Information Access Case Note: Shoebridge v Forestry Corporation [2016] NSWCATAD 93

View full decisions here The Tribunal identified the steps for a decision maker in considering whether the information applied for is of special benefit to the public generally Shoebridge v Forestry Corporation [2016] NSWCATAD 93

What you need to know

The Tribunal confirmed that under section 15(b) of the GIPA Act, agencies must have regard to guidelines issued by the Information Commissioner in determining whether there is an overriding public interest against disclosure.

The Tribunal also observed that the guidelines issued by the Information Commissioner – GIPA 2 Discounting charges are “helpful aides”, and not bound to be considered under section 15(b) of the GIPA Act.

In considering the application of this test, the Tribunal provided guidance regarding the construction of ‘special benefit’ and ‘the public generally’. The Tribunal recognised the consistency of interpretation of the ‘public generally’ contained through illustrative examples in the Information Commissioner’s guidance and with existing case law.

In considering the construction of ‘special benefit’ as contained in s66(1), the Tribunal observed that the GIPA Act is to be construed beneficially in favour of disclosure. Accordingly, the Tribunal was satisfied that there is no requirement to construe ‘special’ as having:

“an extraordinary or exceptional benefit to the community at large, but merely something which is different from the ordinary or usual.”

The Tribunal concluded that a decision maker, in considering whether the information applied for is of special benefit to the public:

“must decide whether he or she is satisfied that there is a benefit that is different from what is ordinary or usual to the general public and thus not merely the private interests of the applicant alone”.

Legislative background

Section 15(b) of the GIPA Act provides that agencies must have regard to any relevant guidelines issued by the Information Commissioner in making a determination as to whether there is an overriding public interest against disclosure of government information.

Section 66 (1) of the GIPA Act provides that an applicant is entitled to a 50% reduction in a processing charge imposed by an agency is the agency is satisfied that the information applied for is of special benefit to the public generally. Section 66(3) provides that the Information Commissioner may, for the assistance of agencies, publish guidelines about reductions in processing charges under this section.

Factual background

Mr Shoebridge was seeking information concerning the names and quantities of chemicals used by the Forestry Corporation (Forestry) when undertaking both aerial and ground based chemical spraying of crops in forests, the sites where spraying took place, and the costs incurred.

Forestry advised that this information would require an unreasonable diversion of resources and invited to narrow his request. Mr Shoebridge narrowed the request to 2 years of information.

Forestry advised that the cost to provide the information was $120 and Mr Shoebridge sought a reduction based upon the special benefit to the public in terms of section 66 of the GIPA Act.

Forestry refused to reduce the fee and Mr Shoebridge sought external review by NCAT of that decision.

The Tribunal considered the question of special benefit and observed at [10 to 12] that:

In this regard, the guidelines are helpful aides. It is not correct, as the guidelines themselves assert, that they are bound to be considered under s 15(b) of the Act. That is because s 15(b) provides:

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

Evidently, s 15(b) is dealing with a different determination to the present one. Nevertheless, the guidelines are of potential assistance, as s 66(3) states.

The Tribunal then considered the wording of the guidelines and section 66 of the GIPA Act and the facts of the case. The Tribunal was satisfied that a ‘special benefit’ was derived by the public generally for a number of reasons including that:  

• the provision of information to a Member of Parliament would allow questions to be asked of Ministers and agencies regarding the use of pesticides in forests controlled by Forestry. 
• Broader questioning and submissions may also be raised as a result of the provision of that information to the public generally who may reside in locations adjacent to the forests, noting that aerial spray may potentially drift with the wind.  

The Tribunal found that Mr Shoebridge had made out the requirements of section 66 and found that there should be a 50% reduction in the processing fees and charges to be paid by Mr Shoebridge.