Cianfrano v Director General, New South 'Wales Treasury [2005] NSWADT 7 (10 January 2005)

Last Updated: 18 January 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Cianfrano v Director General, New South 'Wales Treasury [2005] NSWADT 7


PARTIES: APPLICANT
Robert Cianfrano
RESPONDENT
Director General, New South Wales Treasury



FILE NUMBERS: 043026
043234

HEARING DATES: 25-26/08/2004

SUBMISSIONS CLOSED: 26/08/2004



DECISION DATE: 10/01/2005

BEFORE: O'Connor K - DCJ (President)





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Evidence Act 1995
Freedom of Information Act 1982 (Vic)
Freedom of Information Act 1989

CASES CITED: Abigroup Ltd v Akins (1997) 42 NSWLR 623
Attorney General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500
Attorney General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475
Attorney General (UK) v Heinemann Publishers Pty Ltd (the Spycatcher case) [1988] HCA 25; (1987) 10 NSWLR 86
Australian Competition & Consumer Commission v FFE Building Services Ltd [2003] FCA 1181
Australian Doctors' Fund Ltd v Commonwealth of Australia [1994] FCA 177; (1994) 49 FCR 478
Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501
Australian Rugby Union Ltd v Hospitality Group Pty Ltd and Ors [1999] FCA 1061
B v Commissioner of Police [2000] NSWADT 168
Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52
Balabel v Air-India [1988] 1 Ch 317
Beesley v Commissioner of Police [2000] NSWADT 52
Blackshaw v Lord [1983] 3 WLR 283
BY v Director General, Attorney General's Department [2002] NSWADT 79
Cianfrano v Director General, Premier's Department & Sydney Markets Ltd [2004] NSWADT 255
Cianfrano v NSW Department of Commerce [2004] NSWADT 134
Commissioner of Police v The District Court of NSW ('Perrin's case') (1993) 31 NSWLR 606
Commonwealth of Australia v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 32 ALR 485; 147 CLR 39
Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd [1994] FCA 1314; (1994) 53 FCR 125
Conway v Rimmer [1968] UKHL 2; [1968] AC 910
D. v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171
Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner [2002] HCA 49; (2002) 213 CLR 543
DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191; (2003) 203 ALR 348
Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2, (1993) 1 QAR 60
Egan v Chadwick (1999) 49 NSWLR 563
Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49
Fagan v State of New South Wales [2004] NSWCA 182
Freeland v General Manager, Liverpool City Council [1999] NSWADT 95
Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83
Harris v Australian Broadcasting Tribunal [1983] FCA 242; (1983) 50 ALR 551
Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135
Law Society of New South Wales v General Manager, Workcover Authority of New South Wales (GD) [2004] NSWADT 40
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Neary v State Rail Authority [1999] NSWADT 107
Neary v The Treasurer, New South Wales [2002] NSWADT 261
O'Reilly v Commissioner of State Bank of Victoria [1982] HCA 74; (1982) 153 CLR 1
Parker v DCT (Qld) [1985] 1 Qd R 275
Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213
Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department [2002] NSWADT 277
Raethel v Director-General, Department of Education and Training [1999] NSWADT 108
Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163
Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1993) 1 QAR 279
Re Birrell and the Department of Premier and Cabinet (Nos 1 and 2) (1986) 1 VAR 230
Re Burns and Australian National University (1984) 6 ALD 193; 1 AAR 456
Re Howard and Treasurer of the Commonwealth (1985) 7 ALD 626
Re Hudson and Department of the Premier, Economic and Trade Development [1993] QICmr 4; (1993) 1 QAR 123
Re Kamminga and Australian National University [1992] AATA 84; (1992) 26 ALD 585
Re Mildenhall and Department of Premier and Cabinet (1995) 8 VAR 284
Re Peters and Department of Prime Minister and Cabinet (No 2) (1984) 5 ALN N306
Re Porter and Department of Community Services and Health (1988) 14 ALD 403
Re Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589
Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301
Sankey v Whitlam [1978] HCA 43; (1978) 21 ALR 505; 142 CLR 1
Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7; (1994) 1 QAR 464
State Bank of South Australia v Smoothdale (No 2) Ltd [1995] SASC 5070; (1995) 64 SASR 224
Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244
Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54
Woollahra Municipal Council v Westpac Banking Corp (1994) 33 NSWLR 529

APPLICATION: access to documents - business affairs
access to documents - cabinet documents
access to documents - internal working documents
access to documents - legal professional privilege
Freedom of Information Act - access to documents - business affairs
Freedom of Information Act - access to documents - cabinet documents
Freedom of Information Act - access to documents - internal working documents
Freedom of Information Act - access to documents - legal professional privilege

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
In person


RESPONDENT REPRESENTATIVE: RESPONDENT
M Allars, counsel

ORDERS: Matter No. 043026
1.Determination under review affirmed, except in relation to Document 35.2. Document 35 to be disclosed with the exception of the parts referred to in paragraph [73] of these reasons. This decision to take effect after 28 days.
Matter No. 043234
1. Determination under review affirmed.


Reasons for Decision:

REASONS FOR DECISION

1 The applicant has made access applications under the Freedom of Information Act 1989 (FOI Act) to several State Government agencies in relation to documents bearing on the sale by the Government on 1 July 2002 of the Sydney Markets at Flemington to a private company named Sydney Markets Ltd. One of those applications has already reached final determination in the Tribunal: Cianfrano v Director General, Premier’s Department & Sydney Markets Ltd [2004] NSWADT 255. Another Tribunal decision relates to the same body of applications: Cianfrano v NSW Department of Commerce [2004] NSWADT 134 (dispute about agency requirement of an advance deposit before proceeding with the access application).

2 This decision reviews the respondent agency’s determinations in relation to two access applications. Those access applications were made on 25 September 2003 and 15 March 2004 respectively and requested the following documents:

(1) ‘All documents ... in relation to all internal working and factual and statistical material relating to, of the Land known as Flemington Markets at the time of Sale to a private company known as Sydney Markets Ltd.’ [sic]

(2) ‘All documents ... in relation to all internal working documents and all factual and statistical material relating to the Sydney Morning Herald Article reported by Freya Peterson on 20 05 2002.’

3 The review applications have been the subject of several planning meetings in the Tribunal. As a result a number of documents have been released by the agency further to those released in response to the original access applications. The Tribunal has made orders, by consent, in relation to those further releases.

4 A hearing was held on 25 and 26 August 2004 in respect of the documents that remain in dispute.

5 The Tribunal file numbers for the two review applications are 43026 and 43234 and these are sometimes used below. The agency has numbered the documents in the one sequence covering both applications. The documents that remain in dispute in respect of the first application are numbered from 4 to 74; and those in dispute in respect of the second application are numbered from 78 to 187.

6 The Tribunal had before it at hearing the following documentary evidence:

Filed by Respondent:

· Three affidavits of Susan Mary Power, Director, Property and Venues, NSW Treasury (two filed 28 July 2004 and one filed 24 August 2004).

The first affidavit deals with the background to the Government’s decision to sell the Sydney Markets at Flemington and the grounds for claiming exemptions (and is usually referred to in these reasons as the open affidavit).

The second affidavit was filed as a confidential affidavit. It gave further reasons in support of the claims for exemption. The applicant objected to the Tribunal receiving the affidavit on a confidential basis. Following a short hearing that included a confidential component, the Tribunal decided pursuant to s 55(b) of the FOI Act to receive the affidavit on a confidential basis. Following consideration of submissions from Ms Allars, the Tribunal made a further order pursuant to s 75(2)(d) of the Administrative Decisions Tribunal Act 1997 prohibiting the disclosure to the applicant or any other persons of the contents of the confidential exhibit marked E, other than is necessary for the conduct of the proceedings by the agency and the deliberations of the Tribunal.

The third affidavit deals with the search procedures undertaken by Ms Power.

· The Schedule of Documents listing those that remain subject to claims for exemption in matter no 43026 (filed on 5 May 2004) and matter no 43234 (filed on 24 August 2004).

Subsequent to the second document being filed, there were some further releases. They are red-lined on the schedule and no longer remain under consideration. The Schedule includes in relation to each item the date of the document and a document description which describes the nature of the document (e.g. email, fax, letter) and the context in which it was generated (e.g. ‘discussing issues arising from a meeting’).

· The Schedule needs to be read in conjunction with the Revised Schedule of Cabinet Document Claims for Exemption (filed at hearing on 26 August 2004).

· Submissions filed 25 August 2004.

Filed by Applicant:

· Statement of Colin Arthur Saggers filed 25 August 2004, advancing public interest reasons in support of a favourable exercise of discretion by the Tribunal. Mr Saggers said that he had worked as a stall holder and trader at Paddys Markets (Haymarket) for 39 years and had been a retail trader representative to the SMA and to SML. Paragraphs 1-4 only received into evidence. Objections to remainder upheld.

· Submissions filed 21 June 2004 and 17 August 2004.

Oral testimony was given at hearing by Ms Power and Mr Saggers.

General Background

7 The land upon which the Sydney Markets at Flemington formed, until its sale in 2002, part of the Crown Property Portfolio which is vested in the name of the Treasurer. As the agency reporting to the Treasurer, NSW Treasury had responsibility for managing the ownership of the property. As Treasury did not itself have expertise in the day-to-day management of property, it had authorised the Department of Public Works and Services (DPWS) to act as its agent.

8 In her open affidavit and evidence at hearing, Ms Power explained the reasons for the move of the Sydney Markets from the historic location at Haymarket to Flemington in 1976; the administrative arrangements that governed the operation of the Markets at Flemington; and the decisions of 1997 to dissolve the governing authority, the Sydney Markets Authority (SMA) and to sell its trading activities and all assets - other than its land and buildings - to an industry sponsored body, Sydney Markets Limited (SML). Under the 1997 arrangements the Crown leased the land and buildings to SML.

9 Ms Power’s affidavit refers to the occurrence of disputes between the Government and SML over aspects of the lease. The affidavit refers to factors which influenced the Government to enter into negotiations for the outright sale of the land and buildings to SML: one, that retention of this property did not fit in with its overall property holdings policy as the activities conducted on it fell outside its core delivery service objectives, for example, delivery of health, educational or policing services; and two, as a means of resolving the contractual disputes that had arisen, which lay, at least partly, in some lack of clarity as to where certain obligations under the lease fell.

10 The affidavit refers to the number of agencies involved in the negotiation and sale process, and the various departmental, interdepartmental and Cabinet committees involved in the process. Price Waterhouse (now Price Waterhouse Coopers (PWC)) was responsible for giving advice in relation to the corporatisation of the SMA and the allocation of liabilities of SMA to SML including in the context of the sale process.

11 So far as the sale process was concerned, Ms Power explained in evidence at hearing that her agency gave instructions to DPWS in relation to technical aspects of the sale. She said that Premier’s Department was also involved in the sale process because of the size and scale and importance of the transaction to ensure that whole-of-government interests were protected.

12 The applicant is a fruit grower. In his opinion, the Markets sale occurred at an undervalue. The sale price was $83.5m. He has been pressing, through his applications, for provision of the documents that explain the decision to sell, especially documents pertaining to the valuation process. He has questioned the Government’s choice in not having a competitive sale process, and in negotiating with only one prospective party. He expressed dissatisfaction in relation to the way the site had been managed since SML took over.

13 In his evidence, Mr Saggers supported the applicant’s concerns. He said that prior to 1976 the Markets had been run by the Sydney City Council. He referred to the differences in the internal structure of the SMA and the SML. He felt that retailer interests were better catered for in the SMA structure. He referred to his long involvement in the Paddys Market Stallholders Association. He referred to his involvements in the controversy that surrounded the changes of 1997 and later in 2002. The applicant drew attention to Hansard references to Government consultative processes that had involved Mr Saggers.

14 The documents sought by the applicant, and those to which access has been granted, cover the 1997 period, the intervening period to some degree, and the 2001-2002 period.

15 The applicant contests the refusal of the agency to disclose all material; and questions the sufficiency of the search.

CLAIMS FOR EXEMPTION

16 An agency may refuse to release a document that is an exempt document: FOI Act, s 25(1)(a). An exempt document means (s 6):

‘(a) a document referred to in any one or more of the provisions of Schedule 1, or

(b) a document that contains matter relating to functions in relation to which a body or office is, by virtue of section 9, exempt from the operation of this Act.’

17 Public Interest Considerations. The applicant submits that the Tribunal should have regard to the public interest in openness and transparency, especially in connection with sales of magnitude and social significance such as the present matter. He refers in his submissions to various judicial and other statements as to the public interest in transparency, relying mainly on observations made in the non-FOI cases (where the questions were whether claims to public interest immunity would be upheld so as to prevent the admission of relevant evidence connected with injunction proceedings brought to prevent publication of sensitive material or whether documents were discoverable in civil litigation against government) such as Commonwealth of Australia v John Fairfax and Sons Ltd [1980] HCA 44; (1980) 32 ALR 485; 147 CLR 39, Conway v Rimmer [1968] UKHL 2; [1968] AC 910 and Attorney General (UK) v Heinemann Publishers Pty Ltd (the Spycatcher case) [1988] HCA 25; (1987) 10 NSWLR 86.

18 The long title of the New South Wales FOI Act describes the Act as:

‘An Act to require information concerning documents held by the Government to be made available to the public, to enable a member of the public to obtain access to documents held by the Government and to enable a member of the public to ensure that records held by the Government concerning his or her personal affairs are not incomplete, incorrect, out of date or misleading; and to make consequential amendments to certain other Acts.’

19 The objects of the Act (s 5) are:

‘5 Objects

(1) The objects of this Act are to extend, as far as possible, the rights of the public:

(a) to obtain access to information held by the Government, and

(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.

(2) The means by which it is intended that these objects are to be achieved are:

(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and

(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and

(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.

(3) It is the intention of Parliament:

(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and

(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.

(4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.’

20 The provisions of the Act allow agencies to invoke exemptions or exclusions as a basis for refusing to give information contained in documents to members of the public who make access applications. Some, but not all, exemptions allow for discretionary factors to be taken into account by the decision-maker. The applicant contended that in the case of all exemptions (including those that contain no discretionary aspects) it is open to the agency or the Tribunal on review to allow disclosure on the basis of a ‘public interest override’ discretion found in the scheme of the Act. In Victoria, there is an express provision giving the Tribunal on review such a discretion: Freedom of Information Act 1982 (Victoria), s 50(4). There is no similar express provision in the NSW FOI Act. In this Tribunal’s view, for the reasons it gave in Neary v The Treasurer, New South Wales [2002] NSWADT 261 at [30-85], no such override can properly be implied into the scheme of the NSW FOI Act.

21 The applicant drew attention to s 59A, which provides:

‘59A Public interest

For the purpose of determining under this Act whether the disclosure of a document would be contrary to the public interest it is irrelevant that the disclosure may:

(a) cause embarrassment to the Government or a loss of confidence in the Government, or

(b) cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.’

22 In the submissions made in this case by the agency, none involve assertions of the kind dealt with by either para (a) or (b).

(1) Cabinet Documents

23 Clause 1 of Schedule 1 provides:

‘1 Cabinet documents

(1) A document is an exempt document:

(a) if it is a document that has been prepared for submission to Cabinet (whether or not it has been so submitted), or

(b) if it is a preliminary draft of a document referred to in paragraph (a), or

(c) if it is a document that is a copy of or of part of, or contains an extract from, a document referred to in paragraph (a) or (b), or

(d) if it is an official record of Cabinet, or

(e) if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet.

(2) A document is not an exempt document by virtue of this clause:

(a) if it merely consists of factual or statistical material that does not disclose information concerning any deliberation or decision of Cabinet, or

(b) if 10 years have passed since the end of the calendar year in which the document came into existence.

(3) Subclause (2) (b) does not apply to a document that came into existence before the commencement of this clause.

(4) In this clause, a reference to Cabinet includes a reference to a committee of Cabinet and to a subcommittee of a committee of Cabinet.’

24 Ms Allars’ submissions refer to cases that have dealt with the nature of Cabinet government, the central importance given to the secrecy of Cabinet deliberations: in New South Wales, see for example Egan v Chadwick (1999) 49 NSWLR 563, 575 per Spigelman CJ. There is an extensive treatment of this issue by Forgie DP of the Commonwealth Administrative Appeals Tribunal in Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301 at [22-37], [50-56] and [132-134].

25 The sub-categories found in cl 1(1) involve a descending hierarchy of Cabinet-related documents. At the top of the hierarchy, arguably, is sub-category (d) – an official record of Cabinet. Such a record would include, for example, the formal text of Cabinet decisions.

26 Next is sub-category (a) – documents prepared for submission to Cabinet; and then sub-category (b) – preliminary drafts of documents of the kind covered by (a). Sub-category (c) is ancillary to sub-categories (a) and (b).

27 It is the last category, (e), which is the broadest and the least exact – ‘matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet’. Some care should be shown in applying sub-category (e) to documents.

28 In closing submissions, Ms Allars raised the question of the extent of the Tribunal’s power to scrutinise claims for exemption that involve the categories of exemption relating to ‘restricted documents’ within the meaning of the FOI Act. Clause 1 is one of the three categories of exemption belonging to that group of exemptions. Section 57 of the FOI Act deals with the way the Tribunal is to approach the consideration of ‘restricted documents’:

‘57 Consideration of restricted documents

(1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate.

(2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of:

(a) the public, and

(b) the review applicant, and

(c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant’s representative.

(3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it.

(4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application.

(5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter.

(6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings.’

29 This provision is to be read in conjunction with the general responsibility of the Tribunal to make the correct and preferable decision in relation to applications for review (Administrative Decisions Tribunal Act 1997, s 63): see BY v Director General, Attorney General's Department [2002] NSWADT 79.

30 The Minister administering the Act (the Premier) decided not to intervene in the proceedings.

31 As already noted, some evidence was received confidentially in support of the applicability of the Cabinet documents exemption. All affected documents were produced to the Tribunal.

32 In the Tribunal’s view, the normal approach to ascertaining whether one of the Cabinet documents exemptions applies is to seek to find indicia in the document under notice which show that it is a document of the kind specified by the particular sub-category of cl 1(1) relied upon. It may also be necessary to have regard to any evidence tendered by the agency or Minister.

33 Ms Power’s first affidavit (the open affidavit) contains some explanations in relation to the agency’s reliance on the Cabinet documents exemption. There is further material in her confidential affidavit.

Assessment

Category (a): A document that has been prepared for submission to Cabinet (whether or not it has been so submitted)

34 Documents affected: 65, 69 (as to part), 78, 174.

35 The Tribunal agrees, in response to one of Ms Allars’ submissions, that a document may obtain the protection of this exemption even though it is ultimately not submitted to Cabinet (as is recognised in the wording of the provision); and, in the case of a document prepared for more than one purpose, it is sufficient to show that one of the purposes was for submission to Cabinet.

36 The Tribunal has examined the disputed documents in light of the submissions made by both parties, and in particular having regard to the affidavit and oral evidence of Ms Power.

37 D65: Exempt. D69 (as to part): This is a draft and it is exempt, but by reference to sub-category (b) of cl 1(1). D78: Exempt. D174: Exempt.

Category (b): Preliminary drafts of documents prepared for submission to Cabinet

38 Documents affected: 102 (as to part, but Special Conditions and SRA letter annexed to the Cabinet minute to be released), 115 (as to part), 121 (as to part), 129 (as to part), 171 (as to part), 173 (as to part), 174, 181 (as to part, but Special Conditions and SRA letter annexed to the Cabinet minute to be released), 182 (as to part).

39 Clause 1(1)(b) speaks of documents which are ‘preliminary drafts’ of documents ‘prepared for submission’ to Cabinet. Ms Allars drew attention to the use of the adjective ‘preliminary’ before ‘draft’ to support a submission that something more than the last draft of the document being prepared for submission for Cabinet was covered. She suggested that the expression ‘preliminary draft’ might cover preparatory work for a briefing note. It is not necessary to deal conclusively with this suggestion on this occasion. The Tribunal notes that the access objectives of the FOI Act must always be kept in view, and an unduly liberal interpretation of the expression ‘preliminary draft’ would cut across those objectives.

40 The Tribunal is satisfied after scrutinising the documents and having regard to Ms Power’s open affidavit that these documents fall within this sub-category, with one minor qualification in the case of D102. D102: Pages 4 to 25 are clearly protected. D102: Pages 1-3 are internal agency documents in final form. However, the claim for exemption, on an alternative basis, made under sub-category (e) is sound, and the first three pages are protected on that basis.

Category (d): Documents that are official records of Cabinet

41 Documents affected: Documents 103 (as to part), 130 (as to part).

42 The Tribunal is satisfied after scrutinising the documents and having regard to Ms Power’s open affidavit that these documents all fall within this sub-category.

Category (e): Matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet

43 Documents affected: Documents 17 (as to part), 19 (as to part), 52 (as to part), 63 (as to part), 91 (as to part), 102 (as to part, but Special Conditions and SRA letter annexed to the Cabinet minute to be released), 115 (as to part), 121 (as to part), 128 (as to part), 129 (as to part), 130 (as to part), 169 (as to part), 181 (as to part, but Special Conditions and SRA letter annexed to the Cabinet minute to be released), 182 (as to part).

44 Ms Allars drew attention to varying views found in the case-law as to the interpretation to be given to the words ‘deliberation’ and ‘deliberative processes’. She contrasted what she saw as a narrower approach in cases such as Re Birrell and the Department of Premier and Cabinet (Nos 1 and 2) (1986) 1 VAR 230, Re Mildenhall and Department of Premier and Cabinet (1995) 8 VAR 284, Re Porter and Department of Community Services and Health (1988) 14 ALD 403 and Re Hudson and Department of the Premier, Economic and Trade Development [1993] QICmr 4; (1993) 1 QAR 123 with the broader - and she submitted more realistic approach - reflected in the decision in the Commonwealth AAT decision of 2003, Re Toomer, previously cited. The main difference in the two approaches has to do with the extent to which it is necessary to prove in order to establish the exemption that Cabinet actually deliberated or made a decision in relation to the information which is the subject of the claim for exemption.

45 In this case, the Tribunal only has before it the affidavits of Ms Powers going to this question. In cases in Victoria, in particular, it has not been uncommon for a public servant who actually attended the Cabinet meeting in issue (typically, the Secretary to the Department of Premier and Cabinet) – and, sometimes, Ministers – to give evidence on the question of whether there was actual deliberation by Cabinet or a Cabinet decision on the matter referred to in the document.

46 Under the broader approach Ms Allars submitted that it is enough to obtain the benefit of sub-category (e) to show that the information related to a matter of concern to Cabinet, even if neither the information nor the matter was ultimately the subject of discussion, careful consideration or decision-making. Ms Allars referred to the passage in Re Toomer where the Tribunal described the deliberations of Cabinet as ‘its thinking processes be they directed to gathering information, analysing information or discussing strategies’ at [88].

47 On this occasion it is not, the Tribunal considers, necessary to form a concluded view on the difference in the approaches found in the case-law of other jurisdictions with exemptions equivalent to sub-category (e).

48 In the case of all of the documents the subject of this head of claim, there is satisfactory evidence within the body of each of the documents, and they are referred to by Ms Power in her affidavit, showing the clear connection between the material for which protection is claimed and the Cabinet process surrounding the 1997 decisions and the 2002 decisions in relation to Sydney Markets.

49 In summary the agency had ‘reasonable grounds’ for invoking the Cabinet documents exemptions (a), (b), (d) or (e) in respect of all documents identified. The Tribunal is satisfied that the agency’s refusal to release them is the correct and preferable decision.

50 In considering the documents under each of the above headings the Tribunal has been cognisant of the request from the applicant that regard be had to the exception in cl 1(2) of the exemption excising from protection a document ‘if it merely consists of factual or statistical material that does not disclose information concerning any deliberation or decision of Cabinet’. None of the documents were of that kind.

(2) Legal Professional Privilege

51 Clause 10 of Schedule 1 provides:

‘10 Documents subject to legal professional privilege

(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency’s policy document.’

52 Documents affected: 5 (as to part), 6 (as to part), 7 (as to part), 8 (as to part), 9 (as to part), 16, 18 (as to part), 20, 21, 22, 23, 26 (as to part), 27, 30, 32, 36 (as to part), 37 (as to part), 38 (as to part), 39 (as to part), 41 (as to part), 43 (as to part), 45, 46, 47, 49, 51, 52 (as to part), 54, 63 (as to part), 64 (as to part) and 74 (all of the foregoing belong to the first application, file no. 43026). In matter no. 43234 the following documents are affected: 80, 83, 85, 86 (as to part), 88, 89 (as to part), 94 (as to part), 98, 99 (as to part), 106, 107, 109, 111, 112, 113, 116, 118, 119, 120, 124 (as to part), 131 (as to part), 133, 134, 135, 136, 137, 138, 139, 140, 141, 145, 147, 150, 151, 152, 153, 155, 156, 157, 159, 164, 165, 166, 169 (as to part), 170 (as to part), 172, 175, 177, 178 (as to part), 183, 184, 186 (as to part) and 187.

53 The agency’s submissions helpfully divided the documents into the following categories:

(a) internal Treasury documents and extracts from or a precis of legal advice provided by the Crown Solicitor or other legal advisers such as solicitors Brophy, Bridge and Mirow (documents 5-9, 36-39, 41, 63, 64, 151, 169)

(b) correspondence from DPWS to Treasury or vice versa either attaching legal advice and/or containing extracts from or a precis of legal advice provided by the Crown Solicitor or another legal adviser in relation to matters in which the two Departments were jointly providing instructions to the Crown Solicitor or other legal adviser (documents 52, 86, 119, 151)

(c) correspondence from Treasury to the Crown Solicitor providing instructions or seeking advice in relation to matters in which the Crown Solicitor is instructed (documents 16, 20, 22, 98, 136, 140, 183)

(d) correspondence from the Crown Solicitor or another legal adviser to Treasury providing advice (including advice on the progress of negotiations) or seeking instructions in relation to matters in which the Crown Solicitor is instructed (documents 21, 23, 27, 45, 46, 49, 51, 74, 80, 83, 85, 88, 89, 106, 107, 109, 111, 112, 113, 116, 117, 118, 120, 124, 131, 133, 134, 135, 137, 138, 139, 141, 145, 147, 150, 153, 155, 156, 157, 159, 164, 170, 175, 186, 187)

(e) either internal Treasury correspondence or correspondence between DPWS and Treasury which refers to legal advice which it was proposed to obtain (documents 18, 26, 43)

(f) documents addressed to the Premier’s Department but which have been forwarded to Treasury, either from the CSO directly or from Premiers, and contain advice from the Crown Solicitor (documents 166, 172, 177, 184)

(g) documents which appear to be draft documents prepared by the Crown Solicitor and forwarded to Treasury, presumably for comment (documents 47, 110, 165)

(h) miscellaneous – minutes of a meeting recording the legal advice given at that meeting by officers of the Crown Solicitor (document 94); letter from the CSO to the Ministerial Holding Corporation (then owner of the Sydney Markets site) (document 152).

54 Many Tribunal decisions have dealt with the meaning to be attached to the expression ‘legal professional privilege’. It is helpful to repeat here the recent statement of relevant principles given by Higgins JM in Cianfrano v Director-General, Premier's Department NSW & anor [2004] NSWADT 255 (delivered 9 November 2004):

‘29 The principles in relation to legal professional privilege under the common law and under the Evidence Act 1995 (NSW) are well established since the High Court decision in Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 as affirmed in Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner [2002] HCA 49; (2002) 213 CLR 543.

30 I recently dealt with these principles in Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135, and they were also dealt with by the Appeal Panel in Law Society of New South Wales v General Manager, Workcover Authority of New South Wales (GD) [2004] NSWADT 40. The decision of the Appeal Panel is subject to appeal, however, until set aside, the Tribunal is bound by the principles enunciated by the Appeal Panel. In summary, these principles are as follows:

(a) legal professional privilege arises from a lawyer/client relationship and applies to "confidential communications" between the lawyer (as legal advisor) and the client where the dominant purpose of the communication is either:

(i) to enable the legal advisor to give or the client to receive legal advice; or

(ii) to be used in pending or contemplated proceedings. In such cases, confidential communications with third parties (non-agent third party) may also be privileged if they are for use in such proceedings (see Hynes supra at [37] and Law Society of NSW supra at [27]).

...

(b) the privilege also applies to confidential communications between Government agencies and their salaried legal officers which were undertaken for the dominant purpose of obtaining or giving legal advice or for pending or contemplated litigation (see Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 62 and 73);

(c) the privilege extends to advice which is of a non-legal character where that non-legal advice is connected to the giving of legal advice or for contemplated or pending litigation (see Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 at 550; Waterford (supra) at 66; Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 at 245-246);

(d) the privilege extends to copies of documents that are not privileged where the copy is made for the dominant purpose of obtaining legal advice or for use in pending or contemplated litigation (see Australian Federal Police (supra) at 509 and 597).

(e) the privilege does not attach to documents that evidence transactions such as contracts, conveyances, declarations of trust, etc, even if they are delivered to a solicitor or counsel for advice or use in litigation (see Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 86, 112 and 122-123);

(f) any extension of the scope of the privilege must not go beyond the rationale for the privilege (see Law Society of New South Wales (supra) at [33-35] and the authorities cited therein). That rationale being "the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client" (see Fagan v State of New South Wales [2004] NSWCA 182 at [71];

(g) the privilege is waived if the confidential communication is disclosed to a third party, either expressly or inadvertently (see Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 and Attorney General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475).

31 The authorities constantly emphasise that for a document to attract privilege it must be established that it came into existence for and was prepared for the obtaining or giving of legal advice or for use in pending in contemplated litigation (see O’Reilly v Commissioner of State Bank of Victoria [1982] HCA 74; (1982) 153 CLR 1 at 22). As mentioned above, following the decision in Esso (supra), this need not be the sole purpose for which the document came into existence but it must be the dominant purpose.

32 As mentioned above, privilege does not extend to documents that evidence transactions such as contracts. In this regard, in Baker v Campbell (supra) Dawson J said:

"There is no privilege for physical objects other than documents and there is no privilege for documents which are the means of carrying out, or are evidence of, transactions which are not themselves the giving or receiving of advice or part of the conduct of actual or anticipated litigation".

33 In Parker v DCT (Qld) [1985] 1 Qd R 275 at 276, Andres SPJ said:

"Disclosure of the nature of a transaction or matter in respect of which legal advice is sought or given is not privileged unless the disclosure reveals the communication itself, which may occur in the case of detailed bills of costs, for example."

34 In my opinion, the same principle applies to any document exchanged in confidence between a solicitor and the client. For example, where the solicitor forwards to his client a copy of a letter received from the solicitor of the opposing party and the letter is forwarded for the dominant purpose of receiving instructions and giving legal advice the communication of this letter is privileged. However, if the letter is forwarded for information only or another purpose it does not attract the privilege. That is, it is not connected with a confidential communication that is privileged. The same would apply to draft agreements prepared by the solicitor, on instructions from the client, and forwarded to the client in confidence for the dominant purpose of giving legal advice and/or seeking further instructions for the provision of legal advice (see Australian Competition & Consumer Commission v FFE Building Services Ltd [2003] FCA 1181 and Australian Rugby Union Ltd v Hospitality Group Pty Ltd and Ors [1999] FCA 1061).

35 It is also well established that a disclosure of a privileged communication to a third party does not always result in a waiver of a privilege. This is particularly so where the disclosure is for a limited purpose (see Australian Rugby Union Ltd supra, Abigroup Ltd v Akins (1997) 42 NSWLR 623, State Bank of South Australia v Smoothdale (No 2) Ltd [1995] SASC 5070; (1995) 64 SASR 224 and Woollahra Municipal Council v Westpac Banking Corp (1994) 33 NSWLR 529; c.f. Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd [1994] FCA 1314; (1994) 53 FCR 125). This means, for example, where a solicitor ’s communication (e.g. a letter) with an opponent’s solicitor, discloses the contents of a privileged confidential communication between the solicitor and the client, and it is established that the circumstances were such that this disclosure was limited and that the opponent’s solicitor was bound to retain the confidentiality of that communication, then the privilege has not been waived in respect of a disclosure at large.’

Assessment

55 The applicant made some submissions in support of waiver of legal professional privilege on the basis of the public interest in not permitting by way of such a claim the concealment of fraud, corruption or illegality: see Attorney General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500. These submissions were made for the first time at hearing on 25 August 2004. The agency had not been given any advance notice of these grave submissions nor of any evidence in support. The Tribunal refused to deal with the submissions (see transcript of separate ruling, 25 August 2004).

56 Ms Allars’ submissions also contained a detailed treatment of the scope of legal professional privilege. She referred to a detailed description of the different types of communication that are protected by legal professional privilege, as set out by Lockhart J in Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244, 245-6. She drew attention to the principle (before that time in doubt and affirmed in Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54) that the privilege applies to professional legal advice furnished to officers of executive Government by salaried lawyers employed in the public service; provided the lawyers were ‘competent and independent’ (per Brennan J at 70). She also drew attention to the principle, mentioned in the extract from Cianfrano above, that the privilege is able to be claimed in respect of non-legal advice that is given in conjunction with legal advice that bears on what ‘prudently and sensibly should be done in the relevant legal context’ (per Taylor LJ at 330 in Balabel v Air-India [1988] 1 Ch 317. See further DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191; (2003) 203 ALR 348 (Allsop J). She noted that there were a number of documents, especially in groups (d) and (g) that could attract privilege on this basis, as well as on more usual grounds.

57 The Tribunal has scrutinised the documents. It has had regard to the information provided in Ms Power’s open affidavit and the submissions of Ms Allars; and has given particular attention to those documents to which the applicant directed questions in cross-examination of Ms Power, in particular documents 5, 9, 38, 39, 41, 52, 63 and 64.

58 The Tribunal is satisfied that the exemption is established in relation to all the documents or parts of documents in dispute.

(3) Business Affairs

59 Clause 7(1)(c) of Schedule 1 is relied upon:

‘7 Documents affecting business affairs

(1) A document is an exempt document: ...

(c) if it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and

(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made.’

60 Documents affected: Documents 4, 8 (as to part), 26 (as to part), 28 (as to part), 29, 33 (as to part), 35, 39 (as to part), 42 (as to part), 43 (as to part), 44 (as to part), 53 (as to part), 114 (as to part), 160 (as to part), 161 (as to part).

61 Ms Power’s open affidavit gives further background in relation to these claims for exemption. There is also some additional material in her confidential affidavit. Documents 4, 8, 33, 44 and 53 were addressed exclusively in the confidential affidavit. The remainder of the documents in dispute are addressed in the open affidavit with some the subject of supplementary submissions in the confidential affidavit.

62 In contrast to the terms of the Cabinet documents exemptions and the legal professional privilege exemption, the business affairs exemption includes a discretionary element. It is not enough that the document falls within the factual description given in the exemption provision. In this instance the decision-maker must engage in a two-step process: one, does the document fit the factual description in cl 7(1); and two, does the evidence satisfy the decision-maker that disclosure ‘could reasonably be expected to have an unreasonable adverse effect on those [business, professional, commercial or financial] affairs’ or ‘could reasonably be expected ... to prejudice the future supply of such information to the Government or to an agency’.

63 The Tribunal is satisfied that the commercial affairs of an agency can include transactions such as the leasing and sale of property vested in it, and related negotiations: see also Raethel v Director-General, Department of Education and Training [1999] NSWADT 108 at [46-47].

Assessment

64 D4: This document contains information bearing on the business and professional affairs of both the agency and another person. The Tribunal is satisfied from the reasons given in the confidential affidavit and scrutiny of the document that disclosure could reasonably be expected to have an unreasonable adverse effect on the relationship between the agency and the other person and would also prejudice the future supply of information of the kind contained in the document.

65 D8 (as to part) and D44 (as to part): In the case of D8, the disclosed elements of the document reveal that it is a memorandum dealing with mechanisms for protection for the lessor (the agency) against default in payments by the lessee (SML); and indicate that the deleted matter (one sentence) concerns a suggestion made by the lessee in that regard. The agency contends that the substance of the suggestion should not be released for reasons set out in its confidential affidavit. In the case of Document 44, the same kind of material is deleted for the same reasons. The Tribunal is satisfied, on balance, that disclosure could reasonably be expected to have an unreasonable adverse effect on the agency’s future conduct of its commercial affairs.

66 D26 (as to part), D43 (as to part) and D53 (as to part): The justification given for not disclosing certain parts of these documents has to do with the need for confidentiality as to certain aspects of the valuation process. Ms Power noted that D26 provides advice on ways the Government’s valuer might assess the current market value of the property; and how different methods of valuation might reflect its interests. The document also seeks to assess how the other party might instruct its valuer. Substantial portions of the document have been released. Mr Power noted that the deleted parts related to the property’s current market value and marriage value (the value resulting from the sale of the two adjoining properties). Specifically, she has asserted that if the Government’s valuation strategies were known to future purchasers, that would be likely to affect the Government’s ability to negotiate the best market price for those assets. A similar justification is given in relation to Document 53 (as to part). In the case of Document 43 (as to part), she said that the deleted elements related to the way that the Australian Valuation Office was instructed to value the land and considered that this was also exempt for the reasons given in relation to Document 26.

67 The submissions are accepted. The Tribunal is satisfied that disclosure could reasonably be expected to have an unreasonable adverse effect on the commercial affairs of the Government in that its approach to developing a price for negotiation if known might affect the conduct of potential buyers in a way adverse to the public’s interest in obtaining an appropriate price.

68 D28 (as to part): In the open affidavit Ms Power noted that the names of debtors and creditors of SMA as at the date of privatisation have been deleted. Here the disclosure relates to the financial affairs of other persons. The primary information is disclosed – the amount itself and whether it is due or owed. On balance, the Tribunal accepts the submission that disclosure could reasonably be expected to have an unreasonable adverse effect on the financial affairs of those persons.

69 D29: This document of several pages is an internal communication made in confidence to the Government by its consultant (PWC). Ms Power said that it was not intended for dissemination to third parties. Strict confidentiality was also a term of the consultancy agreement. She submitted that there was a danger of misconstruction of the information by a third party without a full knowledge of the matters under consideration and such misconstruction could, she said, inappropriately damage the consultancy’s reputation.

70 The Tribunal is not satisfied that this basis for refusing to release the document is made out. However, an alternative submission was put that the Tribunal does accept. In that regard, Ms Power said disclosure would reveal information about the way in which parties negotiated and their negotiation strategies which would impede future negotiations undertaken by any of the parties. This submission involves broadly similar arguments to those accepted in respect of Documents 26 and 43. The Tribunal has examined the document, and accepts that the claim for exemption is made out on that basis.

71 D33 (as to part): Two points - (h) and (i) - of the memorandum are deleted; otherwise the memorandum has been disclosed. The deleted passages refer to negotiating positions that the Government might take. The objection is similar to that which has been accepted in connection with documents 26, 29 and 43. The Tribunal is satisfied that the information is information relating to the commercial affairs of Treasury the release of which could reasonably be expected to have an unreasonable adverse effect on Treasury’s conduct of future sale negotiations.

72 D35: This is a memorandum between officers attaching an adjustment statement prepared by PWC, dealing with the allocation of liabilities as between SMA and SML. Ms Power said the document if disclosed ‘would enable an understanding of SML’s cash position at the time that it was created’. She said that: ‘The information is considerably more detailed than would be available to the public in the annual reports of the SML and would enable potential competitors to have a better understanding of the business structure of SML.’ She said that when consulted PWC also asked that the document not be released.

73 The Tribunal sees no difficulty in permitting substantial release of the document. In the Tribunal’s view it is simply a set of adjustments connected with the sale covering such matters as adjustment of employee leave entitlements for those employees moving from the old body to the new body, adjustments of rentals paid in advance to the old body and the like. This is not the kind of detailed information that one would expect to find in a general public announcement, but, in the Tribunal’s view, it is difficult to identify what precisely the unreasonable adverse effect or future prejudice is that might flow from release now of this information. The Tribunal qualifies this view in two respects: one, the names that appear in the heading of item 15 and in the table under item 16 should be deleted for reasons given as to the deletion of the names in Document 28; and two, the final paragraph 18 should be deleted, as its contents are such, the Tribunal considers, that release might have an unreasonable adverse effect on the Government’s ability to negotiate the final settlement of a deal with parties with which it might deal in future. There should be consequential deletions in relation to the attached table.

74 D39 (as to part): Ms Power said in the open affidavit that this document refers to the lease agreement in the Crown Property Portfolio for Sydney Fish Markets Pty Ltd, and therefore relates to the business affairs of NSW Treasury. Further evidence is given in the confidential affidavit. For reasons given in the confidential affidavit this submission is accepted.

75 D114 (as to part), D160 (as to part) and D161 (as to part): These three documents relate to the terms of the relationship between the professional negotiator (Mr Max Bowen) appointed by DPWS to assist the Government. All material has been disclosed with the exception in the case of Document 114 of deletion of the hourly rate in each of the three documents. This has been deleted on the basis that it relates to Mr Bowen’s professional affairs and release ‘would allow his competitors to understand and perhaps undercut his pricing structure’. The Tribunal accepts the submission. See, to similar effect, Neary v State Rail Authority [1999] NSWADT 107.

76 As Ms Allars has noted in her submissions, though the information in the above documents was recorded some time ago, release would reveal strategies which continue to be used by the Government in obtaining the best outcome for these asset sales and so the information remains current and sensitive today.

(4) Other Claims

77 The remaining documents in dispute are the subject of claims for exemption under other provisions.

(a) Internal Working Documents

78 Clause 9 of Schedule 1 provides:

‘9 Internal working documents

(1) A document is an exempt document if it contains matter the disclosure of which:

(a) would disclose:

(i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or

(ii) any consultation or deliberation that has taken place,

in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and

(b) would, on balance, be contrary to the public interest.

(2) A document is not an exempt document by virtue of this clause if it merely consists of:

(a) matter that appears in an agency’s policy document, or

(b) factual or statistical material.’

79 Documents affected: Documents 102 (as to part), 169 (as to part), 171, 173 (as to part) and 182 (as to part).

80 There was no evidence filed in support of these claims. The arguments in support of the application of these exemptions are entirely to be found in the submissions of Ms Allars, counsel for the agency.

81 The onus lies on the agency to satisfy the Tribunal that release would ‘on balance’ be contrary to the public interest.

82 As to the interpretation to be given to the terms of cl 9(1), the recent analysis undertaken by Forgie DP in Toomer v Department of Agriculture, Fisheries and Forestry, previously cited, at [111] and following, though it involves the equivalent Commonwealth provision, is apposite. The NSW exemption is a simplified version of the Commonwealth provision. None of the differences in wording are significant, at least for the purpose of the present case. Forgie DP’s analysis emphasises the breadth of the internal processes of discussion of a proposed course of action that might be embraced by the words ‘consultation’ or ‘deliberation’; and the fluidity of the matters that may be relevant at any time to a consideration of the ‘public interest’. The whole of her analysis will not be set out here.

83 The Tribunal adopts the following observations of Forgie DP on the public interest question:

‘115. While the expression "public interest" appearing in s. 36(1)(b) [the Commonwealth provision] is not defined, it is an expression that has received a considerable amount of consideration over the years both in the context of the FOI Act and otherwise. In the very early days of the operation of the FOI Act, Davies J set out a number of circumstances in which it will be "...more likely that the communication should not be disclosed", or in which disclosure "tends not to be in the public interest" (Re Howard and Treasurer of the Commonwealth [(1985) 7 ALD 626]). Since then, there have been many authorities that have considered these circumstances. Many of them were carefully analysed by the Queensland Information Commissioner in Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2, (1993) 1 QAR 60 at paragraphs 101 to 145. I will not repeat that analysis here but suffice it to say that they tend more to regard the observations made in Re Howard as "... empiric conclusions ... not intended to be used as determinative guidelines for the classification of information" (Re Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589 at page 603).

116. Instead, the cases emphasise, as did Davies J in Re Howard, that the circumstances of each case must be examined. Indeed, the circumstances must be considered in light of prevailing views for, as Beazley J said in Australian Doctors' Fund Ltd v Commonwealth of Australia [1994] FCA 177; (1994) 49 FCR 478, it is not an expression that is:

"... The question of what constitutes the public interest is not a static or circumscribed notion. As was said in D. v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171 at 230, per Hailsham LJ "the categories of public interest are not closed...". See also Sankey v Whitlam per Stephen J at 60." (page 489)

117. For all that, it is relevant to consider some cases in which the notion of "public interest" has been considered and applied. It was considered by Beaumont J in Harris when he said:

"In evaluating where the public interest ultimately lies in the present case, it is necessary to weigh the public interest in citizens being informed of the processes of their Government and its agencies on the one hand against the public interest in the proper working of Government and its agencies on the other (see Sankey v Whitlam [1978] HCA 43; (1978) 21 ALR 505; 142 CLR 1; Commonwealth of Australia v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 32 ALR 485; 147 CLR 39 at 52)." (page 561)

118. After considering authorities from the United States of America, Beaumont J continued:

"Given that the public interest is not a static concept, in my opinion, full disclosure of the reports, at this stage, would, on balance, be contrary to the public interest. The unchallenged evidence is that, in submitting her ‘interim’ reports, Miss Pearlman did not seek information or comment from the applicant. No doubt, this course was adopted for sound practical reasons, presumably in the interests of expedition. But an incomplete inquiry conducted on such a limited footing could only lead to the formation, at that point, of views or opinions of a tentative or provisional kind (cf Blackshaw v Lord [1983] 3 WLR 283 at 301). However, publication of such views or opinions, provisional as they may be, could create a misleading, perhaps unfair, impression in the minds of readers who do not have the benefit, if there be any, of knowing the response of the applicant. The formation of such impressions in the public mind could, in turn, influence the decision-makers in their review of the situation. In my opinion, the provisions of s 36(1) are satisfied in the present case so far as any opinion, advice or recommendation is expressed in the reports." (page 563)

119. Beaumont J’s approach has been adopted and applied in various cases in the Tribunal. The essential points made by those cases were summarised in Re Kamminga and Australian National University [1992] AATA 84; (1992) 26 ALD 585 (O'Connor J, President, Mr Attwood and Mr Julian, Members) when the Tribunal said in considering public interest in the context of s. 36(1)(b):

"For para (b) to apply, it is necessary for the tribunal to find that disclosure would be contrary to the public interest. It is not the case that the tribunal has to be satisfied that disclosure is in the public interest: see Re Burns and Australian National University (1984) 6 ALD 193; 1 AAR 456 at 458. Deciding whether disclosure is contrary to the public interest requires a balancing of competing interests including the public interest in the applicant's right to know (Re Peters and Department of Prime Minister and Cabinet (No 2) (1984) 5 ALN N306: Re Burns and Australian National University (1984) 6 ALD 193; 1 AAR 456), which is a different thing to the applicant's personal interest in knowing. The tribunal must balance this against any adverse effect disclosure might have on the proper working of Government or its agencies: Harris v Australian Broadcasting Tribunal [1983] FCA 242; (1983) 50 ALR 551; unsuccessfully appealed on other grounds at [1984] FCA 8; (1983) 51 ALR 581. The cases discuss a number of ways in which such an adverse effect might arise. However, it is necessary to consider the circumstances of each case. In the case of the university the public interest includes the maintenance of a high standard of scholarship. Considerations which apply to documents created for the purpose of policy making at a high level are not applicable in the present case." (page 588)’

Assessment

84 All of the documents the subject of claim under this heading have already been the subject of examination in connection with a claim made under the Cabinet documents exemptions. The Tribunal has upheld the claims made under the Cabinet documents exemptions with one qualification (as to D102; see further next paragraph). The alternative claims made under this heading will be briefly examined.

85 D102: Most of this document has already been exempted on the basis of the Cabinet documents exemption. The first three pages, as previously noted, are not covered by that exemption. Those three pages contain material of the kind to which the present exemption is directed. The Tribunal is satisfied that it would be contrary to the public interest for this material to be revealed. Were the covering pages to be released the applicant would become aware of significant aspects of the content of the proposed Cabinet submission. This would defeat the public interest in the secrecy of the Cabinet process.

86 D169 (as to part): The first two pages of this briefing note are the subject of this claim. The same two pages have already been found exempt by reference to the Cabinet documents exemption, while the balance of the document has been found exempt on the basis of the legal professional privilege exemption. The first two pages clearly contain deliberative matter, and it also falls subject to the present exemption. It would be contrary to the public interest in the secrecy of Cabinet processes for this document to be released.

87 D171: This document is a marked up version of Cabinet minutes. It has already been found exempt under sub-category (b) of the Cabinet documents exemption. It contains officer recommendations for amendment to the text of a draft submission. It would be contrary to the public interest in the secrecy of Cabinet processes for this document to be released.

88 D173 (as to part): This is also a marked up version of a Cabinet minute intended for submission to the Budget Committee of Cabinet. Again, it would be contrary to the public interest in the secrecy of Cabinet processes for this document to be released.

89 D182 (as to part): This document is an internal memorandum providing an update to senior officers and the Treasurer’s office on developments in the negotiations on price. Matters of this kind are highly sensitive, and it is clear from other material that this issue was regularly under the notice of the Budget Committee of Cabinet. The exemption is made out, having regard especially to the public interest in secrecy of the Cabinet process; and in protecting negotiations over the price of significant assets (see for example Freeland v General Manager, Liverpool City Council [1999] NSWADT 95).

(b) In Confidence

90 Clause 13(a) of Schedule 1 provides:

‘13 Documents containing confidential material

A document is an exempt document:

(a) if it contains matter the disclosure of which would found an action for breach of confidence, ...’.

91 Document affected: Document 62.

92 This document is the Agreement between the Minister and SML for the Sale of the Assets and Business of SMA to SML. In the open affidavit Ms Power states that cl 16(1) of the document provides that the terms of the Transaction Documents (which are defined to include the Agreement itself) are to be kept confidential and must only be released to third parties by the written mutual consent of the other party to the Agreement. Ms Allars notes this is a clearly defined contractual obligation.

93 In Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department [2002] NSWADT 277, the Tribunal explained the scope of this exemption in the following way:

‘52 In Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1993) 1 QAR 279 it was held that the words "for an action of breach of confidence in the Queensland FOI Act should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance was placed on one or more of the following causes of action: (i) a cause of action for breach of an obligation of confidence; (ii) a cause of action for breach of a contractual obligation of confidence; (iii) a cause of action for breach of a fiduciary duty of confidence and where account is taken of the recognised defences to an action for breach of confidence.

53 It was further held that the test of exemption was to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff possessed of appropriate standing to bring a suit to enforce an obligation of confidence said to be owed to that plaintiff in respect of information held by the agency to which the relevant FOI application was made. If the hypothetical cause of action was an equitable action for breach of confidence, five matters had to be established: first, the information must be capable of being specifically identifiable as information which is secret rather than generally available; second, the subject matter of the obligation of confidence must not be trivial or useless or generally known; third, the information must have been communicated in circumstances such as to fix the recipient with an equitable obligation not to use the information in an unauthorised way; four, it must be established that the disclosure of the information would constitute an unauthorised disclosure; and, five, it must be established that the giver of the information would suffer a detriment, not necessarily pecuniary, such as loss of privacy or embarrassment.’

Assessment

94 In the present instance, the exemption is, the Tribunal considers, made out.

(c) Privacy of Personal Affairs

95 Clause 6 of Schedule 1 provides:

‘6. Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.’

96 Documents affected: Documents 178 (as to one deletion) and 186 (as to one deletion).

Assessment

97 Both documents contain a ‘Positive Covenant’. D178 has already been the subject of a claim for exemption on other grounds, which has been upheld. D186 has, apart from the deletion now in issue, been released. At two points of the document a private home address is recorded by the officer who formally witnessed the instrument that forms part of the document. As there was no objection taken by the applicant to the withholding of this information, the Tribunal concludes that the disclosure of the private address of the officer would be unreasonable in the circumstances. The Tribunal has noted in this regard the important distinction drawn in Perrin’s case between information relating to the conduct of public servants in connection with their official responsibilities (not protected by cl 6) and information relating to the personal affairs (open to be protected by cl 6): see Commissioner of Police v The District Court of NSW (‘Perrin’s case’) (1993) 31 NSWLR 606 esp at 625 per Kirby P.

* * * *

98 In relation to the exemptions considered which involve a balancing of interests (i.e. the business affairs exemption, internal working documents exemption and the personal affairs exemption), the Tribunal has had regard to the strong views expressed by the applicant and Mr Saggers as to the desirability of them (and those that share their views) having fuller information as to the decision-making process that led to what they have described as the privatisation of the Sydney Markets.

99 In Ms Allars’ view this is an issue that they can pursue if they wish through shareholder actions complaining of lack of disclosure. It is not, she submitted, a public interest consideration to be compared with the public interest in maintaining the confidentiality of the leasing and sale process.

100 While at the agency level, there was relatively limited disclosure to the applicant, a much greater body of material has been released to him in the course of the proceedings before the Tribunal. That body of material gives the applicant, in the opinion of the Tribunal, a significant amount of information in relation to the detail and the thinking of government in relation to the leasing and sale of the Sydney Markets.

101 Account should be taken of the extent of the material disclosed. Moreover, there is no evidence of any significance in this case that there is, for example, any widespread community concern or state of disquiet that should itself be taken into account in considering the question of the balance to be struck.

102 Ultimately the agency has sought mainly to protect, by claims to exemption, the immediate briefing environment surrounding the Treasurer and the processes of the Budget Committee of Cabinet.

SUFFICIENCY OF SEARCH

103 The applicant questioned the sufficiency of the agency’s search. In Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213, I said:

‘50 Sufficiency of search challenges are difficult ones for applicants to establish. The agency will ordinarily put on evidence from relevant personnel. ... The applicant does not have inside access to the records system, and is left ... to ask questions that might demonstrate some weakness in what was done. ...

51 Ultimately the question is:

‘Whether the conclusion [the agency] reached, that the agency did not hold any documents relating to the applicant other than the ones released ... was sound. If so, it would be open to the Tribunal to conclude that there were no other documents held by the agency in relation to the request, that the request had been met and consequently there was no basis for the application for review’: B v Commissioner of Police [2000] NSWADT 168 at [13].

52 To similar effect, the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994); [1994] QICmr 7; (1994) 1 QAR 464:

‘18. It is my view that in an external review application involving sufficiency of search issues, the basic issue for determination is whether the respondent agency has discharged the obligation, which is implicit in the FOI Act, to locate and deal with (in accordance with Part 3, Division 1 of the FOI Act) all documents of the agency (as that term is defined in s.7 of the FOI Act) to which access has been requested.

19. In dealing with the basic issue referred to in paragraph 18, there are two questions which I must answer:

(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined ... the FOI Act);

and if so,

(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.

22. With regard to the second question set out in paragraph 19 above, I agree with the view expressed by the Commonwealth Administrative Appeals Tribunal, in its decision on a sufficiency of search case in Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163 at p.167, that:

"the adequacy of the search effort made to locate the document should be judged by having regard to what was reasonable in the circumstances."’

53 In Beesley v Commissioner of Police [2000] NSWADT 52 at [19] the Tribunal said:

‘All the Tribunal can do is 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 cases to the Ombudsman.’ ’

104 Ms Power in her affidavit filed 24 August 2004 dealt with the steps taken by the agency in response to the applicant’s request. She explained the electronic file and document registration system operated by the agency. She referred to the terms of the two access requests, and how she went about actioning them. She referred to the search routines that were run and the various search words used. She also contacted Mr Hucker, the officer responsible for the sale process. Ultimately she determined that 295 documents fell within the scope of the two applications. She then went on to refer to processes that are followed in respect of Cabinet documents and preparations for Budget subcommittee documents. In this part of her affidavit she was seeking to explain the balance that applies between the creation of written documents and the use of oral briefings.

105 Ms Power gave oral evidence and was cross-examined on this issue. The applicant referred to the Schedule of Documents that he had received from the Department of Premier and Cabinet in relation to his access application to that Department (one that has already been dealt with by the Tribunal). He questioned Ms Power as to apparent discrepancies between the Premier and Cabinet schedule and her agency’s schedule in respect of documents which, on their face, should be found in both agencies (for example, agency briefing notes to Premier and Cabinet) but where the Premier and Cabinet list was more complete than her agency’s list. Ms Power conceded that there were some discrepancies where it would appear her searches had not been able to locate documents referred to in the Premier and Cabinet schedule that she would have expected to find. On the other hand it was clear that a number of the applicant’s questions were simply seizing on differences in the Document Descriptions given in the two schedules to suggest that different documents may have been identified, when it was clear that the same document was being referred to, with somewhat different descriptions being chosen by the different agencies. She was also able to explain that some documents found on the Premier and Cabinet schedule would not have passed through her agency or given rise to copies in the possession of her agency.

106 As to the documentation released by the agency in response to his requests, the applicant contended that there must be a press release that provided the basis for the article written by Freya Peterson in the Sydney Morning Herald (the event giving rise to the second access application). Obviously, there is no necessary connection between a story about government and the existence of a press release.

107 There is no reason, in the Tribunal’s view, to doubt the evidence of Ms Power. The file organisation practices she describes are of a usual kind, as were the search routines that she undertook. The questions directed to her by the applicant in cross-examination identified some minor instances of documents not being found that might reasonably have been expected to be found. These instances do not justify a finding that the search was less than sufficient.

108 The Tribunal is satisfied that a sufficient search was undertaken.

Order

Matter No. 043026

1.Determination under review affirmed, except in relation to Document 35.

2. Document 35 to be disclosed with the exception of the parts referred to in paragraph [73] of these reasons. This decision to take effect after 28 days.

Matter No. 043234

1. Determination under review affirmed.