Destination NSW v Taylor [2019] NSWCATAP 123

Read the decision here: Destination NSW v Taylor [2019] NSWCATAP 123  

Summary

In this matter, the Appeal Panel dismissed Destination NSW’s grounds of appeal on  the Tribunal’s administrative review decision in Taylor v Office of Destination NSW [2018] NSWCATAD 195 (August 2018). The Appeal Panel also upheld part of the appeal with respect to correcting the Tribunal’s orders on certain documents. The 2018 decision was heard after the Tribunal had remitted the matter to Destination NSW in Taylor v Destination NSW [2017] NSWCATAD 272 (September 2017) . The decision concerned the agency’s refusal to provide access to information sought under an access application, under section 58(1)(d) of the Government Information (Information Access) Act 2009 (GIPA Act). Mr Taylor, a journalist, sought access to information about major events supported by Destination NSW for the three years prior to April 2015. In reviewing the decision under remittal in 2018, the Tribunal found that Destination NSW had only provided limited evidence to support their assertions for the public interest against disclosure. The Tribunal undertook the balancing exercise with respect to 79 documents, by designating a weight for each consideration for each document and ordered Destination NSW to set aside its decision, and provide the applicant with access to the 79 documents. The Tribunal also found that Destination NSW had not satisfied the onus on it as an agency to demonstrate that it had undertaken reasonable searches under section 53.

What you need to know

The decision considers how the public interest test in section 13 of the GIPA Act should be applied, and affirms that it is highly relevant for the Tribunal to take into account the strength of the evidence, and submissions about specific pieces of information.

The decision reminds agencies that their decisions about whether to provide or refuse access to information under section 58(1)(d) of the GIPA Act, require a decision-making process that applies the considerations in favour of disclosure, and the relevant public interest considerations against disclosure in the Table to section 14. The decision also highlights the requirement on agencies to consult third parties under section 54, before providing access to information, because third party concerns may be relevant to the question of whether there is a public interest consideration against disclosure of information (section 54(1)(c)).

The decision also provides guidance to agencies on the onus to be discharged for reasonable searches under section 53 of the GIPA Act, and that the Tribunal will look for evidence of what those searches entailed, the extent of those searches, or any explanation for why existing documents were not identified by its searches.

The decision also demonstrates the Tribunal’s referral power to the Information Commissioner or the NSW Ombudsman. Under section 111 of the GIPA Act, the Information Commissioner has the power to deal with systemic issues referred by the Tribunal, which relate to determinations of access applications by a particular agency or agencies generally. 

Legislative background

GIPA Act
Section 80(d) decision to refuse to provide access to information

Section 12 public interest considerations in favour of disclosure

Section 13 public interest test

Section 14 public interest considerations against disclosure, including: clause 1(f) effective exercise of agency’s functions; clause 1(g) found an action against an agency for breach of confidence; clause 4(a) undermine competitive neutrality; clause 4(b) reveal commercial in-confidence provisions of a government contract; and clause 4(d) prejudice any person’s legitimate business, commercial, professional or financial interests

Section 53 Searches for information held by agency

Section 54 Consultation on public interest considerations

Information Commissioner’s functions
Section 104(1) right of appearance

Section 111 referral of systemic issues to Information Commissioner

Review of decision
Section 80(2)(b) Civil and Administrative Tribunal Act 2013 (leave to appeal on grounds not a question of law)

Factual background

Destination NSW provided Mr Taylor with access to some information (with redactions), but refused to provide access to most of the information, by claiming the public interest considerations against disclosure under clauses 1(f) and (g), and clauses 4(a) and (b) with respect to commercial information. In the 2017 administrative review, the Tribunal found that Destination NSW had not consulted third parties under section 54 of the GIPA Act, and that it also failed to demonstrate that it had conducted reasonable searches for information, as required by section 53 of the GIPA Act. On the basis of these findings, the decision was remitted to Destination NSW with Directions to undertake consultation with third parties, and conduct additional searches of information to confirm that the information contained in identified 79 documents comprised all of the information. The 2018 Tribunal decision considered Destination NSW’s response to these Directions.  Destination NSW had categorised these 79 documents into seven categories (proposals, event investment submissions, assessment and scoring templates, strategic investment agreements, key performance indicator analysis, correspondence from Destination NSW and minutes of meetings). The Tribunal found that Destination NSW had wrongly applied the public interest considerations to the various categories of documents, instead of to the specific information in each of the documents; and made only generalised assertions with respect to some public interest considerations concerning commercial information. In applying the public interest test under section 13, the Tribunal adopted descriptions to indicate the strength of each consideration (e.g. modest, moderate, substantial). When considering third party submissions, the Tribunal noted that many of the documents were created by Destination NSW for internal use. Destination NSW appealed on the grounds that the Tribunal had applied irrelevant considerations, including its consideration of whether documents were ‘internal’ or ‘external’, and its reference to the agency’s ‘attitude’ when considering the public interest test; and that the Tribunal failed to give appropriate weight to the public interest considerations for and against disclosure, including that it did not give due weight to the evidence of the CEO of Destination NSW, Sandra Chipchase (at [59]). Destination NSW also appealed the Tribunal’s finding on its searches for information and claimed that this finding lacked procedural fairness.

Appeal Panel findings

On the various grounds of appeal, the Appeal Panel found no error of law in the Tribunal’s decision. The Appeal Panel found that:

• in applying the public interest test, it was a relevant consideration for the Tribunal to take into account the strength of the evidence and the submissions on specific pieces of information (at [49]-[51[). The Tribunal’s approach in distinguishing types of information contained in documents, such as whether they were internal documents of the agency, or external documents from third parties, was for this purpose (at [49]) ;
• the weight that the Tribunal gave to the considerations against disclosure depended on the probative value of the evidence about the effect of disclosing that information (at [69]);
• if Destination NSW had understood and applied the principles correctly, it would have realised from the outset that there was no overriding public interest against disclosure of much of the information (at [55]-[56]); and 
• the Tribunal did not offend the rules of natural justice as Destination NSW knew that its compliance with section 53 of the GIPA Act was a critical issue, as raised by the Tribunal in the first decision and, in effect, directed that it conduct adequate searches ([81]-[82] and [88]-[89]).

The Appeal Panel affirmed the Tribunal’s application of the public interest test in section 13 of the GIPA Act, noting in its summary of the Tribunal’s decision at ([4]-[15]), and in its consideration of the various grounds of appeal (at [42]-[70]):

• The Tribunal noted that the onus was on Destination NSW to justify its decision about the information it had withheld, under section 105(1) of the GIPA Act, and then the Tribunal applied the public interest test in section 13 of the GIPA Act (at [6]-[7]). The Tribunal found that Destination NSW did not discharge its onus under section 105(1) because it had wrongly applied the public interest considerations to categories of documents instead of to specific information in each of the documents (at [6]).
• The Tribunal correctly identified the relevant considerations in favour of disclosure of the information as required by section 12, and also that there was an overriding public interest against disclosure of certain information in particular documents (at [63]). The Tribunal adopted descriptors to indicate the strength of each consideration both for and against disclosure (these included minimal, modest, moderate, strong, substantial, significant and substantial) (at [6]).
• By taking into account third party submissions, the Tribunal was informed of factors against disclosure, which included commercially sensitive or confidential information under clause 4(d) of the Table to section 14 (at [12]).
• In relation to the particular deficiencies found in the evidence of Ms Chipchase, the Tribunal found that Destination NSW had not specifically explained how or to what extent disclosure of the identified specific information “could cause great economic and cultural loss to NSW”, or impact in the ways asserted. The Tribunal considered there was limited evidence from selected third parties about their objections, and no evidence supporting the likelihood of any of the impacts of disclosure which were asserted by Destination NSW (at [65]).

In considering the search obligations under section 53 of the GIPA Act, the Tribunal identified various actions for discharging this onus, including, evidence of what those searches entailed, the extent of those searches, or any explanation for why existing documents were not identified by the searches (at [75]).