Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Griffin v Sydney Trains [2020] NSWCATAD 234 Hearing dates: 27 July 2020 Date of orders: 22 September 2020 Decision date: 22 September 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: A Christie, Senior Member Decision: (1) The deemed decision of the Respondent under review is affirmed as the correct and preferable decision. (2) Pursuant to ss64(1) (c) and (d) Civil & Administrative Tribunal Act 2013 it is ordered that the: (a) publication of confidential evidence given to the Tribunal and of the contents of the confidential document submitted to the Tribunal; and (b) disclosure to the Applicant of confidential evidence given to the Tribunal and of the contents of the confidential document submitted to the Tribunal, are prohibited. Catchwords: ADMINISTRATIVE LAW - Government Information (Public Access) – whether disclosure of government information could reasonably be expected to endanger or prejudice any system or procedure for protecting the safety of any person - whether disclosure of government information could reasonably be expected to endanger or prejudice the security of or any system or procedure for protecting any place, property or vehicle - whether disclosure of government information could reasonably be expected to facilitate the commission of a criminal act – clauses 2 (d), (e) and (f) of the s14 GIPA Act Table – no conditions to be imposed by the Respondent on the use or further disclosure of the information – balancing of public interest considerations for and against disclosure Legislation Cited: Administrative Decisions Review Act 1997 Civil & Administrative Tribunal Act 2013 Freedom of Information Act 1989 Government Information (Public Access) Act 2009 Cases Cited: Attorney General's Department v Cockcroft (1986) 10 FCR 180 Calderwood v Department of Planning, Industry and Environment [2020] NSWCATAD 200 Department of Education and Training v GJ (GD) [2009] NSWADTAP 33 Electoral Commissioner State Electoral Office V McCabe 2003 NSWADTAP 28 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Jacobs v Commissioner of Police (NSW) [2013] NSWADT 54 Leech v Sydney Water Corporation [2010] NSWADT 298 Lemon v Department of Planning and Environment [2019] NSWCATAD 148 Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 Smith v Pittwater Council [2016] NSWCATAD 67 Turner v Corrective Services NSW (No. 2) [2013] NSWADT 232 Wordsworth v Roads and Maritime Services [2017] NSWCATAD 201 Category: Principal judgment Parties: Anthony Griffin (Applicant) Sydney Trains (Respondent) Representation: Counsel: A H Edwards (Respondent) Solicitors: McPhee Kelshaw (Applicant) Maddocks (Respondent) File Number(s): 2019/00342345, 2019/00389911 Publication restriction: Pursuant to ss64(1) (c) and (d) Civil & Administrative Tribunal Act 2013 the: a. publication of confidential evidence given to the Tribunal and of the contents of the confidential document submitted to the Tribunal; and b. disclosure to the Applicant of confidential evidence given to the Tribunal and of the contents of the confidential document submitted to the Tribunal, are prohibited. REASONS FOR DECISION 1. This matter concerns the two applications (Request No. 19S-0054 and Request No. 19S-0077) made by the Applicant, Mr Anthony Griffin, to the Respondent, Sydney Trains, under the Government Information (Public Access) Act 2009 (GIPA Act) for access to, in summary, the following government information: 1. 1500V overhead wiring layout drawings from Zig Zag Sectioning Hut to Bowenfells terminations at SL 158 + 709 inclusive; 2. 1500V overhead wiring cross section drawings from Zig Zag Sectioning Hut to Bowenfells termination at SL 158 + 709 inclusive; 3. dimensional drawings of the hardware used to attach bridge guard rails to concrete sleepers and the instructions describing the hardware used and how the hardware is installed; 4. a "drivers diagram" for Lithgow (a track diagram showing the signalling); 5. metric curve and grade diagram with speed boards for the Mt Victoria to Wallerwang (Main Western Line) section; 6. overhead wiring sectioning diagrams relating to portions of the Respondent's train network; and 7. a map of the Sydney "metropolitan area" that defines boundaries between Railcorp and the ARTC. 1. The Applicant's requests (Request No. 19S-0054 and Request No. 19S-0077) and the Respondent's decisions in respect of both of them were joined together for review by the Tribunal. 2. As at the date of the hearing, 27 July 2020, only the information listed at [1(6)] above (as further detailed in [4] below), to which access was requested by the Applicant in Request No. 19S-0054, remained in dispute. The other information sought by the Applicant under Request No. 19S-0054 and all the information sought by the Applicant under Request No. 19S-0077 (Other Applications) had been (or had agreed to be) released to the Applicant by the Respondent or was otherwise sourced separately by the Applicant by the time of the hearing. Background 1. Request No. 19S-0054: On 12 November 2018 the Applicant requested, among other information which is no longer in dispute, access to information contained in the overhead wiring sectioning diagrams for the sections of the rail network from: 1. Newnes Junction Substation to Oakey Park Substation; and 2. Oakey Park Substation to Bowenfels terminations at SL 158 + 709 (OWDs). 1. As the OWDs were the only information remaining in dispute as at the date of the hearing, in this decision I do not consider the information requested in the Other Applications or the Respondent's decisions or the review reports of the Information and Privacy Commission (IPC) in respect of the information in the Other Applications. 2. On 17 December 2018 the Respondent issued its decision on access to the OWDs as part of the Applicant's Request No. 19S-0054 (Initial Decision) and refused the Applicant access to the OWDs. In the Initial Decision the Respondent cited the public interest considerations against disclosure in clauses 2 (d), (e) and (f) of the s14 GIPA Act Table and its determination that such outweighed the public interest considerations in favour of disclosure as the reason for its decision to refuse the Applicant access to, among other information, the OWDs (s58(1)(d) GIPA Act). 3. On 9 January 2019, at the Applicant's request, the Respondent undertook an internal review of the Initial Decision and, in a letter dated 21 February 2019, communicated its review decision to refuse the Applicant's request for access to the OWDs (Review Decision). In the Review Decision the Respondent cited the public interest considerations against disclosure in clauses 2(c), (d) and (e) of the s14 GIPA Act Table and its determination that these considerations outweighed the public interest considerations in favour of disclosure as the reason for its decision to refuse the Applicant access to, among other information, the OWDs (s58(1)(d) GIPA Act). 4. On 16 March 2019 the Applicant applied for external review of the Review Decision by the IPC under s89 GIPA Act. The report of the IPC's review of the Review Decision in respect at the OWDs, among other requested information under Request No. 19S-0054, is dated 17 April 2019 ("IPC Report"). 5. In the IPC Report the IPC recommended, under s93 GIPA Act, that the Respondent make a new decision as regards the OWDs, among other information, because the IPC concluded at [42] of the IPC Report that: On the information available, I am not satisfied that the agency's decisions under review are justified. This is because I am not satisfied that the agency has established that clauses 2(c), 2(d) and 2(e) [of the s14 GIPA Act Table] are reasonably expectable. 1. Not having received notice of a new decision from the Respondent within 20 days of the IPC's recommendation in the IPC Report for the Respondent to make a new decision (s57(1) GIPA Act) and after waiting for the IPC's external review of the Respondent's internal review decision in respect of Request No. 19S-0077 (s81 GIPA Act), the Applicant filed a request (dated 27 November 2019) for review by the Tribunal of the deemed refusal of the Respondent to deal with the application (s63(1) GIPA Act) in respect of the OWDs, among other requested information. 2. Before the hearing the Tribunal received from the Respondent its written submissions and statements from Ms Lidija Dumbaloska, Mr James Henry Ross and Mr Jared Mark Tuszynski and a reply statement from Ms Dumbaloska in reply to the Applicant's statement. From the Applicant the Tribunal received prior to the hearing a statement from the Applicant in response to the Respondent's submissions and statements. 3. On 23 July 2020 the Respondent informed the Tribunal that, as a result of reconsidering its decision in relation to the then remaining information in dispute under Request No. 19S-0077 and releasing such to the Applicant, the Respondent would no longer be relying on the statement of Mr Ross. Jurisdiction and Role of the Tribunal 1. The Tribunal has jurisdiction under ss80(c) and 100(1) GIPA Act to review the Respondent's deemed decision to refuse to deal with the application after the recommendation of the IPC in the IPC Report for the Respondent to make a new decision (ss57(1), 58(1)(e), 63(1), 93(3) and 101(2) GIPA Act and see Jacobs v Commissioner of Police (NSW) [2013] NSWADT 54 at [26]). A decision to refuse to deal with an access application (including such a decision that is deemed to be made s63 GIPA Act) is a reviewable decision (s80(c) GIPA Act) and a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under s100(1) GIPA Act. 2. The Tribunal is required to determine what is the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law (s63(1) Administrative Decisions Review Act 1997). The Tribunal makes its own decision in place of the Respondent's decision, without any presumption that the Respondent's decision is correct. 3. This decision must take account of the public interest considerations advanced to the Tribunal both by the Applicant to release and the Respondent for withholding the information in question, the respective evidence supporting those public interest considerations and then balance the weight of the various competing public interest considerations. 4. Under s105 GIPA Act the Respondent has the burden of establishing to the Tribunal that the decision it made or, in this case, is deemed to have made is justified. The Hearing 1. The hearing took place on 27 July 2020 with the parties and their legal representatives appearing by videolink (AVL). 2. 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 (s107(1) GIPA Act). Section 107(2) requires that the Tribunal must receive evidence and hear argument in the absence of the public, the 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. 3. Accordingly, as noted in [20] below, a part of the hearing (that is, the further evidence of Ms Dumbaloska) was conducted in the absence of any members of the public, the Applicant and the Applicant's representative and an order under s64(1) Civil & Administrative Tribunal Act 2013 prohibits the disclosure to the Applicant and publication of this evidence given during the hearing and of a confidential document submitted to the Tribunal by the Respondent prior to the hearing. 4. During the hearing the Tribunal heard evidence from Ms Dumbaloska for the Respondent, who the Applicant cross-examined and the Respondent re-examined. The Applicant, Mr Griffin, also gave evidence. The Respondent made oral closing submissions during the open session. Ms Dumbaloska also gave additional evidence as regards the confidential document submitted to the Tribunal by the Respondent in a confidential session after the conclusion of the open session without the public, the Applicant or the Applicant's representative present. 5. On the request of the Applicant and with the agreement of the Respondent, the Tribunal allowed the parties to submit their closing submissions (additional or reply closing submissions for the Respondent) in writing (up to 5 pages) after the hearing concluded. Both the Applicant (submitted on 3 August 2020) and the Respondent (submitted on 7 August 2020) submitted written closing submissions. The GIPA Act 1. The object of the GIPA Act is to open up government information to the public. This object is to be realised by agencies authorising and encouraging proactive public release of government information (s3(1)(a) GIPA Act), giving members of the public an enforceable right to access government information (s3(1)(b) GIPA Act) and restricting access to government information only when there is an overriding public interest against disclosure (s3(1)(c) GIPA Act). 2. There is a presumption in favour of the disclosure of government information, unless there is an overriding public interest against such disclosure (s5 GIPA Act). Under s9(1) GIPA Act a person who makes an application to access government information has a legally enforceable right to be provided with such access, unless there is an overriding public interest against the disclosure of the information. 3. Section 12 GIPA Act reiterates the general presumption in favour of disclosure of government information (s12(1) GIPA Act), provides that there is no limit on the public interest considerations in favour of disclosure that may be taken into account (s12(2) GIPA Act) and notes some examples of public interest considerations that favour disclosure: Note – The following are examples of public interest considerations in favour of disclosure of information: Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. The information is personal information of the person to whom it is to be disclosed. Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. 1. In this case, where no conclusively presumed overriding public interest(s) against disclosure is being claimed by the Respondent under s14(1) GIPA Act, the only public interest considerations against disclosure that can be considered are those exhaustively set out in the s14 GIPA Act Table (s14(2) GIPA Act). In this case, the s14 GIPA Act Table relevantly includes (i.e. the Respondent relies on the following as the public interest considerations against disclosure of the OWDs): 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 - … (d) endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person; (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), … 1. In the absence of a conclusive presumption of an overriding public interest against disclosure under s14 GIPA Act, s13 GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure: 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. 1. Section 15 GIPA Act provides for certain principles that apply to the determination of whether there is an overriding public interest against disclosure of the information in question: 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 - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 1. Under s73 GIPA Act an agency is not entitled to impose any conditions on the applicant's use or subsequent disclosure of the information released under a GIPA Act access application. The Submissions 1. The Respondent submitted at [29] of its submissions that clauses 2(d), (e) and (f) of the s14 GIPA Act Table are the relevant public interest considerations against disclosure. At [28] and [51] of those submissions the Respondent submitted that the public interest considerations in favour of disclosure are to facilitate public scrutiny and promote transparency of the Respondent's decision making, including in respect of the delivery of safe and reliable railway passenger services, and the Applicant's motives to seek to enhance the safe delivery of passenger rail services. 2. The Respondent also submitted at [31] of its submissions that, in respect of clauses 2(d) and (e) of the s14 GIPA Act Table, the word "prejudice" should be given its ordinary meaning, being to "cause detriment or disadvantage". 3. At [35] of the Respondent's submissions the Respondent submitted that the OWDs display details of: (a) the configuration of Sydney Trains' distribution network, including where substations and switches are located; (b) the equipment utilised to enable possessions (i.e. electrical shutdowns) for emergency isolations; and (c) how power for the electric traction of the network is maintained and controlled in normal and emergency situations. 1. At [40] of the Respondent's submissions the Respondent submitted that access to the OWDs could allow a person to turn on sections of the track when they are supposed to be powered down and turn off sections of the track when they are supposed to be operating normally. At [41] of those submissions the Respondent submits that any unauthorised act of this kind (i.e. turning sections of the track on or off without authorisation) is a criminal act. 2. The Applicant submitted in its written closing submission at [9]-[26] that the Respondent's submissions referred to in [31] and [32] above can be dismissed because, in summary: 1. the switch settings are checked before track work (e.g. a possession) commences; 2. the OWDs are not the only method of protecting workers; 3. much of the track can be viewed from an elevated position; 4. the OWDs are not accurate as to current settings as such settings are changed regularly; 5. access to the OWDs does not change the capacity of a malicious person to change switch settings in an untargeted manner as the location of the switches is easily identifiable and the Respondent's security measures are easily overcome; 6. for there to be any safety risk, any changes to switch settings would need to breach the Respondent's security measures and be done by day (while the work is being done) and thus be obvious; 7. the theft of copper overhead wiring requires significant effort, equipment and knowledge (including that such may recoil when cut, which is not shown by the OWDs), none of which the release of the OWDs assists with or helps circumvent, for little economic return based on the current price of scrap copper; 8. it is relatively easy for a fit person to manually identify which switch setting relates to which section of overhead wiring without the OWDs; and 9. the information in the overhead wiring layout and cross-section diagrams which the Applicant was provided access to by the Respondent were originally subject to the same submissions by the Respondent as the OWDs and yet that information was disclosed to the Applicant. Thus, if those considerations were not sufficient to prevent disclosure of that information, they are not sufficient considerations to prevent disclosure of the similar information in the OWDs. 1. In reply to the Applicant's written closing submissions the Respondent submitted most relevantly at [2], [3] and [4] of its written closing submissions in reply, that: 1. the Respondent has not abandoned, as regards the OWDs and information contained in them, any of the grounds articulated in its submissions; 2. there is a real risk of unauthorised operation of switches while maintenance is being carried out, after the safety checks have been performed; and 3. the Respondent's position is not that the Applicant will release the OWDs or the information contained in them to the general public but rather it is concerned that, once the information is released to the Applicant, the Respondent will be obliged to release it to any other person who requests access to the same information. The Evidence 1. Ms Dumbaloska stated at [16] and [18] of her statement, which she confirmed in her oral evidence, that: A person with knowledge of the rail network may be able to use the [OWDs] to determine the isolation points…and use this information to sabotage the possession limits. For example, by operating a switch during a network close down. This would result in reinstating the power to a network during maintenance activities and as such could put the maintenance workers at risk. … Further, the [OWDs] could also be used to identify critical switches that remain closed during the possession to feed power to the remainder of the network. If these were tampered with during a possession, it would create major operational delays. 1. Mr Tuszynski's statement echoed Ms Dumbaloska's concerns regarding the safety of and disruption to sections of the rail network if a person could access the OWDs. In addition, Mr Tuszynski noted the physical and contractual measures taken by Sydney Trains to protect and limit access to and use of the OWDs. 2. The Applicant submitted at [51] and [53] of the Applicant's statement and repeated in his oral evidence that the OWDs do not indicate possessions limits or "critical switches" that remain closed and that all 1500V switches are locked and require the correct key to open them in order to use them. 3. At [54] of the Applicant's statement and in his oral evidence the Applicant stated, in response to the statements of Ms Dumabloska and Mr Tuszynski, that the OWDs do not indicate the location of redundant overhead wiring (i.e. assisting the theft of such copper wire). 4. At [81] of the Applicant's statement the Applicant submitted that: For Sydney Trains to assert that clauses 2(d), 2(e) and 2(f) of [section] 14 [GIPA Act Table] apply to any part of its infrastructure would be admitting that the infrastructure is not being maintained and operated in a manner that is "as safe as is reasonably practical" and therefore it is not in accordance with its own regulations and the Railway Safety Act. 1. In her reply statement, Ms Dumbaloska states: [10] …the switches are locked by padlocks. A person…could remove the padlocks with a hammer or battery-operated tool. [17] I agree…that stealing portions of overhead wiring would be difficult and dangerous. However, in the past, thefts of copper wire under tension have been successful. [23] In some cases [the position of the switches is visible from outside the rail corridor]. However, other switches are located well within the rail corridor and there is no clear line of sight to them. Consideration 1. The issue at stake is whether the government information in the OWDs withheld by the Respondent (in this case, ultimately by a deemed decision to refuse to deal with the application) should be released because the public interest considerations against release do not override the public interest considerations in favour of such a release. 2. The process for deciding whether to grant access under the GIPA Act to the government information in question is to identify the public interest considerations in favour of and against disclosure of that information. Then it is necessary to allocate weight to each of these positive and negative considerations, followed by a process of balancing them to reach a decision as to whether or not access to the information in question should be granted: Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 at [9] and Lemon v Department of Planning and Environment [2019] NSWCATAD 148 at [64]. 3. In this case there is an overriding public interest against disclosure if and only if there are public interest considerations against disclosure under clauses 2(d), (e) or (f) of the s14 GIPA Act Table which, on balance, outweigh the public interest considerations in favour of disclosure (s13 GIPA Act). 4. Because the Respondent bears the burden of justifying its decision (in this case, its deemed decision) to refuse the Applicant access to the information in question (s105 GIPA Act), it has the burden of establishing that the public interest considerations against disclosure that the Respondent relies on actually apply. It must therefore establish both generally and in this case that the disclosure of the information could, pursuant to clauses 2(d), (e) or (f) of the s14 GIPA Act Table, reasonably be expected to (i) endanger or prejudice any system or procedure for protecting the life, health or safety of any person, (ii) endanger the security of or prejudice any system or procedure for protecting any place, property or vehicle and/or (iii) facilitate the commission of a criminal act (including a terrorist act). 5. The Respondent then bears the burden of establishing that, on balance, these public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. It is not sufficient that the Respondent merely makes an assertion that the relevant risk 'could reasonably be expected': Turner v Corrective Services NSW (No. 2) [2013] NSWADT 232 at [32]. 6. When examining the Respondent's claims based on clauses 2(d), (e) and (f) of the s14 GIPA Act Table, the Tribunal must reach a view on whether disclosure of the information "could reasonably be expected" to have the nominated effect: Attorney General's Department v Cockcroft (1986) 10 FCR 180. In that case, the Full Federal Court provided the following guidance, as helpfully summarised in Calderwood v Department of Planning, Industry and Environment [2020] NSWCATAD 200 at [40]: The decision maker must make a judgement as to whether the expectation is reasonable, as opposed to something irrational, absurd or ridiculous. It is also regarded as undesirable to consider the operation of the expectations in terms of probabilities or possibilities. It is not appropriate to consider any specific degree of likelihood or probability but rather to determine whether the expectation was reasonably based. One should confine oneself to the language of the provision and attempt to form an opinion on the evidence as to what can reasonably be expected to happen if disclosure occurs. 1. In Leech v Sydney Water Corporation [2010] NSW ADT 298 at [25] it was stated that the test to be applied when considering whether the nominated effects could be reasonably expected is an objective one approached from the viewpoint of a reasonable decision maker. Something which could be reasonably expected is something more than a mere possibility, risk or chance and must be based on real and substantial grounds not purely those which are speculative, fanciful, imaginary or contrived. 2. In addition, as stated by the Appeal Panel in Electoral Commissioner State Electoral Office V McCabe 2003 NSWADTAP 28 at [36], claims by an agency concerning "endangerment" (as in clauses 2 (d) and (e) of the s14 GIPA Act Table) require serious consideration and: …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 judgement. The question is always whether the material, statements of opinion and submissions put forward by the agency justifies reliance on the exemption. 1. In clauses 2 (d) and (e) of the s14 GIPA Act Table the occurrence of the "prejudice" does not have to be established on the balance of probabilities but there must be something more than a mere possibility, risk or chance of the event occurring: Attorney General's Department v Cockcroft (1986) 10 FCR 180 per Bowen CJ and Beaumont J at [106] and Smith v Pittwater Council [2016] NSWCATAD 67 at [37]. Also, the term "prejudice" is to be given its ordinary meaning, "to cause detriment or disadvantage" or to "impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. 2. In relation to clause 2(f) of the s14 GIPA Act Table, in Wordsworth v Roads and Maritime Services [2017] NSWCATAD 201 the Tribunal, considering whether the release of "fatigue studies and/or engineering assessments" of the Sydney Harbour Bridge would facilitate the commission of a terrorist act, at [39] concluded: 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. 1. In relation to clause 2(f) of the s14 GIPA Act Table, the Tribunal must consider whether the disclosure of the information in the OWDs could reasonably be expected to have the effect of facilitating (i.e. on its ordinary meaning, to make easier) a criminal act by a person minded to carry out such an act. In this case, the criminal acts submitted by the Respondent which would be facilitated by the release of the OWDs are (i) the unauthorised turning on and off of power to that part of the rail network covered by the OWDs and (ii) the theft of copper overhead wire from the rail network covered by the OWDs. 2. In considering whether, objectively, the enumerated endangerment, prejudicial or facilitation effects could reasonably be expected, the Tribunal considers whether disclosure could be reasonably expected to have the effect, first in a broad and general sense and then secondly whether it could be reasonably expected in this particular case. If such a reasonable expectation emerges, the Tribunal then considers what weight should be given to these public interest considerations against disclosure. 3. The Tribunal then weighs the public interest considerations in favour of disclosure against those reasonably expected public interest considerations against disclosure. The Tribunal must then determine whether on balance, in relation to the information in question, the considerations against disclosure outweigh the considerations in favour of disclosure. Public interest considerations in favour of disclosure 1. In addition to the public interest considerations in favour of disclosure of the information in question raised in the Respondent's submissions (see [29] above), in summary the IPC noted the following in [9], [38] and [40] of the IPC Report: 1. the presumption in favour of disclosure of government information under s5 GIPA Act; 2. the general public interest in favour of the disclosure of government information under s12 GIPA Act; 3. the disclosure of information could reasonably be expected to inform the public about the operations of agencies; and 4. under s55 GIPA Act, the personal factors of the Applicant including the Applicant's submission that, as a member of the Institution of Engineers, Australia, the Applicant is subject to a Code of Ethics that does not permit the Applicant to act in the manner feared by the Respondent. 1. All of the public interest considerations in favour of disclosure (referred to at [29] and [54] above) must be considered in the balancing process undertaken by the Tribunal. I give significant weight to the public interest consideration in respect of the public scrutiny and transparency of the Respondent's decision making, including in relation to the delivery of safe and reliable passenger rail services. 2. I have also considered under s55(2) GIPA Act the Applicant's personal factors as submitted by both the Respondent and the Applicant and noted by the IPC in the IPC Report (see [54] above): that is, the motives of the Applicant to seek to enhance the safe delivery of passenger rail services and the fact that the Applicant is subject to a Code of Ethics which the Applicant submitted would restrict his further disclosure of the information. However, it has often been stated that, as disclosure must be unconditional, it should be considered as a 'disclosure to the world', often irrespective of an Applicant's submission as to his/her proposed limited use and non-disclosure of the information: Department of Education and Training v GJ (GD) [2009] NSWADTAP 33 at [39] to [41]. 3. While referring to similar provisions under the Freedom of Information Act 1989, the Administrative Decisions Tribunal in Department of Education and Training v GJ (GD) [2009] NSWADTAP 33, considering a number of prior cases, stated relevantly at [42]: The theory, at least, is that once access is given under FOI to one citizen, any other citizen who makes the same request should have the same rights: see further Humane Society v National Parks and Wildlife Service [2000] NSWADT 133 at [26-31] … … I consider that the FOI Act does not establish a scheme under which agencies can deal differently as between third party applicants…who make the identical request…There is, for example, no mechanism in the Act allowing for conditional or limited disclosure once a request is granted under FOI. Public interest considerations against disclosure 1. I examined each of the clauses 2(d), (e) and (f) of the s14 GIPA Act Table relied on by the Respondent and which the Respondent says, considered together, outweigh the public interest consideration in making such a disclosure in light of and based on the requirements and the evidence presented to me and set out my conclusions on each in [59] to [61] below: 2. Table clause 2(d) (endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person): Although the claim of endangerment or prejudice requires "grave assessment (which) must be closely scrutinised and not easily accepted" (Electoral Commissioner State Electoral Office V McCabe 2003 NSWADTAP 28 at [36]), I find that this consideration is made out. Based on the evidence before me, I find that it could be reasonably expected that the release of the information in the OWDs would have the effect, both generally and in this particular case, of prejudicing a system or procedure of the Respondent for protecting the safety of those persons working on or maintaining the relevant sections of the rail network to which the OWDs relate. While I appreciate that many of the concerns raised could occur now in an untargeted manner, without the release of the OWDs, the information in the OWDs would enable these activities of concern to be done in a targeted manner, at least on that part of the rail network covered by the OWDs. This is clearly a "detriment or disadvantage" to or "impedes or derogates from" the Respondent's existing safety procedures. Also, on release of the OWDs, the Respondent would need to reconsider and likely revise its safety procedures relating to, at least, those sections of track covered by the OWDs. 3. Table clause 2(e) (endanger the security of or prejudice any system for protecting, any place, property or vehicle): Based on the evidence before me, I find that it could not be reasonably expected that the release of the information in the OWDs would have the effect, either generally or in this particular case, of endangering or prejudicing any system of the Respondent protecting any place, property or vehicle (i.e. in this case the physical or electronic security of the sections of the rail network to which the OWDs relate generally and the overhead copper wiring of those sections of track in particular). As distinct from a system for protecting the safety of workers (see [59] above), the Respondent did not establish how the release of the information in the OWDs could reasonably be expected to endanger or prejudice any existing security or other system for protecting those parts of the rail network (including the overhead wiring) covered by the OWDs. I find the Applicant's submissions on this compelling and nothing in the Respondent's evidence before me established how the release of the information in the OWDs could reasonably be expected to endanger or prejudice (e.g. overcome) any fencing, locks, CCTV or other monitoring, other physical, electronic or other security measures protecting or securing any place, property or vehicle. Therefore, I do not consider this as a public interest consideration against disclosure when balancing the public interest considerations in favour of and against disclosure of the information in question. 4. Table clause 2(f) (facilitate the commission of a criminal act, including a terrorist act): The two criminal acts submitted by the Respondent as reasonably expected to be facilitated by the release of the OWDs are detailed in [51] above. Based on the evidence before me, I find that it could be reasonably expected that the release of the information in the OWDs would have the effect, both generally and in this particular case, of facilitating (i.e. making easier) the commission of a criminal act by assisting someone minded to carry out such with the unauthorised targeted turning on and off any specific part of the rail network covered by the OWDs. However, on the evidence before me, I find that it could not be reasonably expected that the release of the information in the OWDs would have the effect, generally or in this particular case, of facilitating the criminal act of the theft of the overhead copper wiring in respect of that part of the rail network covered by the OWDs. 5. Clearly, my conclusions at [59] and [61] are serious matters of grave concern and I therefore give very great weight to them in balancing these public interest considerations against disclosure as against the public interest considerations in favour of disclosure. Balancing the Public interest 1. Balancing the competing public interest considerations is "a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation": Hurst v Wagga City Council [2011] NSWADT 307 at [70]. 2. I begin by noting that, at the outset, the scales are tipped in favour of disclosure and that the identified positive factors (identified at [29] and [54] above) must be considered in weighing up the public interest considerations in favour of providing access to the information (s12 GIPA Act). 3. Weighed against these are the negative factors discussed above in [59] and [61]. As indicated above at [62], I regard the risks of prejudice to the safety of any person and of facilitating of a criminal act under clauses 2(d) and (f) of the s14 GIPA Act Table are considerations having very great weight. 4. I have also given weight to the unconditional nature of the disclosure of the information in question by the Respondent under s73 GIPA Act and the impact disclosure in this case may have on future access requests from persons who may not be subject to the same Code of Ethics as the Applicant. 5. Based on the evidence before me, I find that the disclosure of the government information in the OWDs could reasonably be expected to (a) prejudice a system or procedure currently in place for protecting the safety of persons working on or maintaining the relevant part of the rail network to which the OWDs relate and (b) facilitate the commission of a criminal attack and, on balance, these public interest considerations against disclosure of the information in question outweigh the public interest considerations in favour of its disclosure. Orders 1. The deemed decision of the Respondent under review is affirmed as the correct and preferable decision. 2. Pursuant to ss64(1) (c) and (d) Civil & Administrative Tribunal Act 2013 it is ordered that the: 1. publication of confidential evidence given to the Tribunal and of the contents of the confidential document submitted to the Tribunal; and 2. disclosure to the Applicant of confidential evidence given to the Tribunal and of the contents of the confidential document submitted to the Tribunal, are prohibited. ********** 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: 22 September 2020