Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Eyes v Central Coast Council [2016] NSWCATAD 306 Hearing dates: 5 October 2016 Date of orders: 22 December 2016 Decision date: 22 December 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: D Dinnen, Senior Member Decision: The application for access to the requested information is allowed Catchwords: Government Information – public interest considerations in favour of disclosure – public interest considerations against disclosure - prejudice to effective exercise of agency functions - prejudice to the conduct, effectiveness or integrity of an audit, test, investigation or review - diminish the competitive commercial value of the information - prejudice to legitimate business and commercial interests – balancing exercise Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Local Government Act 1993 Warnervale Airport Restrictions Act 1996 Cases Cited: Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 Commissioner of Police v Camilleri [2012] NSWADTAP 19 Eyes v Wyong Shire Council [2016] NSWCATAD 120 Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 Leech v Sydney Water Corporation [2010] NSWADT 198 Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37 McKinnon v Blacktown City Council [2012] NSWADT 44 Media Research Group Pty Ltd v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7 Moran v Shellhabour City Council [2011] NSWADT 241 Nature Conservation Council of NSW v Department of Trade and Investment Regional Infrastructure and Services [2012] NSWADT 195 Neary v State Rail Authority [1999] NSWADT 107 Public Service Assn v Premier's Department [2002] NSWADT 277 Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 Seeney and Department of State Development [2004] QICmr 4 Category: Principal judgment Parties: Laurie Maxwell Eyes (Applicant) Central Coast Council (Respondent) Representation: L Eyes (Applicant in person) Counsel: E Whitby (Respondent) Solicitor: M Domingo (Respondent) File Number(s): 1610200 REASONS FOR DECISION Overview 1. The Applicant seeks access, under the Government Information (Public Access) Act 2009 ("the GIPA Act") to information held by the Wyong Shire Council, now part of the Central Coast Council ("the Respondent" or "the Council"). 2. On 3 November 2015, the applicant made an access application under Part 4 of the GIPA Act to the Council, seeking access to the document, "Project Business Case: Warnervale Airport Development Opportunities Feasibility Study" ("the Document") dated 8 February 2013. The Document relates to development options for an aerodrome facility owned by the Council at Warnervale NSW. 3. The Council was unable to determine the application within the statutory time frame of 20 days under s.57(1) of the GIPA Act. Accordingly, the Council was deemed to have decided to refuse to deal with the application (s.63 GIPA Act) (Decision). 4. By application filed on 24 March 2016, the applicant sought a review of the Decision in the Tribunal. 5. On 24 March 2016, in answer to the access application, the Respondent made a decision to produce a redacted version of the Document to the Applicant, for inspection only. In support of that decision, the Respondent relied on the following provisions of the Table to Section 14 of the GIPA Act: 1. Clause 1(f): prejudice the effective exercise by the Council of the Council's functions; 2. Clause 1(h): prejudice to the conduct, effectiveness or integrity of an investigation and/or review conducted by or on behalf of Council; 3. Clause 4(c): diminish the competitive commercial value of any information to any person; 4. Clause 4(d): prejudice any person's legitimate business, commercial, professional or financial interests. 1. The applicant inspected the redacted copy of the Document on 21 April 2016 at Wyong NSW. 2. On 31 May 2016 at the First Case Conference, the applicant was directed to make a request to the Council for an amendment of his application to the Tribunal on or before 21 June 2016. 3. Pursuant to procedural directions, on 7 June 2016 the Applicant wrote to the Respondent, requesting an unredacted copy of the Document. That request was refused. 4. The consequent Amended Application now seeks a review of the Respondent's determination, specifically seeking unrestricted access to an unredacted version of the Document. Factual context 1. The Council is currently in the preliminary planning and investigative process stage for a regional airport facility for the Central Coast, NSW region ("the Project"). 2. The Project is outlined in the report to the Ordinary Meeting of the former Wyong Shire Council held on 13 November 2013 titled '4.11 Central Coast Regional Airport Status Report' (Report). The former Wyong Shire Council received and noted the Report, and endorsed a project plan, schedule, budget and community engagement strategy for the Project. The Report discloses the economic significance of the Project to the Council and to the region, with an Estimated Project Cost of $250,000,000. The Project Plan noted that delivery of the project would require a public private partnership between the Council and third parties, "to provide the capital to undertake the construction and operation phases via equity arrangements in an appropriate Special Purpose Vehicle". 3. The Respondent requires appropriate approvals from the NSW Government to undertake a capital project of this scale and to enter into any private public partnership. To obtain those approvals and enter into such arrangements, various documents including business plans, financial plans, risk management plans, and feasibility studies are prepared. 4. It is not in dispute that, in undertaking the Project, the Council is exercising its public functions as provided for in the Local Government Act 1993 for the transport, infrastructure and economic development of the region. 5. Necessarily, the Project would include commercial in confidence information for the purpose of assessing the cost of the Project, measured against the level of investment, profitability and economic benefits to the Central Coast local government area. 6. The Applicant seeks access to the Document as one of a number of "airport related documents" sought from the Council under the GIPA Act, in an effort by him to make public and inform the wider community of the Council's various plans for building a regional airport facility. 7. The Applicant maintains a blog which publishes the information and documents he obtains, for the purpose of informing the public of the Council's plans. Those documents have been accessed and used for submissions and presentations to various local, state and federal representatives, and provided to the media for publication. The Applicant intends to use any information or documents he obtains under this application in a similar manner. 8. The Applicant's position is that the development of a regional airport facility by the Council is "not viable, desirable or necessary". He is also opposed to the review of the Restrictions Act being undertaken by NSW Planning and Environment and believes that the site proposed for the regional airport facility in the Document is not appropriate and would be better suited and of greater value to the community as an industrial site. The Applicant submits that the Document would support his position on these matters and therefore seeks its release for publication. 9. The Document includes information regarding the constraints to the development of Warnervale Airport as a specific site, such as certain legal, environmental and economic constraints, as well as certain information contained in valuation reports for the land on which Warnervale Airport is located (Valuations). 10. The Council contends that although it now has updated information on which it is pursuing the Project, that specific information remains current, and relevant to the Project and assessment of development opportunities for Warnervale Airport. 11. Each of the parties lodged written submissions in support of their case, with numerous annexures comprising supporting documentation. The Council additionally relied on open and confidential affidavits of its Property Development Manager, Jamie Barclay. The Council provided the Tribunal with a copy of the unredacted material on a confidential basis. The Applicant has not been given a copy of the unredacted material or the confidential affidavit. Tribunal's jurisdiction and powers 1. The Tribunal's jurisdiction to conduct this review derives from s. 100 of the GIPA Act read with s. 28 of the Civil and Administrative Tribunal Act 2013 (NSW) and s. 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). 2. In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s. 63(1). The Council bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s. 105(1). The Council is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59]. 3. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Council in accordance with any directions or recommendations of the Tribunal: ADR Act, s. 63(3). The GIPA Act 1. Section 3(1) of the GIPA Act provides: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. 1. Section 3(2)(a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object. 2. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. An access applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: section 9(1) of the GIPA Act. 3. Section 12 of the GIPA Act sets out the general public interest consideration in favour of access to government information. Section 12(1) of the GIPA Act sets out a general public interest in favour of disclosing government information. Section 12(2) provides that the agency may take into account any other considerations in favour of disclosure which may be relevant. 4. Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure. Before deciding whether to release or withhold information, an agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists in regard to the information sought. Section 13 requires the decision maker to: 1. identify relevant public interest considerations in favour of disclosure, 2. identify relevant public interest considerations against disclosure, 3. attribute weight to each consideration for and against disclosure, and 4. determine whether the balance of the public interest lies in favour of or against disclosure of the government information. 1. The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act. This includes considerations set out in schedule 1 to the GIPA Act. 2. Considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the effect outlined in the table to section 14 of the GIPA Act. 3. The Agency must apply the public interest test in accordance with the principles set out in section 15 of the GIPA Act: a. agencies must exercise their functions so as to promote the object of this Act. b. agencies must have regard to any relevant guidelines issued by the Information Commissioner. c. the fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. d. the fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. e. In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 1. Pursuant to section 105 of the GIPA Act the burden of establishing that the decision is justified lies on the Council. 2. The Tribunal's task is to make the correct and preferable decision in this matter having regard to all the material before it. 3. The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74]. 4. In undertaking this exercise the Tribunal is to be guided by section 15. 5. Under section 55 of the GIPA Act, the Tribunal is entitled to consider the Applicant's motives for making the application to the extent that it is relevant to whether disclosure could reasonably be expected to have any of the effects referred to in clauses 2 - 5 of the Table to section 14. The personal factors of the application can also be taken into account as factors in favour of providing the Applicant with access to the information. 6. In Commissioner of Police v Camilleri [2012] NSWADTAP 19, the Appeal Panel stated: 24. Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused. 25. The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government. 26. We agree with the agency's submission that the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case. 1. The effect of these observations is that: first, in identifying the public interest considerations against disclosure, the Tribunal should have regard only to the broad characteristics of the information sought; and, secondly, in determining whether or not the asserted effects of disclosure could reasonably be expected to arise, the agency is not required to provide evidence of any adverse effect consequent upon past disclosure (as was required in Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [65] and McKinnon v Blacktown City Council [2012] NSWADT 44 at [58]). In other words, the Council is not required to provide evidence of a situation where information similar to that contained in the Document sought has been disclosed and had the alleged adverse effects. "Could reasonably be expected…" 1. The words "could reasonably be expected to" have been held to require "something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived": Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42] and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]. While it must be a "real" risk, the chance of it materialising need not be more probable than not: Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36] and the cases there cited. The phrase "'simply calls for an "objective assessment', on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is of course a question of fact": Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. 2. In Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way: In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they 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 Commonwealth or any 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... 1. The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at [106]. Public Interest Considerations in favour of disclosure 1. Section 12 of the GIPA Act provides some examples of public interest considerations in favour of disclosure of information. The considerations in favour of disclosure of information are not limited and are weighed in an applicant's favour. 2. The Respondent identifies s 12(2)(a) as having "some limited application", being that the "disclosure of the Document could reasonably be expected to promote the open discussion of public affairs, enhance government accountability or contribute to positive and informed debate on an issue of public importance". The Respondent does not accept that s 12(2)(c) would have any application, namely that the disclosure of the Document could reasonably be expected to "ensure effective oversight of the expenditure of public funds". It contends that the Project Budget provided the public with details of the allocated budget for each stage of the Project. 3. The Applicant's submissions focus on his past publications of similar documents sought for the purpose of dissemination to the media, informing public debate, and supporting public submissions; his intention to disseminate the information contained in the Document similarly; and the financial and other value to the community of the various options being considered for the land proposed for the Warnervale Airport. 4. The Applicant also submits the information being sought is "important to put before NSW Planning & Environment as part of [their] review of the Restrictions Act", making reference to the Warnervale Airport Restrictions Act 1996 (NSW) (WAR Act), on the basis that "this study may well be pivotal in the Wyong community having the Restrictions Act retained and not repealed as requested by Council". 5. From his submissions I infer that he asserts that the considerations in favour of disclosure of the Document include both s12(2)(a) and s12(2)(c), that disclosure of the document in its unredacted form, made available for publication, could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance, or ensure effective oversight of the expenditure of public funds. Balancing exercise 1. The respondent stated that the extent to which disclosure of the information sought would promote the interests of open government is minimal, on the basis that there was already a significant amount of information in the public domain regarding the Project (Barclay [23]), including: 1. The Council Report for the meeting of 13 November 2013, which describes the nature of the Project (Annexure B); 2. The Project Plan (which is annexed to the Council Report); 3. The Council website: http://www.wyong.nsw.gov.au/for-business/central-coast-regional-airport; 4. Extensive community consultation undertaken to date, including a draft LEP and Community Survey undertaken in February 2013; Landholder engagement by writing to the majority of landowners in the revised study area, Engagement with other Councils (Annexure B, pg. 20-21), and numerous politicians and stakeholders, many of whom have provided letters of support (Annexure B, pg. 47-52). 1. The Respondent claimed that further information would be released about the Project as it progresses, allowing for future public consultation. 2. In relation to the review of the WAR Act by NSW Department of Environment and Planning, the Respondent claimed that the question before the department is the method of regulation of the airport, not a policy consideration of any development or expansion of the site, and that "even without the Act, any major proposed changes to the Airport would require an extensive Environmental Impact Assessment (EIS) and community consultation process". 3. The Applicant pointed out that the Document contained information regarding the Warnervale Airport site which was not in the public domain, and was specific to that particular site, whereas the material in the public domain addressed the Project broadly as a whole – it was "high level" information. He stated that he could not rely on the relevant information being provided in future public consultations, on the basis of his previous experiences with such consultations. The weight to be ascribed to the public interest was therefore higher than that submitted by the Respondent. 4. I agree with the Applicant that the public interest considerations in favour of disclosure in these circumstances warrant significant weight. In my opinion, disclosure of the Document could reasonably be expected to have the effect of promoting and allowing open discussion of the Council's consideration of the Warnervale Airport site. It could reasonably be expected to allow the public to be informed of the various options and their consideration, for the purpose of informed contribution to any future community consultation processes regarding the development of the site or the review of the WAR Act. I believe it would reasonably be expected to also enhance Government accountability with respect to the Council's considerations and intentions for the Warnervale Airport site and the Project as a whole, thereby contributing to positive and informed debate on issues of public importance, where significant expenditure of public funds has and will be focussed. Public Interest considerations against disclosure 1. Section 14(1) provides that there is a conclusive presumption that there is an overriding public interest against disclosure of the government information described in Schedule 1. The Respondent did not rely on Schedule 1. 2. Section 14(2) provides that the public interest considerations in the Table to s. 14 are the "only other considerations that may be taken into account" as public interest considerations against disclosure. The Respondent relied on: clause 1(f): the disclosure of the information could reasonably be expected to prejudice the effective exercise by the Council of its functions; clause 1(h): the disclosure of the information could reasonably be expected to prejudice the conduct, effectiveness or integrity of an investigation and/or review conducted by or on behalf of the Council; clause 4(c): the disclosure of the information could reasonably be expected to diminish the competitive commercial value of the information to the Council; clause 4(d): the disclosure of the information could reasonably be expected to prejudice the Council's legitimate business and commercial interests. 1. The question whether an item of information has "commercial value" is "to be determined by the Tribunal in an objective way taking account of the subjective view of the business party": Media Research Group Pty Ltd v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7 (Media Research) at [44]. In Media Research from [40], [1] the Appeal Panel endorsed the discussion of "commercial value" in Seeney and Department of State Development [2004] QICmr 4 (Seeney). There, the Queensland Information Commissioner identified two senses in which information may have "commercial value": 1. "commercial value" in its "primary meaning" refers to information that is "valuable for the purposes of carrying on the commercial activity in which the ... person is engaged": [36]. The information "may be valuable because it is important or essential to the profitability or viability of a continuing business operation, or a pending 'one-off' commercial transaction": at [36]. 2. In its "second meaning", information has a "commercial value to [a] ... person if a genuine arms-length buyer is prepared to pay to obtain that information from that ... person, such that the market value of the information would be destroyed or diminished if it could be obtained under the FOI Act from a government agency": at [37]. There needed, the Commissioner noted, to be some evidence of a "legitimate market" for information of that character. 1. The Appeal Panel added that there must be some uniqueness attaching to the information that justifies treating it as exclusive, secret or confidential: Media Research at [48] (approved in Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [56]). 2. It is clear that the mere investment of time and money in producing information is not itself sufficient to demonstrate that it has "commercial value": Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 at [52]. However, "the fact that resources have been expended in producing information, or money has been expended in acquiring it, are factors that may be relevant to take into account in determining whether information has a commercial value": at [52]. 3. Unlike in cl. 7(1)(b), the expression "commercial value" in cl. 4(c) is modified by the adjective "competitive". In Nature Conservation Council of NSW v Department of Trade and Investment Regional Infrastructure and Services [2012] NSWADT 195 at [160], Montgomery JM accepted the applicant's submission that the word "competitive" "appears to imply that the information would need to provide the person with a competitive edge". In McKinnon v Blacktown City Council [2012] NSWADT 44 at [79] and [80], the Tribunal, after considering the ordinary meaning of the word "competitive", observed that: "Competitive commercial value" therefore connotes information of commercial value gained in, or relating to, a competitive commercial or business context, including competitive information relating to the competitive purchase and provision of government services. Clause 1(f): prejudice exercise of Council's functions and Clause 1(h) prejudice the conduct, effectiveness or integrity of any investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results 1. The Respondent's submissions included: 1. The Project is comprised of multiple phases and project deliverables. There is a clear efficiency in allowing Council to manage the Project in accordance with the adopted stages and promises to the public. 2. Planning for the Project is structured so as to incorporate stakeholder engagement and release of information to the public at appropriate times. This structure enables the Council to release information which has been properly assessed, representing a quality and informed view of what the Council considers to be the best possible outcome for the community, at any stage of the planning process: Barclay [31]. 3. Confidentiality at the masterplan phase of the Project ensures that the Council is focussed on delivery of promised objectives without external influence from third parties that may use any information obtained during the masterplan phase improperly: Barclay [32](a). Such a third party may seek to influence Council outside of the times and processes afforded to other members of the public, thereby providing that party with a distinct advantage and detracting overall from the purpose and general practice of any public consultation process: Barclay [32](b). 4. The Council operates in a highly political environment. It is clear that a Project of this magnitude requires navigation of multiple interest groups in a highly competitive and dynamic environment. The controlled release of information related to the Project is vital to ensure Council can effectively plan and deliver the Project and thereby its undertake its local government functions, without having to address inaccuracies in materials released informally which could in turn impact the budgeting and timeframes provided for in the planning process for the Project: Barclay [32](c). 5. Finally, the masterplan for the Project is yet to be presented to the governing body of the Council for adoption. The release of preliminary information prior to them being analysed or adopted by the Council interferes with the integrity of the Council's review process Barclay [32](d). 1. The Applicant's submissions included: 1. The project outlined to the Ordinary Meeting of the former Wyong Shire Council held on 13 November 2013 was to approve a Regional Airport at Kiar Ridge, not Warnervale. 2. The report was relevant to a Kiar Ridge Airport, not a Warnervale Airport. 3. A public private partnership on an airport that currently loses Council $265,000 per year is hardly likely. A partner is not going to join Central Coast Council at Warnervale Airport in this loss making environment of general aviation decline. 4. There is no support from NSW Planning or State government agencies as stated in the Warnervale Airport (Restrictions) Act 1996 FAQ's. 5. The project described in the Respondent's affidavit is Kiar Ridge Airport whereas the document sought is for Warnervale Airport, a different airport in a different location. Clause 4(c): diminish the competitive commercial value of the information 1. The Respondent's submissions included: 1. The Document includes information regarding the constraints to the development of Warnervale Airport, such as certain legal, environmental and economic constraints, as well as certain information contained in valuation reports for the land on which Warnervale Airport is located (Valuations): Barclay [28]-[29]. 2. Although it now has updated information on which it is pursuing the Project, the specific information contained in the Document remains current, and relevant to the Project and assessment of development opportunities for Warnervale Airport. 3. The information contained in the Document satisfies both meanings of "commercial value" identified in Seeney: 1. The information is valuable to Council for the purposes of developing the Project. It contributes to the Council's planning and development of the Project in a way which is commercially and financially prudent and achieves the best possible return to the Council and the Central Coast community: Barclay [34]. 2. It is also information that an arm's length buyer would pay for. The Valuations were commissioned by Council at significant cost (Barclay [35](a)) and is the product of an investment of time and resources by experts in the field. Further, there is a market for such information in that there are competitors for the provision of aviation facilities in the region: Barclay [35](b). 1. The release of the information could reasonably be expected to diminish that competitive commercial value because it would neutralise the advantage given to the Council from having paid for and received that information by Barclay [36]: 1. making the information available to Council's competitors and/or commercial partners; and 2. doing so without those competitors/commercial partners having had to outlay similar time and resources in obtaining the information. 1. The Council's position is supported by several authorities dealing with information of a similar type, including: 1. Moran v Shellharbour City Council [2011] NSWADT 241, on the basis that the information in the Document has a commercial value, including competitive commercial value, which would be diminished by its disclosure. 2. Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37 (Leichhardt) on the basis that the information contained in the Document could adversely impact upon attracting and negotiating with potential investors and business partners, because it is relevant to the formulation of prices to be negotiated in contracts with various parties for the delivery of the Project and that, given those contracts are yet to be negotiated and finalised, disclosure of that information could diminish its competitive commercial value. 1. The Council is only required to demonstrate that there is a "real risk" that disclosure of the information would diminish its competitive commercial value (it need not show that the chance of that risk materialising is more probable than not). Having regard to the evidence of Mr Barclay, including the likelihood of the applicant publishing or disseminating the information on his website, the Council submits that that threshold has been met. 1. The Applicant's submissions included: 1. The Warnervale Airport (Restrictions) Act 1996 prevents an airport any larger than the 950m existing runway and, if extended or a new runway up to 1200m is constructed on the alignment approved by the Minister for Planning in 2001, a curfew and cap on movements apply. 2. There is no capacity to upgrade Warnervale Airport, unless the WAR Act is repealed. Therefore there is no prospect of anything commercial of any description. Clause 4(d) Prejudice legitimate business or commercial interests 1. The Respondent's submissions included: 1. The Council has a business or commercial interest in the development of the Project as it has the potential to earn significant income for the Council and has significant economic implications for the Central Coast region as a whole (see Annexure B, 32). Those interests are "legitimate" for the Council to pursue because they fall within the Council's prescribed functions under the Local Government Act 1993: see Barclay [11]-[12]. 2. The central question is whether the disclosure of the information could reasonably be expected to prejudice those interests. The word "prejudice" takes its ordinary meaning: that is, "to cause detriment or disadvantage" or "to impede or derogate from": Nature Conservation Council of NSW v Department of Trade and Investment Regional Infrastructure and Services [2012] NSWADT 195 at [188]-[189] per Montgomery JM. 3. The disclosure of the information could adversely impact on Council's ability to generate interest in the Project from potential investors/business partners: Barclay [33](a). It could also adversely impact on negotiations with such investors/business partners as they may use the information as leverage to negotiate a better deal: Barclay [33](b). 4. The release of this information could adversely affect future negotiations for the purchase of land by the Council, as it may provide a third party with an advantage in those negotiations (Barclay [33](b) and [33](d)). 1. The Applicant's submissions did not specifically address Clause 4(d). Balancing exercise 1. It is my view that release of the Document sought would not reasonably be expected to prejudice the effective exercise by the Council of its functions (Clause 1(f)). 2. The Council's functions are expressed in Chapter 6 of the Local Government Act 1993. The evidence in these proceedings does not demonstrate any prejudice to those functions by the release of the Document sought. 3. The public interest consideration at Clause 1(h) applies, relevantly, where disclosure of the Document could reasonably be expected to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). There was nothing in the Respondent's submissions or evidence which addressed or supported the basis upon which it considered the investigating and planning for a regional airport facility an "audit, test, investigation or review" within the meaning of the GIPA Act. 4. The respondent has the burden of establishing that its decision is justified (GIPA Act, s 105(1)), and has not addressed key issues concerning the application of cl 1(h). In the circumstances, it has not established that cl 1(h) applies to the release of the Document. 5. I agree that, on the evidence before me, the release of the Document could reasonably be expected to diminish the competitive commercial value of the information contained within the Document (Cl 4(c)), and could reasonably be expected to prejudice the Council's legitimate business and commercial interests (Cl 4(d)). 6. The Respondent referred to the balancing exercise undertaken by the Tribunal in the matter of Eyes v Wyong Shire Council [2016] NSWCATAD 120 as "both pertinent and persuasive to the current application". I agree the balancing exercise to be undertaken is the same. However, as is the nature of these applications, there is different information in this matter being considered for release, at a different time. 7. Applying the principles expressed above, I consider that the weight of the public interest considerations against disclosure is not as high as the weight to be ascribed to the public interest considerations in favour of disclosure. 8. Accordingly, the correct and preferable decision is to allow access to the requested Document. Orders 1. The application for access to the requested information is allowed. Endnote 1. Which concerned cl. 7(1)(b) of the FOI Act. 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: 12 June 2018