Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248 Hearing dates: 2020 Date of orders: 20 August 2021 Decision date: 20 August 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW – government information – access application – whether overriding public interest against disclosure - lack of evidence – confidential information - information provided in confidence - prejudice to court proceedings - competitive commercial - legitimate business, commercial, professional or financial interests Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009 Cases Cited: Ansoul v City of Sydney [2017] NSWCATAD 65 Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22 Attorney-General's Department v Cockcroft (1986) 10 FCR 180 Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 Black v Hunter New England Local Health District (No 2) [2012] NSWADT 235 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Director of Public Prosecutions v Smith [1991] 1 VR 63 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 Hopson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 379 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Leech v Sydney Water Corporation [2010] NSWADT 298 Lock the Gate Alliance v Department of Planning and Environment and Anor [2019] NSWCATAD 6 Luxford v Department of Education and Communities [2016] NSWCATAD 118 Macquarie University v Howell (No 2) [2009] NSWADTAP 19 Marden v Pharmacy Council of NSW [2016] NSWCATAD 86 McKinnon v Blacktown City Council [2012] NSWADT 44 Mclnnes v NSW Department of Education and Communities [2013] NSWADT 21 McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 NSW Henry George Foundation v Director General, Department of Attorney General and Justice (NSW) [2013] NSWADT 2 Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278 Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier's Department [2002] NSWADT 277 Raven v University of Sydney [2015] NSWCATAD 104 Sneesby v Shoalhaven City Council [2019] NSWCATAD 234 Taylor v Destination NSW [2017] NSWCATAD 272 Toplace Pty Ltd v City of Parramatta [2021] NSWCATAD 149 Transport for NSW v Searle [2018] NSWCATAP 93 Wavelength Group Pty Ltd v Upper Hunter Shire Council [2021] NSWCATAD 182 Williams v Department Industry and Investment [2012] NSWADT 192 Category: Principal judgment Parties: Tallawoladah Pty Ltd (Applicant) Department of Planning, Industry and Environment (Respondent) Also heard: Information Commissioner (see section 104(1), Government Information (Public Access) Act 2009) Representation: Solicitors: Kreisson (Applicant) Crown Solicitor (Respondent) File Number(s): 2020/00217277 Reasons for Decision Introduction 1. This is an application for review of a decision by the Department of Planning, Industry and Environment ("the Respondent") to release information that it holds. That decision was in response to an access application under the Government Information (Public Access) Act 2009 ("the GIPA Act"). The access applicant sought access to the following information: "all documents by, from and to Place Management/Property NSW in relation to the Campbell's Stores redevelopment (including to and from Tallawoladah Pty Ltd - the developer/head lessee of the Campbell's Stores development) in relation to: a) all licensed areas, including the area known as Bay X, including information in relation to the walk way and seating in this location. b) information pertaining to any sub lease offer and/or negotiation in relation to or proposal to sub-lease to the Venetian Republic Pty Ltd or Nino Zoccali or Krissoula Syrmis or any of their agents or associates, including but not limited to the executed lease documents previously forwarded to Place Management/Property NSW. c) all information pertaining to anything involving Nino Zoccali or Krissoula Syrmis or any of their agents or associates". 1. Place Management NSW ("PMNSW") was previously known as the Sydney Harbour Foreshore Authority ("SHFA"). Campbell's Stores is a heritage-listed property in The Rocks, Sydney, which falls within the foreshore area. It has a direct view of the Sydney Opera House and is a property of significant commercial value. Campbell's Stores was owned by the SHFA and is now owned by PMNSW. It is leased by PMNSW to Tallawoladah Pty Ltd ("the Applicant"). 2. The property consists of several restaurants and bars. Mr Nino Zoccali, the access applicant in relation to these proceedings, was previously a sub-tenant of the Applicant operating the Venetian Republic restaurant. 3. In response to the access application the Respondent carried out searches to locate information that was captured by the scope of the request. Some of the information that was located concerns the Applicant. 4. 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 Applicant's solicitor wrote: "The various emails, letters and minutes of meetings contain confidential information about development and leasing of the Campbells Stores. Our client expected Place Management NSW to treat the status of the negotiations with tenants, breaches by tenants of lease agreements and negotiations about the outdoor seating areas as commercial-in-confidence. Premature disclosure of that information before the premises are fully leased will prejudice our client's business, commercial, or financial interests and expose our clients to an unfair disadvantage with other existing or prospective tenants". 1. The Respondent determined to release some of the information and to withhold other information. 2. 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 are subject to extensive redactions. 3. The Applicant has applied to the Tribunal for external review of the determination. It maintains that there is an overriding public interest against disclosure of all the documents proposed to be released. The Applicant contends that the following considerations outweigh the general public interest in favour of disclosure: 1. Disclosure might prejudice the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions; 2. Disclosure might found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence; 3. Disclosure might prejudice court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings; 4. Disclosure will diminish the competitive commercial value to the Applicant of information in the documents; and 5. Disclosure will prejudice the Applicant's legitimate business, commercial, professional or financial interests. 1. The Applicant has not put on any evidence to support its contention that there is an overriding public interest against disclosure. 2. The Information Commissioner has exercised her right to participate in the proceedings under section 104(1) of the GIPA Act and has filed written submissions in relation to the applicable legislation and decisions which have considered the public interest issues that have been raised. 3. The role of the Tribunal in undertaking administrative review is to decide what the "correct and preferable" decision is, having regard to the material before it: section 63 of the Administrative Decisions Review Act 1997 ("the ADR Act"). Thus, the Tribunal is required to make its decision on the material available as at the time of the hearing, and is not limited to material that was before the original decision-maker. 4. The issue in the present application is whether the correct and preferable decision is that there is an overriding public interest against disclosure of the information in issue or any part or parts of any of them. As this is merits review, the Tribunal is not concerned with the question of whether the decision under review itself was correct or incorrect. Applicable legislation 1. The Applicable legislation is not in dispute. 2. The object stated under section 3(1) of the GIPA Act is to open government information to the public. The GIPA Act is to be interpreted and applied so as to further its object. The meaning of "government information" is broad. Section 4 provides that government information means information contained in a record held by an agency. Access is only restricted when there is an overriding public interest against disclosure. 3. Part 2 of the GIPA Act provides the mechanism by which a member of the public can make an access application for government information to an agency. Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 9(1) gives a person who makes a valid access application a legally enforceable right of access to government information unless there is an overriding public interest against disclosure of the information. 4. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information and, further, that nothing in the GIPA Act limits any other public interest considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Individual interests in seeking information may coincide with the public interest. 5. The term 'public interest' is not a defined or fixed concept. In Director of Public Prosecutions v Smith [1991] 1 VR 63 the Supreme Court of Victoria Appeal Division found: "The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals". 1. Section 13 of the GIPA Act sets out the "public interest test" for determining whether there is an overriding public interest against disclosure of information in the following terms: 13 Public interest test 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. The test in section 13 requires the Tribunal as decision-maker to attribute weight to each consideration for and against disclosure, and determine whether the balance of the public interest lies in favour of, or against, disclosure of government information: Hurst v Wagga Wagga City Council [2011] NSWADT 307; Flack v Commissioner of Police, NSW Police [2011] NSWADT 286. The GIPA Act provides no set formula for calculating the weight of considerations for determining whether one set of considerations outweighs the other, and the Tribunal has stated that "any reasonable approach that follows section 15 principles seems to be acceptable ... it is really a matter of placing identified considerations in order of priority or importance": Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278 at paragraph [96]. The balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at paragraph [17]. 2. Section 14(2) of the GIPA Act relevantly provides that the public interest considerations listed in the Table to section 14 are the only considerations that may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. 3. Clause 1(d) of the table to section 14 of the GIPA Act provides: 1 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) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, 1. Clause 1(g) of the table to section 14 of the GIPA Act provides: 1 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) — … (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, 1. Clause 3(c) of the table to section 14 of the GIPA Act provides: 3 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— … (c) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings, ... 1. Clause 4(c) of the table to section 14 of the GIPA Act provides: 4 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— … (c) diminish the competitive commercial value of any information to any person, ... 1. Clause 4(d) of the table to section 14 of the GIPA Act provides: 4 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— … (d) prejudice any person's legitimate business, commercial, professional or financial interests, … 1. Whilst a very broad value judgment is required to be made it is not one to be made in a vacuum. It is a judgment to be made having regard to the objects of the legislation, the general presumption in favour of disclosure of government information and the principles set out in section 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104]. Subsections 15(a) - (d) operate to promote disclosure of information and promotion of the object of the GIPA Act notwithstanding any embarrassment to Government or potential misinterpretation. Only section 15(e) identifies a principle that mitigates the pro-disclosure ambition of the GIPA Act. Rights and interests of third parties under the GIPA Act 1. Section 54 of the GIPA Act provides that agencies are to consult with an interested third party where the information to which access is sought concerns the person's business, commercial, professional or financial interests, and the person may "reasonably be expected to have concerns about the disclosure of the information. The purpose of that consultation is to ascertain whether the third party has an objection to disclosure of some or all of the information and the reasons for their objection. 2. The agency must take any objection to disclosure of information into account in the course of determining whether there is an overriding public interest against disclosure. 3. Pursuant to section 100 of the GIPA Act, a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under the ADR Act. A third party who has raised objections to the release of the information may be a person aggrieved by the reviewable decision. 4. Normally, in administrative review proceedings under the GIPA Act the onus falls on the agency to establish that its decision is justified: section 105(1). However, where the review is of a decision to provide access to government information in response to an access application, as is 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: section 105(2) of the GIPA Act. Material before the Tribunal 1. Each of the parties and the Information Commissioner has provided written submissions. 2. The Respondent also relies on the affidavit evidence of Ms Susan Anna Lee ("Lee Affidavit"). Ms Lee is the Director of Dispute Resolution with PMNSW. She attended the hearing and was cross-examined. 3. The Applicant has not provided any evidence in support of its application but relies on its submissions. 4. The documents that are in issue have been provided to the Tribunal on a confidential basis. Redevelopment of Campbell's Stores 1. In her affidavit Ms Lee provided an outline of the history of the development which is useful to place the information that is in issue in context. I do not understand that there is any disagreement between the parties in relation to Ms Lee's outline. She stated: Campbell's Stores is a heritage-listed property in The Rocks which falls within the foreshore area. It has a direct view of the Sydney Opera House and is a property of significant commercial value. Campbell's Stores was owned by SHFA (and is now owned by PMNSW), and was leased to a number of up-market restaurants. In 2010, SHFA entered into negotiations with Dockside Group for the heritage restoration and redevelopment of Campbell's Stores. Dockside Group was the lessee of three of the restaurants trading at Campbell's Stores at that time. In 2012, Tallawoladah Pty Ltd was formed as a consortium between Dockside Group and Alfred Lai, the lessee of the fourth restaurant then trading at Campbell's Stores. In November 2014, Tallawoladah reached an Agreement for Lease ("AFL") with SHFA that required Tallawoladah to restore and renovate the Campbell's Stores building, provide commercial rent and heritage contributions, and then sublease the building for use as food and beverage premises under a long-term lease. That lease commenced on 8 March 2019. The redevelopment of Campbell's Stores was determined to be State Significant Development under the Environmental Planning and Assessment Act 1979 (NSW). The redevelopment of Campbell's Stores was completed in 2019. Tallawoladah Pty Ltd has entered into arrangements to sub-lease space within Campbell's Stores to different restaurants. Bay X The Agreement for Lease appended a precinct masterplan of the public domain owned by SHFA, including plans for licenced seating area in an area known as Bay X, and other areas adjacent to the building. Bay X consists of wide stairs adjacent to Campbell's Stores between Hickson Road and West Circular Quay. The purpose of the licence was for an area in which a restaurant trading within the Campbell's Stores building could provide an outdoor area for drinking and dining. In February 2017, SHFA submitted a State Significant Development proposal to the Department of Planning to redevelop the public domain at Campbell's Cove which included seating at Bay X. This proposal was advertised for submissions and public comment. The City of Sydney responded to the Department of Planning with a submission on the Public Domain proposal in which they detailed their opposition to any seating in the Bay X area. The key concern was that seating in this area amounted to the privatisation of an inherently public space. Their submission indicated that it must be removed from the plans for the area. In the response to submissions in November 2017, PMNSW removed the plans for seating in the Bay X area. Development consent for the revised public domain plans was provided in March 2018. The change in planned use for Bay X appears to have had a detrimental impact on the relationship between Tallawoladah and one of its subtenants, Nino Zoccali. 1. Mr Zoccali did not participate in the proceedings. Considerations favouring disclosure 1. The Respondent's internal review noted the general public interest in disclosure of government information under section 12(1) of the GIPA Act and, in addition, identified that the disclosure would be reasonably likely to have the following effects, which favoured disclosure: 1. Promote open discussion of public affairs, enhance Government accountability and contribute to positive and informed debate on issues of public importance; and 2. Inform the public about the operations of agencies and, in particular, the process taken to approve the subdivision plans. 1. The Respondent has also submitted that Campbell's Stores is a location of significant historical and cultural heritage, and it is a prominent part of the urban environment of Sydney. The redevelopment of Campbell's Stores was a State Significant Development for the purposes of the Environmental Planning and Assessment Act 1979. Further, the redevelopment was the subject of media attention. The Respondent contends that this indicates that there is significant public interest in favour of the disclosure of government information relating to the redevelopment. 2. While I do not agree that the mere fact of media coverage necessarily indicates significant public interest, I agree with these public interest considerations in favour of disclosure. They should be given significant weight. Considerations against disclosure 1. As noted, the Applicant contends that the public interest considerations against disclosure outweigh those in favour of disclosure. The considerations raised are found in the table to section 14 of the GIPA Act as follows : a. 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) of the table). b. 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) of the table); c. 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) of the table); d. The disclosure of the information would diminish its competitive commercial value (clause 4(c) of the table); and e. The disclosure of the information would prejudice any person's legitimate business, commercial, professional or financial interests (clause 4(d) of the table). 1. The Information Commissioner has provided a useful summary of various Tribunal decisions that have considered clauses 1(d), 1(g), 3(c), 4(c) and 4(d) of the table to section 14 of the GIPA Act. Clause 1(d) of the table to section 14 of the GIPA Act 1. 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. 1. Comments by the Appeal Panel in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at paragraph [37] suggest that it is incumbent on an agency to identify the matters relied upon to demonstrate each of these matters. Having said that, however, this is a task which is to be undertaken at a "relatively abstract" level of analysis. 2. In Macquarie University v Howell (No 2) [2009] NSWADTAP 19 the Appeal Panel said at paragraph [10]: "In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information." 1. In Raven v University of Sydney [2015] NSWCATAD 104 at paragraph [62], the Tribunal held that the words "confidential information" do "not connote information which may not be disclosed in any circumstances. The term captures information which is not to be disclosed in ordinary circumstances. This could be the case for example, where the information has been supplied under an express or implied pledge of confidentiality. 2. In Luxford v Department of Education and Communities [2016] NSWCATAD 118 at paragraph [70] I dealt with the approach to be taken when determining the question of whether the information in issue is confidential. I found that a number of principles apply: Clause 1 of the table to section 14 also deals with issues relating to confidential information. In determining the question of whether the information in issue is confidential a number of principles apply: see Williams v Department Industry and Investment [2012] NSWADT 192: (i) The confidential quality of communications is a question of fact; (ii) To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality; (iii) The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed; (iv) The confidential quality of the information must be determined in the light of all of the circumstances of the particular case. 1. Those principles are applicable to both clause 1(d) and 1(g) of the table to section 14. 2. In Commissioner of Police, NSW Police Force v Camilleri the Appeal Panel stated at paragraph [33]: In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. 1. In a matter where the onus lies with the applicant, reference will also be made to the evidence presented by that applicant. 2. The more that is publicly known about a subject the less likely it may be that confidentiality can be inferred. However, this will be a question of fact and degree. 3. Labelling and treatment of information as confidential are not conclusive of this question. In McKinnon v Blacktown City Council [2012] NSWADT 44 Judicial Member Molony stated at paragraph [55]: While I accept that, in an appropriate case, confidentiality with respect on information communicated in the course of an investigation can be inferred, the factual background must justify the making of such an inference. Here it does not. While the report is labelled confidential and had been treated as confidential, the evidence indicates that this has occurred as a matter of convention, rather than on the basis of a statutory requirement, or in accordance with a policy of the Agency. Indeed a reading of the policy makes it clear it does not establish a regime of confidentiality, with the exception of circumstances to which the Protected Disclosures Act 1994 applies. That is not the case here. 1. Similarly, a failure by an agency to inform the community of the statutory limitations placed on any implied or express confidentiality assurances because of the GIPA Act does not limit the application of those obligations: see Taylor v Destination NSW at paragraph [40]. 2. Furthermore, the question of whether or not the information was provided "voluntarily" is relevant to the question of whether the requisite relationship of confidentiality can be inferred: see Williams v Department Industry and Investment at paragraph [53]. 3. In Ansoul v City of Sydney [2017] NSWCATAD 65 Senior Member Ransome considered the meaning of the word "prejudice". She stated at paragraph [33]: Prejudice" under the GIPA Act has been held to have the same meaning as under the repealed Freedom of Information Act 1989, which is its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. 1. Each of clauses 1(d), 1(g), 3(c), 4(c) and 4(d) of the table to section 14 of the GIPA Act contains the expression "could reasonably be expected" to have the specified effect. The "reasonable basis" for the expectation must be grounded in the experience of the person deposing to the belief. In McKinnon v Blacktown City Council Judicial Member Molony dealt with the question of whether there was a prejudice to the supply of information. He stated at paragraphs [56] - [57]: 56. In the open affidavit Mr Mills expressed the opinion that disclosure of the report would impede the ability of the Agency to obtain and rely on such information in the future. He explained that he considered it "reasonable to assume that other council officers will be reluctant to report misconduct or inappropriate behaviour in future, for fear of reprisal." In my view the cross-examination of Mr Mills demonstrated that he had no reasonable basis for holding this opinion, and that the assumption was not reasonably held. He had no experience of anyone withholding information that they were duty bound to disclose, whether for fear of reprisal or otherwise. 57. Additionally, Mr Mills gave evidence that all the investigations he had been associated with had been treated as and kept confidential. As a result he has no experience of investigations where confidentiality has not been maintained. A consequence is that, in the formation of his opinion, he did so from the basis of having no experience he could contrast with the confidential treatment he was used to. 1. The absence of any coercive powers requiring that the information be provided may be relevant to assessing prejudice. This is because a person may be less likely to provide information "voluntarily" as distinct from circumstances where the person is obliged to do so: see Ansoul v City of Sydney at paragraph [38]; Mclnnes v NSW Department of Education and Communities [2013] NSWADT 219 at paragraph [37]. 2. The fact that a person may be under some obligation to provide the information, may make it less likely that the relevant prejudice will be established: see Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22 at paragraphs [122] – [123]. 3. Similarly, in Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 the Tribunal held that the supply of information that was required to be provided pursuant to a contractual obligation could not reasonably be expected to be prejudiced by the disclosure of that information. The Tribunal did, however, find it possible that the detail and quantity of information that would be provided may be reduced. 4. In this matter the Applicant's submissions in this matter refer to its reluctance to provide information in the future if the information in issue is released. It is submitted that it would have been less candid in provision of information to the Respondent if it did not believe the information would be kept confidential. However, no evidence has been provided to support that submission. The basis for holding this opinion is therefore not clear. Clause 1(g) of the table to section 14 of the GIPA Act 1. The words "found an action for breach of confidence" should be interpreted as referring to a legal action for breach of an obligation of confidence. In Lock the Gate Alliance v Department of Planning and Environment and Anor [2019] NSWCATAD 6 Senior Member Ransom stated at paragraph [139]: In considering the first limb of cl (1)(g) the Tribunal has referred to Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 where it was held that the words "for an action of breach of confidence" in the Queensland freedom of information legislation should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance was placed on one or more of the following causes of action: 1. a cause of action for breach of an obligation of confidence; 2. a cause of action for breach of a contractual obligation of confidence; 3. a cause of action for breach of a fiduciary duty of confidence and where account is taken of the recognised defences to an action for breach of confidence. 1. In Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier's Department [2002] NSWADT 277 at paragraph [53] , the Tribunal identified five matters to be established for a hypothetical equitable action for breach of confidence: 1. the information must be capable of being specifically identifiable as information which is secret rather than generally available; 2. the subject matter of the obligation of confidence must not be trivial or useless or generally known; 3. the information must have been communicated in circumstances such as to fix the recipient with an equitable obligation not to use the information in an unauthorised way; 4. it must be established that disclosure of the information would constitute an unauthorised disclosure; and 5. it must be established that the giver of the information would suffer a detriment, not necessarily pecuniary, such as loss of privacy or embarrassment. 1. In Hopson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 379 the Tribunal observed at paragraphs [70] – [71]: 70. There is an apparent tension between cl 1 (g) and s 113 of the GIPA Act. Section 113 provides: 113 Protection in respect of actions for defamation or breach of confidence (1) If government information is disclosed pursuant to a decision under this Act, and the person by whom the decision is made believes in good faith, when making the decision, that this Act permits or requires the decision to be made— (a) no action for defamation or breach of confidence lies against the Crown, an agency or an officer of an agency by reason of the making of the decision or the disclosure of information, and (b) no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the disclosure of information lies against the author of a record containing the information or any other person by reason of the author or other person having supplied the record to an agency. (2) Neither the giving of access to information pursuant to a decision under this Act nor the making of such a decision constitutes, for the purposes of the law relating to defamation or breach of confidence, an authorisation or approval of the publication of a record containing the information or its contents by the person to whom the information is disclosed. 71. On the other hand the GIPA Act contemplates (by the fact that cl (1)(g) sits outside of Sch (1), that there will be circumstances whereby irrespective of the fact that the release of information could found an action for breach of confidence etc., that information will be invariably released. If it is released after a proper consideration of the application, the agency is quarantined from any legal repercussion arising by the operation of section 113. 1. As noted, the Applicant has asserted that 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. It has also asserted that 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. Each of these considerations deal with the concept of confidential information. 2. As I have noted, the Applicant has filed submissions in support of its assertions regarding clauses 1(d) and 1(g). It did not file any evidence in that relation to those issues. It has submitted (citations removed): It is reasonable to expect that the Applicants would have been less candid in provision of information to the Respondent if it did not believe the information would be kept confidential. The inference may also be made, as a matter of reasonable expectation, any such reticence would prejudice the effective exercise of the Respondent's functions. … The Applicant conducted its lease negotiations for sub-leases of restaurant spaces and licences for the use of outdoor seating areas by private treaty rather than by public tender or any similar process. The public release of the information will expose the Applicant to an unfair disadvantage with negotiations with other existing or prospective tenants. It's likely that the information will be used as a ceiling or upper limit against which those negotiations will be benchmarked. In that circumstance, it was reasonable for the Applicant to anticipate that the Respondent would treat reports about those lease negotiations in the same way. The Respondent's records numbers 1, 2, 7A, 7B, 12 (and its attachments), 30, 37, 39, 57, 58, 71 (and its attachments), 87 (and its attachment) 88(and its attachments),, contain correspondence that passed between the Applicant and Respondent containing information about the details of commercial negotiations undertaken for the purpose of giving effect to an agreement for a commercial lease. That kind of correspondence is generally understood to be commercial-in-confidence and not for publication. It is reasonable to expect that the Applicant would not have provided that information in the confidence it would not be disclosed to strangers. If the Applicant had thought the correspondence might fall into the public domain, it would have been reticent to provide information. The inevitable result is that the Respondent's capacity to effectively exercise its functions will be restricted. 1. The Applicant's submissions deal with other documents in a similar manner. 2. In contrast, the Respondent has contradicted the Applicant's submissions. It submitted that the basic elements of clauses 1(d) and 1(g) are not satisfied with respect to the information in issue in these proceedings. 3. For clause 1(d) to apply as a consideration against disclosure, three essential elements must be established. First, and fundamentally, clause 1(d) applies with respect to information that has been supplied to an agency in confidence. In order to assess whether information is, relevantly, "confidential information" for the purpose of clause 1(d), the Tribunal looks to the conditions under which information has been supplied to an agency: Commissioner of Police, NSW Police Force v Camilleri at paragraphs [33] - [34]. 4. The Respondent submits that some of the documents in issue are correspondence from the Respondent to the Applicant. In the circumstances, a question arises as to whether those documents could be said to contain information that has been supplied to the Respondent. If that information was supplied to the Respondent, a further question arises as to whether it was supplied in confidence. 5. The Respondent has argued that any information that was supplied to the Respondent in confidence has been acknowledged and this is reflected in the decision to refuse access to a number of documents. 6. The Respondent submits 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. 7. The Applicant submits that correspondence from the Respondent to the Applicant contained information provided by the Applicant to the agency. However, no evidence is provided to support that submission. The Applicant has not provided any evidence to identify information that has been supplied to the Respondent or the source of the confidentiality. 8. The Respondent submitted: The Respondent notes that none of the documents include, on their face, any express indication that the information was to be understood as commercial-in-confidence. The Applicant is correct to submit at [41] of his submissions that such an express indication is not necessary, and that confidentiality can be inferred from the circumstances in which information is provided: Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 at [68]. However, the Applicant has provided neither evidence, nor detailed submissions in support of its contention that the documents were impliedly intended to be commercial-in-confidence. All that the Applicant has done is to assert, in a blanket fashion, that the information related to commercial negotiations and "is therefore generally understood to be commercial-in-confidence and not for publication". The Applicant cites no authority in support of this blanket assertion. The Respondent does not approach commercial negotiations on the understanding that all information exchanged with other parties is necessarily confidential: see Lee Affidavit at [20] - [27]. As discussed above (at [38]), in Commissioner of Police v Camilleri [2012] NSWADTAP 19 at [33] - [34], the Appeal Panel held that the question as to whether information is "confidential information" is to "be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received", and that the enquiry "should focus on the point of receipt, and the administrative standards and community understandings which surrounded it". This analysis has been applied by the Tribunal on several occasions: see, for example, NSW Henry George Foundation v Director General, Department of Attorney General and Justice (NSW) [2013] NSWADT 2 at [37] - [42]; Black v Hunter New England Local Health District (No 2) [2012] NSWADT 235 at [47] - [49]. The Respondent notes that there was an agreement between the parties as to which information was to be confidential: see Lee Affidavit at [24] - [25]. The Respondent accepts that the existence of this agreement means that cl. 1(g) has some application to information identified as responsive to the access Applicant's application, and that this confidentiality has been recognised in the decision to refuse access to a number of documents, and parts of documents. However, the Respondent submits that the information which was to be confidential was limited in scope, in a manner not consistent with the Applicant's blanket assertion of confidentiality. The Respondent submits that the documents it determined could be released do not fall within the scope of the information that was to be confidential, in that they were not provided under the agreement or as part of the negotiation of it. The Respondent submits that all confidentiality clauses in contracts entered into with government agencies are subject to the GIPA Act, such that disclosure of the information would not constitute a breach of the contract. The Respondent notes that the contract also expressly provides that disclosure of information would be permitted where a party believes in good faith that disclosure is required by law. The Respondent submits, further, that even if there might ordinarily be an expectation of confidentiality in commercial negotiations between private parties, there would also be a corresponding expectation of greater transparency where an entity engages in a commercial enterprise with a government agency that is subject to the requirements of the GIPA Act. In the Respondent's submission, it has identified information that can properly be said to be subject to the requirements for confidentiality established as part of the ongoing negotiations between the parties, and has determined that information should not be released. Consistent with the requirements of the GIPA Act, this has been done on a case by case basis, by reference to specific information, rather than in the blanket fashion proposed by the Applicant. The Respondent has withheld some documents in their entirety and proposes to release others subject to redactions where appropriate. The need for evidence in GIPA matters 1. In Wavelength Group Pty Ltd v Upper Hunter Shire Council [2021] NSWCATAD 182 Senior Member Goodman noted at paragraphs [29] – [30]: [28] Whether disclosure of particular information "could reasonably be expected to" have a particular effect is a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]; McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 at [66]. [29] The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83]: "[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. … [83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17]." [30] In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 an Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to [Transport for NSW v Searle] and the authorities discussed in that decision, the Appeal Panel said at [59]: "Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses." 1. In Toplace Pty Ltd v City of Parramatta [2021] NSWCATAD 149 Principal Member Pearson stated at paragraph 77: 77. In considering the public interest considerations against disclosure, the following principles are relevant: (1) The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. (2) In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC." (3) The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]). (4) In considering the evidence required to establish that disclosure "could reasonably be expected to have" one of the effects stated in cll 1 or 3, the relevant principles are: (a) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (b) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; and (c) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses: Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 at [59]. 1. As noted in Wavelength Group Pty Ltd v Upper Hunter Shire Council 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, I have no probative evidence to support the findings of fact that the Applicant urges. 2. In my view the Applicant has failed to discharge its onus with respect to either clauses 1(d) or 1(g) of the table to section 14 of the GIPA Act. Clause 3(c) of the table to section 14 of the GIPA Act 1. 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. 1. Clause 3(c) cannot be relied upon in the absence of any court proceedings being identified: see Marden v Pharmacy Council of NSW [2016] NSWCATAD 86 at paragraph [51]; Sneesby v Shoalhaven City Council [2019] NSWCATAD 234 at paragraph [41]. 2. The Applicant submitted: Some of the subject documents comprises correspondence about a breach of sublease arrangements by Venetian Republic Pty Ltd and the consequent termination of that sublease. The person seeking public release of the information controls that company. He has prepared a statement of claim alleging deceptive and misleading conduct on the part of the Applicant and threatened to file it. One might reasonably expect that the information is sought for the purpose of advancing the threatened litigation. The release of those documents will reveal matter prepared by the Applicant in relation to those anticipated future proceedings. 1. In the present matter, I have no probative evidence to support the finding that there are any court proceedings that would be prejudiced. At its highest there may be threatened proceedings. However, I only have the Applicant's submissions on that issue and no evidence. Further, the Applicant's submissions do not explain why the proposed release of information could reasonably be expected to prejudice the potential court proceedings. Nor is there any explanation in regard to the purpose for which the information was prepared as required by clause 3(c). It is 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. 2. In my view the Applicant has failed to discharge its onus with respect to clause 3(c) of the table to section 14 of the GIPA Act. Clause 4(c) of the table to section 14 of the GIPA Act 1. The Applicant contends that the disclosure of some of the information would diminish its competitive commercial value. 2. In relation to clause 4(c), 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: see McKinnon v Blacktown City Council at paragraphs [77] - [78]; Australians for Sustainable Development Inc v Barangaroo Delivery Authority at paragraph [74]. 3. The use of the adjective 'competitive' in clause 4(c) "connotes information of commercial value gained in, or relating to, a competitive commercial business context": see McKinnon v Blacktown City Council at paragraphs [79] - [80]. 4. The Applicant has not provided any evidence in support of its contention that the information proposed to be disclosed has commercial value. Further, it is not clear that the information proposed to be disclosed has any competitive commercial value. Even if it were to be assumed that the information does have competitive commercial value, it does not necessarily follow that the release of the information would diminish its value. These issues need to be address by evidence. 5. In my view the Applicant has failed to discharge its onus with respect to clause 4(c) of the table to section 14 of the GIPA Act. Clause 4(d) of the table to section 14 of the GIPA Act 1. The Applicant contends that the disclosure of the information the Respondent proposed to disclose can reasonably be expected to prejudice its legitimate business, commercial, professional or financial interests. 2. In order to establish this contention the Applicant must identify particular legitimate business, commercial, professional or financial interest: Commissioner of Police, NSW Police Force v Camilleri at paragraph [37]. It must also demonstrate a basis on which the finding can be made that disclosure of the information could reasonably be expected to prejudice those interests. 3. The Applicant submits 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. It submits that the disclosure would expose it to an unfair disadvantage and thereby prejudice its legitimate commercial interests. However, the Applicant did not adduced specific evidence in support of its contentions. 4. It is not clear that the documents that the Respondent proposed to release contain information that would expose the Applicant to an unfair disadvantage. Further, it is not clear how the sub-tenants and suppliers would be able to use the information to the Applicant's disadvantage. 5. In the circumstances I am not satisfied that the Applicant has discharged its onus with respect to clause 4(d) of the table to section 14 of the GIPA Act. Conclusion 1. The Applicant has not provided any evidence in support of its case and it has not discharged the onus of establishing that there is an overriding public interest against disclosure of the information in issue. Accordingly, the Respondent's decision should be affirmed. Order 1. The decision under review is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 20 August 2021