This is an application for a review of the decision of the Respondent Public Sector Agency, under the Government Information (Public Access) Act 2009 (the GIPA Act).
[3]
Background
The objects of the GIPA Act are as follows:
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.
The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraph 5 Senior Member Walker provides the following outline of the provisions:
The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure.
The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies.
The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14.
With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure.
There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the 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".
In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
[4]
The application to the agency
The applicant made an application for documents under the GIPA Act on 5 September 2014. Initially the applicant sought the following type of information:
All correspondence between the Department of Planning and the Office of Coal Seam Gas relating to or concerning the changes from 1 December 2013 to 31 July 2014.
All correspondence between the Department of Planning and AGL Energy Ltd or any associated companies relating to or concerning the changes from 1 December 2013 to 31 July 2014.
Minutes of all meetings between the Department of Planning and AGL Energy Ltd and or Coal Seam Gas from 1 December 2013 to 31 July 2014.
All reports, recommendations, comments, notes or documents relating to the need for change and/or the effect of the change from 1 December 2013 to 31 July 2014.
All reports, recommendations, comments, notes or documents relating to any submissions received relating to the proposed changes from 1 December 2013 to 31 July 2014.
The respondent agency and the applicant negotiated narrowing the scope of the application during the following weeks to exclude cabinet information and legal advice. Both of those descriptors of information would ordinarily be refused access as there is a conclusive presumption under the GIPA Act of an overriding public interest against disclosure. That reference arises from the title of Schedule 1 of the GIPA Act whereby both Cabinet Information (cl 2) and Legal Professional Privilege (cl 5) material is listed in the schedule.
21 documents or holdings were identified by the respondent in complying with the application as broadly within scope. However, these proceedings only concern those aspects of the decision to retain information and not release it under the GIPA Act. In that regard there were a total of 4 documents where a partial release was determined by the respondent, after considering the provisions of the GIPA Act. In all other regards all the information sought and held by the respondent (and agreed as being within scope) was released to the applicant. Therefore from the 21 identified documents, this administrative review only concerns the withholding of data in respect of 4 of the documents. The documents where information was withheld were identified by the respondent in its decision (concerning the 21 numbered documents), as being the partial release in documents , 2, 5 and 7.
Separate to the decision to release information in response to the GIPA Act application, in providing access to some of the material sought in the application, it was necessary for the respondent to redact some data from the information provided, as it was agreed to be out of scope as per the matters set out above (paragraph 6). The redactions on this basis related to three of the documents provided by the respondent.
[5]
The Internal Review by the Agency
Following the decision of the Agency on 24 November 2014, the applicant sought an Internal review of the decision under the GIPA Act (Part 5 Division 2). The internal review was completed on 19 March 2015 with the respondent / agency finding that one of the grounds for withholding the material was not made out. The respondent / Agency deemed that reliance on clause 1 (e) of the Table to section 14 of the GIPA Act, were no longer valid. (See paragraphs 10-13 inclusive, below concerning the relevant provisions of the legislation).
The respondent / agency however maintained the reliance on clause 1 (f) to the Table to section 14 of the GIPA Act for in effect withholding aspects of the material contained in documents 1,2,5 and 7.
[6]
The legislative provisions
Section 14 of the GIPA Act provides the circumstances whereby public interest considerations against disclosure of government information may be applied. Relevant to this application, the Agency relied on the provisions outlined below (being public interest considerations) against disclosure of a small quantity of the information. Relevantly section 14 provides:
14 Public interest considerations against disclosure
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
(2) 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.
(3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
(4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).
The Table to section 14 provides the various criteria or considerations referred to in section 14 (2). The Table lists seven areas whereby relevant public interest considerations against disclosure are set out.
In its initial decision of 24 November 2014, the respondent appears to have refused access to some of the information on the basis that there was a public interest consideration against disclosure sufficient so as to override the general presumption in favour of disclosure of the relevant government information. In this regard the respondent agency has identified the matters outlined at Clauses 1 (e) and 1 (f) to the table to section 14 of the GIPA Act.
Those particular clauses state:
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 of generally):
(e) reveal a deliberation or consultation or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.
(f) prejudice the effective exercise of the agency's functions.
However as set out at paragraphs 8 and 9 (above), as a result of an Internal Review, the respondent / agency made a fresh decision abandoning reliance on clause 1 (e) as a ground for overriding the general public interest considerations in favour of disclosure.
[7]
Application to the Tribunal for administrative review
An application was lodged with the Tribunal on 14 May 2015. At a Planning meeting on 7 July 2015 the respondent advised that it was making a supplementary decision. There was some party / party correspondence and exchanges concerning the adequacy or sufficiency of searches conducted by the respondent. Further searches were undertaken and additional documents were identified by the respondent. On 3 August 2015 the respondent advised the applicant of the supplementary decision. In that decision, the respondent effectively withdrew the grounds and basis for the 19 March 2015 decision (the decision following internal review) and in making a fresh decision (by way of a supplementary decision) re-instated the import of the original decision of 24 November 2014. That is that the data was withheld by applying the provisions of both clause 1 (e) and clause 1 (f) from the Table to section 14 of the GIPA Act.
Whilst the issue of access to data conceded by the respondent in the internal review was raised by the applicant at Planning Meetings and whilst the matter was proceeding before the Tribunal, it appears that no information was provided to the applicant consistent with the internal review decision, prior to the supplementary decision of 3 August 2015. The net effect of this is that the applicant has never received the broader data release of the internal review decision, and remains bound by the 24 November 2014 and 3 August 2015 decisions.
The respondent submitted in written submissions that the decision of 3 August 2015 is the decision for review by the Tribunal. In addition the respondent summarised the issues to be decided as:
1. Whether material the respondent identified in its Decision as Cabinet information has been properly found to be outside the scope of the applicant's access application; and
2. Whether the respondent was correct in its decision to refuse access to certain material on the basis that it is subject to an overriding public interest against disclosure.
The later of these relates to the clause 1 (e) and 1 (f) arguments of the respondent.
Prior to the hearing the respondent filed the confidential (withheld) documents with the Tribunal.
[8]
The hearing
The matter was heard on 30 October 2015. During the hearing a number of pieces of evidence were tendered and written submissions were filed. Oral submissions were also presented by both parties.
Pursuant to section 107 (2) of the GIPA Act, the respondent sought and was granted a confidential hearing for part of the proceedings. Section 107 provides:
107 Procedure for dealing with public interest considerations
(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.
(2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:
(a) the public and the applicant, and
(b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
The applicant objected to a closed hearing under section 107 of the GIPA Act, in so far as they submitted that the legal representatives for the applicant should be entitled to be present subject to an undertaking to the Tribunal not to divulge the import of the details of the contents of the confidential / withheld documents (if gleaned) to their client or any other person. I determined not to entertain that application and to indicate to the applicant that they should have faith in the Tribunal's ability to forensically examine the arguments in light of the revealed data, in a robust manner whilst acting impartially but being guided by the public interest and the objects of the GIPA Act.
[9]
Respondents Evidence / Submissions
In the open hearing the respondents provided written submissions dated 11 September 2015 in addition to further reply submissions of the respondent dated 23 October 2015. In addition to that material the respondent relied upon the affidavit of Alison Frame affirmed 9 September 2015. That affidavit was entered into evidence as exhibit 'R -1' and comprised 47 paragraphs and a 9 Tab exhibit.
The respondent submitted in written submissions that the application is related to amendments to the State Environmental Planning Policy (State and Regional Development) 2011 being the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2014. These amendments became referred to colloquially (and during the proceedings) as the "five wells" issue.
The respondent addressed the issue of whether the relevant aspects of the material withheld constitute 'Cabinet Information'. Whilst the Tribunal is not to undertake an examination of the decision not release Cabinet information (as per section 106 (1) of the GIPA Act), in the current matter, the Tribunal's role was to ascertain whether the redacted material (as being outside scope) could be properly considered to be 'Cabinet information'. The respondent advised the Tribunal during the hearing that the Department of Premier and Cabinet advised them that the Premier does not (at this stage) propose to take an active role in these proceedings. Whilst the import of both the Premier and the Tribunal's powers and functions in respect of section 106 is somewhat academic, in the absence of any advice to the contrary the Tribunal proceeded to determine the matter.
Ms Frame's affidavit was read without objection, and she was not required for further examination during the hearing. On that basis it appears that her evidence as to the scope and nature of what has a provenance as 'Cabinet information' was / is unchallenged by the applicant.
In respect of the section 14 considerations, the respondent relied on the case of Camilleri from the ADT appeal panel Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19, whereby the two step approach of contrasting and weighing the section 14 reliance against the matters in section 13 (having regard to the guidance at sections 12 and 15 of the GIPA Act.
The respondent submitted that both the clause 1 (e) and (f) considerations should be considered together. They submitted that one of the respondent (agency) functions was to assist the Minister for Planning in drafting formulating and preparing planning instruments.
Submissions were made that the respondent's functions were to assist the Minister for Planning in the drafting and formulation of planning instruments under the Environmental Planning and Assessment Act 1979. Evidence was deposed that there was an important role attributed to deliberations and consultations both internally and externally in the process. It was submitted that to the extent that the 'disclosure' of information would prejudice the respondent's deliberative processes, this would also have a prejudicial effect on its ability to perform it's functions with respect to the formulation of planning instruments.
The respondent cited federal case law in respect of the notion of "deliberation". Reliance was placed on the case of Re Waterford and Department of Treasury (no 2) ((1984) 1 AAR 1. In that case, it was submitted that deliberative processes involved in the functions of an agency are its "thinking processes" - for example the processes of reflecting on the wisdom and expediency of a proposal, a particular decision or a course of action.
The respondent also submitted that future deliberations ( the process) could be prejudiced. Ms Frame provided evidence of her own opinion that it is important that staff feel able to express their views freely and with candour during such deliberations. It was submitted that this was of high importance in the early stage of such a deliberative process whereby a broad or wide range of options was being canvassed.
Ms Frame gave evidence was that in her belief, staff would feel inhibited in their communications, reluctant to float particular options, or to express their views if such information were to be released into the public domain. Other evidence was given concerning a belief that staff would be reluctant to commit their ideas to writing but would only conduct consultations orally and this would have a negative impact. Evidence was also given concerning the apparent views of third parties and other agencies involved in consultations.
Whilst there was some evidence that these third party consultations had involved some sensitive commercial information (for which other grounds could be relied upon to prevent the disclosure under the GIPA Act), in the main the third party arguments were in similar terms to those relating to the officers of the respondent agency.
The respondent submitted that these measures should be given considerable weight due to the belief that these consultations form a critical function or role, in the broader function of assisting the Minister and that the role would be prejudiced or compromised in some manner.
The respondent whilst acknowledging the public interest considerations in favour of disclosure, submitted that they should be given less weight. It was submitted that: "little additional benefit would flow from the release of the disputed material, which may be characterised largely as revealing internal deliberations and consultations, where communications are more likely to reflect the views of individual officers, rather than the considered official position of the Department." (Respondent's submissions 11 September 2015).
Oral submissions were made during the hearing of the matter. A number of matters were also clarified. Document 5 was previously withheld, on the basis of 'Cabinet information' but was agreed at the hearing that it as no longer within that scope and that the respondent relies on the general clause 1 (e) and (f) grounds for withholding the information.
[10]
Closed evidence / hearing
Having reviewed the evidence and matters that transpired during the confidential session, in my view there is no need to provide any reasons (which would require the protection of the confidentiality provided by the section) in respect of that session. The matters that transpired merely clarified or amplified aspects of the respondent's case. However, importantly, as a matter arising from that session, the respondent conceded that a small amount of material could be released and this is separately addressed in the final orders.
The confidential session gave the Tribunal an opportunity to examine the documents in the presence of the respondent. Whether the applicant agrees or otherwise, in my view no prejudice attaches to the applicant in this instance by the terms of the confidential hearing in the current matter. In my view there would be little utility in the applicant's legal advisers being present and unable to contribute to any analysis of the material. In addition I note the terms of section 107 of the GIPA Act.
[11]
Applicant's Submissions
The applicant filed detailed written submissions prior to the hearing. At hearing in their oral submissions the applicant submitted that not only is there a public interest in the issue of there being coal seam mining, but that there is transparency of the decision making concerning that issue / process. Counsel took the Tribunal to various aspects of the applicant's affidavit of 15 October 2015 to establish evidence as to that submission.
The affidavit provided unchallenged evidence as to the level of involvement of the Gloucester community every month since around March 2014 in the coal seal gas proposals for their region. In addition this action and interest is widespread across New South Wales, and other regional groups are involved with the applicant's community.
Protests and 'sit ins' have occurred both in rural / regional areas and metropolitan areas with proposed test sites and head offices of the relevant entities and their annual general meetings being targeted.
Further evidence was given concerning the import of the independent report into coal seam gas activities, with a conclusion of the NSW Chief Scientist being reproduced in the applicant's affidavit. (From the Executive Summary):
Having considered all of the information from these sources and noting the rapid evolution of technological developments applicable to CSG from a wide range of disciplines, the Review concluded that the technical challenges and risks posed by the CSG industry in general can be managed through:
[bullet point recommendations omitted from extract]
All of this needs to take place within a clear, revised, legislative framework which is supported by an effective and transparent reporting and compliance regime and by drawing on appropriate expert advice.
During the hearing the Tribunal was taken to Tabs 18 and 22 of the Exhibit to the applicant's affidavit. Those tabs concerned the community group referred to as Groundswell Gloucester. (Groundswell) The affidavit sets out the background to Groundswell and it's activities. It also deposes how the applicant and the organisation has communicated with the local and state-wide community through the media, their involvement in meetings with the Resources Minister, and senior compliance officers of the Environmental Protection Authority (EPA), as well as staff from within the Minister's Office.
The tabs within the exhibit, and the affidavit itself provide evidence of broad community interest in the Coal Seam Gas proposals as they impact on the community and the tension between the community and commercial interests. In particular it is clear from that material that there is a particular issue within the public domain concerning those tensions referred to above, as it relates to the Waukivory application by a commercial entity. The technical and legal issue relating to the proposals concern what became referred to as the 'five wells' issue and the creation of an amendment to the State Environmental Planning Policy (SEPP) by way of a 2014 amendment.
The purpose of the amendment to the SEPP was (according to the respondent's public position), to "clarify the application of the 'five wells rule', which determines when the drilling of coal seam gas exploration wells requires development consent." (posted on Department's website July 2014).
The five wells issue is bound up with the distance of one well (drill head site) from another within a specified area, and that different compliance and technical issues apply depending on the proximity of one well to another.
The applicant took the Tribunal to tab 25 of the exhibit to the applicant's affidavit, which provides a copy of the Final Report referred to at paragraph 41 (above). Recommendation 2 of that report was highlighted by the applicant in submissions.
Recommendation 2
That Government ensure clear and open communication on CSG matters is maintained at all times. This includes:
Simplicity and clarity in legislative and regulatory requirements
Ensuring openness about CSG processes in line with an open access approach; publishing all relevant approval requirements, decisions and responses, and compliance and enforcement outcomes on appropriate government websites and making CSG data from companies, Government and research organisations available through a centralised Government data repository
Measurable outcomes to track performance against commitments to reform.
The applicant's detailed written submissions addressed the respondent's evidence. Those submissions also addressed the correct approach that the Tribunal must take and used the case of Camilleri as an initial step.
In reply the respondent referred to the case of Murphy v Broken Hill City Council [2015] NSWCATAD 135 in outlining that deliberative processes (however concluded at the relevant time), might remain on foot or arise in similar terms in the future and as a result be prejudiced by release of data. I note however that those matters related more to the notions of a competitive business advantage, rather that matters pertaining to the development of public policy leading to legislative amendment.
Reliance was placed on the Leech v Sydney Water Corporation [2010] NSWADT 298 in determining the meaning of the words 'could reasonably be expected' as they apply to clause 1 of the table to section 14 of the GIPA Act. At paragraph 25 of that case the Administrative Decisions Tribunal (ADT) said:
25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. 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.
In AMH v Western New South Wales Local Health District [2014] NSWCATAP 33 the appeal panel reiterated the approach to be taken when considering section 14 of the GIPA Act. Importantly they reinforce the fact that any reliance on public interest considerations against disclosure involves a two stage approach.
At paragraph 20 of that decision the Appeal Panel observed:
The Tribunal's decision and the appellant's arguments
20. At [34] of the Tribunal's decision, the Judicial Member set out the Tribunal's task in determining the appellant's application for review. Put simply, that task was to determine whether the respondent had established (s 105 of the GIPA Act places the onus on the respondent) the following:
(a) a disclosure of the information in issue would give rise to one or more of the public interest considerations against disclosure (see s 14 of the GIPA Act), and
(b) on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure of the information in issue (see ss 12 and 13 of the GIPA Act).
21. In regard to the public interest considerations against disclosure, the Judicial Member, at [39] to [41], noted that common to all the public interest considerations against disclosure in the table to subs 14(2), is that a disclosure of the information in issue 'could reasonably be expected' to have the nominated effect as set out in the table. The Judicial Member also cited the well accepted meaning of 'could reasonably be expected' in the context of the GIPA Act and other legislation proving for access to government information.
22. The Judicial Member found, at [83], that the respondent had established that public interest considerations against disclosure of the information in issue, on balance, outweighed the public interest considerations in favour of disclosure. That is, the Judicial Member found that the respondent had established that there was an overriding public interest against disclosure, in accordance with the public interest test in s 13 of the GIPA Act.
23. In regard to the public interest considerations against disclosure of the information in issue, the respondent relied on a number of those prescribed in the table to subs 14(2) of the GIPA Act: see at [37] to [68] of the Tribunal's decision.
[12]
Consideration
I have carefully considered the arguments and submissions by both parties in this matter. Whilst I have only stated some of the oral and written points above, I have considered all evidence and material placed before the Tribunal in determining this application, even if I have not specifically referred to it in these written reasons.
Having considered the evidence in this case, it appears that the applicant's evidence concerning the public interest considerations in favour of disclosure is fairly strong. No doubt this is in part to do with the nature of the subject matter, being the broad issues relating to mining, exploration of the land leading to possible contamination and alienation, environmental concerns and related issues which have been afforded a high public interest position in the broader community in recent years.
Coupled with this is the tension between finding alternative sources of energy, and the debate about both sustainability and short and long term impacts of practices that some in the community see as unsustainable and invasive.
The very fact that the SEPP was being considered by the Government in my view indicates the both important and somewhat exigent considerations and factors at play. Whilst making no criticism of any individual, group, authority, company or entity, the level of broad public interest and community action seems to have grown over the past five years. Various stakeholder concerns were ventilated in the media across the nation, and the report of the NSW Chief Scientist was commissioned in part to address and determine what concerns if any were verifiable.
The applicant's own private position in bringing this application in my view ties his personal considerations clearly to matters outlined in section 55 of the GIPA Act, as a nexus to the matters outlined in section12. In my view weighing up the applicant's evidence and submissions in total, significant weight is given to the matters under section 12 (2) (a) of the GIPA Act .
Contrasted with this, and the general presumption in favour of disclosure, the respondent was required to provide evidence sufficient to establish that the weight to be attributed to the matters under Clause 1 (e) and (f) of the table to section 14, was sufficient to override the provisions of sections 12 (1) and the objects of the GIPA Act.
In my view the comments of the Tribunal in Hurst are applicable to this matter. Whilst the respondent's view that the release of the material (currently withheld under clause 1 (e) and (f) ), would prejudice future deliberations and consultations within the Department(s), it is not borne out by any evidence provided in these proceedings. Whilst there is an opinion provided by the respondent, no specific material has been advanced as to how and why that would be the case. The argument that persons acting lawfully in accordance with their allocated duties and performing a role of information gathering, consultation and collating, leading to advice and recommendations, would be somewhat compromised (either in the deliberative process or otherwise), is simply not made out on the available evidence in the current matter.
Whilst the notions of Cabinet confidentiality and the ability for such discussions to occur in camera is a long standing convention of Westminster system governments, there is a general expectation that all other transactions of the government (be they in Parliament, Minister's offices or departments), are open and transparent. Traditionally public servants would provide information and advice with candour and wherever possibly conduct matters in a frank and fair manner.
The general notion of transparency is clearly behind the existence of FOI regimes, and was considered one of the basis for the move from the former Freedom of Information Act 1989 (NSW) to the current GIPA Act following the NSW Ombudsman's report into FOI.
However, notwithstanding the matters outlined above, even in the absence of sufficient evidence to establish prejudice, in my view the process involving a concluded deliberation is properly addressed in the case of AQJ v University of New South Wales [2013] NSW ADT 306.
I do not accept that disclosure of the emails could prejudice a deliberative process, as that process has concluded. However, I do accept that the disclosure could reasonably be expected to prejudice the effective exercise UNSW's functions. In my view, it is reasonable to expect that academics might be reluctant to express their views and provide assistance to their colleagues if they were aware that those views and comments could be made publicly. Failure to comply with assessment policies is not a matter before this Tribunal and I make no further comment in relation to that assertion.
In the current case, the views and opinions expressed for which the respondent seeks to withhold the information, relate to core functions of the relevant authors and public sector officials. In respect of other persons, the GIPA Act does not in such circumstances provide for any express confidentiality. That course can only be considered under the provisions of section 14 in the absence of any proviso in Schedule 1 of that Act.
Any ascertainable prejudice (even if established under clause 1 (f) ), would (subject to compelling evidence), need to necessarily overcome the very high factors attributable to section 12 (2) (a) (in particular), in the current case.
In my view the respondent has not discharged their onus in withholding the information in respect of clauses 1 (e) and (f) of the Table to section 14 of the GIPA Act. The respondent has however, in my view appropriately identified (and withheld) the relevant out of scope and Cabinet information, subject to some concessions made in the confidential hearing.
[13]
Conclusion
I make a finding that the material the respondent identified in its Decision and the confidential hearing as Cabinet information has been properly identified and as a result is outside the scope of the applicant's access application.
I make a finding that in respect of the other material, there is insufficient weight to attach to the material under clause (1) (e) and (f) of the Table to section 14, such as to provide public interest considerations against disclosure that override the general public interest provisions in favour of disclosure.
It follows that the correct and preferable decision is to set aside the decision of the respondent, and make the following decision / orders.
[14]
Orders
In addition to the material already released to the applicant, the following orders are made.
1. In respect of the material identified in the Exhibit to the Confidential Affidavit Exhibit 'RC 1' filed by the respondent, the material identified as out of scope or Cabinet information is to be withheld subject to order 2.
2. From within Exhibit 'RC 1', Document 4 first page (paginated page 5), the first sentence of the material previously identified by the Respondent as Cabinet information, including the line immediately below that is to be released to the applicant.
3. All of the material on paginated page No 8 of the Exhibit RC 1 is to be released.
4. All of the remaining material which the respondent withheld on the basis of attributing sufficient weight to the public interest considerations against disclosure under Clauses 1 (e) and 1 (f) of the Table to section 14 of the GIPA Act, is to be released to the applicant.
[15]
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: 03 March 2016
The case of Hurst v Wagga Wagga City Council [2011] NSWADT 307 also examines the Tribunal's task, and was referred to by the applicant in written submissions.
47. The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in those documents in accordance with the Act, paying due regard to the principles in s 16. This requires that the public interest consideration both in favour and against disclosure be identified, so that the question of whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure can be determined. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies (s 5).
48. Public interests considerations in favour of disclosure are set out in section 12. The section makes it clear that those considerations are not limited.
The applicant addressed the tension between an apparent expectation that communication (with Government) would remain private, and the public's right to know. They referred in submissions to the Independent Commission Against Corruption Report of November 2010, Investigation into Corruption Risks Involved in Lobbying, at page 7.
"Those who lobby may be entitled to private communications with the people that they lobby, but they are not entitled to secret communications. The public is entitled to know that lobbying is occurring, to ascertain who is involved, and, in the absence of any overriding public interest against disclosure, to know what occurred during the lobbying activity."
The applicant submitted that there is a general public interest in favour of disclosure, such disclosure provides transparency and accountability by leading to a greater understanding of the relevant issue, and that the transparency of the deliberative process will ensure higher quality deliberations and outcomes where there have been markedly competing views put forth.
The issue of how such disclosure would prejudice the effective exercise of functions by the agency, was the applicant submitted, an assessment which could only be made following an objective assessment. In this regard the applicant's submitted that no evidence was available to make such an assessment. Whilst it was submitted by the respondent that there was a real risk that staff would fail to perform their duty if aware of proactive disclosure, the applicant disagreed. The evidence was criticised by the applicant by a further reference to the case of Hurst. In Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph 65:
Her evidence does not identify any basis for a comparison between investigations where confidentiality has been maintained, and those where it has not. It does not disclose a rational or underlying factual basis for the conclusion that, if information provided by staff were disclosed, it could reasonably be expected that staff would be unlikely to co-operate with investigative processes. This strikes me as taking a very dim view of the integrity of council staff, and of their willingness to ensure that the processes they manage are conducted efficiently, effectively and honestly. I conclude that Ms McCormack opinion is based on limited experience and involves considerable speculation. I do not accept that it is reasonably or rationally held.
Whilst Hurst dealt with a different provision under the Table to section 14, broadly the position is analogous as it provides an example whereby the main evidence provided amounts to a speculative assessment or an inference that the statement maker has and as a result an opinion that they hold.
I note that neither party required the single witness from each side to give evidence at the hearing and to be available for cross-examination. In addition whilst the applicant challenged the respondents evidence indirectly through their submissions, no challenge was made to the applicant's evidence.
Concerns were raised about the ability of the respondent's witness to infer the impact that such disclosures would have on both an officer's level of future engagement on an issue, and likelihood of providing frank opinions and views.
The case of MJ v Department of Education and Commerce [2013] NSWADT 213, examined how the provisions of section 14 and the weighting of the material against the words in the clauses to the Table might be considered.
At paragraph 75 of MJ when referring to Hurst, the Administrative Decisions Tribunal (ADT) said:
75. Other than the general principles set out in ss 3, 5 and 12(1) of the GIPA Act, the Act does not set out how the public interest considerations for and against disclosure are to be weighed, in determining whether the public interest against disclosure outweighs the public interest in favour of disclosure. Accordingly, each matter is to be determined on its own facts and as pointed out by the Tribunal in, Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [70] the balancing of the competing interests 'is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation'.
A number of examples exist whereby agencies seek to rely on evidence as to the practical import of providing too little weight to a particular public interest consideration against disclosure (PICAD). The requirement that there must be cogent evidence which can be scrutinised and tested objectively would appear paramount in considering when a PICAD might carry sufficient weight so as to counter an public interest consideration in favour of disclosure.
In addition such a task and the requisite evidence must be balanced against the objects of the GIPA Act.
In the case of Hutchinson v Walcha Shire Council 2015 NSWCATAD 132 at paragraph 71 I made the following observations.
71. Agencies need to be mindful that all data is subject to the GIPA Act, and on assessment, only the material in schedule 1 is 'presumed' to be subject to an overriding public interest against disclosure.
72. External professionals and senior officers within agencies and government are intuitively aware when creating information or data, what provisions may apply to its release or unconditional availability. However this would not be the case (or to a similar extent) with less senior public sector employees when dealing with material that might be described as falling within the provisions of the Table to section 14 of the GIPA Act. As such agencies need to balance carefully the objects of the GIPA Act when creating and collecting information, especially the provisions of section 3 (1) (c )
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.
(Emphasis added)
In addition I note the further provisions of section 3 of the GIPA Act, in particular 3 (2) (a) that:
(2) it is the intention of Parliament:
(a) that this Act be interpreted and applied so as to further the object of this Act,…