Eyes -v- Wyong Shire Council [1999] NSWADT 139

CITATION: Eyes -v- Wyong Shire Council [1999] NSWADT 139

DIVISION: General

APPLICANT: Laurie Eyes

RESPONDENT: Wyong Shire Council

FILE NUMBER: 993055

HEARING DATES: 06/30/1999

SUBMISSIONS CLOSED: 08/02/1999

DATE OF DECISION: 20 December 1999

N Hennessy - Deputy President BEFORE:

PRIMARY LEGISLATION: Freedom of Information Act 1989

APPLICATION: Review of decision to refuse access to documents (or part thereof) -

MATTER FOR DECISION: Principal matter

Applicant: In person REPRESENTATION: Respondent: J Reilly, solicitor, Abbott Tout

1. The decision of the Council not to provide access to the letter from Council to Sly and Weigall, solicitors dated 9 December 1994 is affirmed. ORDERS: 2. The decision of the Council not to provide access to the letter from Council to Sly and Weigall, solicitors dated 31 May 1995 is affirmed. 3. The decision of the Council not to provide access to Report WO29 to the confidential session of Council's General Purposes Committee Meeting dated 26 July 1995 is affirmed. 4. The decision of the Council not to provide access to the remainder of the documents listed in paragraph 8 of this decision is set aside. In substitution for that decision the Tribunal makes the decision that Mr Eyes should be given access to each of those documents.

Background 1 On 30 July 1998 Mr Laurie Eyes applied to the Wyong Shire Council (the Council) for access to certain documents under the Freedom of Information Act 1989 (the FOI Act). The documents related to a proposal by Warnervale Education Pty Ltd (Warnervale) to develop a private university and related facilities. Warnervale was a company formed jointly by Traders Finance Australia Pty Ltd (Traders Finance) and Future Generations Alliance Foundation Ltd (Future Generations). Mr Eyes lives about 7 kms from the proposed site at Warnervale but has no personal interest in the land or the proposed university. 2 Mr Eyes' application to the Council sought access to the following documents: "Contracts-details of cost and purchase of land, details of negotiations and proposed development, costs of land, reasons for failure of proposed- Traders Finance, Wyong Shire Council, Future Generations Private University on land owned by Wyong Shire Council at Warnervale- contracts now rescinded." 3 Council gave Mr Eyes access to the majority of documents falling within this request. Following a request for internal review, Council provided Mr Eyes with several more documents. In all, the Council refused to give access to 21 documents. On 30 March 1999, Mr Eyes lodged an application with the Tribunal for review of the Council's decision to refuse access to these documents. Jurisdiction 4 The Tribunal has the power to hear this matter under s 38(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act) and s 53(1) of the FOI Act. Section 53(1) of the FOI Act states that "A person who is aggrieved by a determination made by an agency or Minister under s 24 or 43 may apply to the Tribunal for a review of the determination." In this case a determination was made under s 24 to refuse access to certain documents. Powers on Review 5 Under s 63(3) of the ADT Act the Tribunal has power to affirm, vary or set aside the administrator's decision to refuse access to the documents in question. Conduct of the proceedings 6 At the conclusion of the proceedings I invited to present further evidence about Council's intentions in relation to the site in question and the impact, if any, on Traders Finance of the disclosure of certain documents. Mr Eyes filed further evidence and submissions on 7 July 1999. Council filed an affidavit from Kerry Yates, Director of Strategic Planning with the Council, on 23 July 1999. I also made a direction that if Mr Eyes wanted to cross examine any deponent or make further submissions he should notify the Tribunal. The Tribunal did not receive any notification from Mr Eyes. Scheme of the FOI Act 7 Under s 16 of the FOI Act a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act. The agency must determine whether access is to be given or refused (s 24). One ground on which an agency may refuse access to a document is if it is an exempt document (s 25(1)(a)). An exempt document is defined in s 6 to include "a document referred to in any one or more of the provisions of Schedule 1". Section 61 provides that the burden of establishing that the determination is justified lies on the agency. Documents alleged to be exempt 8 The documents that the Council considers to be exempt and the exemption clauses in Schedule 1 to the FOI Act on which they relied are as follows: Document 1: the Contract for Sale of Lot A, (proposed university) (Cl 7(1)(c) and Cl 13(a)); Document 2: the contract for Sale of Lot B (residential) and the lease of Lot C (proposed botanical gardens) (Cl 7(1)(c) and Cl 13(a)); Document 3: letter from Traders Finance to council dated 7/11/94; (Cl 7(1)(c) and Cl 13(a)); Document 4: letter from Traders Finance to Council dated 14/11/94; (Cl 7(1)(c) and Cl 13(a)); Document 5: letter from Traders Finance to Council dated 12/12/94; (Cl 7(1)(c) and Cl 13(a)); Document 6: letter from Traders Finance to Council dated 8/4/96; (Cl 7(1)(c) and Cl 13(a)); Document 7: letter from Traders Finance to Council dated 6/11/96; (Cl 7(1)(c) and Cl 13(a)); Document 8: letter from Council to Traders Finance Australia dated 24/8/94; (Cl 7(1)(c) and Cl 13(a)); Document 9: letter from Council to Traders Finance Australia dated 24/7/95; (Cl 7(1)(c) and Cl 13(a)); Document 10: letter from Council to Traders Finance Australia dated16/5/96 (Cl 7(1)(c) and Cl 13(a)); Document 11: letter from Council to Warnervale Education Pty Ltd dated 9/1/97; (Cl 13(a)) Document 12: Cheque Requisition dated 8/1/97 (Cl 13(a)) Document 13: Remittance advice dated 10/1/97 to Blake Dawson Waldron; (Cl 13(a)) Document 14: receipt enquiry; (Cl 13(a)) Document 15: account enquiry; (Cl 13(a)) Document 16: letter from Edwards and Hardy to Council dated 13/12/94; (Cl 13(a) and Cl 7(1)(c)) Document 17: letter from Council to Edwards and Hardy dated 9/12/94; (Cl 13(a) and Cl 7(1)(c)) Document 18: letter from Council to Sly and Weigall, solicitors dated 9/12/94 (Cl 13(a) and Cl 10) Document 19: letter from Council to Sly and Weigall, solicitors dated 31/5/95 (Cl 13(a) and Cl 10) Document 20: letter from council to Mellon and Hurley dated 13/8/96; (Cl 7(1)(c) and Cl 13(a)); Document 21: Report WO29 to the confidential session of Council's General Purposes Committee Meeting dated 26 July 1995 (Cl 12(1) because to disclose its contents would be an offence against Section 664(1A) of the Local Government Act 1993); 9 At the hearing, it became clear that the following documents were not in issue: · the Airport Development Agreement; · Letter from CIF Capital Ltd to Traders Finance Australia dated 21 October 1994 discussing business and financial arrangements · those parts of the Consultancy Proposal from Andrews Neil dated May 1995 which concern the personnel of the consultancy and the financial structure for the proposal Issue 10 The broad issue in this case is whether the Council has discharged its burden of establishing that the above documents are exempt documents under the FOI Act. Findings of fact 11 In the early 1990s, Council became interested in developing a site for a private university, an airport and other facilities including some residential accommodation at Warnervale. Expressions of interest were called for early in 1994 but none was accepted. Council then entered into negotiations with Traders Finance, a company which had originally expressed interest in the project. These negotiations led to an agreement that council would sell some land to Traders Finance to develop a university and residential accommodation and lease other areas of land for use as a Botanic Garden. 12 The sale and lease arrangements were to be conditional on the land being re-zoned so that the development could go ahead. Shortly before the contracts and lease arrangements were finalised Traders Finance entered into an arrangement with Future Generations. These two entities formed a separate company - Warnervale. 13 On 6 September 1995 Council entered into a Contract for the Sale of Land (Lot A- the university site) and a Contract for the Sale of land (Lot B - the residential site) and the lease of land (Lot C - the Botanic Gardens site) with Warnervale. The details of the contracts and lease were not disclosed to the public. 14 On 28 July 1995, before the contracts and lease were signed, a Confidentiality Agreement was entered into between the Council and Traders Finance. The Confidentiality Agreement named Traders Finance as the developer (Article 1.1(14). 15 The Confidentiality Agreement obliged each party receiving confidential information to "maintain and take all steps necessary to maintain all Confidential Information and all Notes in the strictest confidence" (Article 3.1(1)). In addition it obliged each party "not to disclose any of the Confidential Information or Notes to any person" with certain exceptions including the party's employees (Article 3.1(4)). 16 Confidential Information is defined in Article 1.1(10) of the Agreement as "information of every kind concerning or in any way connected with: