Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Taylor v Office of Destination NSW [2018] NSWCATAD 195 Hearing dates: 26 May 2017; 30 January 2018Final submissions received 17 August 2018 Date of orders: 27 August 2018 Decision date: 27 August 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: D Dinnen, Senior Member Decision: (1) The reviewable decision of the Respondent dated 2 November 2017 is set aside. (2) The Respondent is to provide the applicant with access to each of the 79 documents in their entirety, with the exception that Documents 18, 46, 62, 63, 68, and 75 should be redacted in accordance with these reasons before providing access. (3) The parties are to file and serve concurrent written submissions on the referral of the Respondent to the Ombudsman or Information Commissioner, within 28 days. Catchwords: ADMINISTRATIVE LAW – Government Information (Public Access) Act 2009 – Access to information – refusal of access – correct application of public interest test – discharge of onus – confidential information - consultation – aggrieved persons – public interest considerations in favour of disclosure – public interest considerations against disclosure – weight - balancing exercise - correct and preferable decision Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Destination NSW Act 2011 (NSW) Government Information (Information Commissioner) Act 2009 (NSW) Government Information (Public Access) Act 2009 (NSW) Ombudsman Act 1974 (NSW) Cases Cited: Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 Camilleri v Commissioner of Police [2012] NSWADT 5 Cianfrano v Department of Commerce (No 2) [2006] NSWADT 195 Hula v Commissioner of Police (NSW) [2013] NSWADT 153 Meriton Property Services Pty Limited & Ors v Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 Quipolly Water Action Group v NSW Department of Industry [2016] NSWCATAD 252 Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 Smith v Pittwater Council [2016] NSWCATAD 67 Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123 Taylor v Destination NSW [2017] NSWCATAD 272 Transport for NSW v Searle [2018] NSWCATAP 93 Turner v Commissioner of Police, NSW Police Force [2017] NSWCATAD 177 UrbanGrowth NSW [2017] NSWCATAD 71 Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239 Category: Principal judgment Parties: Andrew Taylor (Applicant) Office of Destination NSW (Respondent) Information Commissioner (Intervenor) Representation: Counsel: M Painter SC (Respondent) Solicitors: Banki Haddock Fiora Lawyers (Applicant) Lander & Rogers Lawyers (Respondent) Information and Privacy Commission (Intervenor) File Number(s): 2016/00378436 Publication restriction: None reasons for decision Background 1. On 21 April 2015 Andrew Taylor (the Applicant) made a request to the Office of Destination NSW (the Respondent) for access to information as follows: Any documents, reports, emails, correspondence concerning a number of major events supported by DNSW as well as events not supported The time period is for the past three years until April 2015 1 Documents used to decide support for events including Vivid, Addams Family Musical, Yabun Festival, Strictly Ballroom, Blue Man Group, New Year's Eve celebrations and Sydney Festival, Corroboree Sydney and Sydney Internal Art Series 2 The proposals and costing put forward for each event and the minutes of meetings discussing the merits of the events 3 Documents indicating who made the decision in each case and their expertise 4 List of events which failed to secure support Destination NSW with reasons why they were not supported 5 Documents showing how these event sponsorships were evaluated in terms of value for money for the taxpayer 6 Documents indicating how each event fulfilled the criteria under which they were assessed. 1. The fee for the application under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) was paid by the Applicant on 22 May 2015. The Respondent decided the application on 22 June 2015, providing access to some information and refusing to provide access to the remainder of the information sought, on the basis that there were overriding public interest considerations against the disclosure of the information, pursuant to s 58(1)(d) of the GIPA Act. Specifically, the public interest considerations against disclosure included in the Table to s 14 of the GIPA Act at 1(f), 1(g), 3(a), 3(b), 4(a) and 4(b) were relied on by the Respondent. 2. The Applicant applied for an internal review of the decision by the Respondent on 7 July 2015, and then again on 4 August 2015. On 28 September 2015 the Applicant sought external review of the Respondent's decision from the Information and Privacy Commission (the IPC). Between October 2015 and August 2016, the IPC liaised between the Applicant and Respondent in an attempt to resolve issues between them regarding the processing of the Applicant's access application and requests for internal review. This included a complaint by the Applicant under s 17 of the Government Information (Information Commissioner) Act 2009 (NSW) regarding the failure by the Respondent to "respond in a timely manner to the request for a review of the initial decision". 3. On 15 September 2016 the Respondent issued an internal review decision, confirming the original decision of 22 June 2015. On 7 October 2016 the Applicant sought administrative review by the Tribunal of the Respondent's internal review decision. The IPC exercised its right to appear and be heard in the review proceedings before the Tribunal pursuant to s 104(1) of the GIPA Act. The hearing on 26 May 2017 resulted in the Tribunal making the following orders on 12 September 2017 with published reasons in Taylor v Destination NSW [2017] NSWCATAD 272 (Taylor): Tribunal to set aside the reviewable decision and remit the matter under s65 of the ADR Act with the following orders: (1) Within 7 days, the Respondent is to confirm with the Applicant and Tribunal that the 79 documents produced confidentially to the Tribunal comprise all available information sought by the access application. If this cannot be confirmed, the Respondent is to provide the Tribunal with a copy of any additional information and an updated Table of Documents within that 7 days. (2) Within 7 days, the Respondent is to engage in consultation with all relevant third parties to the information sought by the access application in the following terms: (a) Provide each third party with a copy of the information held by the Respondent sought by the access application, relevant to that third party; (b) Require the third party to identify any objections to the release of that information, and the reasons for those objections, within 14 days. (3) Respondent to issue a reconsideration determination within 28 days, in accordance with these orders and reasons for decision. A copy is to be provided to the Tribunal. (4) Matter listed for directions on 7 November 2017 at 9.30am 1. On 18 September 2017 the Respondent sent letters to seven third-party organisations, for the purpose of consulting with them pursuant to s 54 of the GIPA Act. Responses were received by the Respondent between 18 September 2017 and 9 October 2017. 2. On 2 November 2017 the Respondent issued a revised Notice of Decision (the reviewable decision) in accordance with the orders made on 12 September 2017, refusing access to all 79 documents caught by the access application. The public interest considerations against disclosure included in the Table to s 14 of the GIPA Act at 1(f), 1(g), 4(a), 4(b) and 4(d) were relied on by the Respondent in the reviewable decision. The reviewable decision also relied on consultation which had occurred with relevant third parties since the orders of 12 September 2017 were made. 3. Following the hearing of 30 January 2018, on review of the 79 documents the Tribunal identified a number of potential "aggrieved persons" within the meaning of s 104(3) of the GIPA Act who had not been provided with an opportunity to appear and be heard in the proceedings. The Tribunal issued orders on 22 May and 26 June 2018 to facilitate the rights of those aggrieved persons by the receipt of submissions, and provide the parties with an opportunity to respond. Legal principles 1. The Tribunal's jurisdiction and powers when dealing with this application, and certain of the legal principles involved in the interpretation and application of the GIPA Act, have been addressed previously in Taylor at [9] to [25] and are adopted here. 2. Subject to certain conditions, an agency must consult with a third party before providing access to information: GIPA Act, s 54. The purpose of consultation is to see whether the third party objects to the disclosure of the information and, if so, the reasons for any objection: GIPA Act, s 54(4). Section 54(5) of the GIPA Act provides that the agency is required to take any objection from a third party into account in "determining whether there is an overriding public interest against disclosure of government information". This implies that consultation for the purpose of identifying objections from third parties has to take place before the agency does the balancing exercise required by s 13 of the GIPA Act. If the agency's decision involving third party information becomes reviewable by the Tribunal, s 104(3) of the GIPA Act provides the third party with a right to appear and be heard in any proceedings before Tribunal in relation to the review. 3. The High Court has interpreted the phrase "appear and be heard" and similar phrases as giving "a right of full participation" including the right to call evidence: Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239 at [23] (Deane, Dawson, Toohey and Gaudron JJ). 4. For the purpose of Government contracts, 'confidential information' is defined in s 32 of the GIPA Act to include the 'commercial-in-confidence provisions' of the contract. These are defined in cl 1 of Sch 4 to the GIPA Act as follows: commercial-in-confidence provisions of a contract means any provisions of the contract that disclose: (a) the contractor's financing arrangements, or (b) the contractor's cost structure or profit margins, or (c) the contractor's full base case financial model, or (d) any intellectual property in which the contractor has an interest, or (e) any matter the disclosure of which would place the contractor at a substantial commercial disadvantage in relation to other contractors or potential contractors, whether at present or in the future. 1. Following Smith v Pittwater Council [2016] NSWCATAD 67, Camilleri v Commissioner of Police [2012] NSWADT 5 and other previous decisions of the Tribunal and its predecessor including Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 (Shepherd), where an applicant asserts that searches for information conducted in response to an application have not been reasonable, the Tribunal is to approach the question as follows: 1. The tribunal is to first ask whether there are reasonable grounds to believe that the requested information exists and is information of the agency. 2. If the answer to question 1 is "yes", the Tribunal must then ask itself whether the efforts made by the agency to locate the information have been reasonable in the circumstances of the case. 1. The applicant bears the onus of demonstrating that there are reasonable grounds for believing that further information falling within the scope of the access request exists that has not been supplied: Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123 at [57]. This requires the applicant to put some credible material or submission before the Tribunal that documents of the requested kind exist. The requirement will not be satisfied by an assertion of non-compliance based on a general distrust of the agency in question: Smith at [68], Camilleri at [13]; Cianfrano v Department of Commerce (No 2) [2006] NSWADT 195; Hula v Commissioner of Police (NSW) [2013] NSWADT 153 at [32]. 2. The Respondent bears the onus of satisfying the Tribunal that the searches conducted by the Respondent were reasonable in the circumstances. In determining whether reasonable searches have been conducted, relevant considerations include "the clarity of the request, the way the agency's record keeping system is organised, and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant": Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30]. Consideration 1. The Respondent provided the Tribunal, on a confidential basis, with folders containing 79 documents it considered were caught by the access application (the 79 documents), and an updated Table identifying the bases in the Table to s14 of the GIPA Act for refusing to provide access to each document in those folders. The Respondent categorised the 79 documents into seven groups, "based on the type of information contained in each document". The seven categories included: 1. Proposals – Documents 65, 66, 67, 68, 72, 73, 74, 75, 76; 2. Event Investment Submissions – Documents 3, 5, 10, 11, 12, 16, 17, 18, 20, 23, 27, 35, 36, 41, 44, 45, 47, 51, 57, 58, 60, 61, 62, 64; 3. Assessment and Scoring Templates – Documents 1, 6, 7, 8, 9, 13, 19, 22, 26, 34, 37, 40, 42, 50, 53, 55, 56, 59, 78, 79; 4. Strategic Investment Agreements – Documents 2, 14, 15, 21, 24, 25, 28, 32, 38, 46, 48, 52; 5. Key Performance Indicator Analysis - Documents 29, 30, 31, 33, 39, 49, 54, 63; 6. Correspondence from Destination NSW – Documents 69, 77; 7. Minutes of Meetings – Documents 70, 71. 1. Documents 4 and 43 were not referred to in the Respondent's affidavit evidence but on my review are a Key Performance Indicator Analysis and Event Investment Submission respectively, both regarding events staged by the Art Gallery of NSW. 2. The documents which I have identified as created by the Respondent for internal use ("the internal use documents") include: 1. Documents 16, 49, 50, and 51 containing information relevant to Bangarra Dance Theatre; 2. Documents 43, 45, 58, 56, 1, 13, 40, 42, 4, and 30 containing information relevant to the Art Gallery of NSW; 3. Documents 5, 27, 6, 26, and 54 containing information relevant to Sydney Festival; 4. Documents 12, 35, 43, 57, 40, 34, 55, 69, 77, and 31 containing information relevant to the Museum of Contemporary Art Australia; 5. Documents 19 and 39 containing information relevant to Newtheatricals Pty Ltd; 6. Documents 23 and 22 containing information relevant to the City of Sydney; 7. Documents 72, 63, 70, and 71 containing information relevant to Global Creatures Group; 8. Documents 3, 17, 18, 20, 10, 41, 44, 47, 60, 61, 62, 64, 36, 7, 37, 8, 53, 59, 78, and 79 containing information relevant to third party interests forming part of the Vivid festivals; and 9. Documents 11 and 9 containing information relevant to third party interests forming part of the Yabun Festival. 1. In the internal review decision of 15 September 2016, the Respondent applied the public interest test to each of the six categories of documents identified as numbered items in the Applicant's access application, without specific reference to the documents containing the information caught by the requests in the access application. As noted in the Tribunal's reasons for decision in Taylor, this was a fundamentally flawed approach because the public interest test in the GIPA Act requires examination of the government information, to apply the public interest test to that information, and not to 'classes' or 'categories' of documents. 2. The Respondent has sought to rectify this approach in the reviewable decision by referring, by number, to each of the documents caught by each category. However, the Respondent has not identified for the Tribunal the specific information in each document which it says should be withheld on the basis of its concerns regarding disclosure, and that which can be released. The Respondent has instead applied the public interest test to the category of document, rather than identifying the relevant information in each document and applying the public interest test to the actual information. This approach attempts to short-cut the balancing exercise required by correct application of the GIPA Act. 3. At hearing on 30 January 2018, the Respondent was questioned by the Tribunal whether it could redact the 79 documents to release to the Applicant those parts of the documents which were not relevant to their concerns regarding disclosure. The Respondent submitted it would be a "futile exercise" for it to redact the relevant information from the 79 documents, requesting the Tribunal consider the whole of the document when assessing it for disclosure pursuant to the GIPA Act. Again, this is a flawed approach to application of the GIPA Act because it is asking the Tribunal to assess a document, rather than specific identified information contained within a document. It is the Respondent's obligation to identify the information contained in each document which it says should be withheld from the Applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour. It is then the Respondent's burden, pursuant to s 105(1) of the GIPA Act, to justify its decision through submissions and evidence. 4. In its reasons for decision, the Respondent identified as its functions its responsibility for attracting and nurturing events, marketing and promoting NSW and implementing tourism strategies. Its functions are set out in s 13 of the Destination NSW Act 2011 (NSW): (1) Destination NSW has the following functions: (a) to market and promote New South Wales as a tourist destination and as a destination for the hosting of major events, (b) to promote travel to and within New South Wales, (c) to promote major events, (d) to identify, attract and procure major events for New South Wales, (e) to develop tourism ventures, (f) to implement strategic plans, as approved by the Minister from time to time, relating to the development of tourism and the procurement of major events, (g) to prepare, at least 3 months before the beginning of each financial year of Destination NSW, a corporate and business plan for the financial year for approval by the Minister, (h) to prepare, on such occasions as the Board requires, an operational plan for approval by the Board, (i) to construct, establish, maintain and operate tourist facilities, (j) to establish, maintain and conduct enterprises relating to tourism, (k) to provide travel and information services relating to tourism, (l) to market travel and related services, (m) to carry out (or arrange for the carrying out of) research in relation to tourism and major events. 1. Its principal object is to "achieve economic and social benefits for the people of NSW through the development of tourism and the securing of major events" pursuant to s 12 of the Destination NSW Act, "to provide funding and support to event organisers in order to create, secure, promote and retain attractive tourist, sporting, cultural and community events for NSW". To do so, it "receives commercial proposals for events and evaluates them in a competitive setting, in order to maximise the return for the NSW Government". 2. For the purpose of conducting the balancing exercises required of s 13 of the GIPA Act in these proceedings, I adopt the following incremental descriptions of the weight to be afforded to various considerations, from lowest to highest: minimal, modest, moderate, strong, substantial, significant and substantial. Public interest considerations in favour of disclosure 1. Both parties agreed that the relevant public interest considerations in favour of disclosure for all documents excluding the "proposals" included the general public interest at s 12(1) as well as the following examples given after s 12(2) of the GIPA Act: (a) Disclosure of the information 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. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. 1. The Respondent submitted that these considerations carried "substantial" weight and the Applicant submitted that the public interest considerations in favour of disclosure were "powerful" because: …the documents sought go to the very heart of how it operates, how it makes decisions as to which events to support, and how it spends taxpayers' money. This is the very type of information the disclosure of which the Act is designed to promote, in order to maintain and advance a system of government that is open and accountable in accordance with section 3 of the Act. 1. I agree with the submissions of both parties. The public interest considerations in favour of disclosure of the information sought by the access application are powerful and I afford them significant and substantial weight. 2. The Respondent submitted that there was no public interest other than the general public interest with respect to the Proposals documents. The Applicant submitted, contrary to the Respondent's submissions, that the public interest considerations in favour of the Proposals documents additionally included the considerations at ss 12(2)(a), (b) and (c) of the GIPA Act. I agree that the Proposals documents provide important context for the funding decisions made by the Respondent, and thereby enhance Government accountability, inform the public about the operations of agencies and how the Respondent deals with funding applications from the public, and assist in ensuring effective oversight of the expenditure of public funds. The examples of public interest considerations in favour of disclosure listed in the Note under s 12(2) are therefore applicable; however I agree with the Respondent's general submission that the fact the Proposal documents were created by third parties diminishes the weight to be afforded those considerations, the effect of which I refer to as "substantial". Public interest considerations against disclosure 1. The Respondent contended that disclosure of some or all of the withheld information could reasonably be expected to have the following effects: 1. prejudice the effective exercise by an agency of the agency's functions (cl 1(f) of the Table to s 14); 2. ground an action against an agency for breach of confidence of otherwise result in the disclosure of information provided to an agency in confidence functions (cl 1(g) of the Table to s 14); 3. undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive disadvantage or disadvantage in any market functions (cl 4(a) of the Table to s 14); 4. reveal commercial-confidence provisions of a government contract (cl 4(b) of the Table to s 14); 5. prejudice any person's legitimate business, commercial, professional or financial interests (cl 4(d) of the Table to s 14); 1. Each of these public interest considerations against disclosure of the information has been considered in decisions of this Tribunal and decisions of the Administrative Decisions Tribunal. A thorough discussion can be found in Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 ("Barangaroo") and Meriton Property Services Pty Limited & Ors v UrbanGrowth NSW [2017] NSWCATAD 71. 2. Ms Chipchase's evidence included her great concern that if the respondent was required to release confidential commercial and financial information provided by proposal applicants, applicants would be less willing to provide such information to Destination NSW, "which will negatively impact Destination NSW's ability to assess the applications and fulfil its statutory functions". Also, that the possibility of release of that information would "deter applicants from considering staging strategic events in New South Wales and applying for support from Destination NSW". 3. In relation to the Respondent's own confidentiality concerns, Ms Chipchase deposed: Destination NSW competes with similar public and private organisations in other states and countries for the right to host events. One of the ways in which Destination NSW competes with these organisations is by offering competitive and attractive levels of support for events, in terms of the type of support, amount, and the KPIs required to be met in order for the support to be provided. This information constitutes unique intellectual property in relation to the way Destination NSW bids for and structures its support for events. At the same time, Destination NSW has budget constraints, and Destination NSW must maximise use of its budget by not 'overpaying' for events. If the amount of support that Destination NSW provides for individual events is revealed, then event organisers will become aware of the amount of support that Destination NSW is willing to provide for a particular event. This will have two negative consequences for Destination NSW: (a) Destination NSW's ability to negotiate with event organisers will be severely impinged, and Destination NSW will be less able to negotiate lower amounts of support for events. This will reduce the overall funds available to Destination NSW to secure, retain and support events. (b) Disclosure of this information could reveal, for example, that Event Organiser A received a certain amount of support from Destination NSW for a type of event, while Event Organiser B received a higher amount of support for a similar type of event. If this information is disclosed, then Destination NSW's commercial relationship with Event Organiser A will be damaged. If Destination NSW is required to disclose information relating to its deliberations, then Destination NSW will suffer further negative consequences to its core business and delivery of targeted outcomes for the taxpayers of New South Wales. If Destination NSW reaches a view that a particular event application did not meet the criteria for support, and this information is released to the community at large, then this could cause damage to the commercial reputation of the applicant. This will disincentivise applications for support, and it will negatively impact on Destination NSW's ability to fulfil its functions. Furthermore, if employees of Destination NSW become aware that their analysis of an event submission will be released to the community at large, then those employees would be less willing to provide honest and unfettered recommendations to the people at Destination NSW who are responsible for approving support for an event, as well as the Minister. This will negatively impact Destination NSW's ability to assess which events should be supported, and will consequently negatively impact Destination NSW's ability to fulfil its statutory functions. 1. The Respondent submitted that it was concerned that disclosing information about how it makes decisions, allocates funding, and negotiates with third parties could damage its relationship with those third parties and disincentivise applications for support, would impinge on its ability to negotiate lower amounts of support to third parties for events, and would ultimately thereby reduce the overall funds available to it to secure, retain and support events. Further, disclosing the decision-making process would inhibit its employees from making "honest and unfettered recommendations" to those responsible for approving funding or reporting to Parliament. 2. The Respondent specified that the confidential and commercially sensitive information provided by event organisers included "expected visitor numbers, the event organisers' existing financial and sponsorship arrangements and the proposed investment sought from Destination NSW". Disclosure "is likely to undermine the willingness of event organisers to provide such confidential information to Destination NSW in the future or apply for funding at all. This conclusion is supported by the responses from event organisers to Destination NSW's queries whether they consented to disclosure". Release of event organiser's confidential information would likely result in them losing "any competitive advantage which they currently hold", which could reasonably be expected to prejudice the supply of similar material in the future from the same event organiser or an event organiser that becomes aware of the potential for confidential information to be released. This would in turn prejudice the effective exercise of the Respondent agency's functions. The Respondent stated in the reviewable decision that disclosure would also "be a breach of Destination NSW's obligations of confidence" and would be "likely to result in a breach of confidence". 3. Disclosure of the information sought by the access application was submitted to have the effect of prejudicing the effective exercise of the Respondent Agency's functions on the basis that it would undermine the readiness of event organisers to provide commercial in confidence information, which would in turn prejudice their ability to properly assess funding applications. The effective exercise of their functions would also be impacted by the undermining of their competitive neutrality and their consequent requirement to pay more money to attract or retain events in New South Wales where their competitors' negotiating positions were enhanced by release of the information subject to the disclosure. 4. The Respondent expressed a number of considerations as relevant to the effective exercise of its functions, for the purpose of demonstrating the significant weight it afforded to the public interest consideration against disclosure at cl 1(f) of the Table to s 14 of the GIPA Act: Destination NSW does not release costings and proposals, assessments and has customarily not disclosed amounts it commits to events, and has indicated to event organisers that such matters will be held as commercial in confidence information … Events sponsored by Destination NSW further contribute to the economy by causing a ripple effect of increased expenditure across a wide number of industries. These include the arts, food and entertainment, media, hotels and accommodation, as well as airlines and taxi industries. In this regard, the consequences of disclosure are significant because they could cause great economic and cultural loss to NSW … The Tourism industry supports to the NSW state economy. That is, tourism alone generates 289,600 jobs in NSW; direct tourism employment in NSW ranks above employment for agriculture, forestry and fishing and mining; tourism consumption is $28.7 billion and overall tourism contributes $11.1 billion to the State's Gross State product (statistics from the Final Report and Visitor Economy Action Plan for NSW – June 2012) … In order to fulfil its functions, Destination NSW needs to have a diversified portfolio of events covering regional events, art, culture, entertainment, business, sport and lifestyle. However, it has a limited budget provided by the NSW Treasury. If Destination NSW were required to spend more money on events as a consequence of the disclosure, the ability of Destination NSW to fulfil its functions would be diminished because its return on investment would decrease the amount of assistance it could provide for other events… 1. Although Ms Chipchase asserted that her assertions were "supported by the responses from event organisers to Destination NSW's queries whether they consented to disclosure", two of the seven organisations with which the Respondent consulted expressed no objection or limited objection to disclosure. Only one of the seven organisations expressed a generalised concern that disclosure might influence their future decision- making in relation to providing confidential or commercially sensitive information to the respondent. 2. There was no specific explanation provided by the Respondent as to how or to what extent disclosure of identified, specific information could "cause great economic and cultural loss to NSW", who the competitors it alluded to were, both generally and for each of the events in question, what its budgets were and how these could be affected by the disclosure of specific information, or which of its employees were making decisions. There was no evidence from any of its employees or competitors regarding any of the assertions made about them by Ms Chipchase. There was limited evidence from selected third parties about their objections to disclosure, but no evidence supporting the Respondent's assertions of the likelihood of any of the asserted impacts of disclosure. 3. In Transport for NSW v Searle [2018] NSWCATAP 93 the Appeal Panel held at [7]: …we have decided that the Tribunal did err in its approach to the proof of the relevant public considerations against disclosure by its emphasis upon the absence of more extensive evidence from those involved with the issue about the threat to the future supply of information to INSW. In our opinion, the approach did involve an error of law in circumstances where the established facts provided substantial support for the views of the witnesses. 1. In the circumstances of these proceedings, the Tribunal accepts that disclosure of the information could reasonably be expected to have the relevant effects identified at cll 1(f), 4(a), 4(b) and 4(d) of the table to s 14 of the GIPA Act. 2. The Respondent made blanket statements about disclosure amounting to breaches of confidence and breaches of its contractual obligations, however, as noted in Taylor, their failure to inform the community of the statutory limitations placed on any implied or express confidentiality assurances does not limit the application of those statutory obligations. The Respondent acknowledged that "the strategic investment agreements generally contain provisions relating to disclosure under the GIPA Act" but raised concerns that release of event investment forms or commercial and financial information from a party that did not enter into a strategic investment agreement would found an action for breach of confidence against Destination NSW. As discussed in Taylor at [54], the "Investor Standard Terms" incorporated as Sch 5 to each of the Strategic Investment Agreements specifies that any disclosures required "by Law, the Premier, any other representative of the NSW Government or any Government agency" are excluded from any confidentiality obligations. Specific provisions for dealing with access applications under the GIPA Act were addressed in the following terms at cll 12.8 or 11.8: 12.8 Government Information (Public Access) Act 2009 and regulations (a) Each party acknowledges that this agreement is subject to the Government information (Public Access) Act 2009 and the respective regulations. (b) Subject to exemptions under the Government Information (Public Access) Act 2009 and the respective regulations, the parties recognise that this agreement may be disclosed on the Investor's website for public access. (c) The Event Organiser must, within seven (7) days of receiving a written request by the Investor, provide the Investor with immediate access to the following information contained in records held by the Event Organiser: (i) Information that relates directly to the performance of the services provided to the Investor by the Event Organiser pursuant to this agreement; (ii) information collected by the Event Organiser from members of the public to whom it provides, or offers to provide, the services pursuant to this agreement; and (iii) information received by the Event Organiser from the Investor to enable it to provide the services pursuant to this agreement. (d) For the purposes of sub-clause 12.8(c), information does not include: (i) information that discloses or would tend to disclose the Event Organiser's financing arrangements, financial modelling, cost structure or profit margin, (ii) information that the Event Organiser is prohibited from disclosing to the Investor by provision made by or under any Act, whether of any State or Territory, or of the Commonwealth; or (iii) information that, if disclosed to the Investor, could reasonably be expected to place the Event Organiser at a substantial commercial disadvantage in relation to the Investor, whether at present or in the future. (e) The Investor will take reasonably practicable steps to consult with the Event Organiser before providing any person with access to information relating to this agreement, in response to an access application under the Government Information (Public Access) Act 2009, if it appears that: (i) the information: • includes personal information about the Event Organiser or its employees; • concerns the Event Organiser's business, commercial, professional or financial interests; or • concerns research that has been, is being, or is intended to be, carried out by or on behalf of the Event Organiser, or • concerns the affairs of a government of the Commonwealth or another State (and the Event Organiser is that government); (ii) the Event Organiser may reasonably be expected to have concerns about the disclosure of the information; and (iii) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. (f) If, following consultation between the Investor and the Event Organiser, the Event Organiser objects to disclosure of some or all of the information, the Event Organiser must provide details of any such objection (including the information objected to and the reasons for any such objection) within 5 days of the conclusion of the consultation process. (g) In determining whether there is an overriding public interest against disclosure of government information, the Investor will take into account any objection received by the Event Organiser. (h) If the Event Organiser objects to the disclosure of some or all of the information but the Investor nonetheless decides to release the information, the Investor must not provide access until it has given the Event Organiser notice of the Investor's decision and notice of the Event Organiser's right to have that decision reviewed; (i) Where the Investor has given notice to the Event Organiser in accordance with sub-clause (h), the Investor must not provide access to the information, (1) before the period for applying for review of the decision under Part 5 of the Government Information (Public Access) Act 2009 has expired; or (2) where any review of the decision duly applied for is pending; and (j) The reference in sub-clause (i)(1) to the period for applying for review of the decision under Part 5 of the Government Information (Public Access) Act 2009 does not include the period that may be available by way of extension of time to apply for review. 1. The clause above clearly anticipated that access applications made under the GIPA Act could require disclosure of the agreement terms and the confidential information held by the respondent in relation to a third party's business, commercial, professional or financial interests. It was the Respondent's obligation (both contractually and statutorily) to inform the relevant third party of the potential disclosure pursuant to the GIPA Act, and it is not prevented from complying with its GIPA Act obligations because of any confidentiality obligations to third parties. In the circumstances, the Tribunal does not accept that the disclosure of the information for which cll. 1(g) is raised as a consideration by the Respondent, could reasonably be expected to have that effect. 2. The Respondent identified Documents 65, 66, 67, 68, 72, 73, 74, 75, and 76 as "Proposals", submitted by individual event organisers to obtain funding from the Respondent. The Respondent stated that there were strong public interest considerations against disclosure of all of the Proposals, referring to cll 1(f), 1(g) and 4(d) of the Table to s 14 of the GIPA Act. 3. In identifying the public interest considerations in favour of disclosure, the Respondent distinguished the proposal documents from the other documents identified on the basis that they were "created by the individual event organisers to seek to obtain funding from Destination NSW". On that basis, the Respondent stated that there was no specific public interest in favour of disclosure other than the general presumed public interest, and the public interest in favour of disclosure generally should be given less weight. 4. The Respondent identified Documents 3, 5, 10, 11, 12, 16, 17, 18, 20, 23, 27, 35, 36, 41, 44, 45, 47, 51, 57, 58, 60, 61, 62, and 64 as "Event Investment Submissions", created by the Respondent's employees for internal use in assessing and determining funding proposals. The Respondent stated that there were strong public interest considerations against disclosure of all of the Event Investment Submissions, referring to cll 1(f), 1(g), 4(a), 4(b) and 4(d) of the Table to s 14 of the GIPA Act. 5. The Respondent identified Documents 1, 6, 7, 8, 9, 13, 19, 22, 26, 34, 37, 40, 42, 50, 53, 55, 56, 59, 78, 79 as "Assessment and Scoring Templates", created by the Respondent's employees for internal use to score each event's submission against the Respondent's assessment criteria. The Respondent stated that there were strong public interest considerations against disclosure of the Assessment and Scoring Templates, referring to cll 1(f) and 4(a) of the Table to s 14 of the GIPA Act. 6. The Respondent identified Documents 2, 14, 15, 21, 24, 25, 28, 32, 38, 46, 48, 52 as "Strategic Investment Agreements", being commercial contracts between the Respondent and a third party for the purpose of agreeing to funding terms. The Respondent stated that there were strong public interest considerations against disclosure of the Strategic Investment Agreements, referring to cll 1(g), 4(a), 4(b), and 4(d) of the Table to s 14 of the GIPA Act. 7. The Respondent identified Documents 29, 30, 31, 33, 39, 49, 54 and 63 as being "Key Performance Indicator Analyses", being documents created for internal use to assess an event's performance against Destinations NSW's key performance indicators set out in the relevant Strategic Investment Agreements. The Respondent stated that there were strong public interest considerations against disclosure of the Key Performance Indicator Analyses, referring to cll 1(f), 1(g), 4(a), 4(b), and 4(d) of the Table to s 14 of the GIPA Act. 8. The Respondent identified Documents 69 and 77 as correspondence sent by it to the Museum of Contemporary Art Australia. The Respondent stated that there were strong public interest considerations against disclosure of the correspondence, referring to cll 4(a), 4(b), and 4(d) of the Table to s 14 of the GIPA Act. 9. The Respondent identified Documents 70 and 71 as being "Minutes of Meetings", recording the minutes of meetings between it and Global Creatures Pty Ltd held for the purpose of discussing a funding application for the production of 'Strictly Ballroom – The Musical'. The Respondent stated that there were strong public interest considerations against disclosure of the Key Performance Indicator Analyses, referring to cll 1(g), 4(a), 4(b), and 4(d) of the Table to s 14 of the GIPA Act. Consultation 1. Following the decision in Taylor, the Respondent consulted with the following third parties and provided evidence to the Tribunal of that consultation and their responses: 1. Art Gallery of New South Wales, 2. Museum of Contemporary Art Australia, 3. Sydney Festival Limited, 4. City of Sydney Council, 5. Newtheatricals Pty Limited, 6. Global Creatures Pty Limited, and 7. Bangarra Dance Theatre. 1. In writing to each of those third parties, the respondent identified the information in question as: …documents between Destination NSW and you from April 2012 to April 2015, including: 1 Proposals you provided; and 2 Strategic Investment Agreements and contracts we signed. 1. The Respondent's consultation did not cover the extent of "information [which] concerns the person's business, commercial, professional or financial interests" pursuant to s 54(2)(b) of the GIPA Act. The limitations of that consultation resulted in the third parties not identifying the same documents as those contained in the 79 documents, not being consulted with all the relevant information, and some identifiable potential "aggrieved persons" not being made aware that their information may be disclosed as a result of the access application. 2. Consequent to the Tribunal's orders, the Respondent then provided the relevant third parties and potential aggrieved persons with notification of the terms of the access application and further information about the 79 documents identified as relevant to their interests, including some redacted material. This included reference to the documents created by the respondent for internal use, which included information extracted from material provided to the Respondent by third parties. 3. Additional submissions were received from the Art Gallery of NSW, Global Creatures Pty Ltd, Newtheatricals Pty Ltd, Sydney Festival and 32 Hundred Lighting Pty Ltd for the purpose of s 104(3) of the GIPA Act. Art Gallery of New South Wales 1. The Art Gallery of New South Wales objected to the release of Documents 2, 24, and 48 on the basis of ss 1(f), 4(a) and 4(b) of the Table to s 14 of the GIPA Act, and objected to the release of Document 68 on the basis of ss1(f) and 4(a). The Art Gallery of NSW stated that the proposals, agreements and contracts in their unredacted form "contain the gallery's commercially sensitive material such as loan fees, sponsorship packages and exhibition budgets" and disclosure would prejudice their ability to "compete in the international market to secure contemporary exhibitions for the people of NSW", by reducing their bargaining ability and placing them at a competitive and commercial disadvantage in future negotiations with sponsors, donors and lenders. Further, they had provided the commercially sensitive commercial information to Destination NSW on the "understanding that this information would remain confidential as detailed in the signed contracts". 2. The Art Gallery of New South Wales submitted that its concerns regarding disclosure would be alleviated by the redaction of its commercial financial information, and identified a specific redaction at page 15 of Document 68. 3. The remaining documents relevant to the Art Gallery of NSW as a third party or aggrieved person include Documents 43, 45, 58, 56, 1, 13, 40, 42, 4, and 30. These were Event Investment Submissions dated 14 February 2014, 25 March 2014, 28 January 2015, 14 January 2015, the Initial Assessment and Scoring Templates dated 11 April 2012, 31 October 2012, 31 January 2014, 13 February 2014, and KPI assessments dated 17 July 2012 and 10 July 2013. These ten documents were created by the Respondent for internal use. Bangarra Dance Theatre 1. In correspondence with the Bangarra Dance Theatre, the respondent identified the specific relevant documents subject to the access application to be "the proposal and four agreements (base contract and three variation agreements) between Bangarra Dance Theatre and Destination NSW". The Bangarra Dance Theatre stated in response to the respondent's third-party consultation that it was "comfortable for these documents to be passed on", but made clear that it wished to be consulted if any other documents were to be provided, for the purpose of identifying appropriate redactions. It did not wish to exercise its rights pursuant to s 104(3) of the GIPA Act but "trusts that Destination NSW will seek to protect, in those proceedings, what are appropriately regarded as documents that should not be disclosed because of their commercial in confidence nature". 2. On my review of the evidence filed by the respondent, only the proposal (Document 65) and two of the variation agreements (Documents 25 and 52) relevant to Bangarra Dance Theatre were actually provided to the Tribunal. The "base contract", being the Strategic Investment Agreement between Destination NSW and Bangarra Dance Theatre dated 23 February 2013, was not included in the material filed with the Tribunal, and nor was one of the three variation agreements identified in the third party consultation correspondence. 3. The remaining documents potentially relevant to Bangarra Dance Theatre as a third party were Documents 16, 49, 50, and 51. These were Event Investment Submissions dated 17 December 2012 and 16 July 2014 (Documents 16, 51), the "Initial Assessment and Scoring Template – Corroboree 2014" dated 1 July 2014 (Document 50), and "2013 Corroboree Sydney – Performance against KPIs" dated 5 June 2014 (Document 49). These four documents were created by the Respondent for internal use. City of Sydney 1. The City of Sydney consented to the disclosure of "The Support Agreement between the City & Events NSW & Tourism NSW that covered 2010 – 2012 Sydney New Year's Eve", which is not located in the bundle of documents provided by the Respondent, but has been provided by the City of Sydney in its correspondence with the Respondent as a result of the consultation process. The City of Sydney objected to "release of the dollar figure information contained in The Future Funding on page 10 in the Broadcast Strategy Proposal that the City presented to DNSW in 2013", on the basis that there was a "reasonable expectation that disclosure of the future funding figures, if released, may prejudice our business or commercial interests in securing a future broadcast partner or supplier, indicating as they would, the potential costs or value of a particular broadcast model". This document, marked to identify the specific redactions proposed by the City of Sydney, was provided by the City of Sydney in its correspondence responding to the consultation process under s 54 of the GIPA Act. It is the same document that appears unmarked as Document 75 in the confidential bundle provided by the Respondent. 2. The remaining documents relevant to the City of Sydney as a third party or aggrieved person included the Event Investment Submission dated 6 June 2013 (Document 23) and the Initial Assessment and Scoring Templates dated 3 June 2013 (Document 22). These two documents were created by the Respondent for internal use. Global Creatures Group 1. 'Strictly Ballroom The Musical' was produced by Strictly Business Pty Ltd, as trustee of the Strictly Business Unit Trust, an entity of Global Creatures Group. Global Creatures Group objected to the disclosure of "Proposals we provided; and Strategic Investment Agreements and contracts you signed (which we understand to be the Letter of Agreement dated on or about 20 May 2011, the Deed of Novation dated on or about 26 September 2011, and the Strategic Investment Agreement dated on or about 29 April 2014)". Of those documents, only the Strategic Investment Agreement dated 29 April 2014 was provided by the Respondent to the Tribunal, as Document 46. 2. Global Creatures Group provided extensive submissions as an aggrieved person pursuant to s 104(3) of the Act regarding the considerations at cll 4(b), 4(c), and 4(d) of the Table to s 14 of the GIPA Act. Specifically, Global Creatures Group stated that the Strategic Investment Agreement contained "commercial in confidence provisions" relating to "total financial contributions … the allocation of the financial contributions; repayment and threshold obligations in respect of Financial Contributions; the nature of the relationship between the parties in respect of ticketing strategies and allocations (for example, in relation to territorial focus, packaging, so-called 'windows', and targets, and actual allocation figures); and future commercial rollout of the Live Show". Disclosure would reveal the "commercial approach in the specific circumstances of investment, partnership and sponsorship relations, being uniquely tailored to our business practices and therefore imbued with special competitive commercial value in such contexts", and that it "has not ceased to carry competitive commercial value merely as a result of the subject matter of the Agreement having come to an end…". Its legitimate business, commercial, professional or financial interests were stated to include their systems, operations, procedures and processes; their commercial approach with specific regard to investment, partnership and sponsorship relationships; their future exploitation of the Live Show, including an anticipated international presentation in 2018, and commercial goodwill domestically and internationally. 3. The remaining documents relevant to the Global Creatures Group as a third party included Documents 72, 63, 70, and 71. These were a letter of recommendation to the Minister from the respondent dated 19 May 2011, KPI results dated 24 February 2015, and two Minutes of meetings including discussion of investment in Strictly Ballroom the Musical, dated 23 March 2011 and 29 March 2011. These four documents were created by the respondent for internal use. 4. Global Creatures Group identified with specificity in its submissions the information in each document which would require redacting to alleviate its concerns regarding disclosure, titled "objected items". Museum of Contemporary Art Australia 1. The Museum of Contemporary Art objected to the disclosure of its "proposals or strategic investment agreements". On my review of the evidence filed by the respondent, those documents are Documents 67 and 38. 2. The basis for the Museum of Contemporary Art's objections was: These documents contain commercial in confidence financial information that we do not wish to be disclosed to the applicant due to potential negative impact this release would have on the Museum in relation to current and future sponsorship, grant funding or philanthropic relationships. 1. Having reviewed the relevant documents, they contain some information which I consider to be commercially sensitive. 2. The remaining documents relevant to the Museum of Contemporary Art as a third party included Documents 12, 35, 43, 57, 40, 34, 55, 69, 77, and 31. These were Event Investment Submissions dated 19 February 2012, 26 November 2013, 14 February 2014, 28 January 2015, the Initial Assessment and Scoring Templates dated 31 January 2014, 25 November 2013, 12 January 2015, letters between Events NSW and Destination NSW to the Museum of Contemporary Art regarding exhibition funding, and a KPI assessment dated 17 July 2013. These ten documents were created by the Respondent for internal use. Newtheatricals Pty Ltd 1. Newtheatricals Pty Ltd objected to the disclosure of "information relating to the proposal for funding submitted by our client to Destination NSW for the productions of Addams Family and Blue Man Group and, in particular, copies of the relevant agreements, being proposals provided by [our client] and strategic investment agreements and contracts entered into by [our client] and Destination NSW". On my review of the evidence filed by the respondent, those documents are Documents 66, 74, and 21. 2. The basis for New Theatricals Pty Ltd's objections involved ss 1(d), 1(g), 4(a), 4(b) and 4(d) of the Table to s 14 of the GIPA Act. Specifically, New Theatricals Pty Ltd stated that the proposals, agreements and contracts "contain commercially sensitive information, including: a) confidential information relating to [our client]… b) confidential information of third parties (including financiers, investors, licensors and producing partners)… c) financial information relating to our client…". Curiously, with respect to cll 1(d), 4(a) and 4(b) of the Table to s 14, its objections were expressed in terms of the effect disclosure would have on Destination NSW rather than itself, although it did state that it would be reluctant to provide confidential information to Destination NSW in the future if there was a risk that such information may be released to the public and its competitors. It specifically referred to cl 12 of the Investor Standard Terms of the Strategic Investment Agreements with respect to confidentiality obligations, but neglected to include cl 12.8 regarding the Respondent's GIPA Act obligations in its reference to those obligations. 3. Having reviewed the relevant documents, I accept that they contain commercially sensitive information, disclosure of which could affect the third party as described. 4. The remaining documents relevant to New Theatricals Pty Ltd as a third party included Documents 19 and 39. This included an Initial Assessment and Scoring Templates dated 25 February 2013 and a KPI assessment dated 23 January 2014 in relation to the Blue Man Group production. Additionally, the Respondent noted that two documents had existed but were unable to be located, being an Event Investment Submission and a Strategic Investment Agreement in relation to the Addams Family Musical production. Documents 19, 29 and the missing Event Investment Submission were created by the Respondent for internal use. Sydney Festival 1. Sydney Festival objected to release of documents, including the disclosure of "information relating to the proposal for funding submitted to Destination NSW and copies of the agreement that formalises the funding, roles, benefits, responsibilities and obligations for the Sydney Festival. That is, the Strategic Investment Agreement". On my review of the evidence filed by the respondent, those documents are Documents 76, 14, and 32. 2. The basis for Sydney Festival's objections involved the public interest considerations against disclosure at cll 4(b), 4(c) and 4(d) of the Table to s 14 of the GIPA Act. Specifically, Sydney Festival stated that the agreement and proposals contain "valuable business, commercial and financial information pertaining to costs and pricing, strategic plans and marketing and promotional programs that Sydney festival expends time, effort money and other resources to develop and safeguard". The confidential information was provided to "educate Destination NSW (on a strictly confidential basis) on the commercial and artistic imperative to engage Sydney festival as an investor thereby enhancing the public good in the development of public art and festivals in New South Wales". Having reviewed the relevant documents, I accept that they contain confidential information. 3. Sydney Festival also stated that "it is not possible, without undue time and costs, which Sydney Festival believes is unwarranted, to redact parts of the material to render it possible for general publication". 4. The remaining documents relevant to Sydney Festival as a third party included Documents 5, 27, 6, 26, and 54. These were Event Investment Submissions dated 27 July 2012, 25 June 2013, the Initial Assessment and Scoring Templates dated 16 August 2012, 24 June 2013, and KPI assessment dated 10 November 2014. These five documents were created by the Respondent for internal use. 32 Hundred Lighting Pty Ltd 1. 32 Hundred Lighting Pty Ltd objected to the release of "documents containing [its] confidential financial information". On my review of the evidence filed by the respondent, those documents are Documents 18 and 62. 2. 32 Hundred Lighting Pty Ltd referred to cl 4(d) of the table to s 14 of the GIPA Act, submitting that the "public disclosure of the amounts we quoted, the amount we were paid and the value of our event sponsorship would give our competitors (and there are many) undue advantage which will harm the future of this business". Other third parties or aggrieved persons 1. On my review of the evidence, the 79 documents included information of the following additional entities: 1. In relation to the Yabun Festival, contained in Documents 9, 11, 15 and 73: Gadigal Information Service Aboriginal Corporation (GISAC). 2. In relation to the Vivid Festivals, contained in Documents 3, 10, 17, 18, 20, 36, 41, 44, 47, 59, 60, 61, 62, 64 and 78: 1. Sydney Opera House in relation to Documents 3, 47, 78; 2. Spinifex Group in relation to Documents 17, 41; 3. Mixed Industries Pty Limited in relation to Document 20; 4. AGB Events, in relation to Documents 10, 36; 5. Sketch Evolution Pty Ltd/ PRG/Tri Point / Oracle Attractions, in relation to Document 41; 6. Danny Rose, in relation to Document 41; 7. The Digital Sharman, in relation to Document 41; 8. Heinz Kasper, in relation to Document 41; 9. Aquatique Show International, in relation to Document 44; 10. Oracle Attractions, in relation to Document 60; 11. Triumph Leisure Solutions, in relation to Documents 59 and 61; 12. Finely Tuned, in relation to Document 64. 1. On the evidence and submissions available to the Tribunal, those entities did not provide any objection to the release of the information subject to the access application, or wish to be heard pursuant to s104(3) of the GIPA Act. Balancing exercise outcomes 1. There will always be a tension between market competition and open and accessible government, but the GIPA Act places obligations on government to ensure that access to information takes precedence, by placing the presumption on disclosure. The Respondent's attitude throughout the course of dealing with this access application indicates that it does not understand, or is in disagreement with the correct application of these obligations. As noted by the Applicant: …on the Respondent's approach, the entire operations of the respondent are to be shrouded in secrecy, and could never be the subject of scrutiny, as the arguments raised in these proceedings by the respondent would apply to any documents recording its operations and conduct in carrying out its functions. Such an approach could hardly be said to be consistent with the objects of the Act. 1. Having reviewed each of the 79 documents separately with reference to the evidence and submissions of the respondent and third parties or aggrieved persons, I make the following findings. 2. I accept the Respondent's submissions that the identified clauses of the Table to s 14 are relevant public interest considerations against disclosure of the subject information in each of the 79 documents. The question, however, is what weight I should afford each of those considerations with respect to the information in each document. 3. I disagree for the reasons expressed above that each of the public interest considerations against disclosure be given "strong" or "substantial" weight in relation to the relevant information. With respect to the documents created by the respondent for internal use, I agree with the Applicant's submissions that the Respondent has made generalised assertions of confidentiality and prejudice, and while some limited evidence is provided by the Respondent to support the assertions, "that evidence rarely goes further than the generalised assertions contained in the submissions". I also agree with the Applicant's submission that the commercial value of the information sought has generally diminished in the period between the access application being made in April 2015 and the determination of these proceedings in 2018, although I accept the Respondent's submission that its confidentiality is maintained despite the passage of time. 4. I therefore place modest weight on each of the specific public interest considerations against disclosure (identified at [44], [45] and [47] above) expressed by the Respondent to apply to the information contained within the documents created by the Respondent for internal use, as identified at 53, being each of Documents 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 22, 23, 26, 27, 29, 30, 31, 33, 34, 35, 36, 37, 39, 40, 41, 42, 44, 45, 47, 49, 50, 51, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 70, 71, 78, and 79. 5. I initially place modest weight on each of the public interest considerations against disclosure (identified at [30], [46], and [49] above) expressed by the Respondent in relation to the information contained within the remaining documents, being Documents 2, 4, 14, 15, 21, 24, 25, 28, 32, 38, 43, 46, 48, 52, 65, 66, 67, 68, 69, 72, 73, 74, 75, 76, 77. I place additional weight on the public interest consideration against disclosure expressed at 4(d) of the Table to s 14 of the GIPA Act on the information contained within each of those documents on the basis of submissions by third parties and aggrieved persons, to the effect that I place moderate weight on that consideration. I also place additional weight on the public interest consideration against disclosure expressed at 4(b) of the Table to s 14 of the GIPA Act to the information contained in Documents 2, 14, 15, 21, 24, 25, 28, 32, 38, 46, 48, and 52, on the basis of the submissions by third parties and aggrieved persons, to the effect that I place moderate weight on that consideration. 6. I accept the additional submissions of the Global Creatures Group, Art Gallery of New South Wales, City of Sydney and 32 Hundred Lighting Pty Ltd regarding the commercial sensitivity of specific information contained in Documents 2, 18, 24, 46, 48, 62, 63, 68, 70, 71, 72 and 75. I additionally afford substantial weight to the public interest considerations against disclosure at cll. 4(b) and 4(d) with respect to the following specific information contained in those documents: 1. Document 18: Page 2, dollar figures at "Summary of Event Proponent's Proposal"; page 10, first sentence of "DNSW Funding Details"; 2. Document 46: all dollar figures at Schedule 2 Item 2, Schedule 2 Item 7; all ticketing allocation figures at Schedule 2 Item 22 under "Corporate Hospitality"; all dollar figures at Schedule 3 after "Rights Fees cash package" 3. Document 62: Page 3, all of "Summary of Event Proponent's Proposal"; 4. Document 63: KPI Results; 5. Document 68: Dollar figures at page 15; 6. Document 75: dollar figure at page 10. 1. I afford additional, though not substantial, weight to the considerations at cll 4(b) and 4(d) of the table to s 14 of the GIP Act with respect to the information contained in Documents 70, 71 and 72 which has been specifically objected to by Global Creatures Group, to the effect that I afford strong weight to those considerations with respect to that information. This is on the basis that the commercial value of that information is likely to have diminished relative to the information contained in the other Global Creatures Group documents, because those documents were created in 2011. 2. Considering my assessment of the Respondent's evidence, my findings with respect to the weight to be given to each of the public interest considerations for and against disclosure, and the submissions from third parties, I assess the information in each of the 79 documents provided by the Respondent in answer to the access application in accordance with the following table: DOC DESCRIPTION THIRD PARTY DECISION 1. Initial Assessment and Scoring Template - Sydney International Art Series - Francis Bacon - Five Decades Art Gallery NSW Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 2. Strategic Investment Agreement between Destination NSW and The Art Gallery of New South Wales Trust regarding Sydney International Art Series - Francis Bacon: five decades Art Gallery of NSW Modest weight on considerations against disclosure at cll. 1(g), 4(a) + moderate weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 3. Event Investment Submission for Vivid Vivid Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 4. The Art Gallery of NSW International Art Series: Picasso Art Gallery of NSW Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information (KPI analysis) 5. Event Investment Submission for Sydney Festival Sydney Festival Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 6. 2013 Sydney Festival Initial Assessment and Scoring Template Sydney Festival Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 7. Vivid Live 2013 Music Initial Assessment and Scoring Template Vivid Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 8. Vivid Sydney Initial Assessment and Scoring Template Vivid Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 9. Yabun 2013-2015 Initial Assessment and Scoring Template GISAC Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 10. Event Investment Submission for Vivid Light AGB Events Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 11. Event Investment Submission for Yabun GISAC Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 12. Event Investment Submission for Sydney International Art Series - Anish Kapoor MCA Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 13. Sydney International Art Series - Mongolian Buddhas Initial Assessment and Scoring Template 31 October 2012 Art Gallery NSW Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 14. Strategic Investment Agreement between Destination NSW and The Sydney Festival regarding the Sydney Festival Sydney Festival Modest weight on considerations against disclosure at cll. 1(g), 4(a) + moderate weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 15. Agreement between Destination NSW and GISAC regarding Yabun GISAC Modest weight on considerations against disclosure at cll. 1(g), 4(a) + moderate weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 16. Event Investment Submission for Corroboree Bangarra Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 17. Event Investment Submission for Vivid Light - Museum of Contemporary Art (Old Building) Projections (with Spinifex Group) Spinifex Group Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 18. Event Investment Submission for Vivid Light - Museum of Contemporary Art (Old Building) Projections 32 Hundred Lighting WHOLE OF DOCUMENT: Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information Specific information identified at 89(1): Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a) + substantial weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies against disclosure of the government information 19. Initial Assessment and Scoring Template - "Ian Group" [sic, Blue Man Group] NewTheatricals Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 20. Event Investment Submission for Vivid Ideas Mixed Industries Pty Ltd Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 21. Strategic Investment Agreement between Destination NSW and Newtheatricals Pty Ltd (Newtheatricals) regarding the Sydney run of Blue Man Group Newtheatricals Modest weight on considerations against disclosure at cll. 1(g), 4(a) + moderate weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 22. Sydney NYE Fireworks Broadcast Initial Assessment and Scoring Template City of Sydney Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 23. Event Investment Submission for Sydney New Year's Eve Broadcast City of Sydney Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 24. Strategic Investment Agreement between Destination NSW and The Art Gallery regarding Sydney International Art Series - America: Painting a nation Art Gallery of NSW Modest weight on considerations against disclosure at cll. 1(g), 4(a) + moderate weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 25. Variation of Strategic Investment Agreement between Destination NSW and Bangarra regarding the Sydney Corroboree Bangarra Modest weight on considerations against disclosure at cll. 1(g), 4(a) + moderate weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 26. Sydney Festival 2014 & 2015 Initial Assessment and Scoring Template Sydney Festival Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 27. Event Investment Submission for Sydney Festival Sydney Festival Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 28. Strategic Investment Agreement between Destination NSW and Museum of Contemporary Art Limited (MCA) regarding Sydney International Art Series - War is Over! (if you want it): Yoko Ono MCA Modest weight on considerations against disclosure at cll. 1(g), 4(a) + moderate weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 29. 2014 Sydney Festival - Review and KPIs Sydney Festival Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 30. Sydney International Art Series - Francis Bacon - Five Decades Performance against KPIs Art Gallery of NSW Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 31. Sydney International Art Series - Anish Kapoor Exhibition Performance against KPIs MCA Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 32. Strategic Investment Agreement between Destination NSW and The Sydney Festival regarding the Sydney Festival Sydney Festival Modest weight on considerations against disclosure at cll. 1(g), 4(a) + moderate weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 33. The Addams Family Musical - Performance against KPIs NewTheatricals Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 34. Sydney International Art Series - Chuck Close: Portraits Initial Assessment and Scoring Template MCA Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 35. Event Investment Submission for Sydney International Art Series - Chuck Close Prints: Process and Collaboration MCA Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 36. Event Investment Submission for Vivid Light AGB Events Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 37. Vivid Light Initial Assessment and Scoring Template Vivid Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 38. Strategic Investment Agreement between Destination NSW and MCA regarding Sydney International Art Series - Chuck Close Prints: Process and Collaboration MCA Modest weight on considerations against disclosure at cll. 1(g), 4(a) + moderate weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 39. 2013 Blue Man Group - Performance against KPIs NewTheatricals Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 40. Sydney International Art Series - Pop to Popism - Initial Assessment and Scoring Template Art Gallery of NSW Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information . 41. Event Investment Submission for Vivid Light - Illuminati, Projection Icons (Cadman's Cottage, Customs House and MCA - Old and New) Sketch Evolution Pty Ltd, PRG, Tri Point, Oracle Attractions, Danny Rose, The Digital Sharman [sic], Spinifex Group, Heinz Kasper Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 42. Sydney International Art Series - Masterpieces from the National Gallery of Scotland Initial Assessment and Scoring Template Art Gallery of NSW Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 43. Event Investment Submission for Sydney International Art Series 2014 - 2016 - Pop to Popism Art Gallery of NSW Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 44. Event Investment Submission for Vivid Light - Aquatique Aquatique Show International Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 45. Event Investment Submission for Sydney International Art Series - Pop to Popism Art Gallery NSW Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 46. Strategic Investment Agreement between Destination NSW and Strictly Business Pty Ltd as trustee of the Strictly Business Unit Trust (Strictly Business) regarding the Sydney run of Strictly Ballroom Strictly Business WHOLE OF DOCUMENT: Modest weight on considerations against disclosure at cll. 1(g), 4(a) + moderate weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information Specific information identified at 89(2): Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a) + substantial weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies against disclosure of the government information 47. Event Investment Submission for Vivid Live Vivid Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 48. Strategic Investment Agreement between Destination NSW and The Art Gallery regarding Sydney International Art Series 2014 - 2016 - Pop to Popism Art Gallery NSW Modest weight on considerations against disclosure at cll. 1(g), 4(a) + moderate weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 49. 2013 Corroboree Sydney - Performance against KPIs Bangarra Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 50. Initial Assessment and Scoring Template - Corroboree 2014 Bangarra Modest weight on considerations against disclosure at cll. 1(f), 4(a) + significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 51. Event Investment Submission for Corroboree Sydney 2014 Bangarra Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 52. Variation of the Strategic Investment Agreement between Destination NSW and Bangarra regarding the Sydney Corroboree and related correspondence Bangarra Modest weight on considerations against disclosure at cll. 1(g), 4(a) + moderate weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 53. Vivid Light Initial Assessment and Scoring Template Vivid Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 54. Sydney Festival - Performance against KPIs Sydney Festival Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 55. Sydney International Art Series - Grayson Perry Initial Assessment and Scoring Template MCA Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 56. Sydney International Art Series - The Greats: 400 years of Western Art Initial Assessment and Scoring Template Art Gallery of NSW Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 57. Event Investment Submission for Sydney International Art Series - Grayson Perry MCA Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 58. Event Investment Submission for Sydney International Art Series - The Greats: 400 years of Western art from the National Gallery of Scotland Art Gallery of NSW Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 59. Gaming and Online Vivid Sydney Initial Assessment and Scoring Template Vivid Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 60. Event Investment Submission for Vivid Sydney - Oracle Attractions Oracle and Crystal Group Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 61. Event Investment Submission for Game On - The Vivid Sydney gaming and online showcase Triumph Leisure Solutions Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 62. Event Investment Submission for Vivid Sydney - Sydney Harbour Bridge 32 Hundred Lighting 32 Hundred Lighting WHOLE OF DOCUMENT: Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information Specific information identified at 89(3)89(1): Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a) + substantial weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies against disclosure of the government information 63. 2014 Strictly Ballroom - KPI Results Strictly Ballroom WHOLE OF DOCUMENT: Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information Specific information identified at 89(4): Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a) + substantial weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies against disclosure of the government information 64. Event Investment Submission for Vivid Sydney - Transcendence Finely Tuned Modest weight on considerations against disclosure at cll. 1(f), 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 65. Proposal from Bangarra Dance Theatre for investment in Corroboree 2013-2015 Bangarra Modest weight on considerations against disclosure at cll. 1(f), 1(g) + moderate weight on consideration against disclosure at cll. 4(d) v. substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 66. Proposal from Events NSW for investment by City of Sydney in the Addams Family City of Sydney, NewTheatricals Modest weight on considerations against disclosure at cll. 1(f), 1(g) + moderate weight on consideration against disclosure at cll. 4(d) v. substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 67. Proposal from MCA for investment in the Sydney International Art Series 2014 MCA Modest weight on considerations against disclosure at cll. 1(f), 1(g) + moderate weight on consideration against disclosure at cll. 4(d) v. substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 68. Proposal from Art Gallery NSW for investment in the Sydney International Art Series 2014-2016 Art Gallery of NSW WHOLE OF DOCUMENT: Modest weight on considerations against disclosure at cll. 1(f), 1(g) + moderate weight on consideration against disclosure at cll. 4(d) v. substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information Specific information identified at 89(5): Modest weight on considerations against disclosure at cll. 1(f), 1(g) + substantial weight on considerations against disclosure at cll. 4(b) and 4(d) v. substantial weight on considerations in favour of disclosure: Balance of the public interest lies against disclosure of the government information 69. Letter from Events NSW to MCA regarding Destination NSW's investment in the Sydney International Art Series at the MCA 2011-2014 MCA Modest weight on considerations against disclosure at cll. 4(a), 4(b) + moderate weight on consideration against disclosure at cl. 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 70. Minutes of meeting re Strictly Ballroom investment Strictly Ballroom WHOLE OF DOCUMENT: Modest weight on considerations against disclosure at cll. 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information Specific information identified by Global Creatures Group as objected to: Modest weight on considerations against disclosure at cll. 1(g), 4(a) + strong weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 71. Minutes of meeting re Strictly Ballroom investment Strictly Ballroom WHOLE OF DOCUMENT: Modest weight on considerations against disclosure at cll. 1(g), 4(a), 4(b), 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information Specific information identified by Global Creatures Group as objected to: Modest weight on considerations against disclosure at cll. 1(g), 4(a) + strong weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 72. Letter from Events NSW to Minister regarding investment in Strictly Ballroom Strictly Ballroom WHOLE OF DOCUMENT: Modest weight on considerations against disclosure at cll. 1(f), 1(g) + moderate weight on consideration against disclosure at cll. 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information Specific information identified by Global Creatures Group as objected to: Modest weight on considerations against disclosure at cll. 1(f), 1(g) + strong weight on considerations against disclosure at cll. 4(b) and 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 73. Letter from GISAC enclosing proposal for investment in Yabun Festival 2013 - 2015 GISAC Modest weight on considerations against disclosure at cll. 1(f), 1(g) + moderate weight on consideration against disclosure at cll. 4(d) v. substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 74. Correspondence between Newtheatricals and Destination NSW re Blue Man Group Newtheatricals Modest weight on considerations against disclosure at cll. 1(f), 1(g) + moderate weight on consideration against disclosure at cll. 4(d) v. substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 75. Proposal from City of Sydney for investment in the broadcast of the New Years Eve fireworks City of Sydney WHOLE OF DOCUMENT: Modest weight on considerations against disclosure at cll. 1(f), 1(g) + moderate weight on consideration against disclosure at cll. 4(d) v. substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information Specific information identified at 89(6): Modest weight on considerations against disclosure at cll. 1(f), 1(g) + substantial weight on considerations against disclosure at cll. 4(b) and 4(d) v. substantial weight on considerations in favour of disclosure: Balance of the public interest lies against disclosure of the government information 76. Letter from Sydney Festival to Destination NSW enclosing proposal from Sydney Festival for investment in the Sydney Festival 2014-2015 Sydney Festival Modest weight on considerations against disclosure at cll. 1(f), 1(g) + moderate weight on consideration against disclosure at cll. 4(d) v. substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 77. Letter from Destination NSW to MCA regarding Destination NSW's investment in War is Over! (If you want it): Yoko Ono MCA Modest weight on considerations against disclosure at cll. 4(a), 4(b) + moderate weight on consideration against disclosure at cl. 4(d) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 78. Event Investment Scoring Checklist for Vivid Live 2014-2015 Vivid Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 79. Scoring Matrix for Vivid Light Festival 2015 Vivid Modest weight on considerations against disclosure at cll. 1(f), 4(a) v. significant and substantial weight on considerations in favour of disclosure: Balance of the public interest lies in favour of disclosure of the government information 1. With the exception of the specific information identified at [89(1)] to [89(6)] above, the balance of the public interest lies in favour of disclosure of the government information contained in each of the 79 documents, without redactions. Reasonableness of searches 1. In Taylor this Tribunal ordered the Respondent to conduct searches to identify whether there were any additional documents in its possession which answered the access application, beyond the 79 documents identified. The Respondent subsequently stated in the reviewable decision that it "conducted electronic searches of its databases". 2. In submissions, the Respondent stated "It would be futile and not in keeping with the purposes of the GIPA Act to require an agency to carry out searches in response to an access application such as Mr Taylor's when such searches would only identify information that could not be disclosed because there are overriding public interests against its disclosure. In the circumstances, searches for the documents and information sought by Mr Taylor would involve an unreasonable and substantial diversion of Destination NSW's resources. 1. I disagree. The fact that an agency believes there would be overriding public interest considerations against disclosure of information contained in certain documents does not impact on whether the agency is required to conduct the searches for that information, but rather whether the agency provides access. The agency is obliged to conduct the searches unless doing so would create an unreasonable and substantial diversion of resources. The content of the documents does not determine whether the diversion of resources is reasonable or unreasonable. 2. The 79 documents filed by the Respondent in answer to the access application, and the affidavit of Ms Chipchase annexing the consultation responses from third parties, identified to the Tribunal a number of documents which existed but had not been identified by the Respondent as a result of the searches ordered. These include those documents referred to above at [58], [61] and [63]. Although the reviewable decision asserts that additional searches were conducted by the respondent following the Tribunal's order of 12 September 2017, there is no evidence of what those searches entailed, the extent of those searches, or any explanation for why existing documents were not identified by the searches. 3. In Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52, the Tribunal noted at [19]: ... 19 To some people, it may appear awkward for the Tribunal to be required to determine whether an agency is correctly asserting that it does not hold a document or additional documents. Certainly, the Tribunal is not equipped in the manner of the Ombudsman with staff able physically to access and search document registries and filing systems and to interrogate the custodians of agency documents. All that the Tribunal can do is to assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches, or the reference of the case to the Ombudsman under arrangements under s 39 of the Administrative Decisions Tribunal Act 1997 (NSW). 1. In this case, similar to the circumstances in Turner v Commissioner of Police, NSW Police Force [2017] NSWCATAD 177 which cited the principles expressed in Beesley with approval, the Respondent has provided no evidence as to what searches were conducted. It merely says that some searches were conducted, without describing their nature or extent. It does not say why they constituted 'such reasonable searches as may be necessary' in accordance with s 53(2) of the GIPA Act. In those circumstances, the respondent has failed to satisfy its onus of proof, and the Tribunal is unable to be satisfied that reasonable searches have been conducted in accordance with s 53(2) of the GIPA Act. 2. In considering the remedies expressed in Beesley for the Tribunal's dissatisfaction with the agency's evidence of searches, I note that this Tribunal has already directed the Respondent to conduct additional searches. Bearing in mind the Tribunal's objects expressed at s 3 of the Civil and Administrative Tribunal Act 2013, making the same order a second time would be inappropriate. The utility of production of better evidence as to searches would also be questionable in the circumstances. The option of referral by the Tribunal's President to the Ombudsman is available under s 35D of the Ombudsman Act 1974. There is also an option for the referral of the Respondent to the Information Commissioner pursuant to s 111 of the GIPA Act in relation to systemic agency issues of compliance with the GIPA Act. However, prior to such a referral, in according with the rules of procedural fairness, the Respondent should be afforded the opportunity to make submissions. Correct and preferable decision 1. This Tribunal has previously remitted the internal review decision to the Respondent under s 63(3)(d) of the Administrative Decisions Review Act 1997 (the ADR Act) to consult, conduct additional searches and reconsider its determination. 2. In the circumstances the correct and preferable decision is for the Tribunal to set aside the reviewable decision pursuant to s 63(3)(c) of the ADR Act and make a decision in substitution in accordance with these reasons for decision, granting the Applicant access to each of the 79 documents, with the exception that Documents 18, 46, 62, 63, 68, and 75 should be redacted as described above at [89(1)] to [89(6)]. Orders 1. The reviewable decision of the Respondent dated 2 November 2017 is set aside. 2. The Respondent is to provide the applicant with access to each of the 79 documents in their entirety, with the exception that Documents 18, 46, 62, 63, 68, and 75 should be redacted in accordance with these reasons before providing access. 3. The parties are to file and serve concurrent written submissions on the referral of the Respondent to the Ombudsman or Information Commissioner, within 28 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 Amendments 28 August 2018 - Cases cited error corrected 28 August 2018 - Cross references corrected 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: 28 August 2018