Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shoebridge v Forestry Corporation of NSW [2016] NSWCATAD 93 Hearing dates: On the papers Date of orders: 16 May 2016 Decision date: 16 May 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Renwick SC, Senior Member Decision: I am therefore satisfied that there is, in relation to the applicant's applications, 'special benefit to the public generally in the application' within the meaning of s 66 of the Government Information (Public Access) Act. It follows that there is to be a 50% reduction in processing fees charged to the applicant, and a refund paid accordingly within 14 days. Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – Government Information (Public Access) Act – request by Member of Parliament for information about spraying of pesticides in forests – special benefit to the public generally in the application justifying 50% reduction in processing fees Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Forestry Act 2012 (NSW) Government Information (Public Access) Act 2009 (NSW) Pesticides Regulation 2009 (NSW) Cases Cited: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 Lee v Evans [1964] HCA 65 Victoria Railways Commissioners v McCartney [1935] HCA 28 Category: Principal judgment Parties: David Shoebridge (Applicant) Forestry Corporation of NSW (Respondent) Representation: Counsel: J Coburn (Respondent) Solicitors: David Shoebridge (Applicant in person) File Number(s): 1510343 Reasons for decision Introduction 1. The applicant, Mr David Shoebridge, is a member of the NSW Parliament. The Forestry Corporation of NSW (the respondent) is constituted by the Forestry Act 2012 (NSW): see s 5, and its principal objectives are set out in s 10. They include: (b) to have regard to the interests of the community in which it operates, (c) where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6 (2) of the Protection of the Environment Administration Act 1991. 1. In June 2015, the applicant applied under the Government Information (Public Access) Act 2009 (the Act) to the respondent for disclosure of government information. Essentially, the applicant sought information concerning the names and quantities of chemicals used by the respondent when undertaking both aerial and ground based chemical spraying of crops in forests, the sites where spraying took place, and the costs incurred. 2. The applicant was advised that production of the full amount of material would take in excess of 200 hours to accomplish, and would likely be refused under s 60(1)(a) of the Act, on the basis that "dealing with the application would require an unreasonable and substantial diversion of the agency's resources". 3. Accordingly, the applicant refined his request, and limited it to the two previous financial years and to the 'Hardwood', as opposed to the 'Softwood' plantation division of the respondent. The respondent replied that this would take approximately 5 hours to process. The material was then produced without further objection by the respondent. Only the question of fees remains. 4. The applicant was advised that the cost of processing his amended application would be $120. He then requested the 'special public benefit discounted processing charge' provided for under s 66 of the Act. This relevantly states: (1) An applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the information applied for is of special benefit to the public generally. … (3) The Information Commissioner may, for the assistance of agencies, publish guidelines about reductions in processing charges under this section. 1. On 10 June 2015, the Executive Officer of the respondent refused the application for a discounted processing charge under s 66(1). There was a right of internal review from that decision, which the applicant availed himself of. The respondent maintained the refusal decision. 2. The applicant now appeals to this Tribunal under s 100 of the Act. The Tribunal attracts jurisdiction as that decision is an 'administrative review decision' within the meaning of s 30 of the Civil and Administrative Tribunal Act (the CAT Act). 3. By operation of s 63 of the Administrative Decisions Review Act 1997 (the ADR Act): (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. Section 105 of the Act relevantly provides: (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. … (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review. 1. There is thus an entitlement to a 50% reduction if the agency, or now, the Tribunal "is satisfied that the information applied for is of special benefit to the public generally". It is therefore necessary properly to construe that provision, before determining whether there can be satisfaction about those matters. In this regard, the guidelines are helpful aides. It is not correct, as the guidelines themselves assert, that they are bound to be considered under s 15(b) of the Act. That is because s 15(b) provides: A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: … (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. 1. Evidently, s 15(b) is dealing with a different determination to the present one. 2. Nevertheless, the guidelines are of potential assistance, as s 66(3) states. The guidelines relevantly state: Special benefit (a) Disclosure of government information is presumed to be in the public interest under section 5 of the GIPA Act. The decision-maker must also exercise their discretion to reduce processing charges in a way that is consistent with the intentions of Parliament outlined in section 2 of the GIPA Act – that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. (b) There is no prescriptive definition of "special benefit to the public generally". However, as a general guide, information that better informs the public about government or concerns a publicly significant issue would be of special benefit or special interest to the public generally. For example, if the information would inform public debate about an issue, increase public understanding about government functions, or contribute to the public's understanding of an issue of public significance (such as the environment, health, safety, civil liberties, social welfare, or public funds), then this would have a special benefit. Information that could be viewed as satisfying public curiosity would not ordinarily satisfy the special benefit ground. (c) The issue the decision-maker must consider is whether the release of the information would result in a special benefit to the public, rather than whether reducing the charges would result in a special benefit. The public generally For the purpose of a reduction in processing charges under section 66, the benefit as a result of the release of the information should flow to members of the public and not just to the applicant. The public generally may include: ● a section of the community (e.g. single parents, persons aged over 65, persons with a disability, persons of a particular nationality); ● a community group (e.g. volunteer rescue groups, kids support service providers); ● a group of persons from a particular area (e.g. persons residing in a suburb where the information relates to issues, such as waste management proposals, within that suburb); ● a group of people with a common interest (e.g. local government constituents, a parents and citizens association, student unions or university students generally, advocacy groups); ● persons of a particular occupation or industry sector (e.g. medical practitioners, academics, newsagents); or ● any other members of the public other than the applicant (e.g. neighbours who may be interested in the same development proposal). ● The agency need only be able to envisage that the information may be of special benefit to other members of the public other than the applicant. They need not be satisfied that it will be a large group of persons. Checklist - is there a special benefit to the public generally? Does the information you seek/or being sought have a special benefit to the public generally? Information may have a special benefit to the public generally if you can answer yes to any of the questions under both the 'special benefit' and 'public generally' sections: Special Benefit 1. Does the information relate to an issue of public debate? 2. Does the information relate to an issue of public significance (e.g. environment, health, safety, civil liberties, social welfare, public funds etc)? 3. Does it interest or benefit the public in some other way? (e.g. assist public understanding about government functions) 4. Would release of the information likely result in further analysis or research? 5. Would the information add to the public's knowledge of the issues of public interest? For example, if the information is outdated then the information may not add to or be of benefit to the public's knowledge. However, if the information is outdated, then the agency should advise the applicant about the existence of updated information, or ensure that the historical nature or context of the information is made explicit. (Applies to agencies only) Public generally 6. Would any of the following have a special interest in the information: (a) a section of the community (e.g. single parents, persons over 65, persons with a disability, persons of a particular nationality etc). (b) a community group (e.g. volunteer rescue groups, kids support service providers etc) (c) a group of persons from a particular area (e.g. persons residing in a suburb X where the information relates to issues, such as waste management proposals, within suburb X), (d) a group of people with a common interest (e.g. local government constituents, a Parents and Citizens association, student unions or university students generally, advocacy groups etc), (e) any other members of the public other than the applicant (e.g. neighbours who may be interested in the same development proposal). (f) persons of a particular occupation or industry sector (e.g. medical practitioners, academics, newsagents) 7. Is the information, if disclosed, likely to lead to publication of the information? 8. Will the information be analysed or likely to lead to further analysis? The submissions 1. As noted, the application sought information concerning where certain pesticide spraying took place at Hardwood plantations operated by the respondent and the chemicals used, their quantities, and the costs involved. 2. The applicant asserts in substance that: 1. Although there are existing notifications to the public by the respondent on a case by case basis when pesticides are used, this is often simply done by a general notice in a local newspaper. Such limited notification does not allow any overview of pesticides used. 2. There is a clear public interest in monitoring and analysing pesticide use from a state-wide basis, for example Regulation 13 of the Pesticides Regulation requires keeping records of all occasions on which pesticide is used. There is a corresponding requirement in the case of the aerial application of pesticides: see Regulation 8N. 3. Record keeping itself is for the benefit of the public. 1. An additional piece of evidence relied upon by the applicant was a letter to the respondent of 15 May 2015 from the co-ordinator of the "National Toxics Network", supporting the application by the applicant under the Act, on the basis that: 1. The Network was a non-government organisation working to protect the environment and people from the impacts of exposure to toxic chemicals. 2. There was piecemeal availability of information and, generally, a lack of public access to data on pesticide use, other than by application under the Act. 1. The letter concluded: "please provide the collated data being requested as we have communities contacting us all the time about pesticide use in state forests and believe it is [in] their broader interests to know". 2. The respondent relied on a statement by Joanna Bodley, the respondent's Manager (Communications and Media). The statement: 1. Accepted that there had been some community interest in early 2015 in aerial spraying plans for Gladstone State Forest, to which the respondent had responded by holding a publicly available 'webinar', i.e. a seminar held online. 2. Said that there were existing processes in place to notify communities of planned aerial spraying activities. 3. Submitted that, because the information sought was general and historical in nature, it would not "add to the public's understanding of aerial spraying or offer a meaningful contribution to any public debate around aerial spraying", nor "any insight into future plans for aerial spraying". 4. Submitted that "the costs of spraying [were] immaterial to any consideration of the information" being of special benefit under the Act. 5. Observed that there had not been any other applications under the Act concerning ground-based spraying, and to her knowledge, there was no regular correspondence from the public or media enquiries and there was not otherwise significant controversy. 6. Concluded that "the information requested was of curiosity to the applicant, possibly as an extension of the interest in aerial spraying activities, but not of particular interest to the public more generally". Construction 1. When considering whether the information applied for is of 'special benefit to the public generally' it is necessary to construe that provision in its context: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 at [39]. 2. In relation to the meaning of 'the public', much depends upon the context, as was noted by Barwick CJ in Lee v Evans (1964) 112 CLR 276 at 283. There, his Honour accepted that the dictionary meaning of 'the public' connotes the community in the aggregate, and therefore members of the community. 3. Earlier, in Victoria Railways Commissioners v McCartney (1935) 52 CLR 383, Rich and Dixon JJ were considering a provision in the Transport Regulation Act (Vic), which required consideration of "the interests of the public generally", before granting or refusing a particular license. Their Honours said at 389: The expression 'the interests of the public generally' is indefinite, and appears to us to mean little more than such expressions as 'public benefit' and 'the general advantage', which refer to 'public', in opposition to 'private' or 'individual'… 1. I consider that construction to be apt here. The information Commissioner construes the 'public generally' as 'members of the public and not just …the applicant' and gives some illustrative examples. That is consistent with what was said in McCartney. 2. As to 'special', the Macquarie Dictionary gives a number of definitions of 'special'. Two are potentially relevant: "distinguished or different from what is ordinary or usual", or "extraordinary, exceptional, exceptional in amount or degree". In a statute which is to be construed beneficially in favour of disclosure, I do not consider that there has to be an extraordinary or exceptional benefit to the community at large, but merely something which is different from the ordinary or usual. The non-exhaustive checklist referred to above is of assistance in determining whether there is a special benefit to the public generally. 3. In summary, therefore, a decision-maker must decide whether he or she is satisfied that there is a benefit different from what is ordinary or usual to the general public, and thus not merely the private interests of the applicant alone. Consideration 1. I am satisfied that the applicant has established that the information applied for is of special benefit to the public generally for the following reasons: 1. The use of pesticides in, or near public places, in forests controlled by the respondent and adjacent to communities comprised of members of the public relates to public health and safety and the environment, and to that extent, is an issue of public significance. 2. Information about spraying: what chemicals are utilised, how, where, when, and at what cost, is equally a matter of public significance. 3. Although the information is historical as opposed to predictive, that does not mean it is of no benefit because, as the applicant submitted, it allows a state-wide view to be taken about these matters, to allow the public to form its own view about whether proper records have been kept as required by law in the Pesticides Regulation, and whether the respondent has complied with the principal objectives contained in s 10(b)-(c) of the Forestry Act (as noted above). 4. The provision of that information to a Member of Parliament allows questions to be asked of Ministers and agencies both inside and outside Parliament, here, the information will also be provided to the National Toxics Network whose members, apart from informing themselves may, should they wish to do so, make submissions to Ministers or agencies such as the respondent, or, ask questions of such entities concerning the use and cost of pesticides. 5. As to the public generally, evidently, persons who reside in locations adjacent to forests where such spraying takes place have an interest. Aerial spray may potentially drift with the wind. It is an insufficient answer to say that sections of the public are notified prior to spraying in particular areas, for example, in a local newspaper, because such persons may still wish to make submissions or ask questions. 1. I am therefore satisfied that there is, in relation to the applicant's applications, 'special benefit to the public generally in the application' within the meaning of s 66 of the Government Information (Public Access) Act. It follows that there is to be a 50% reduction in processing fees charged to the applicant, and a refund paid accordingly within 14 days. 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: 16 May 2016