Diehm v Greater Taree City Council [2010] NSWADT 233

CITATION: Diehm v Greater Taree City Council [2010] NSWADT 233

DIVISION: General Division

APPLICANT Steven Richard Diehm PARTIES: RESPONDENT Greater Taree City Council

FILE NUMBER: 103049

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 25 June 2010

DATE OF DECISION: 30 September 2010

BEFORE: Molony P - Judicial Member

CATCHWORDS: Freedom of Information Act -Access to documents Internal working documents - Documents affecting business affairs - Documents concerning operations of agencies

LEGISLATION CITED : Freedom of Information Act 1989

CASES CITED: Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84

APPLICANT In person REPRESENTATION: RESPONDENT A Marshall, solicitor

ORDERS: Set aside the decision under review and remit it to Council for reconsideration within 21 days in accordance with these reasons.

REASONS FOR DECISION Background 1. On 8 March 2010 Mr Diehm lodged an application to review a decision of the Greater Taree City Council (Council) made on internal review under the Freedom of Information Act 1989 on 11 February 2010. 2. Planning meetings at which the issues in dispute were narrowed were held on 9 April and 13 May 2010. This resulted in there being four issues outstanding that required determination by the Tribunal. I determined that those issues could be adequately determined in the absence of the parties by considering the material lodged with the Tribunal. On 13 May 2010 I made directions putting in place a time table for the filing of materials and submissions, and for the matter then to be determined on the papers. 3. The outstanding issues relate to what were called, in short form: - Mr Diehm's request for documents in Item 6 of his original request; - The s 15A issue - The Airport Documents - The consultant's terms of engagement Item 6 4. In his initial FOI request Mr Diehm sought information with respect to performance management review for Council's General Manager - -Copy of the performance management framework as adopted by GTCC for the performance review of its General Manager prior to, and as used during, the May 2008 performance review. -Provision of performance targets agreed at May 2008 meeting and performance achievement assessed against these as reviewed in November 2009. -Details of 2009/2010 performance targets and details of the system of measurement for next review. 5. The FOI determination in relation to these matters refused access to documents on the basis that they were documents affecting personal affairs and exempt under Clause 6 of Schedule 1 which provides – (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made. 6. Since then Council has provided Mr Diehm with a series of documents which it identified as being responsive to the request for the performance management framework as adopted by GTCC for the performance review of its General Manager. 7. Council says it holds no other documents relevant to the request. Mr Diehm has produced no evidence to the contrary. I accept Council's assertion. I also note that the Tribunal does not have jurisdiction with respect to sufficiency of search: Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 8. With respect to the request for performance targets agreed at the May 2008 meeting and performance achievements, assessed against these, as reviewed in November 2009, Council has not identified any documents responsive to the request. In the course of the planning meetings Mr Diehm agreed that he was not seeking information relating to the targets set for the present general manager personally, but generic targets relating to the role. W when read in this light, Council has not identified any documents responsive to the request. Mr Diehm has produced no evidence to the contrary. I accept Council's assertion. 9. With respect to the 2009/2010 performance targets and details of the system of measurement for next review, Council has identified a document described as "Gerard Jose — General Manager Performance Plan 2010 dated 30 October 2009 and attached Action Plan based on Australian Business Excellence Framework." The document was drafted by the General Manager for consideration by Council and was adopted on 17 December 2009. 10. While Council had initially relied on the personal affairs exemption (Clause 6) this reliance was not maintained in its submissions. 11. Council submits that the document is exempt on a number of grounds. First, under Clause 16 because disclosure could be reasonably expected to: "A to have a substantial adverse effect on the management or assessment by Council of the Council's personnel, namely the General Manager; or B to have a substantial adverse effect on the effective performance by Council of Council's functions; and would, on balance, be contrary to the public interest." 12. Council argued that: "The basis of the exemption in the context of the above provision is that the document represents an internal management guide upon which performance will ultimately be assessed and the guide itself is not a fixed assessment criteria for the General Manager and indeed it is a document that is intended to evolve during the assessment year as Council's strategic plans evolve. Council's concern in allowing such a document to be freely available to the general public is that it may adversely affect Council's ability to manage, consider and assess its proposed strategies before they are advertised for comment or otherwise adopted. It could lead to critical appraisal of matters that have not even been considered by Council or otherwise internally assessed. Council submits that such a document should only be made available at the end of an assessment period and only in relation those matters that are assessable." 13. Clause 16 relevantly provides: A document is an exempt document if it contains matter the disclosure of which: (a) could reasonably be expected: (i) … (iii) to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel, or (iv) to have a substantial adverse effect on the effective performance by an agency of the agency's functions, or (v) … (b) would, on balance, be contrary to the public interest. 14. Secondly, Council submitted that the document are exempt under Clause 9, Internal Working Documents, on the basis that "… it is an internal working document the disclosure of which would disclose a recommendation by the General Manager made in the course of carrying out his functions as General Manager of Council and which would be, on balance, contrary to the public interest given that it contains proposals and strategies that may or may not be implemented, advertised or adopted in conjunction with the issues raised in (a) and (b) above. 15. Clause 9 relevantly provides: (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) … 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. 16. In response Mr Diehm said that he is not seeking the General Manager's personal objectives but is seeking details of the performance objectives and KPIs for the General Manager, together with details of the system of measurement for the next performance review. 17. The document in issue is Attachment 1 to Council's submission, which was supplied to the Tribunal on a confidential basis. I will deal with it in two sections: the Performance Plan and the Action Plan 18. The Performance Plan (pages 1 to 6) outlines the purpose of the plan, the frequency of reviews, and the leadership approach to be adopted by the General Manager. It sets out behaviours associated with that leadership approach, and a list of values which the General Manager is to support and demonstrate, together with behaviours associated with those values. 19. With the exception of the General Manager's name there is nothing in the Performance Plan that is other than a generic statement of the purpose of the plan, of the leadership approach and values to be demonstrated by the General Manager, and of behaviours which might demonstrate them. It does not address specific targets, or disclose any specific recommendations made, opinions or advice given by the General Manager or other Council officers, in the course of the decision making functions of the Council. As a result I do not accept that, because of its specific contents, the Performance Plan contains matter within the meaning of Clause 9(a)(1). 20. Because the document as a whole was prepared by the General Manager and approved by Council, it can be argued that the disclosure of the whole would disclose a recommendation made by the General Manager to Council for the purposes of determining how it should manage and evaluate the performance of its general manager. I accept this is a decision making function of Council. As a consequence it is necessary to consider whether disclosure would on balance be contrary to the public interest. 21. In General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84 McColl JA (with whom Handley JA and Hodgson JA agreed) said (at [146]) in relation to cl. 9: 'The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view": O'Sullivan v Farrer (at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ). Determining where the public interest lies is a question of fact and degree: Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393 at 395." 22. In doing so, however, McColl AJ noted at [151] that: '… the Act gives a legally enforceable right to be given access to documents held by the Government, that right is subject to such restrictions as are reasonably necessary for the proper administration of the Government: s 5(2)(a) and (b). Determining whether documents should be disclosed involves balancing those two matters.' 23. The Performance Plan 2010 reflects the leadership approach and values which Council has determined it wants from it General Manager, and the type of behaviour it considers reflect those behaviours. The role of the General Manager of the Council is an important, if not crucial, one to the citizens and ratepayers. On my analysis of its submissions Council did not raise any public issue consideration which demonstrated why the release of the Performance Plan would be contrary to the public interest. Those augments it did raise are applicable to the Action Plan. 24. In my view there is a substantial public interest in this type of generic information relating to the role of General Manager being released. It gives an understanding of the values and attributes which Council expects from its most senior officer, and outlines how Council expects them to be demonstrated. Releasing that information would enhance the accountability of both the Council and the General Manager, enable a greater understanding of the values they bring to the performance of their roles, and enhance transparency. I consider that the public interest, on balance, requires disclosure of the Performance Plan. It is not exempt under Clause 9. 25. I do not accept release of the Performance Plan would have a substantial adverse affect the management or assessment of the General Manager, or on the Council's performance of its functions. I do not see and Council has not explained how disclosure of the leadership approach and values expected of its General Manager would have such a substantial adverse impact. The Performance Plan is not exempt under Clause 16. 26. The Action Plan outlines a series of action areas which the General Manager and others are to address, outlining for each area the strategic action(s) to be taken, whose responsibility that actions is, and the deliverables for that action. It includes a progressive commentary with respect to each strategic action, with target dates, adjusted target dates and completion details. It therefore includes broad areas of action, with sub-sets of specific actions, including deliverables, due dates, completion details and allocation of responsibility for necessary actions. The General Manager is not always the sole officer responsible. Some of the due dates are yet to pass. 27. By its nature the Action Plan is liable to change, with action dates being adjusted, and completion status changes. I agree with the Council that it contains some information in relation to ongoing developments and business strategies of Council, the release of which is likely to have a substantial adverse affect on Council's performance of its functions. Because of the danger which premature release of that information could have, in terms of processes and strategies being compromised or taken advantage of, I accept that, in those cases, this would be contrary to the public interest. 28. At the same time, the Action Plan contains a number of entries which do not disclose such matter and that are essentially unexceptional in nature. There are many matters which one would expect to find in any such plan: they are predicable and unexceptional. I do not accept that release of that information would have a substantial adverse impact on either the Council's performance of its functions or on its management or assessment of the General Manager. 29. For substantially the same reasons, I accept that release of some of the Action Plan would disclose advice or recommendations that have been obtained, prepared or recorded, in the course of, or for the purpose of, the decision-making functions of Council. These relate to both external decision making and decisions with respect to internal Council processes. I accept that premature disclosure of those matters would be contrary to the public interest. 30. I have copied and reviewed the document. I have redacted those matters which I consider exempt under either clause 9 or clause 16 in accordance with s 25(4). This will be provided to the Council alone with a direction that they reconsider the FOI determination in accordance with these reasons. The s 15A 31. Mr Diehm agitated for the release of waste management and other contracts under s 15A of the Freedom of Information Act 1989. This was introduced into the Act by amendments made by the enactment of the Freedom of Information Act (Open Government – Disclosures of Contracts) Act 2006. Council submitted that s 15A does not apply to it as it is a "local authority" within the meaning of the Freedom of Information Act 1989 and, as such is not an agency to which the section applies. 32. Section 15A requires the publication of prescribed particulars of certain classes of contracts entered into by agencies. "Agency" for the purpose of the section does not include a "local authority:" see ss (14). Local authority is, in turn defined in defined in s 6 of the Act – "local authority" means a council or county council within the meaning of the Local Government Act 1993 . 33. Council is a "Council" within the meaning of the Local Government Act 1993. As a result s 15A of the Freedom of Information Act 1989 does not apply to it. 34. Further the Tribunal does not have jurisdiction to deal with issues associated with it. The Airport Issue 35. In his original FOI application Mr Diehm sought information in relation to the Airport Runway – Resurfacing Arrangements. He sought the amount borrowed, the interest rate, the loan term, the type of loan, and the name(s) of the lending institution. 36. He also pressed for details under s 15A of the Freedom of Information Act 1989 (considered above). 37. On internal review it was found that the total amount of borrowings was available to Mr Diehm under s 12 of the Local Government Act and had been proved to Mr Diehm. The internal review refused access to loan documentation on the basis that it was exempt under clause 7 of Schedule 1, the business affairs exemption. 38. The Council has provided the Tribunal with confidential copies of the following documents (Attachment 2 to Council's submissions). A. Business letter of offer from the National Australia Bank to Greater Taree City Council dated 16 December 2009 and associated terms and conditions relevant to three loan facilities, one of which relates to the airport runway resurfacing; and B. Business purpose declaration relevant to the loan facilities dated 17 December 2009. 39. Council submitted that: "The loan document is clearly a sensitive document containing commercial terms and provisions relevant to the agreement between Council and NAB relating to the airport and other non-related loans. It would be contrary to public interest to allow such commercially sensitive information to be disseminated, in or out of context, to members of the community and other local authorities when the key elements of the loan have already been made publically available." 40. Mr Diehm argued that the Airport Runway was a significant project and extended Council borrowings by $4,000,000. It is, he says, of significant public interest. He said that he has an extensive range of skills in the "field of Employment and Industrial relations" management. He regarded these factors as evidencing his capacity to use and communicate the information he seeks, thereby enhancing likely the public interest in it (relying on paragraph 6.2.11(3) of the FOI Manual 2007). He added that the disclosure of further non-related loans created a further substantive case for disclosure. 41. The review I am conducting it is limited by the scope of Mr Diehm's initial request which related to airport resurfacing finance only. Other loans are outside the scope of Mr Diehm initial FOI request. I will not consider them. 42. Clause 7 of Schedule 1 creates this exemption. It relevantly provides: "(1) A document is an exempt document: (a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or (b) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets or commercial-in-confidence provisions) that has a commercial value to any agency or any other person, and (ii) could reasonably be expected to destroy or diminish the commercial value of the information, or (c) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets, commercial-in-confidence provisions 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. (2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made." 43. Section 61 of the Freedom of Information Act 1989 provides that - "In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister." 44. I have examined these documents carefully. They match the description provided by Council. It is not possible to tell which of the loans offered relates to Airport Resurfacing. The documents do contain commercial terms and provisions relevant to the agreement between Council and the NAB. 45. There is no evidence before me that the information of itself has a commercial value to Council or any other person, or that its commercial value (if any) could be reasonably expected to be destroyed or diminished if disclosed. As a result I am not satisfied that the information (within the scope of the request) is exempt under Clause 7(1)(b). 46. I accept that the disclosure of the documents would disclose information concerning the commercial and financial affairs of the NAB and Council. There is no evidence, however, that release of the information could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Council. While Council made submissions addressing the public interest in non-disclosure, the public interest is not a consideration set out in Clause 7. As a result I am not satisfied that the information (within the scope of the request) is exempt under Clause 7(1)(c). 47. Once again I propose to set aside this aspect of Council's decision and remit it to Council for reconsideration in accordance with these reasons. This will provide Council with the opportunity to redact the documents so that they do not show information with respect to loans outside the scope of the request. The Consultants terms of engagement 48. In his original FOI application Mr Diehm sought information relating to the appointment of the General Manager in 2007, specifically – A copy of the 'third party' consultant's invoice is requested along with the associated terms of engagement. 49. On internal review Council found that the documents in issue were exempt under the business affairs exemption (Clause 7). Despite this, a redacted copy of the invoice was released to Mr Diehm, with the exemption otherwise maintained with respect to the terms of engagement. 50. In submissions Council submitted – "… Council maintains its view that the Tender Submission from the successful tender application, which forms the basis of the terms of engagement, is exempt pursuant to Schedule 1 Part 2(7) of the Act on the basis that it is a document containing matter the disclosure of which would disclose information that it is commercially sensitive and confidential to the Consultant and Council. The format of the submission and the content would naturally contain confidential information in the form of business methodologies and strategies that forms part of the Consultant's intellectual property. Open access to such information would jeopardize such confidential business information and the ability of Council to obtain quality tenders in the future." 51. Mr Diehm argued that from the release of the invoice he was aware that Council had paid the consultant $22,000 for the recruitment, selection and appointment. This included advertising, screening and primary processing, interviewing appropriate applicants, reference checking, providing summarised resume and reports and consultations regarding final selection. He thought the requested information was generic and "similar in structure to a product disclosure documents accompanying a renewal of one's care insurance." 52. There are two documents in issue. They are a tender submission from McArthur Management dated January 2007 and an email accepting the tender dated 22 February 2007. 53. Once again Council's submission with respect to this exemption do not directly address the criteria in clause 7, instead asserting that the documents contain information that it is commercially sensitive and confidential to both Council and the Consultant. 54. There is no evidence that the documents contain trade secrets. As a result Clause 7(1)(a) does not apply. 55. There is no commercial in confidence provision in the documents which would be breached by disclosure of the information contained in the documents. Similarly, there is no evidence of there being any applicable commercial in confidence provision which prevents disclosure of these documents. As a result Clause 7(1)(ai) does not apply. 56. There is no evidence that the documents contain information of commercial value to the Council, the Consultants or any one else. While Council submits that the tender document "would naturally contain confidential information in the form of business methodologies and strategies that forms part of the Consultant's intellectual property," there is no evidence that this is the case, and this is not apparent from a reading of the document. The tender is unexceptional. It sets out the services to be delivered if the tender is accepted, and provides details of the persons who will provide those services. As a result Clause 7(1)(c) does not apply. 57. I accept that the documents evidence a commercial arrangement between Council and the Consultants: they relate to the business and financial affairs of both the Consultants and Council. The financial details of that arrangement are already in the public domain, by virtue of the release of the redacted invoice under the Freedom of Information Act 1989 to Mr Diehm. The documents relate to a tender accepted and performed in February 2007, more than three years ago. They concern the recruitment of a senior employee by Council, a relatively common event. In those circumstances I have grave difficulty in understanding, and Council's submissions do not address, how disclosure could be reasonably expected to have an unreasonable adverse effect on those affairs, or prejudice the future supply of such information to Council. I do not accept that such effects could be reasonably expected to flow from disclosure. 58. As a result, I consider that these documents are not exempt under Clause 7 of Schedule 1. Conclusion 59. In the light of the above I consider that the correct and preferable decision is to set aside the decision under review and remit it to Council for reconsideration within 21 days in accordance with these reasons.