2016 would have the effect set out in cl 1(h).
The respondent also submits that disclosure of the October draft report and any resulting publicity will mean that experts will be less likely to provide draft reports to the respondent and be less forthcoming in providing their preliminary views and lines of inquiry. This would be detrimental to the respondent in the conduct of future reviews as draft reports are a useful means by which an agency can inform itself about an issue and clarify the scope of the expert's work.
While I accept that draft reports can be a useful way of being informed about and understanding the work being undertaken by an expert, there is no evidence before me about the usual process by which expert reviews commissioned by the respondent are undertaken and whether, as a matter of usual practice, draft reports are the primary means by which progress is ascertained. No doubt the respondent is keen to receive information about the progress of any expert investigation or review as it develops and that it is can be provided with that information by the experts it engages.
It is reasonable to assume, however, that information concerning the progress and scope of an expert investigation or review is conveyed in a variety of ways to the commissioning agency. In my view it is by no means apparent that the release of a preliminary draft report in one situation would stem the flow of that kind of information in other projects. Again, I do not find that release of the October draft report would have the effect claimed by the respondent.
Turning now to whether release of the report would cause prejudice to the respondent's ability to obtain expert advice to assist it with its decision making functions, I accept the evidence of Mr Preshaw, which was not disputed by Dr Turner, that there is a small pool of experts who are able to advise on the sort of matters which were the subject of the PSM review. I also accept that that expertise is necessary to supplement the knowledge of the respondent's officers and that the respondent has difficulty in securing appropriately qualified experts. Contrary to Dr Turner's submissions, I am of the view that the respondent has identified with sufficient precision which of its functions could be prejudiced by the release of the October draft report.
The respondent's claim that release of the October draft report may lead to negative publicity about PSM's work and cause it to suffer reputational damage, cannot be sustained in light of PSM's lack of objection to release of the draft. It is clear that PSM itself is not concerned about the likelihood of any such effect.
The respondent's broader claim that experts will be reluctant to work with the respondent if preliminary draft reports are released, is also undermined by the lack of any objection by PSM to the release of its preliminary draft report. However, the question of prejudice is to be considered at a broad, operational level and not only by reference to the particular, instant situation (Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADATP 19 at [26]). The absence of any objection to release by PSM, which is a position taken by PSM for its own unknown reasons, does not necessarily mean there is no substance in the respondent's submissions that other experts, and experts in general, may be more reluctant to work with the respondent if they fear release of their preliminary work.
On the basis of the evidence provided, including that submitted by Dr Turner, it is apparent that there is a good deal of community interest in issues concerning the Southern Coalfield and, in particular, the impact of mining on Sydney's drinking water supply. That interest is reflected in the media and in the steps the government has taken since 2015 with respect to these concerns. While Dr Turner states that technical issues are unlikely to attract media interest, his assertion is not borne out even by the material he submitted. In addition, Dr Turner's statement that seasoned professional experts who carry out their work "without fear or favour" would have no reason to fear public scrutiny, while it may have about it a flavour of rationality, does not necessarily accord with real experience. Concerns about unwarranted negative publicity and reputational damage are not, in general, fanciful. As Mr Preshaw has noted there are a range of groups and interests who scrutinise expert reports carefully and make public their views.
In my view, it is plain that the ability to engage suitable experts is important to the effective exercise of the respondent's functions. It is important that such experts are open to exploring options and avenues of inquiry which may later be discarded, for example, because they are without scientific merit. There is a real and substantial risk that experts would be reluctant to work for the respondent if they were of the view that draft preliminary reports which were never intended to be made public and which had very limited circulation even within the respondent could be released to the public thus exposing the experts to potential criticism and reputational damage. This risk is enhanced by the relatively small pool of experts who are qualified and available to do this work.
I am satisfied that release of the October draft report could reasonably be expected to have a limiting effect on the ability of the respondent to engage suitably qualified experts from within a relatively small pool to assist it with its work. This would prejudice the respondent in the exercise of its functions. I am therefore satisfied that there is a public interest consideration against disclosure within the terms of cl 1(f) of the table in s 14 of the GIPA Act.

Conclusion

I have considered the withheld information and the arguments relating to that information and my findings are set out above. I have found that the public interest consideration against disclosure in cl 1(f) of the table in s 14 of the GIPA Act relied upon by the respondent is present in this case.
The GIPA Act requires that the public interest considerations against disclosure be weighed against the public interest considerations in favour of disclosure. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in section 15.
Balancing the competing public interest considerations is "a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation" (Hurst v Wagga City Council [2011] NSWADT 307 at [70]). The public interest considerations in favour of disclosure of information relating to the effects of mining in the Southern Coalfields on the drinking water supply are of considerable importance and weight. It is clear that it is an issue of public importance.
In my view, however, the respondent has satisfied the burden placed upon it by s 105. The likelihood that disclosure could reasonably be expected to prejudice the respondent's ability to obtain reliable expert opinion and advice to assist it in the performance of its functions is a serious matter and would undermine the respondent's ability to provide appropriate advice to government, the community and industry. In relation to the withheld information I am satisfied that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. Accordingly, it is my view that the respondent's decision to refuse access to that information is the correct and preferable decision. The decision in relation to the PSM height of cracking report dated 14 October 2016 should therefore be affirmed.

Orders 1. The decision under review is varied to the extent that the November 2016 draft PSM report and February 2017 draft peer review reports by Professor Jim Galvin and Dr Colin Mackie are to be released to the applicant. 2. The decision under review is otherwise affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the 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: 19 August 2019

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Cases Cited (1)

Cited By (1)