Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248

Read the decision here: Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248

Summary

The access applicant lodged a GIPA application with the Department of Planning, Industry and Environment (the Respondent) seeking information in relation to the Campbell's Stores redevelopment. Campbell's Stores is a heritage-listed property in The Rocks, Sydney which is owned by Place Management NSW and leased to Tallawoladah Pty Ltd (the Applicant).

The Respondent located information falling within the scope of the request which concerned the Applicant. As required by section 54 of the GIPA Act, the Respondent consulted with the Applicant to ascertain whether it objected to the release of the information that related to it. In response to the consultation, the Applicant advised that it objected to the release of the information.

The Respondent determined to release some of the information that was the subject of the Applicant’s objection.

The Applicant applied to the Tribunal for administrative review of the determination, maintaining that there was an overriding public interest against disclosure of all the documents proposed to be released.

The Applicant did not put on any evidence to support its contention that there was an overriding public interest against disclosure. Consequently, the Tribunal affirmed the decision under review.

What you need to know

A mere statement that disclosure could reasonably be expected to have a particular effect is insufficient. There must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect. In the present matter, the Applicant provided no evidence to support the findings of fact that it argued.

Where an access applicant brings administrative review proceedings under the GIPA Act, the onus falls on the agency to establish that its decision is justified. However, where the review is brought by a third-party objector, of a decision to provide access to government information in response to an access application, as was the case in this matter, the burden of establishing there is an overriding public interest against disclosure of information lies on the applicant for review.

Legislative background

GIPA Act

• Section 3 object of Act
• Section 4 interpretation
• Section 5 presumption in favour of disclosure of government information
• Section 9 access applications
• Section 12 public interest considerations in favour of disclosure
• Section 13 public interest test
• Section 14 public interest considerations against disclosure – clause 6 secrecy provisions
• Section 15 principles that apply to public interest determination
• Section 54 consultation on public interest considerations – with third parties
• Section 100 administrative review of decision by NCAT
• Section 104 right of appearance before NCAT – third party as person aggrieved
• Section 105 onus on agency to justify decisions

Review requirements and jurisdiction

• ADR Act
• Section 63 determination of administrative review by the Tribunal

Factual background

The matter involved an application for review of a decision by the Respondent to release information that it holds. That decision was in response to an access application which sought access to information in relation to the Campbell's Stores redevelopment. Campbell's Stores is a heritage-listed property in The Rocks, Sydney which is owned by Place Management NSW and leased to the Applicant.

Campbell's Stores consists of several restaurants and bars. The access applicant in relation to these proceedings was previously a sub-tenant of the Applicant.

In response to the access application, the Respondent carried out searches to locate information captured by the scope of the request. Some of the information that was located concerned the Applicant. As required by section 54 of the GIPA Act, the Respondent consulted with the Applicant to ascertain whether it objected to the release of the information that related to it. In response to the consultation, the Applicant advised that it objected to the release of the information.

The Respondent determined to release some of the information and to withhold other information.

The Applicant sought an internal review of the Respondent’s decision. The internal review decision varied the original decision but determined to release some of the information that was the subject of the Applicant’s objection. Many of the documents proposed to be released were subject to extensive redactions.

The Applicant applied to the Tribunal for external review of the determination, maintaining that there was an overriding public interest against disclosure of all the documents proposed to be released. However, the Applicant did not put on any evidence to support its contention that there was an overriding public interest against disclosure.

The Information Commissioner exercised her right to participate in the proceedings under section 104(1) of the GIPA Act and filed written submissions.

The issue for the purposes of the Tribunal’s review was whether the correct and preferable decision was that there was an overriding public interest against disclosure of the information in issue.

Tribunal findings

Considerations against disclosure

The Tribunal noted the following public interest considerations in favour of disclosure identified in the Respondent’s internal review:

1. the general public interest in disclosure of government information;
2. disclosure would be reasonably likely to promote open discussion of public affairs, enhance Government accountability and contribute to positive and informed debate on issues of public importance;
3. disclosure would be reasonably likely to inform the public about the operations of agencies and, in particular, the process taken to approve the subdivision plans;
4. Campbell's Stores is a location of significant historical and cultural heritage, and is a prominent part of the urban environment of Sydney.

Considerations against disclosure

The Applicant argued that the public interest considerations against disclosure outweighed those in favour of disclosure. The considerations raised by the Applicant were considerations often relied upon by third-party objectors. These are found in the table to section 14 of the GIPA Act and were as follows:

1. The disclosure of the information would prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (clause 1(d)).
2. The disclosure of the information would found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence (clause 1(g));
3. The disclosure of the information would prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings (clause 3(c));
4. The disclosure of the information would diminish its competitive commercial value (clause 4(c)); and
5. The disclosure of the information would prejudice any person's legitimate business, commercial, professional or financial interests (clause 4(d)).

Clause 1(d)

To make out this public interest against disclosure, it is necessary to prove that:

1. the information is "confidential";
2. a supply of information will be prejudiced; and
3. the information facilitates the effective exercise of the agency's functions.

In this matter, the Applicant’s submissions referred to its reluctance to provide information in the future if the information in issue was released. The Applicant submitted that it would have been less candid in the provision of information to the Respondent if it did not believe the information would be kept confidential. However, no evidence was provided by the Applicant to support that submission. Therefore, the basis for the Applicant holding this opinion was not clear was not clear to the Tribunal.

Clause 1(g)

The Respondent submitted that clause 1(g) only applies to information that is provided to an agency in confidence. Where information is provided by the agency to the Applicant, the public interest consideration against disclosure does not apply. The Applicant submitted that correspondence from the Respondent to the Applicant contained information provided by the Applicant to the agency. However, no evidence was provided to support that submission.

The Tribunal noted that the Applicant did not provide any evidence to identify information that was supplied to the Respondent or the source of the confidentiality.

The need for evidence in GIPA matters

The Tribunal noted that a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient. There must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect. In the present matter, the Applicant provided no evidence to support the findings of fact that it argued.

Clause 3(c)

To make out this public interest against disclosure, it is necessary to prove:

1. which court proceedings would be prejudiced;
2. how would the court proceedings be prejudiced; and
3. the purpose for which the information was prepared.

The Tribunal found that there was no evidence to support the finding that there were any court proceedings that would be prejudiced. At its highest, the Tribunal found that there may be threatened proceedings. Further, the Applicant's submissions did not explain why the proposed release of information could reasonably be expected to prejudice the potential court proceedings. Nor was there any explanation in regard to the purpose for which the information was prepared as required by clause 3(c). It also was not clear what material, if any, was prepared for the purposes of or in relation to current or future proceedings. A mere statement that disclosure could reasonably be expected to have a particular effect is insufficient.

Clause 4(c)

The Tribunal noted that information has “commercial value” if the information is valuable for the purposes of carrying on the commercial activity in which the entity is engaged or if a genuine arms-length buyer is prepared to pay to obtain the information.

The Applicant did not provide any evidence in support of its contention that the information proposed to be disclosed had commercial value. Further, it was not clear that the information proposed to be disclosed had any competitive commercial value. Even if it were to be assumed that the information did have competitive commercial value, it did not necessarily follow that the release of the information would diminish its value. These issues needed to be addressed by evidence.

Clause 4(d)

In order to establish this contention, the Applicant was required to identify particular legitimate business, commercial, professional, or financial interests and demonstrate a basis on which a finding could be made that disclosure of the information could reasonably be expected to prejudice those interests.

The Applicant submitted that the disclosure would disadvantage it in its commercial exchanges with its sub-tenants and that its sub-tenants and suppliers may reasonably be expected to use the information to gain advantage over the Applicant in commercial discussions. The Applicant submitted that the disclosure would expose it to an unfair disadvantage and thereby prejudice its legitimate commercial interests. However, the Applicant did not provide specific evidence in support of its contentions and therefore it was not clear to the Tribunal how release would have the effect argued by the Applicant.

Tribunal outcome

The Tribunal concluded that the Applicant did not provide any evidence in support of its case and it had not discharged the onus of establishing that there was an overriding public interest against disclosure of the information in issue. Accordingly, the decision under review was affirmed.