ALQ September 2022 GIPA

Issue: September 2022

GIPA 

Prejudice deliberative process

Access the decision: Giblin v Department of Planning and Environment [2022] NSWCATAD 232

The applicant sought access under the Government Information (Public Access) Act 2009 (the GIPA Act) to information relating to the Department's review of the Social Impact Assessment for the McPhillamy's Gold Project, an application to develop an open cut gold mine that is currently being assessed as a State Significant Development. The Department refused access to a number of draft reports and associated information on the basis that there was an overriding public interest against disclosure (OPIAD). The applicant sought administrative review of that decision.

The Tribunal accepted the Department's evidence and submissions, finding that cll. 1(e) and (f) of the Table to s. 14 of the GIPA Act applied as public interest considerations against disclosure and outweighed the public interest favouring disclosure. With respect to cl. 1(e), the Tribunal was satisfied that the information in issue revealed the Department's deliberative processes and opinions, and that disclosure could reasonably be expected to prejudice deliberations in circumstances where the deliberative process is not complete, and the assessment has not yet been determined. The Tribunal noted: that the drafting of the review of the Social Impact Assessment was ongoing, with the final version to reflect additional information; that it is not the usual practice to release internal draft assessments prior to an assessment of an SSD application; that internal reviews are not usually publicly released as it is the final assessment that reflects the position of the Department; and, that final assessment had not yet been made. For the same reasons, the Tribunal was also satisfied that cl. 1(f) applies as a public interest consideration against disclosure.

In applying the public interest test, the Tribunal found that cls. 1(e) and (f) outweighed the considerations favouring disclosure of information. In particular, the Tribunal considered that the public interest in favour of disclosure had been substantially met by disclosure of information that is publicly available on the NSW Planning Portal, including the original and amended EIS, information about submissions, requests for information and responses to those requests. 

Whether information is 'held' under the GIPA Act and the requirement (or not) to create a new record

Access the decision: Evans v Chief Commissioner of State Revenue [2022] NSWCATAD 307

Up until 1 January 2021, data about unclaimed money received by the Chief Commissioner was published on the Unclaimed Money website, maintained by Revenue NSW, in a format that allowed users such as the applicant to search by owner's name, date of return and amount, or by selecting a letter of the alphabet corresponding with an owner's first or last name. A user could download the results of their searches in an excel spreadsheet. Changes, however, were made to the database from 1 January 2021, following a complaint to the Privacy Commissioner and the conduct of a Privacy Impact Assessment. The ability to search by date, amount and letter of the alphabet corresponding to an owner's name was removed, as was the ability to download results in a spreadsheet.

The applicant sought access to information in the form of an Excel spreadsheet 'populated with all current unclaimed money data that Revenue NSW has received since 1st January 2021 or the raw data itself in a tab separated text file form'. The Chief Commissioner determined that no government information was held that was responsive to the applicant's access application and much of the information that the applicant sought was already available to the applicant, as it was publicly available on the NSW Revenue website. The applicant sought administrative review of this decision.

The Tribunal affirmed the Chief Commissioner's decision with respect to the applicant's access application, determining that, having regard to the Chief Commissioner's evidence as to the data held and the steps that would need to be taken to generate the information sought by the applicant, the Chief Commissioner did not hold a record of the information in the format sought by the applicant. Moreover, the Tribunal held that the Chief Commissioner was not required to create a new record and the unclaimed money information was otherwise publicly available on the Unclaimed Money website. 

Disclosure of social housing addresses

Access the decision: Foster v Department of Planning and Environment[2022] NSWCATAD 235

The applicant sought access under the GIPA Act to the addresses of social housing properties in a number of areas for the stated purpose of assisting him in making an application for social housing. The Department refused access and the applicant sought administrative review of the Department's refusal.

The applicant submitted that the information requested would allow him to assess the availability of suitable properties in different allocation zones and to assess the proximity of services and facilities to social housing properties in the allocation zones, which would allow him to make an informed decision in applying for social housing.

The Department submitted that: the information requested by the applicant was personal information of the residents of the social housing properties; disclosure of the addresses would have the effect of disclosing that the residents of those properties were in receipt of social housing assistance, which in turn would have the effect of disclosing information regarding income levels and financial circumstances; it would only require moderate steps to be able to ascertain the identity of the residents at the addresses; and, disclosure would also be contrary to the secrecy provision in s. 71 of the Housing Act 2001.

The Tribunal found that there was an overriding public interest against disclosure of the information requested and affirmed the Department's decision to refuse access to the addresses. The Tribunal agreed with the Department's submission that the information requested by the applicant was 'about an individual' and found that: the addresses were information which could, when combined with further moderate steps, reveal personal information about an individual; the information was deeply personal in nature, and serious consequences would flow to individuals who reside in social housing if their addresses were disclosed, noting that disclosure would be to 'the world at large' ; disclosure of the addresses would have the tendency to prejudice the exercise of the agencies' functions – there is a reasonable expectation of residents of social housing that confidential information will be protected within reasonable and reviewable limits; disclosure of the information would contravene s. 71 of the Housing Act 2001; and, disclosure would have the effect of prejudicing the interests of residents of social housing and be inconsistent with access to safe and secure housing. 

V8 Supercar agreements withheld

Access the decision: Newcastle East Residents Group v Destination NSW [2022] NSWCATAD 282

The applicant sought access to information relating to the Newcastle 500 V8 Supercars event, including the Strategic Investment Agreement and a Civil Works Agreement with Newcastle City Council.

The Tribunal was satisfied that some of the public interest considerations against disclosure that were relied on applied to the information, including: that the information was confidential information (s. 14 Table cl. 1(g)); that disclosure would undermine competitive neutrality of Destination NSW (s. 14 Table cl. 4(a)); that disclosure would reveal commercial in confidence provisions of a government contract (cl. 4(b)); and that disclosure would prejudice legitimate business interests (s. 14 Table cl. 4(d)). The Tribunal did not consider there was sufficient evidence to support other considerations against disclosure relied on: in particular, the Tribunal was not satisfied that disclosure would prejudice the effective exercise of DNSW's functions (s. 14 Table cl. 1(f)), nor that disclosure would diminish the competitive commercial value of information (s. 14 Table cl. 4(c)).

Ultimately, the Tribunal was satisfied that the public interest against disclosure outweighed the public interest favouring disclosure; however, it did not agree that the entirety of the Strategic Investment Agreement should be withheld. The Tribunal determined that certain information from the Agreement should be redacted, but that the balance of the Agreement could be disclosed. 

Tribunal failed to ask itself whether there were any public interest considerations in favour of disclosure

Access the decision: Snape v Commissioner of Police No 2 [2022] NSWCATAP 244

The Appeal Panel in this matter allowed the appellant's appeal, finding that the Tribunal below had erred by making a material error of fact and by failing to properly apply the public interest test for which s. 13 of the GIPA Act provides. While the Tribunal below had referred to the general public interest favouring disclosure of government information when identifying the relevant principles that had to be applied, it did not identify what other public interest considerations favouring disclosure had been taken into account.

The Appeal Panel did not accept the Commissioner's submission that the reference by the Tribunal to personal factors was indicative that it had taken the public interest favouring disclosure into account. Rather, the Appeal Panel held that personal factors (dealt with in s. 55 of the GIPA Act) are distinct from the public interest favouring disclosure. 

In this case, the Tribunal did not identify what considerations in favour of disclosure might apply, assign them any weight, or purport to balance them against the public interest considerations against disclosure. Instead, it treated the appellant's personal factors as the only factors favouring disclosure. In doing so, the Tribunal failed to have regard to essential elements of the balancing exercise under s. 13. 

The Appeal Panel concluded that the Tribunal's exercise of the discretion conferred by s. 13 of the GIPA Act miscarried when it failed to ask itself whether there were any public interest considerations in favour of disclosure. This was an error of law, necessitating the Tribunal's decision to be set aside.   

Other decisions in this issue

Last updated:

22 Dec 2022

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