On 23 May 2016 the applicant applied to the respondent for access under the Government Information (Public Access) Act 2009 ("the GIPA Act") to "documents regarding fatigue studies and/or engineering assessments of the Sydney Harbour Bridge since January 1, 2013". Subsequently he clarified that his request was for "major technical engineering assessments / studies affecting the entire structure" of the Bridge.
The application was determined by the respondent on 21 June 2016. The reasons for decision identified a report drafted by Aurecon for the respondent dated 8 July 2013 ("the Report") as falling within the application.
Access to the majority of the Report was refused by the respondent on the grounds that there was an overriding public interest against disclosure (s58(1)(d) of the GIPA Act). This was stated to be on the basis that disclosure could reasonably be expected to endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle (s 14 cl. 2(e)). The applicant has sought review in this Tribunal.
[2]
The issues
The respondent submits that dissemination of the withheld sections of the Report would make available to the public information about specific vulnerabilities in the Bridge's structure, which could reasonably be expected to endanger the security of, or prejudice any system or procedure for protecting the Bridge; or facilitate the commission of a criminal act (including a terrorist act within the meaning of the Terrorism (Police Powers) Act 2002). Accordingly in these proceedings it now relies upon clauses (e) and (f) of clause 2 of the table to s 14 in the GIPA Act.
Section 13 states:
"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."
Section 14 states:
"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.
…
2 Law enforcement and security
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):
…
(e) endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle,
(f) facilitate the commission of a criminal act (including a terrorist act within the meaning of the Terrorism (Police Powers) Act 2002)
…"
The applicant submits in response that in order to satisfy cl 2 above, the expectation must be based on real and substantive grounds. The threat of terrorism should not be used to curtail or stop the rights of Australians to understand and judge the policies, management and performance of government, or affect citizens' rights, except where absolutely necessary. It submits that the location and structure of the Bridge is well known and no great sophistication in terms of knowledge is required for an attack to occur. Also, more recent terrorist attacks appear to be committed increasingly by individuals or small groups using equipment which is readily available and do not target infrastructure.
Section 107(1) of the GIPA Act provides that in determining an application for review, the Tribunal 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. Section 107(2) provides that the Tribunal 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 the Tribunal it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
Accordingly parts of the hearing were conducted in the absence of any members of the public, the applicant, and the applicant's representative and an order under s. 64(1) of the Civil and Administrative Tribunal Act 2013 prohibits the disclosure or publication of certain parts of the evidence and the confidential information.
[3]
The evidence
Detective Sergeant John Kelly, Team Leader within the NSW Police Protection Programs Unit of the Counter Terrorism and Special Tactics Command, has the responsibility of leading the protection of critical infrastructure assets such as the Bridge, from acts of terrorism. His evidence was that the current National Terrorism Threat level was "Probable" and this means that persons have the intent and capability to commit a terrorist act in Australia, while no definite target or time of attack has been identified.
Threats of attacks on the Bridge do occur, and are assessed by the Counter Terrorism and Special Tactics Command. In his view, if information about the Bridge that is deemed "security sensitive" were available to the public this might lead to a heightened risk of a more damaging attack or a greater likelihood that a threat will be considered credible. Det Sgt Kelly stated that in his view, the Report was "security sensitive".
He considered that terrorists were capable of targeting critical parts of the Bridge if information about vulnerabilities was available. If such information was released a strategy would have to be developed to deal with the implications for protecting the Bridge.
Peter Mann, the Strategic Infrastructure Manager (Sydney Region) for Roads and Maritime Services (RMS) also gave evidence. He is qualified as a civil engineer and has held his role for approximately 10 years. He was responsible for commissioning the Report. He stated that the risk of major damage to the Bridge by any attack would be significantly magnified if the Report were publicly available, since it would allow someone to pinpoint such an attack to cause maximum damage.
He said the works recommended by the Report had commenced. He could not rule out that some aspects of information structure had been released but he doubted it. He conceded that the RMS cannot control long range photography of the Bridge.
NOT FOR PUBLICATION [Confidential evidence of Peter Mann]
Michael Whitelaw, the General Manager, Critical Infrastructure and Security, at RMS has among his responsibilities the development and evaluation of RMS security strategies for critical infrastructure to prevent unauthorised access and minimise risk exposure. He outlined the approvals process implemented by RMS for release of secure plans of the bridge to persons such as contractors. He also outlined the information security policies implemented to restrict access to sensitive information by RMS.
He stated that the Bridge is the subject of periodic security threats. RMS work with the NSW Police on each threat to verify its credibility.
NOT FOR PUBLICATION [Confidential evidence of Michael Whitelaw]
A copy of the National Guidelines for Protecting Critical Infrastructure from Terrorism was also tendered.
[4]
The Aurecon report
The Report is titled "Sydney Harbour Bridge Condition Assessment Information Review" and is dated 8 July 2013.
A redacted version of the Report was provided by the respondent to indicate to the Tribunal those parts of the Report which should not be disclosed, based on the evidence of the three witnesses.
Those redactions are very extensive. An unredacted version of the Report was provided to the Tribunal on a confidential basis.
Having reviewed the Report, I note the following matters as being relevant.
NOT FOR PUBLICATION [Confidential contents of report]
NOT FOR PUBLICATION
NOT FOR PUBLICATION
Apart from some sections (which were not redacted in the version made available to the applicant) the information which is claimed to be subject to the overriding public interest against disclosure is extensively intertwined with the limited information which does not relate to that subject matter.
[5]
Findings
Based on the evidence and the contents of the Report, I find that possession of the information in the Report would make it easier for a well-informed person to identify parts of the Bridge which are more susceptible to damage by a third party. I also find that there is a system and procedure in place for protecting the Bridge against malicious attacks, and making it secure, which involves planning and liaison by at least RMS and NSW Police. That system and procedure involves assessing each threat made as well as implementing security measures.
I find that disclosure of the information in the report would inevitably necessitate those agencies to review their system or procedure for protecting the Bridge, to deal with the fact that the information was available.
[6]
Consideration
The agency has the onus of proving that the exemption applies. It must therefore establish either that the disclosure of the information could reasonably be expected to endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle, or to facilitate the commission of a criminal act (including a terrorist act) either generally or in a particular case.
As to the meaning of the words "could reasonably be expected", in Attorney General's Department v Cockcroft (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way:
"In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, 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 those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act."
The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at 106; Smith v Pittwater Council [2016] NSWCATAD 67 at [37].
Regarding endangerment, the Appeal Panel in Electoral Commissioner, State Electoral Office v McCabe (GD) [2003] NSWADTAP 28, at [36] stated:
"We simply note that it is a very serious matter for an agency to invoke an exemption based on 'endangerment'. In our view, agency opinions making such a grave assessment must be closely scrutinised and not easily accepted. The Tribunal is, we consider, obliged to bring some scepticism to the task of assessing what are necessarily self-serving statements by agencies as to the availability of grounds for exemption which involve matters of judgment. The question is always whether the material, statements of opinion and submissions put forward by the agency justifies reliance on the exemption."
In Cui v Leichhardt Council [2006] NSWADT 298 this Tribunal considered cl 4 of the Freedom of Information Act 1986 which provided:
Documents affecting law enforcement and public safety
(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:
…
(c) to endanger the life or physical safety of any person, or
…
(g) to endanger the security of any building, structure or vehicle, ...
In that case the applicant sought access to plans of a police station. The Tribunal found that the disclosure of the plans could reasonably be expected to endanger the security of the police station and this could give rise to concerns for the physical safety of persons in the Police Station and/or facilitate the escape of persons held in the police station; it could also prejudice the effectiveness of police by reason of endangering the security of the information or other material held on the premises.
In my view, based on the evidence, disclosure of the information in the report could reasonably be expected to prejudice the system and procedure currently in place for protecting the Bridge from terrorist or other criminal attacks. That is a serious matter.
In Hutchinson v Roads and Traffic Authority, NSW [2006] NSWADT 147 the applicant sought access to documents relating to "structural rust and /or lack of proper painting maintenance on the Sydney Harbour Bridge". The respondent had refused access in reliance on clause 4A of the Schedule which provided:
4A Documents affecting counter-terrorism measures
(1) In this clause:
"terrorist act" has the same meaning as in the Terrorism (Police Powers) Act 2002 .
(2) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:
(a) to facilitate the commission of a terrorist act, or
(b) to prejudice the prevention of, preparedness against, response to, or recovery from, the commission of a terrorist act.
Deputy President Hennessy found that it was not irrational, absurd or ridiculous to expect that disclosure of the photographs could facilitate the commission of a terrorist act, and there were real or substantial grounds for expecting that such consequences could arise.
In this case, it is clear from the evidence that there are real or substantial grounds for expecting a terrorist attack in Sydney in the future. The applicant attempted to argue that terrorist attacks are currently unlikely to use complex technical means to attack a structure. However the real risk of an attack which involves a major structure with an iconic status cannot be said to be irrational or absurd, based on the evidence of threats against the Bridge and the efforts put into protecting it. Should a person be minded to carry out a terrorist attack on the Bridge, in my view the disclosure of the information could reasonably be expected to have the effect of facilitating that attack.
In my view, the respondent has established that disclosure could reasonably be expected to prejudice any system or procedure for protecting the Sydney Harbour Bridge, and facilitate the commission of a criminal act (including a terrorist act within the meaning of the Terrorism (Police Powers) Act 2002). Those public interests against disclosure in my view outweigh the general public interest in favour of disclosure of government information, and the specific public interest in favour of the public having information about the maintenance and condition of the Sydney Harbour Bridge as a major piece of infrastructure and an important landmark.
[7]
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
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: 21 June 2017