Bennett -v- Director General, National Parks and Wildlife Service [2000] NSWADT 136

CITATION: Bennett -v- Director General, National Parks and Wildlife Service [2000] NSWADT 136 DIVISION: General Division APPLICANT Judith Bennett PARTIES: RESPONDENT Director General, National Parks and Wildlife Service FILE NUMBER: 003118 HEARING DATES: 11/07/2000, 12/07/2000 SUBMISSIONS CLOSED: 07/26/2000 DATE OF DECISION: 09/29/2000

BEFORE: Robinson MA - Judicial Member APPLICATION: access to documents - Freedom of Information Act - access to documents MATTER FOR DECISION: principal matter LEGISLATION CITED : Freedom of Information Act 1989 Tunchon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 73 Humane Society International Inc. v National Parks and Wildlife Service [2000] NSWADT 133 CASES CITED: Raethel -v- Director General, Department of Education and Training [1999] NSWADT 108 Willoughby City Council v Minister Administering the National Parks & Wildlife Act (1992) 78 LGERA 19 Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 Transport Action Group Against Motorways Inc v Road and Traffic Authority (1999) 46 NSWLR 598 APPLICANT REPRESENTATION: J Johnson, barrister RESPONDENT S Donaldson, barrister ORDERS: The decision under review is affirmed.

1 These proceedings relate to an application for access to documents under the Freedom of Information Act 1989("the FOI Act"). Access to the documents or parts of the documents was refused by the agency. The disputed documents comprise one rather large contract styled "Conditional Agreement to Lease the Quarantine Station, North Head, Sydney", dated 24 January 2000 and executed by the Minister for the Environment for the State of New South Wales, Mawland Hotel Management Pty Limited ("Mawland") and Mr Maxwell Player ("the Conditional Agreement"). 2 The Conditional Agreement relates to the proposed lease to Mawland of the former Quarantine Station at North Head, near Manly, in Sydney for 45 years subject, inter alia, to approval by way of an Environmental Impact Statement. The site is an historical site of enormous environmental and cultural significance in Australia and internationally. Accordingly the site and any proposal for the site or the development of the site has attracted significant public, private and political attention and interest over the years. The Quarantine Station is located on crown land that is dedicated as part of Sydney Harbour National Park. 3 The applicant made the original FOI application on 28 January 2000 seeking in terms access to the Conditional Agreement. The agency refused access in whole on 28 March 2000 in a letter providing few reasons and citing the following exemptions contained in Schedule 1 of the FOI Act: (a) clause 9(1)(a)(ii) (internal working documents); and (b) clause 7(1)(c) (documents affecting business affairs). 4 The applicant made a request for the decision to be internally reviewed (under the FOI Act procedure) and the Director-General of the respondent made the internal review decision personally on 10 April 2000, affirming the original decision to refuse access. The Director-General relied upon the same 2 FOI exemptions and briefly indicated that he had considered the public interest in making his decision. 5 In the Director-General's decision, he reasoned it was premature to disclose the documents at this stage. He said, inter alia: "The conditional agreement to lease is part of the preliminary development of a lease for the Quarantine Station and therefore is not a final lease document. Initially it is necessary for the proponent to consult with government and semi-government agencies with a view to identifying any issues that those agencies require to be addressed. In addition there are a range of authorities that are likely to be determining authorities in the Environmental Impact Statement (EIS). These are NPWS, Ministry of Forests and Marine Administration (representing the Waterways Authority), the Heritage Council and NSW Fisheries. The proponent is also required to consult with the community, relevant interest groups and professional bodies, relevant government authorities, the Heritage Council and Manly Council All of the issues identified by these sources become the terms of reference for the EIS. The public consultation phase will allow for clarification of issues raised by the community and interests groups and the identification of any issues which have not been previously identified. The consultation and EIS phases are to take place before the final terms of any lease can be determined. For this reason it is premature to disclose the terms of the conditional agreement to lease." 6 Just prior to the hearing of the matter in the Tribunal on 11 & 12 July 2000, at which both parties were represented by counsel, the respondent released to the applicant extracts from the Conditional Agreement that related to the perceived interests of the applicant, namely the environmental impact and protection aspects of the proposed development. 7 During the course of the hearing, some further extracts of the agreement were delivered to the applicant that, inter alia, identified those parts of the agreement to which complete access had been denied. Also, during the course of the hearing, the respondent significantly amended its non-confidential affidavits and submissions so as to give to the applicant what is, in my view, a much better and more complete picture of the real reasons for the refusal to release the remainder of the documents at this stage. 8 At the hearing, the Conditional Agreement was tendered by the respondent as a confidential exhibit and a number of confidential affidavits were read. Appropriate confidentiality orders were made by the Tribunal relating to those documents. The respondent requested that the Tribunal move into a hearing in the absence of the applicant, her representatives and the public. Having regard to the complexity of the Conditional Agreement, and its large size, the Tribunal considered it appropriate to briefly do so. 9 At the hearing, in addition to the exemptions relied on set out above, the respondent also sought to rely on clause 6(1) of Schedule One of the FOI Act (documents affecting personal affairs). The Evidence 10 The respondent relied upon the confidential and "public" affidavits sworn 4 July 2000 of Mr Vincent Rago, a senior property manager of the respondent. He gave oral evidence at the hearing and was cross examined by the applicant's counsel. 11 Mr Rago provided detailed evidence concerning the background of the Quarantine Station from 1828. He said it is a place of high national and international heritage significance with considerable historic, social, educational and research value. It is listed on the State Heritage Register and the Register of the National Estate. There are several threatened animal species on or near the site. Currently, the respondent conducts a conference centre at the site which provides accommodation for up to 80 people and tours and special events are conducted at the site. Over time, the site has cost more money to maintain than is earned by the respondent from it. The respondent needs the injection of some significant capital in order to conserve heritage items at the site and to continue to provide essential services and infrastructure within the site. The aim is to conserve the Station while increasing the available revenue for its protection and maintenance. 12 Mr Rago set out the long history of planning and preliminary arrangements for a lease to be finalised for the site involving a number of tenders processes since 1987. 13 I will not set out further the detailed explanation by Mr Rago of the proposed arrangements set out in his affidavits. It is sufficient to note that Mawland is proposing to inject about $13,202,000 in capital during the first 10 years of the lease, the greatest part of which will be spent on urgently needed conservation works. No new buildings are planned. Mawland proposes, inter alia, to renovate and restore existing buildings and to provide heritage style accommodation for the public and conference activities. 14 Mr Rago sets out the detailed procedures which must be followed by the respondent and Mawland, the remaining issues which must be addressed and the events which must occur before the Conditional Agreement may become final. The principal issue is the public release of the Environmental Impact Assessment ("EIS") pursuant to the provisions of Part 5 of the Environmental Planning and Assessment Act 1979 (NSW). The draft EIS was exhibited to Mr Rago's affidavit. As at the time of the hearing, the draft EIS was being assessed by a number of planning/determining authorities pursuant to the relevant statutory processes. Mr Rago states: "The draft EIS contains extensive information describing all work proposed to be undertaken on site, the likely cost of the work and the nature of the proposal to lease and operate the Quarantine Station including the ongoing responsibilities of Mawland and the Respondent." 15 As to the Conditional Agreement itself, Mr Rago states that the agreement is conditional upon many prerequisites being satisfied. The terms of the draft lease itself, which is attached to the agreement, may still be the subject of further negotiation. Some of the "prerequisites" have been mentioned above. There are many others. I will not set them all out here. The Conditional Agreement annexes some other draft documents which are subject to continuing negotiation. 16 Mr Rago identified the provisions which the respondent says should not be released to the applicant at this stage by reference to the claim of exemption relied upon. I shall come to them later in these reasons. In his oral evidence, Mr Rago stated that Mr Maxwell Player had signed the Conditional Agreement in two capacities. 17 The respondent also relied on the evidence of Mr Maxwell Player, the sole director of Mawland. Confidential and public affidavits were read by the Tribunal and Mr Player gave oral evidence at the hearing and was cross examined by the applicant's counsel. Mr Player set out the nature of the business of the Mawland group of companies and their involvement in projects of this kind and details of the intentions of Mawland in its proposed development and running of the Quarantine Station. Details of its community consultation program were provided, including the proponent's Internet web site. He then set out evidence going to the exemptions concerning business affairs and personal affairs. 18 The applicant primarily relied on her affidavit (Exhibit B) and an Information Kit published by Mawland concerning the proposed development of the site. 19 The applicant is the Educational Officer of Friends of Quarantine Station, a community organisation created in January 1999 and incorporated in September that year. It has about 200 members and is somehow affiliated with the National Parks Association, another community group dedicated to preserving our natural heritage. 20 The applicant describes the history of and extent of her interest in the site and the facts concerning the environmental, social, historical, and political significance of the site. Her interest is primarily an environmental impact and management one. As I have said, immediately before and during the course of the hearing, the respondent released significant parts of the Conditional Agreement to the applicant relating largely to environmental impact and management issues. 21 It seems to me that the remaining issue of primary relevant concern to the applicant raised by her evidence is that the lease may be assigned or the beneficial ownership of Mawland might change during the 45 year lease. If that were so, the future operator of owners might not adhere to the terms of the agreement and Mawland's current stated intentions. She asserts that the detail of the terms of the agreement needs to be available to the public in order for the public to assess whether the chosen management option, that of a head lease, is the best option for the site. However, she does not say why this is so, In any event, in my opinion, there is or will soon be sufficient information on the proposal and the structure of the proposal available to the applicant before any final lease is executed by the parties so as to enable the applicant to submit relevant submissions to any determining authority dealing with the proposed development. Internal Working Documents 22 As for the claim based on clause 9(1)(a)(ii) of Schedule 1 of the FOI Act, known as the internal working documents exemption, the clause provides: "9 Internal working documents (1) A document is an exempt document if it contains matter the disclosure of which: (a) would disclose: (i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or (ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and (b) would, on balance, be contrary to the public interest. (2) A document is not an exempt document by virtue of this clause if it merely consists of: (a) matter that appears in an agency's policy document, or (b) factual or statistical material." 23 Mr Rago's evidence on this issue establishes that: 24 (a) The Minister has not yet made a final decision to lease the Quarantine Station to Mawland. A decision and the terms of any such arrangement will be dependant on the outcome of the "prerequisites" mentioned above, including the EIS process; and 25 (b) The Conditional Agreement annexes a number of draft documents each of which are being separately negotiated by relevant parties. 26 In other words, the ultimate deliberative State process here is not complete, notwithstanding the fact that, ordinarily, an executed contract would not comprise an internal working document within the meaning of the exemption. 27 I have no doubt that the Conditional Agreement contains matter the disclosure of which would disclose opinions, advice, recommendations, consultations or deliberations that have taken place in the course of, or for the purpose of, the decision-making functions of Government. Accordingly the public interest issues need to be addressed. 28 I note the approach of the Tribunal to the public interest issue in this provision in Tunchon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 73 at [13] to [19]. It is always useful for the Tribunal to have the parties themselves articulate what it is they consider to be the relevant and significant public interest considerations in this regard. The parties here helpfully delivered written submissions and, through their counsel, made extensive oral submissions on the public interest questions. Before going to that, I shall address the other exemptions relied upon by the respondent. Personal Affairs 29 The respondent contends that the disputed document contains information that constitutes personal affairs, the disclosure of which would be unreasonable pursuant to clause 6(1) of Schedule 1 of the FOI Act. The Tribunal considered that provision recently in Humane Society International Inc. v National Parks and Wildlife Service [2000] NSWADT 133. 30 It was submitted by the respondent that the Conditional Agreement contains personal details of Mr Player as well as his financial and other obligations under the agreement and proposed lease. 31 I have read the Conditional Agreement. In my view, the only matters which can properly be said to be capable of constituting personal affairs here are those details setting out the third party's address and facsimile number. The applicant, through her counsel at the hearing, stated that she was not interested in receiving those details. Accordingly, in the absence of the address and facsimile number issue, I am not satisfied that the respondent agency has established that the documents contains personal affairs information. The "reasonableness" or public interest issue does not arise here. Business Affairs 32 The respondent also relies on the exemption in clause 7(1)(c) of the Schedule One of the FOI Act (documents affecting business affairs). That section relevantly provides: " Documents affecting business affairs (1) A document is an exempt document: ... (c) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and (ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency." 33 The respondent contends that the Conditional Agreement contains commercially sensitive information, the disclosure of which can reasonably be expected to: (a) adversely affect the ability of the parties to the agreement to perform their obligations under it, including the ability to raise funds to perform those obligations; and, (b) prejudice the agency's ability to negotiate a different arrangement with another tender bidder should the agency not proceed with Mawland. 34 The evidence in support of these contentions is contained in the affidavits of Mr Rago and Mr Player. In short, the respondent submits that the most sensitive parts of the Conditional Agreement are those clauses that relate to: (a) the financial provisions dealing with rent, contributions and other money matters; and (b) the allocation of risk and responsibility between the parties. 35 The evidence of Mr Rago was that: "Release of the Agreement, which, as a whole, records the proposed commercial deal, reached between the Minister and Mawland would be extremely prejudicial to the Minister. If the Agreement is terminated and a lease is not issued to Mawland, the Minister and the respondent are likely to call for new expressions of interest or tenders in an effort to reach a new agreement regarding a lease of the Quarantine Station. If these companies or individuals are aware of a deal which the Minister has been prepared to accept, it would be extremely difficult for the Minister to obtain a more beneficial agreement or to change certain aspects of the Agreement." 36 Mr Rago deposed that the terms of the current proposal to lease were extremely beneficial to the respondent and the respondent is concerned public release and possible discussion of the deal may discourage other commercial operators, developers, investors and financiers from submitting or supporting tenders to undertake activities on the Quarantine Station, if the deal with Mawland does not eventuate. Apparently, the respondent generally has a lot of difficulty attracting commercial operators for the provision and operation of public facilities and services within National Parks. It is noted by Mr Rago that the lease will be eventually a public document registered with the Land Titles Office in New South Wales. 37 Further, Mr Rago deposed that Mawland has yet to conclude all arrangements in connection with the finance to implement its proposal for the Quarantine Station. He says: "The public release and likely discussion in a non-balanced way of the potentially less favourable aspects of the leasing proposal to Mawland may hinder Mawland's ability to attract potential financiers and to raise finance to implement the proposal. If the proposal is not implemented, Mawland and the respondent will suffer commercial detriment both in regard to the money already spent on the proposal and the lost expected returns. In accordance with conventional commercial practice, it is considered that Mawland should have the opportunity to present the proposal to potential financiers and investors in a commercially balanced way and in the context of the whole deal, rather than be obliged to approach potential partners after the potentially less commercially attractive elements have been publicly aired." 38 As to those potentially less commercially attractive elements, Mr Player gave evidence which supported Mr Rago's evidence. Mr Player said that the Mawland Group has spent large amounts of money preparing its proposal for the site and that there is a section of the public that opposes any lease of the Quarantine Station. He is concerned that these people may use information provided in the agreement where possible to attempt to prevent any lease from being issued. 39 In particular, Mr Player deposed that the public release and discussion of the less favourable aspects of the leasing proposal to Mawland may hinder Mawland's ability to attract potential financiers and to raise finance to implement the proposal. 40 All of this evidence is not seriously challenged by the applicant and was not successfully undermined in cross examination. 41 In my determination the Conditional Agreement plainly contains matter the disclosure of which would disclose information concerning the business or commercial affairs of the respondent and Mawland and which could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the agency. In making this determination, I am mindful of the public interest issues which I set out below. Those issues also go to the "reasonableness" issue in clause 7(1)(c). Broadly, the proper approach to the business affairs exemption was referred to by the President of this Tribunal in Raethel -v- Director General, Department of Education and Training [1999] NSWADT 108 at [43] to [53]. I have adopted that approach. 42 As to the internal working documents exemption, I have adopted the "no-leaning" approach referred to by Judicial Member Smith in Tunchon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 73 at [18] & [19]. The Public Interest 43 The Applicant made extensive submissions going to the relevant public interest or reasonableness issues here. To my mind, the primary ones tending towards the release of the document, and which I set out in a brief fashion here, were: (a) the importance of the site and the objects of the FOI Act tend towards release of the documents and go against secrecy. (b) release of the document is vital for the applicant's participation in the EIS process; (c) the public needs to provide input to the State as to alternatives to the proposal and to suggest alternative structures to the proposed structure. (d) the public needs to be made aware of the proposed returns to the respondent and the proposed returns to the public by the proposed deal. (e) the respondent should not be engaging in this sort of activity, the leasing of a National Park for financial reward; Such activity does not sit well with and may conflict with the nature of and objects of the respondent contained in the National Parks and Wildlife Act 1974 (" the NPW Act ") and the duties set out in the Environmental Planning and Assessment Act 1979 and the Threatened Species Conservation Act 1995. (f) the applicant and the public should not have to wait for the eventual release of the EIS and the final lease document. Participation should occur now upon release of the document; (g) there have been a number of inconsistencies and contradictions in the information released to the public and an FOI determination to release the documents is a way of clearing the air of the suspicion and doubts so created in the public's mind. (h) the terms of the deal or proposed deal might not be lawful and there is a need to check the appropriate powers have been invoked and done so properly. Further, it might be capable of becoming unlawful in the future. Reference was made by way of example to Willoughby City Council v Minister Administering the National Parks & Wildlife Act (1992) 78 LGERA 19 (Stein J) where the Land & Environment Court declared that a development involving a kiosk in a State Recreation Area was prohibited under the relevant State Environmental Plan. Reference was also made to Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 (Gleeson CJ, Kirby P and Samuels JA). (i) the EIS will not contain sufficient information to meet the public's legitimate concerns in that the proposal can be modified and approved without a further EIS being required - Transport Action Group Against Motorways Inc v Road and Traffic Authority (1999) 46 NSWLR 598 (Mason P, Sheller and Fitzgerald JJA). 44 The primary relevant submissions of the respondent going to the refusal to release the document and the public interest or reasonableness issues here were: (a) The Conditional Agreement is confidential, commercial and incomplete with the parties to it having much to do before a final agreement is negotiated, executed and then made public; (b) It is obsolete to some extent as the deliberative and negotiation process has continued since the execution of the Agreement; (c) Release of the document is unlikely to facilitate completion of the deliberative process; (d) An exhaustive EIS and public consultation phase will be completed before any final agreement is executed; (e) The uncontested evidence of prejudice to the State, namely that if the deal falls through, as it were, the State will have to call for tenders again in very different and possibly unfavourable (to the State) circumstances. 45 I have taken into account these and the other considerations pressed by the parties in their evidence and submissions. I have also examined the Conditional Agreement. The applicant's public interest submissions are very weighty. Indeed, as to the public's right to know and be involved in the decision-making process, the respondent's counsel conceded that these were significant factors in favour of disclosure. 46 However, the whole of the respondent's case appears to me to say – "not yet". I agree. It is premature in the particular circumstances of this case for this Tribunal to release the remainder of the Conditional Agreement to the applicant at this stage. The factor that weighs most heavily in my mind in refusing to release the documents at this stage is that the agency's deliberative process is not completed and the possibility that the deal, favourable as it is to the State, might well fall through if the documents are released. I do not regard that possibility as being remote in the circumstances. Release to the applicant under the FOI Act is, in effect release to the public at large. This is a sensitive period for both the State and proposed developer who is attempting to secure finance for the proposed project. 47 In my view, it is best for the applicant to wait a short time and for the moment, to presently address those known matters as they are apparent to her from the EIS, the extracts from the Conditional Agreement released by the respondent, and other documents. 48 In view of the extensive information already available to the applicant and in the public forum, I do not accept that she is significantly hindered in her making relevant and persuasive submissions to the relevant authorities concerning the proposed development or financial or legal structure of the development by the failure to receive the remainder of the Conditional Agreement. The EIS, when it is released, will contain some significant new and relevant information for the applicant's purposes. The respondent's counsel delivered a further written submission setting out the Conditional Agreement clauses to be disclosed or discussed in the Draft EIS. In my view, that contains sufficient information for the applicant and the general public to be informed of and about the proposal for the present. 49 Of course, once the development proposal has moved further down the approval process, the status of the remainder of the Conditional Agreement as exempt may well change. The final executed lease will, as the respondent has said, constitute a public document. 50 I determine that the decision under review is affirmed.