Retain Beacon Hill High School Committee Inc. v NSW Department of Commerce [2006] NSWADT 129 (2 May 2006)

Last Updated: 2 May 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Retain Beacon Hill High School Committee Inc. v NSW Department of Commerce [2006] NSWADT 129


PARTIES: APPLICANT
Retain Beacon Hill High School Committee Inc.
RESPONDENT
NSW Department of Commerce



FILE NUMBERS: 053325

HEARING DATES: 18/04/06

SUBMISSIONS CLOSED: 18/04/2006



DECISION DATE: 02/05/2006

BEFORE: Handley R - Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1982 (Cth)
Freedom of Information Act 1989

CASES CITED: Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52
Cianfrano v Director-General, Department of Education and Training [2005] NSWADT 7
David Miles Connolly v Department of Finance (14 June 1994, AAT No 9571)
Freeland v General Manager, Liverpool City Council [1999] NSWADT 95
Leichardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37
Vincent Neary v State Rail Authority [1999] NSWADT 107

APPLICATION: access to documents - business affairs
Freedom of Information Act - access to documents - business affairs

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
R Cianfrano, agent

RESPONDENT REPRESENTATIVE: RESPONDENT
A Johnson, solicitor

ORDERS: (1) The Tribunal affirms the decision under review in relation to documents 4, 5, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 20, 21, 23 and 24 (2) The Tribunal sets aside the decision under review in relation to documents 1 and 2 and, in substitution, orders the Respondent to release those documents without exemptions to the Applicant, the Tribunal’s order for their release to take effect 28 clear days after the publication of this decision
(3) The Tribunal sets aside the decision under review in respect of documents 3, 6, 13, 18, 19 and 22 and remits the exemptions claimed in respect of those documents to the Respondent for reconsideration in accordance with these reasons.


Reasons for Decision:

REASONS FOR DECISION

Background

1 In June 2001, the NSW Minister for Education announced the proposed closure of Beacon Hill High School. Following this, the Department of Education and Training (‘DET’) entered into negotiations with Landcom with a view to Landcom purchasing the site. During the course of these negotiations, the DET obtained valuations for the site from the State Valuation Office which was a branch of what was then the Department of Public Works and Services (‘the DPWS’) and is now the NSW Department of Commerce (‘the Department’). The DET also received assistance from DPWS in assessing offers made to it by Landcom. The DET have now exchanged contracts for the sale of the site to Landcom, contingent on a number of events. Settlement has not yet taken place.

2 On 28 February 2005, Sue Covey, the Secretary of the Retain Beacon High School Committee Incorporated (‘the Committee’), acting on behalf of the Committee, applied to the Department requesting access to "[a]ll documents and communications in relation to the NSW Government High School defined as Beacon Hill High School from 1 January 2000 to 28 February 2005". This application is one of a number of applications made by the Committee to NSW government departments/agencies relating to the site of the former Beacon Hill High School.

3 On 15 July 2005, the Department agreed to release some of the relevant documents, but refused access to others or parts of others pursuant to s 25 and Sch 1, Pt 2, cl 7 and cl 15 of the Freedom of Information Act 1989 (‘the FOI Act’), on the ground that they contained exempt information. In its letter dated 15 July 2005, the responsible departmental officer said her decision was based on the following reasons:

"1. The documents and what is contained in the documents.
2. The process for the sale of the site has not yet been finalised including development and valuation strategies.
3. Department of Education and Training and Landcom have not authorised the release of the refused information.
4. The refused information has commercial value to the government including the agencies and disclosure could reasonably be expected to destroy or diminished [sic].
5. Refused information includes references to valuation figures and if released could reasonable [sic] be expected to cause loss of commercial advantage to the government.
6. Release would reduce the government’s ability to receive maximum value of the site and therefore public benefit."

4 This decision was largely confirmed on an internal review on 19 August 2005, although further documents were released. On 23 September 2005, Ms Covey applied to the Tribunal for a review of that decision. Further documents were also released on 1 November 2005 and 28 March 2006 during the course of pre-hearing proceedings before the Tribunal.

The Relevant Law

5 Pursuant to s 16(1) of the FOI Act, "[a] person has a legally enforceable right to be given access to an agency’s documents". However, s 25(1)(a) permits an agency to refuse access to a document if it is an "exempt document", the onus being on the agency to establish this. Section 25(4) provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and it appears to the agency that the FOI applicant would wish to be given access to such a copy.

6 Section 6(1) defines ‘agency’ as including a local authority, and ‘exempt document’ as including a document referred to in any one or more of the provisions of Sch 1. The exempt documents in Sch 1 include, relevantly, those specified in cl 7 and cl 15, as follows:

7. Documents affecting business affairs
(1) A document is an exempt document:

(a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or
(b) if it contains matter the disclosure of which:
(i) would disclose information (other than trade secrets) that has a commercial value to any agency or any other person, and
(ii) could reasonably be expected to destroy or diminish the commercial value of the information, or

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

(i) would disclose information (other than trade secrets 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.
15. Documents affecting financial or property interests
A document is an exempt document if it contains matter the disclosure of which:

(a) could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency, and
(b) would, on balance, be contrary to the public interest.

7 Clause 7. Relevantly, for a document to be exempt under cl 7(1)(b), first, the document must contain information that has a "commercial value" and, second, disclosure of that information "could reasonably be expected to destroy or diminish the commercial value of the information". Thus, the information must have value in terms of some commercial activity in which the agency or other person is engaged and, although that value need not be quantifiable, it must have substance and not be merely "minimal or nominal" (Leichardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37 (‘the Leichardt Municipal Council case’), at par 54). In Freeland v General Manager, Liverpool City Council [1999] NSWADT 95 (‘Freeland’), the Tribunal held that the disclosure of land valuations obtained by the Council in relation to the sale of a site would disclose information of commercial value to the Council, which would be reduced by their disclosure and could prejudice the sale of the property. The valuation documents were, therefore, found to be exempt documents.

8 For a document to be exempt under cl 7(1)(c), first, the document must contain information concerning the business, professional, commercial or financial affairs of any agency or other person and, second, relevantly, disclosure of the information could reasonably be expected to have an unreasonable adverse effect on those affairs. In Vincent Neary v State Rail Authority [1999] NSWADT 107, at par 35, the President of the Tribunal, O’Connor DCJ, said that the Tribunal must adopt an objective approach in assessing what effect can reasonably be expected from the disclosure of the information, and the expectation must be more than a mere risk. In Cianfrano v Director-General, Department of Education and Training [2005] NSWADT 7 (‘Cianfrano’), at par 63, O’Connor DCJ said that "the commercial affairs of an agency can include transactions such as the leasing and sale of property vested in it, and related negotiations". He found, at par 67, that the release of documents likely to reveal the Government’s approach to developing a price for negotiation in the sale of an asset could reasonably be expected to affect the conduct of potential purchasers in a way adverse to the public’s interest in obtaining an appropriate price.

9 Clause 15. In the Leichardt Municipal Council case, at par 55 to par 56, the Tribunal emphasised that for an adverse effect to be "substantial" requires that it be serious or significant, and "there must be some evidence rather than merely an expressed concern, to satisfy the Tribunal of the necessity to refuse documents under this clause". In David Miles Connolly v Department of Finance (14 June 1994, AAT No 9571), a decision of the Administrative Appeals Tribunal (‘the AAT’) on a provision equivalent to cl 15 in the Commonwealth Freedom of Information Act 1982, Deputy President McMahon held, at par 27, that while, prima facie, there was a public interest in the disclosure of documents concerning Australia’s uranium stockpile, this was outweighed by the public interest in avoiding a diminution in value of the Commonwealth’s property and, more importantly, avoiding a diminution in the price for uranium received by Australia’s uranium producers that could reasonably be expected from the release of the documents.

Evidence

10 The Department filed the 24 confidential documents it claims are exempt or partially exempt, described in the Schedule of Exempt and Partially Exempt Documents. The Department also called three witnesses each of whom provided a statement of evidence. Jacob Hoogesteger, Senior Development Manager with the Department, provided a statement of evidence dated 16 February 2006 and a supplementary statement dated 22 March 2006. He gave evidence of the Department’s involvement in the DET’s proposed sale of the Beacon Hill High School site to Landcom and his advice to the DET on proposals by Landcom including as to the valuation of the site. Essentially, the Department acted as a consultant to the DET in relation to its negotiations with Landcom, especially as to the appropriate price and contractual terms. In cross-examination, Mr Hoogesteger said he would have discussed the price for the site with Landcom but would not have revealed the Department’s view. His involvement with the matter ended in July 2002 when he recommended that the DET accept an offer from Landcom.

11 Matthew White, Landcom’s Business Development Manager, provided both an open statement and a confidential statement dated 17 February 2006. Mr White stated that while Landcom is a State owned corporation, it also both works with and competes with the private sector in the purchase and development of land, including in residential housing development. Mr White confirmed that contracts for the purchase of the Beacon Hill High School site by Landcom had been exchanged with the DET, but settlement, which is contingent on a number of events, had not yet occurred and the terms of the contract have not been disclosed publicly. In his confidential statement, Mr White explained why he considered the terms of the contract to be exempt information under the FOI Act.

12 Mr White said Landcom had intended to develop the land for sale to private residential purchasers – including obtaining development approval and contracting for the construction of site infrastructure - but might now sell the land on to a private developer subject to appropriate contractual conditions. Mr White said he has examined the documents claimed to be exempt, many of which emanate from Landcom. They contain commercial information that would damage Landcom’s business if released. In particular, certain documents reveal Landcom’s estimated project costs and returns, public disclosure of which would significantly undermine the tendering process that Landcom uses to obtain the most competitive prices for the completion of works. A potential tenderer who knows Landcom’s projected costs and returns is likely to frame its offer accordingly, with the result that the tendering process would not be truly competitive and Landcom’s ability to get the best return on its investment would be frustrated.

13 Mr White said certain documents reveal a proposed purchase price for the site. Even if not the final price included in the contract of sale, a skilled person could estimate the likely final price. If Landcom subsequently decides to sell the land on to a private developer, this would give potential private developers an excellent idea of the price that would be acceptable to Landcom with the result that the competitive process of achieving the best sale price would be distorted.

14 Mr White stated that certain documents also refer to the fee paid by Landcom to the DET to secure its option to purchase the land; certain documents set out the proposed payment arrangements with the DET. If this information were disclosed, it would allow private competitors to estimate what Landcom might pay for an option or how it would structure its payment arrangements in future projects, thereby allowing private competitors to outbid Landcom.

15 In cross-examination, Mr White said he is not aware of documents released by Warringah Council in relation to Landcom’s Development Application in respect of the Beacon Hill High School site lodged with the Council.

16 Phillip Peace, Director, Asset Planning and Support, with the DET, provided both an open statement and a confidential statement dated 16 February 2006, together with a supplementary statement dated 22 March 2006. Mr Peace said the Minister approved the disposal of the former Beacon Hill High School site in October 2001. Landcom was the preferred purchaser of the land because it specialises in residential development. Landcom also agreed to comply with the DET’s requirement that the site not be purchased by a non-government school. The DPWS assisted the DET in assessing offers made by Landcom to ensure the DET received market value for the site and the most advantageous contractual terms. The DPWS’ involvement ceased in July 2002 following its recommendation that the DET accept Landcom’s offer for the site.

17 The Minister approved the sale of the built section of the former Beacon Hill High School site to Landcom for 25 to 30 residential allotments in July 2003. The DET intends to transfer the management of the School’s playing fields to Warringah Council. Contracts for the sale of the built section of the land to Landcom have been exchanged but settlement is contingent on a number of events and has not yet taken place. Mr Peace said disclosure of the terms of the contract would reveal information that he believes to be exempt under the FOI Act. Until settlement has taken place, the sale price for the land will not be disclosed to the public.

18 Mr Peace said disclosure of the way in which possible sale prices have been reached, about the kinds of sale options considered, or the planning and site constraints identified, would damage the DET’s commercial affairs. It is possible the sale to Landcom may not proceed. If a potential purchaser learns of or can make an informed estimate of the value of the site, likely purchase arrangements in which the DET would be interested, or limitations on the site, this will reduce the DET’s bargaining power with the potential purchaser and could reasonably be expected to lead to a reduction in the price realised by the DET if it ultimately sells the site to a developer other than Landcom.

19 In cross-examination, Mr Peace agreed that certain information contained in documents 3, 13, 18 and 19 is now a matter of public record because this is part of the Development Application now before Warringah Council. However, the DET maintains that the documents continue to be exempt to the extent that they contain information that is not contained in the publicly released documents.

The Department’s Submissions

20 The Department submits that the evidence of Mr Peace and Mr White is that the contract for the sale of the site to Landcom is conditional and may not proceed to settlement. Until settlement has taken place, any information that would allow a knowledgeable person to ascertain the sale price that the DET would consider acceptable would be likely to significantly damage the DET’s prospects of negotiating an equal or better price from another prospective purchaser. That information is commercially valuable to the DET and its disclosure would destroy or diminish its commercial value, as in the case of Freeland. Similarly, if Landcom decides to sell on the land to a private developer, disclosure of the amount Landcom paid for the land would be expected to influence any offer made by a developer.

21 The Department submits that specified documents containing valuations of the site, sale prices discussed during negotiations, and the final agreed sale price are exempt under cl 7(1)(b). Similarly, documents containing information about the number and size of lots and the option fee paid by Landcom are exempt under cl 7(1)(b) because this information would, respectively, allow a prospective purchaser to estimate future development returns or to estimate the purchase price paid by Landcom for the site.

22 The Department also submits that specified documents containing information about the kinds of sale options the DET was considering would allow a prospective purchaser to better understand the purchase arrangements that the DET would consider favourably. This information is commercially valuable to the DET and would destroy or diminish its ability to negotiate a sale effectively with another purchaser. The information is also valuable to Landcom because its ability to structure purchase arrangements in particular ways is part of what makes it an attractive and therefore competitive purchaser.

23 The Department submits that specified documents that reveal planning and other constraints on the site identified by Landcom are of commercial value to the DET because this information might alert a potential purchaser to such constraints and therefore affect the purchase price. Similarly, the disclosure of specified documents containing details of Landcom’s estimated project costs and returns would prevent Landcom from obtaining the most competitive prices for completion of the demolition and site works. This information is commercially valuable and disclosure would be likely to result in the destruction of, or dimunition of the value of the site.

24 Alternatively, the Department submits the documents are exempt under cl 7(1)(c) because they concern the sale of the land or negotiations for the sale of the land and as such relate to the business, commercial or financial affairs of Landcom and the DET. Release of specified documents would adversely affect the DET’s and Landcom’s ability to negotiate the best market price for the land if the current contract is not proceeded with or Landcom decides to on-sell the land, and would adversely affect the business, commercial or financial affairs of Landcom and the DET.

25 The Department submits that to the extent that the word "unreasonable" in cl 7(1)(c) incorporates a public interest test, there is a clear public interest in the information not being disclosed to ensure the DET gets the best return for the site and that Landcom is able to conduct an effective tender process for the most cost effective development of the site or, if it decides to on-sell the site, the best possible sale price, thereby obtaining the optimum return for both the Government and ultimately the public. The Department has already satisfied the public interest in disclosure by releasing a substantial amount of information about the matter.

26 With regard to cl 15, the Department submits that the release of specified documents would jeopardise the chances of the DET achieving a comparable sale price if current arrangements with Landcom fall through. This could reasonably be expected to have a substantial adverse effect on the financial or property interests of the DET. The Department submits that other specified documents concern the preservation of the integrity of the tendering process which Landcom will undertake if it develops the site; documents of this kind were found to be exempt in the Leichardt Municipal Council case.

27 In supplementary submissions in answer to the Committee’s submissions regarding sufficiency of search (see below), the Department contends that the internal review determination must implicitly include a statement that the agency does not hold any other documents falling within the scope of the FOI application. The Department submits that a notification by an agency to an applicant, under s 28(1)(b) of the FOI Act, that the agency does not hold a document, is not a determination that can be reviewed by the Tribunal. Section 28(1)(b) provides that an agency shall cause written notice to be given to the applicant "if the application relates to a document that is not held by the agency – of the fact that the agency does not hold such a document". Although the Department acknowledges that its view is not consistent with previous Tribunal decisions, it submits there are persuasive reasons why previous decisions on this issue should not be followed.

28 The Department submits that by informing an applicant that it does not hold a document (either explicitly or implicitly), the agency is not refusing access to the document – it is merely advising that it does not have the document. The word "determine" implies there is a choice that requires a decision to be made. However, when an agency does not hold a document, no choice is involved since there is no document to which access can be refused; the request for access cannot be actioned. The Department contends that the text and structure of the FOI Act clearly indicate that Parliament intended that a notification under s 28(1)(b) is not reviewable. The Tribunal’s jurisdiction under s 53(1) arises where an aggrieved person applies to the Tribunal for the review of a determination made by an agency or the Minister under s 24 (a determination of an application for access to a document) or s 43 (a determination on an application for amendment of an agency’s records). Where no such determination is made, the Tribunal does not have jurisdiction. The Department noted that the Commonwealth Freedom of Information Act 1982 was specifically amended to confer jurisdiction on the AAT to determine sufficiency of search issues because, in the absence of such express power, the AAT had no jurisdiction.

29 The Department submits that the principal Tribunal decision of Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 (‘Beesley’), where the Tribunal held that it had jurisdiction to review a s 28(1)(b) notification, was decided wrongly. The Department contends that the Tribunal is not equipped to conduct merits review of a failure to find a document. By contrast, the Ombudsman does have the necessary investigative powers. While the decision in Beesley has been followed in numerous other Tribunal decisions, the agency in that case elected to make no submissions on the issue, and an Appeal Panel of the Tribunal has not considered the issue. However, the issue has recently been raised in a number of matters currently before the Tribunal.

30 Ms Johnson, for the Department, responded to a number of matters raised by the Committee in its submissions. She noted there is no evidence that the particular sale price for the land, which the Committee claims is public knowledge, is the final sale price. Moreover, there is no evidence before the Tribunal of what documents are now in the public domain as a result of the Development Application made by Landcom that is currently before Warringah Council. In any event, the DET and Landcom may have different perspectives on public access to documents. Nevertheless, Ms Johnson undertook to seek further instructions from the Department on the release of the whole or part of the documents numbered 1, 3, 6, 13, 18, 19 and 22 on the basis that the Development Application may reveal further information contained in those documents.

31 With regard to the Committee’s submission that the Tribunal should consider exercising its powers to refer the question of the sufficiency of the search to the Ombudsman in accordance with the Arrangements entered into pursuant to s 39 of the Administrative Decisions Tribunal Act 1997, Ms Johnson contended that a referral to the NSW Ombudsman under s 39 can only be made where the Tribunal has jurisdiction in relation to a matter. I note, however, that in its supplementary written submissions, the Department states that this provision "allows the Tribunal to refer the question of the adequacy of the agency’s search to the Ombudsman", with, under the terms of the Arrangements, the Ombudsman’s consent.

The Committee’s Submissions

32 The Committee submits that in accordance with the objects stated in s 5(1) of the FOI Act, the public has a right to obtain access to information held by government. The disclosure of the relevant documents would also be in the public interest. Section 59A of the FOI Act provides that it is irrelevant that the disclosure may cause embarrassment to or a loss of confidence in the Government.

33 The Committee notes that on 15 March 2005 it was informed that there were 750 pages of relevant documents; on 8 June 2005, it was told that there were 380 pages of relevant documents; and, on 23 June 2005, 384 pages were released. Then at the time of the internal review and on two occasions during the pre-hearing proceedings, the Department has released additional documents. The Committee seeks an affidavit attesting to the sufficiency of the search for relevant documents so that there can be confidence that all documents have been located: the affidavit should detail the nature of the searches conducted, the files and records searched, and state whether the search was conducted by an authorised officer.

34 With regard to the Department’s submissions on the issue of the Tribunal’s jurisdiction to direct that a sufficiency of search affidavit be provided, the Committee responds that s 5(3) of the FOI Act requires that the Act be interpreted so as to further the objects of the Act. In response to the Department’s contention that a written notice under s 28(1)(b) that documents are not held by an agency is not reviewable by the Tribunal, the Committee submits that if this contention is correct, then an agency could use such a notice to avoid its obligations under the Act and the Tribunal would be unable to do anything about it. This was clearly never the intention of Parliament. The Committee also disputes the Department’s contention that notification of the determination of the FOI application was an implied notice under s 28(1)(b). The Committee contends it has not received a notification that complies with s 28(2).

35 The Committee submits the Tribunal should consider exercising its powers to refer the matter to the NSW Ombudsman in accordance with the Arrangements entered into on 8 September 1999, pursuant to s 39 of the Administrative Decisions Tribunal Act 1997, notified in the NSW Government Gazette on 24 September 1999. According to the Arrangements, one of the types of matter that may be referred to the Ombudsman is:

"Freedom of Information matters where there is a denial of the existence of the documents by an agency and the Ombudsman could rely on its research and investigative powers (including claims that documents have been lost, destroyed or never existed)."

36 The Committee submits that the Tribunal should consider exercise of the power under s 58 of the FOI Act to bring the improper conduct of the officers involved in handling the FOI application to the attention of the Minister. It should be noted that Landcom lodged its Development Application with Warringah Council in November 2004, well before the FOI application in this matter was made.

37 In relation to the exemptions claimed by the Department, the Committee notes that the onus of proof lies on the Department to establish that the exemption applies. In relation to the claimed cl 7 "business affairs" exemption, the Committee submits the disclosure of the information could not be reasonably expected to destroy or diminish the commercial value of the site. The sale of the site involves an "in house deal" with one government agency selling to another. That information should be available to the public who have a right to know about the disposal process and the returns to the State of NSW. The sale price for the site revealed in a press release by a member of the NSW Legislative Council indicates that the sale was well under best market value if it is assumed that 27 residential lots will realise an average of $750,000 each.

38 With regard to the claimed cl 15 "documents affecting financial or property interests" exemption, the Committee submits the sale price of the land is already public knowledge and since the sale is by one government agency to another, disclosure of this information would not, in any event, jeopardise the chances of DET achieving a comparable sale price. The sale to Landcom is essentially the internal transfer of an asset and there is no evidence that it is being done in a way that optimises the return to the DET. The effect of such a transfer for less than market value will be a financial benefit to Landcom that will ultimately be paid into government consolidated revenue.

Review of the Documents

39 I have examined the documents the Department claims to be exempt or partially exempt, together with its written submissions on particular documents, and will make a finding on each in turn. Before doing so, I should state the view I have taken is that where a document refers to a valuation or proposed purchase price for the Beacon Hill High School site, or discusses Landcom’s proposed options for purchase, or the conditions to which an offer is subject, then that document or part of the document is exempt material under cl 7(1)(b), following the decision in Freeland, in terms of having commercial value that is likely to be diminished by its disclosure. In relation to cl 7(1)(c), where the information concerns details of the negotiations entered into in the course of securing the sale of the property, I have taken the view, following the decision in Cianfrano, that this information concerns the commercial affairs of the Department, DET or Landcom, and that disclosure of that information could reasonably be expected to have an unreasonable adverse effect on those affairs.

40 With regard to cl 15, I have taken the view that where there is evidence that a substantial adverse effect on the DET’s financial interests could reasonably be expected by the disclosure of information jeopardising the DET’s ability to achieve a comparable sale price should the sale to Landcom not proceed, or undermining the integrity of the tendering process, and that disclosure would, on balance, be contrary to the public interest, then that material is exempt.

41 Document 1. Partial access has been granted to this document. An exemption is claimed under cl 7 and cl 15 in respect of part of the document in which a request for a preliminary valuation of the Beacon Hill High School site is made to the State Valuation Office, which was then a part of the DPWS, now the Department. Although the size of the site is referred to, there is no reference to any specific valuation, and I am not satisfied on the basis of the Department’s submissions that site information revealed would have any significant effect in terms of being "reasonably expected to destroy or diminish the commercial value of the information" (cl 7(1)(b)). I am also not satisfied that disclosure would have an unreasonable adverse effect on the affairs of the Department, the DET or Landcom (cl 7(1)(c)), nor am I satisfied that disclosure of the information "could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency" and would be contrary to the public interest (cl 15). Document 1 should therefore by released in full.

42 Document 2. Partial access has been granted to this document. An exemption is claimed under cl 7 and cl 15 in respect of part of the document in which reference is made to the site being valued as in excess of a particular amount so that the Asset Management Services branch of the DPWS is responsible for managing its disposal under what appear to be Government policy guidelines. There is no specific valuation figure mentioned in relation to the site, and I am not satisfied by the Department’s submissions that the information revealed by disclosure of this part would have any significant effect in terms of being "reasonably expected to destroy or diminish the commercial value of the information" (cl 7(1)(b). I am also not satisfied that disclosure would have an unreasonable adverse effect on the affairs of the Department, the DET or Landcom (cl 7(1)(c)), nor am I satisfied that disclosure of the information "could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency" and would be contrary to the public interest (cl 15). Document 2 should therefore by released in full.

43 Document 3. Access to this document has been refused. An exemption is claimed under cl 7 and cl 15 on the ground that the document contains reference to valuation figures. An examination of the document reveals that it contains detailed analysis of a development proposal for the site, discussion of site and market constraints, a detailed offer for the site outlining several options, and the conditions to which the offer is subject. In my view, on the basis of evidence currently before the Tribunal, this document is an exempt document under both cl 7 and cl 15. However, see paragraphs 59 and 60, below.

44 Documents 4 and 5. Partial access has been granted to these similar documents. An exemption is claimed under cl 7 and cl 15 in respect of parts of the documents containing a valuation for the site and setting out the basis on which the valuation is made. In my view, the relevant parts of these documents are clearly exempt under both cl 7 and cl 15.

45 Document 6. Access to this document has been refused. An exemption is claimed under cl 7 and cl 15 on the ground that the document contains reference to valuation figures. An examination of the document confirms that it contains reference to valuation figures and purchase options, and in my view, the document is clearly an exempt document under both cl 7 and cl 15.

46 Document 7. Partial access has been granted to this document. An exemption is claimed under cl 7 and cl 15 in respect of part of the document in which reference is made to a specific offer made by Landcom for the site including the amount of the offer and the author of the document’s comment on that amount. In my view, the relevant part of the document is exempt under both cl 7 and 15.

47 Documents 8, 9 and 10. Partial access has been granted to these documents. An exemption is claimed under cl 7 and cl 15 in respect of part of the documents that contain, respectively, information about Landcom’s offer for the site, comparable residential lot values and site development costs. In my view, the relevant parts of these documents can reasonably be claimed to be exempt under both cl 7 and cl 15.

48 Document 11. Access to this document has been refused. An exemption is claimed under cl 7 and cl 15 on the ground that the document contains reference to valuation figures. A review of the documents confirms that these Minutes contain a valuation figure for the site and Landcom’s offer, and in my view, the document is exempt under both cl 7 and 15.

49 Document 12. Access to this document has been refused. An exemption is claimed under cl 7 and cl 15 on the ground that the document contains valuation figures. A review confirms that the letter discusses specific site costs and what allowance should be made for their impact on the offer made by Landcom. In my view, the document is exempt under both cl 7 and cl 15.

50 Document 13. Access to this document has been refused. An exemption is claimed under cl 7 and cl 15 on the ground that the document contains valuation figures. A review confirms that this letter from Landcom to DPWS discusses Landcom’s offer in some detail including valuation figures, site costs and various purchase options. In my view, on the basis of evidence currently before the Tribunal, this document is an exempt document under both cl 7 and cl 15. However, see paragraphs 59 and 60, below.

51 Document 14. Access to this document has been refused. An exemption is claimed under cl 7 and cl 15 on the ground that the document contains valuation figures. A review confirms that this letter includes reference to Landcom’s offer for the site including the purchase price. In my view, the document is exempt under both cl 7 and cl 15.

52 Document 15. Access to this document has been refused. An exemption is claimed under cl 7 and cl 15 on the ground that the document contains valuation figures. The document comprises handwritten notes including a purchase price and option fee for the sale of the site. In my view, the document is exempt under both cl 7 and cl 15.

53 Document 16. Access to this document has been refused. An exemption is claimed under cl 7 and cl 15 on the ground that the document contains valuation figures. The document comprises two faxes with information about Landcom’s offer for the site together with a Table setting out a number of purchase options including prices. In my view, the document is exempt under both cl 7 and cl 15.

54 Document 17. Partial access to this document has been granted. An exemption is claimed under cl 7 and cl 15 in respect of part of the document that comprises a handwritten note on an option fee in respect of the purchase of the site. In my view, this part of the document is exempt under both cl 7 and cl 15.

55 Documents 18, 19 and 20. Access to these documents has been refused. An exemption is claimed under cl 7 and cl 15 on the ground that the documents contain valuation figures. The documents are assessments by the DPWS of Landcom’s proposal to purchase the site including reference to purchase price, options and conditions. In my view, on the basis of evidence currently before the Tribunal, the documents are exempt documents under both cl 7 and cl 15. However, see paragraphs 59 and 60, below, as to documents 18 and 19.

56 Document 21. Partial access to this document has been granted. An exemption is claimed under cl 7 and cl 15 in respect of parts of the document that summarise Landcom’s offer for the site, including reference to purchase price, options and conditions. In my view, these parts of the document are exempt under both cl 7 and cl 15.

57 Document 22. Partial access to this document has been granted. An exemption is claimed under cl 7 and cl 15 in respect of parts of the document commenting on the residential development potential for the site, comparable land sales and other factors taken into account in valuing the site, and containing a market valuation. In my view, on the basis of evidence currently before the Tribunal, these parts of the document are exempt under both cl 7 and cl 15. However, see paragraphs 59 and 60, below.

58 Documents 23 and 24. Access to these documents has been refused. An exemption is claimed under cl 7 and cl 15 on the ground that the documents contain valuation figures. The documents comprise handwritten notes detailing purchase options proposed by Landcom including purchase price. In my view, the documents are exempt under both cl 7 and cl 15.

59 In conclusion, documents 1 and 2 should be released in full. I note, however, that if the Committee is correct and Landcom lodged a Development Application for the site with Warringah Council in November 2004, several months before the Committee’s FOI application was lodged on 28 February 2005, and that Development Application contains information claimed to be exempt in the current proceedings, then the Department should have been aware of the release of any relevant information, which would thereby be in the public domain, and account should have been taken of that in claiming exemptions in the current proceedings. Ms Johnson, for the Department, undertook to seek further instructions from the Department on the release of the whole or part of the documents numbered 1, 3, 6, 13, 18, 19 and 22 on the basis that the Development Application may disclose further information contained in those documents in respect of which an exemption is claimed in these proceedings.

60 In my view, it is therefore appropriate to set aside the decision under review in respect of documents 3, 6, 13, 18, 19 and 22 and remit the exemptions claimed in respect of those documents to the Department for reconsideration (pursuant to s 63(3) of the Administrative Decisions Tribunal Act 1997) having taken into account the release of information by Landcom in its Development Application lodged with Warringah Council.

Other Issues

61 With regard to the Committee’s submission that the Tribunal should direct the Department to provide an affidavit attesting to the sufficiency of its search for the relevant documents, I note the Department’s submission that the Tribunal has no jurisdiction to direct an agency to provide such an affidavit. In a matter currently before the Tribunal, the President, O’Connor DCJ, has reserved his decision in a matter where the question of the Tribunal’s jurisdiction in relation to sufficiency of search was challenged. I make no comment on the outcome.

62 In this case, I am not satisfied that there is sufficient evidence to indicate a deficiency in the Department’s search for documents and I decline to make any direction in that regard.

63 The Committee also submits submits the Tribunal should consider exercising its powers to refer the matter to the NSW Ombudsman in accordance with the "Arrangements" entered into on 8 September 1999 pursuant to s 39 of the Administrative Decisions Tribunal Act 1997. One of the types of matter that may be referred is where there is a denial of the existence of documents by the agency. As the Department points out in its supplementary submissions, under the terms of the Arrangements, a formal referral by the Tribunal to the Ombudsman under s 39(1)(a) may only take place with the consent of the Ombudsman. In the current matter, I am not satisfied that there has been any denial by the agency of the existence of documents and I decline to exercise the Tribunal’s powers under this section.

64 The Committee submits further that the Tribunal should exercise its power under s 58 of the FOI Act to bring the improper conduct of officers involved in handling the Committee’s FOI application to the attention of the Minister. The Tribunal’s power under s 58 arises where "the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act". I am not satisfied that there is any evidence of such improper conduct and I therefore decline to exercise this power.

Decision

(1) The Tribunal affirms the decision under review in relation to documents 4, 5, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 20, 21, 23 and 24.

(2) The Tribunal sets aside the decision under review in relation to documents 1 and 2 and, in substitution, orders the Respondent to release those documents without exemptions to the Applicant, the Tribunal’s order for their release to take effect 28 clear days after the publication of this decision.

(3) The Tribunal sets aside the decision under review in respect of documents 3, 6, 13, 18, 19 and 22 and remits the exemptions claimed in respect of those documents to the Respondent for reconsideration in accordance with these reasons.