Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113
• Hearing dates: 3 June 2013 and on the papers
• Decision date: 05 August 2014
• Jurisdiction: Administrative and Equal Opportunity Division
• Before: S Higgins, Principal Member

Decision

File no 123306

1. The decision of the respondent in regard to the information in document 38,40, 60,79, 81 and the redacted information in document 84 is affirmed.

2. The decision of the respondent in regard to the information in document 50 is set aside and remitted for reconsideration by the respondent in accordance with these reasons for decision.

File no 133223

3. The decision of the respondent is affirmed.

• Catchwords: Administrative review - government information - public access - conclusive overriding public interest against disclosure - Cabinet information; Administrative review - government information - public access - public interest test - whether public interest considerations against disclosure on balance outweigh the public interest considerations in favour of disclosure; Administrative review - government information - public access - prescribed public interest considerations against disclosure - reveal a deliberation in such a way as to prejudice a deliberative process of the agency - prejudice the effective exercise by agency of its functions - expose a person to an unfair advantage as a result of the premature disclosure of information concerning proposed action of the agency
• Legislation Cited: Administrative Decisions Tribunal Act 1997 (as at 31 December 2013); Civil and Administrative Tribunal Act 2013 (NSW); Fire Brigades Act 1989; Freedom of Information Act 1982 (Cth); Government Information (Public Access) Act 2009; Industrial Relations Act 1966 (NSW)
• Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR180; Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19; Hurst v Wagga Wagga City Council [2011] NSWADT 307; McKinnon v Secretary, Department of Treasury [2006] HCA 45; McLennan v University of New England [2013] NSWADT 113; Re Waterford and Department of the Treasurey (No2) (1984) 5 ALD 588; Sobh v Victoria Police (1993) 1 VR 41; Van der Wall v University of Sydney [2008] NSWADT 213
• Category: Principal judgment
• Parties: Fire Brigade Employees' Union (applicant); Fire and Rescue NSW (respondent)
• Representation: J Nolan (Applicant); I Harvey (Respondent); G Maniatis (Applicant); Sparke Helmore Lawyers (Respondent)
• File Number(s): 123306 and 133223
• Publication restriction: N/A

reasons for decision

Introduction

1 The applicant, Fire Brigade Employees' Union of NSW v Fire and Rescue NSW, seeks review of two decisions of the respondent, Fire and Rescue NSW, made under the Government Information (Public access) Act 2009 (GIPA Act) in regard to two applications it had made for access to specified information held by the respondent.

2 The first application for access was made on 27 July 2012. The respondent's decision in regard to that application is the subject of file No 123306.

3 The second application for access was made on 23 April 2013. The respondent's decision in regard to that application is the subject of file No 133223.

4 In the first application the applicant sought access to the following government information:

Any and all documents relating to possible strategies to meet the NSW Government's Labour Expenses Cap, including but not limited to temporary off line policy, risk assessments in relation to taking stations off line, moving-up stations and increasing out duty limits or introducing out duties for officers and Service Delivery Models.

5 The second application sought access to information of the same kind that was created after 27 July 2012. In this application the applicant also sought access to 'any documents related to "swordfish" and its implementation.'

6 The respondent determined the applicant's first application for access on 28 September 2012. In that determination, the respondent identified 159 documents, it held, containing information falling within the terms of the applicant's access request. Of these, the respondent determined to release (in full) the information in 32 documents (see para 58(1)(a) of the GIPA Act). In regard to the information in the remaining documents, the respondent determined to refuse the applicant access as 'there was an overriding public interest against disclosure' of this information (see s 13 and para 58(1)(d) of the GIPA Act).

7 On 25 October 2012, the applicant, being aggrieved by the decision of the respondent, made an application for external review, by the Administrative Decisions Tribunal (ADT), which it was entitled to do: see para 80(d) and s 100 of the GIPA Act and s 38 of the Administrative Decisions Tribunal Act 1997 (i.e file No 123306).

8 In the course these proceedings and following mediation, facilitated by the ADT, the respondent released (in whole or in part) the information in the majority of the remaining documents. As a consequence, at the hearing of the application, on 3 June 2013, the only information remaining in dispute was that contained in the documents numbered 38, 40, 50, 60, 79, 81 and 84 (in part). At the conclusion of that hearing I reserved my decision and made an order for the applicant to file and serve supplementary submissions in regard to matters that arose in the course of the hearing and an order for the respondent to file and serve submissions in reply, if any.

9 On 31 May 2013, the respondent determined the applicant's second access application. The respondent identified 18 documents as containing information falling within the applicant's access request. Of these, the respondent determined: (a) to grant the applicant access to the information in 14 documents, and (b) to refuse the applicant access to the information in four documents. The respondent also determined that it did not hold any documents in regard to 'swordfish'. The applicant received a copy of the respondent's determination on 3 June 2013.

10 On 26 July 2013, the applicant, being aggrieved by this second decision of the respondent, made a further application for external review by the ADT (i.e. file No 133223).

11 This latter application came before me at a planning meeting, on17 September 2013, where, by consent, I made an order for the respondent to file and serve a determination in regard to the 'swordfish' documents it had sought to identify on its TRIM data base. It was the applicant's contention that the respondent had failed to make reasonable searches for this information.

12 The second application came before me at a further planning meeting on 14 November 2013. At this planning meeting, by consent I made orders for the parties to file and serve written submissions. By consent I also made an order that the evidence in the first application (file number 123306) was to be evidence in this application and that both matters were to be determined together.

Transitional provisions

13 As noted above, the applicant's review applications were with the ADT, pursuant to the Administrative Decisions Tribunal Act 1997, as it applied at that time.

14 On 1 January 2014, the NSW Civil and Administrative Tribunal (NCAT) was established and on its establishment the ADT was abolished (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013). By reason of cl 7(2) and (3) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, this application is taken to be an application before the NCAT, with NCAT (the Tribunal) being vested with all the relevant functions of the ADT immediately before its abolition and the provisions of GIPA Act continuing to apply.

Information in issue

15 In the application that is file No 123306, the information in issue is contained in the following documents:

38 Email, dated 15/07/2012, from D Husdell to the Executive Leadership Team concerning a 'Project Plan'. There are four paragraphs in the body of the email and attached to it is the 12 page 'Project Plan', which is marked 'Confidential'.

40. A two page Briefing paper, dated 9/06/2012, from the respondent Commissioner (Commissioner) to the Minister for Police and Emergency Services (the Minister) with a 30 page 'Budget Implementation Strategy and Project Plan' attached. The attachment is marked 'Confidential'.

50. Email, dated 17/04/2012, from R Burdick to B Scutella and L Tree. The information in the body of the email consists of two short paragraphs and attached to the email is a six page Briefing paper, dated 17/07/2012, from the Commissioner to the Minister.

60. Email, dated 24/07/2012, from A Summons to the Executive Leadership Team. The information in the body of the email consists of three short paragraphs and attached to the email, is an eight page 'Matrix'.

79. A two page exchange of emails, dated 27/07/2012, between M Brown to J Smith concerning 'RAM categories' (i.e. Resource Allocation Methodology).

81 A two page email, dated 30/05/2012, from S Kempnich, to M Brown, concerning 'Station Impacts'. Attached to the email is an Excel spread sheet.

84. A two page email, dated 19/06/2012, from S Kempnich, to M Brown, concerning 'Coverage assessment Metro ToL June 12' (Take Off Line). Attached to the email is a 16 page Excel spread sheet. The applicant has been provided with a copy of the Excel spread sheet, with the information in the 'Comments' column deleted. It is this information that is the subject of dispute in this application.

16 The respondent has provided the Tribunal with a copy of the information in dispute, in confidence, pursuant to subs 107(3) of the GIPA Act.

17 The public interest considerations against disclosure relied on by the respondent in refusing access to the information in dispute are those set out in cl 1(e), 1(f) and 5(e) of the table in subs 14(2) of the GIPA Act. In written submissions filed on 29 January 2013 the respondent relied on a number of additional public interest considerations against disclosure including cl 2(c), 2(d) and 3(c) of the table to subs 14(2). At the hearing the respondent did not press 3(c) as the parties dispute before the NSW Industrial Relations Commission concerning the respondent's July 2012 ToL had been resolved.

18 The information in issue in file No 133223 is contained in the following documents:

1. Briefing for the Minister for Police and Emergency Services, dated 18/02/2013. Attached to the Briefing is a 'Budget Implementation Strategy (Draft) February 2013', which is marked 'Cabinet in Confidence'.

2. Briefing for the Minister for Police and Emergency Services dated 25/03/2013.

3. Email, dated 17/08/2012, between J Hamilton, M Baker and S Kempnich concerning the Review of TOL Matrix.

4. List of stations by draft RAM response time.

19 The Tribunal was provided with a copy of the above documents on 23 July 2014, following a request from the Tribunal's Registry. They have been provided in confidence under subs 107(3) of the GIPA Act.

20 The respondent contends that the conclusive public interest consideration against disclosure, as set out in cl 2(1)(e) of Schedule 1 of the GIPA Act applies to the information in document 1 and 2 above. The respondent also contends that the public interest consideration against disclosure in cl 1(e), 1(f), of the table to subs 14(2) of the GIPA Act applies to the disclosure of the information in these documents as well as document 3 and 4.

Matters in issue

21 There is no dispute that the Tribunal has jurisdiction to hear and determine these applications for review by the respondent. Nor is it disputed that the onus is on the respondent to establish that its decision is justified: see subs 105(1) of the GIPA Act.

22 S 5 of the GIPA Act provides: 'There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.' S 13 of the GIPA Act sets out the test for determining whether there is an overriding public interest against disclosure. It is in the following terms:

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

23 The public interest considerations in favour of disclosure are not closed (see s 12). However, the public interest considerations against disclosure are closed to those matters prescribed in subs 14(1) and (2) of the GIPA Act. Those prescribed in 14(1) are conclusive public interest considerations against disclosure and if they apply to the information in issue, the public interest test is satisfied, without having to have regard to the public interest considerations in favour of disclosure. In so far as they are relevant to this application, I have dealt with the public interest considerations against disclosure and those in favour of disclosure in more detail below.

24 The principles that are to be applied by an agency when determining whether there is an overriding public interest against disclosure are set out in s 15 of the GIPA Act. That section is in the following terms:

15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(a) Agencies must exercise their functions so as to promote the object of this Act.

(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

25 Having regard to the abovementioned principles and obligations on an agency, the matters for determination in these applications are as follows:

(a) whether the respondent has discharged its onus that the Cabinet information conclusive public interest consideration against disclosure applies to the information in document 1 and 2: see s 14(1) and cl 2(1)(e) of Schedule 1 of the GIPA Act;

(b) whether the respondent has discharged its onus that the public interest test is satisfied in regard to the disclosure of the information in document 3, 4, 38, 40, 50, 60, 79, 80 and 84. That is the public interest considerations against disclosure in cls 1(e), 1(f), and 5(e) in the table to subs 14(2) of the GIPA Act, and on balance, outweigh the public interest considerations in favour of disclosure, and

(c) whether the respondent has discharged its onus and established that it has complied with its obligation to undertake reasonable searches for the 'swordfish' information sought by the applicant: s 53 of the GIPA Act.

Material before the Tribunal

26 The respondent tendered into evidence the following affidavits:

• affidavit sworn on 4 April 2013, by Adam Summons, the respondent's Chief Financial Officer;

• affidavit sworn on 4 April 2013, by Darren Husdell, the respondent's Director of Human Resources;

• a further affidavit sworn on 22 May 2013, of Darren Husdell;

• affidavit sworn on 13 December 2013, by Graeme Last, Senior Project Officer, Government and Legal Office of the respondent. This affidavit was filed and served by the respondent in regard to file No 133223.

27 Mr Summons and Mr Husdell both gave oral evidence and were cross examined at the hearing.

28 At the hearing, the respondent also tendered into evidence a copy of document 84 in the form it was released to the applicant. The applicant was provided with a copy of this document with the comments in column six of the document having been redacted. In addition to that document the respondent also tendered into evidence a copy of the applicant's policy making and structure as set out in its website.

29 As I have mentioned above, the Tribunal has been provided on a confidential basis, pursuant to s 107(3) of the GIPA Act, with a copy of the documents containing the disputed information.

30 As explained in the affidavits, the respondent is a department of the State government with the duties, powers and functions set out in the Fire Brigades Act 1989 (NSW). It is a large and complex organisation with over 14,000 employees in a number of occupational groups. Its workforce compromises 3,444 permanent fire fighters, 3,795 part time retained fire fighters, approximately 7,000 community fire unit officers and 380 trades and administrative staff.

31 The applicant is a State Industrial Organisation registered under the Industrial Relations Act 1996 (NSW). The Tribunal has been informed that virtually all fire fighters employed by the respondent are active members of the applicant.

32 The documents for which the applicant sought access are those which it considers to be relevant to its negotiations with the respondent in regard to the industrial award for fire fighters. As I have explained, the respondent has provided the applicant with most of the documents sought. The information that remains in dispute is primarily information concerning the respondent's strategies to meet the government's labour expenses cap.

33 In his affidavit of 4 April 2013, Mr Husdell explained that the respondent is an agency which is required to comply with the Government's NSW Public Sector Wages Policy 2011 (as updated in April 2012) (Wages Policy). The aim of the Policy is stated to include ensuring 'better services and value for the public.' In that regard the Policy states 'the Government is committed to a policy of fair working conditions and allowing increases in remuneration and other conditions of employment that do not reduce services and are consistent with maintaining fiscal sustainability' (see Section 1.1 of the Policy).

34 The Wages Policy applies to all government sector agencies. Section 3 sets out the policy of the Government's Public Sector Wages. Section 3.1.4 sets out the policy in regard to increases in remuneration. It provides that 'increases in remuneration or other conditions of employment that increase employee related costs of more than 2.5 per cent per annum can be awarded, but only if sufficient employee related costs savings have been achieved to fully offset the increased employee related costs'.

35 Mr Husdell explained that in meeting the requirements of the Wages Policy the respondent is involved in a continuing internal deliberative process of developing and implementing strategies to achieve budget savings. This includes identifying potential options for such savings regardless of whether such measures are ultimately implemented or not. It was his evidence that the information in the disputed documents forms part of this ongoing deliberative process.

36 Responsibility for developing and implementing strategies to achieve budget savings, Mr Husdell explained lay with the Executive Leadership Team (ELT) of the respondent. That group, Mr Husdell said comprised the Commissioner, Deputy Chief Executive, Deputy Commissioner and other executive directors of which he is one.

37 In his evidence Mr Summons provided an explanation as to why particular public interest considerations against disclosure apply in regard to the disputed information in document 38, 40 and 60. He explained that the information in document 38 and 40 addressed the budget strategy of the respondent and document 60 was prepared (in draft form) to scope potential opportunities available at that time which may address the savings requirements of the Government's Labour Expense Cap. Mr Summons said the information in these documents formed part of the ongoing internal deliberative process about options for budget savings. He explained that the information in document 60 canvass a very broad range of options, some of which were assessed as more feasible than others for a broad range of reasons. He said a release of the information in these documents would have a significant prejudicial impact on the respondent's ability of the respondent to make effective financial decisions about the management of the organisation.

38 Mr Last, in his affidavit provided an explanation as to what additional searches he undertook in regard to the 'swordfish' information. He also provided an explanation of the deliberative process of the respondent in regard to the Wages Policy through the ELT, Minister and Cabinet.

39 In this regard Mr Last said that the deliberative process of the respondent in implementing strategies to achieve budget savings was an ongoing one. He said it was a process that involved a group of managers across a number of government agencies who receive and exchange information, to critically examine the strategic issues identified and to develop ideas that will inform recommendations and ultimate decision making. Mr Last said that the information in issue is the product of aspects of this ongoing deliberative process in regard to budget savings.

40 Mr Last said that as part of the internal deliberative process recommendations or budgetary submissions from the respondent are sent to the Ministry for Police and Emergency Services. He said the role of the Ministry is to consolidate individual submissions from agencies to a single submission and provide a single negotiation point with other government agencies such as Treasury. Material sent by the respondent to the Ministry may also find its way into measures designed to achieve delivery of outcomes required under the labour expenses cap that are prepared as cabinet documents.

41 I also understand Mr Last to say that Briefings to the Minister from the respondent are first sent to the Ministry. Where a Briefing contains material for the purpose of award negotiations, Mr Last said that such material, if progressed, would need cabinet approval. In this regard I understand Mr Last to say that information of such kind, when included in a Briefing to the Minister is marked 'Cabinet-in-Confidence.'

42 It was the evidence of Mr Last that the a disclosure of the information in issue would prejudice the deliberative process and have serious implications for the proper functioning of the respondent, including its legitimate function of bargaining in award negotiations and may lead to industrial action.

43 Both parties have provided detailed written submissions.

Document 1 and 2 - Cabinet in Confidence

44 Subs 14(1) of the GIPA Act, provides that 'it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.' Accordingly, where the information in issues falls within any of the provisions in Schedule 1, the test in s 13 of the GIPA Act is satisfied and the ground for refusal of access of the information sought is established.

45 As mentioned above, the respondent asserts that document 1 and 2 contains 'cabinet information' as set out in cl 2(1)(e) of Schedule 1. That cl relevantly provides:

2 Cabinet information

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information (referred to in this Act as Cabinet information) contained in any of the following documents:

(a) ..

...

(e) a document prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet,

(f) a document that is a preliminary draft of, or a copy of or part of, or contains an extract from, a document referred to in paragraphs (a)-(e).

(2) Information contained in a document is not Cabinet information if:

(a) public disclosure of the document has been approved by the Premier or Cabinet, or

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

(3) Information is not Cabinet information merely because it is contained in a document attached to a document referred to in subclause (1).

(4) Information is not Cabinet information to the extent that it consists solely of factual material unless the information would:

(a) reveal or tend to reveal information concerning any Cabinet decision or determination, or

(b) reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet.

(5) In this clause, Cabinet includes a committee of Cabinet and a subcommittee of a committee of Cabinet.

46 On the basis of Mr Last's explanation of Briefings to the Minister, together with the content of the information in document 1 and 2, I am satisfied that the respondent has established that the documents were 'prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet information in these documents falls within cl 2(e) of Schedule 1. In this regard, I note document 2 is also marked 'Cabinet in Confidence'.

47 Accordingly, I find that the respondent has established that its decision in regard to the information in document 1 and 2 is justified. As the conclusive overriding public interest consideration against disclosure applies to the information in these documents it is not necessary for me to considered them any further.

Adequacy of search for 'sword fish' information

48 Section 53 of the GIPA Act sets out what an agency must do in responding to an access request under the Act, including what searches are to be undertaken by the agency for the information sought. That section is in the following terms:

s 53 Searches for information held by agency

(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.

(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.

(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.

49 In his evidence, Mr Last said a search was conducted for all information captured by the applicant's access application that is the subject of file No 133223. This included emails and documents stored electronically in the respondent's TRIM system. He said a further search was also undertaken to locate documents pertaining to 'swordfish'. He said he could not locate any documents which specifically referred to this subject matter. However, he did locate the current business continuity plan that dealt with industrial disputes previously referred to or known as 'swordfish'. That document he said was entitled 'Notification and response Guidelines during Industrial Disputes Impacting on Operations Capacity.' Mr Last went on to say that he had determined that access to the information in this document should be refused as it 'could reasonably be expected to impact negatively on the respondent's ability to discharge its primary functions'. He also argued that disclosure of the Guidelines could reasonably be expected to fall within cl 2(c) and 2(d) of the table to subs 14(2) of the GIPA Act (i.e. prejudice the prevention of, preparedness against, response to a public emergency and prejudice a system or procedure for protecting the life , health or safety of any person).

50 The applicant has not pressed access to these Guidelines. Accordingly, I have not dealt with them any further or the public interest considerations relied on in regard to the disclosure of the information in this document.

51 Nor has the applicant responded to Mr Last's affidavit in regard to the searches undertaken. Accordingly, on the basis of the evidence of Mr Last, I am satisfied that the respondent has discharged its onus and established that it has undertaken reasonable searches for the information the subject of the applicant's second access application.

Subs 14(2) public Interest considerations against disclosure

52 As I have mentioned, the respondent has relied on a number of public interest considerations against disclosure in the table to subs 14(2) of the GIPA Act. These are:

14 Public interest considerations against disclosure

(1) ....

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

(3) ...

(4) ...

Table

1 Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

(a)

...,

(b)

...,

(c)

...,

(d)

...,

(e)

reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,

(f)

prejudice the effective exercise by an agency of the agency's functions,

(g)

...

5 Environment, culture, economy and general matters

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

(a)

...,

(b)

...,

(c)

...,

(d)

...,

(e)

expose any person to an unfair advantage or disadvantage as a result of the premature disclosure of information concerning any proposed action or inaction of the Government or an agency.

53 The term 'reveal information' is defined in cl 1 of Schedule 4 of the GIPA Act to mean 'to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)'.

54 The following words are also defined in cl 1 of Schedule 4 of the GIPA Act:

exercise a function includes perform a duty.

function includes a power, authority or duty.

person includes an agency, the government of another jurisdiction ...

55 It has been accepted that the word 'prejudice', in the context of the public interest considerations against disclosure in the table to subs 14(2), is to be given its ordinary meaning, namely: 'to cause detriment or disadvantage': see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60], McLennan v University of New England [2013] NSWADT 113 at [38] and Sobh v Victoria Police (1993) 1 VR 41.

56 The public interest considerations against disclosure in cl 1 and 5 of the table to subs 14(2) of the GIPA Act are all predicated with the words 'could reasonably be expected to'. It is well accepted that these words are to be given their ordinary meaning and 'require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous' to expect to have the prescribed consequences set out in the paragraphs to the relevant applicable clause: see McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61] and Attorney-General's Department v Cockcroft (1986) 10 FCR180, at 190. Accordingly, the enquiry that is required to be made, under cl 1 and cl 5, is of a general and abstract nature. That is, whether a disclosure of the information, when considered in the abstract, could reasonably be expected to have the prescribed consequences: see Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 at [29].

(a) Does the public interest consideration in cl 1(e) apply?

57 For the public interest consideration against disclosure in cl 1(e) to apply, the respondent must establish that the information in issue could reasonably be expected to reveal a deliberation in such a way to prejudice a deliberative process of the respondent. That is a relevant connection must be established between the deliberation as contained in the information in dispute and the respondent's 'deliberative processes': see Van der Wall v University of Sydney [2008] NSWADT 213 at [36].

58 The meaning of the term 'deliberative process' was considered by the AAT, in Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at [58] to [61], in the context in which it appeared in s 36 of the Commonwealth Freedom of Information Act 1982 (FOI Act (Cth)), as it applied at that time. Although cl 1(e) of the GIPA Act and s 36 of the FOI Act (Cth) (as it applied in 1984) are not the same, they both deal with the disclosure of information concerning the 'deliberative process' of government or an agency. Hence, the following comments of the AAT, in Re Waterford, remain instructive:

58 As a matter of ordinary English the expression "deliberative processes" appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. "Deliberation" means "The action of deliberating: careful consideration with a view to decision": see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. ...

59 It by no means follows, therefore, that every document on a departmental file will fall into this category. ... Furthermore, however imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency. A document which, for example, discloses no more than a step in the procedures by which an agency handles a request under the FOI Act is not a document to which s 36(1)(a) applies.

60 It is documents containing opinion, advice, recommendations etc relating to the internal processes of deliberation that are potentially shielded from disclosure - documents that might, perhaps, have been more aptly described in the headnote as "Internal Thinking Documents". ...

61 In order to test the application of s 36(1)(a) to particular documents, it is helpful, in our view, to endeavour to identify what are the "deliberative processes" involved in the functions of the particular agency or Minister or the Government of the Commonwealth to which the requested documents are said to relate. ...

59 I am satisfied that the information in document 3, 4, 38, 40, 60, 79, 81 and the redacted information in 84 falls within the description of being part of the respondent's 'internal thinking' about strategies to meet the labour expense caps, the Wages Policy and other budgetary matters for the financial year in question and future years.

60 I am also satisfied that the Briefing in document 50, in part, contains information of that kind (see at the bottom of page 2 and the top of page 3). However, I am not satisfied that the remainder of the information in this document falls within this category. As is evident from the terms of the information in this document, the majority of the information appears to have been intended for public disclosure. In the absence of any evidence from the respondent, I assume this information was revealed in some form. Nevertheless, to the extent this document contains information that reflects the 'internal thinking' of the respondent in regard to labour cost reductions, my findings in regard to this information equally apply.

61 On the basis of the evidence of Mr Husdell, Mr Summons and Mr Last and the nature of the information in dispute, I am satisfied that the information in documents 3, 4, 38, 40, 60, 79, 81 and 84 (i.e. the redacted information) if disclosed could reasonably be expected to reveal the deliberations of the respondent in such a way as to prejudice its ongoing deliberative process about budgetary savings.

62 The redacted information in the schedule that is document 84 is perhaps a good example of this. As identified in the email to which the schedule was attached, the schedule is a 'decision assessment tool' for identifying which fire stations within the Metropolitan Commands might be ToL stations. The nature of the 'tool' has been disclosed as are the each of fire stations (i.e. the appliance) within the Metropolitan Commands together with the relevant the zone, response planning times, 1st Pump Coverage, ToL Conditions and Appliance Category of each fire station. What has been deleted are the comments made by the relevant officers about matters that may need to be considered in any assessment that is made. These comments are clearly part of the respondent's 'internal thinking' and a disclosure of this information, in my view could reasonably be expected to reveal the deliberations of the respondent in such a way as to prejudice its ongoing deliberative process about deciding which fire stations should be temporarily taken off line. The ToL arrangements being a budget savings strategy.

63 On 20 July 2012, the respondent wrote to the applicant informing it of its policy in regard to the ToL arrangements. While that policy post-dates the emails that are document number 81 and 84, the policy is expressed in general terms and does not disclose the 'internal thinking' of the respondent that is contained in those document and those prepared subsequently (i.e. 3, 4, and 84 (i.e. the redacted comments)).

64 Accordingly, I am satisfied that the respondent has established that the public interest consideration against disclosure in cl 1(e) to the table in subs 14(2) of the GIPA Act applies to the information in document 3, 4, 38, 40, 60, 79, 81 and the redacted information in 84.

65 This leaves the information in document no 50. As I am not satisfied that the entirety of the information in this document falls within this public interest consideration against disclosure, in my view it is appropriate to set aside the decision of the respondent and to remit it for reconsideration in accordance with these reasons for decision.

(b) Does the public interest consideration in clause 1(f) apply?

66 In order to establish this public interest consideration against disclosure the respondent must establish that a disclosure of the information in issue could reasonably be expected to prejudice the effective exercise of its functions.

67 The functions and responsibilities of the respondent are set out in the Fire Brigades Act 1989 (FB Act). Section 5 of the Act makes provision for the establishment of fire districts throughout the State, by order of the Governor, published in the Gazette. Section 8 of the Act makes provision for the establishment of permanent and volunteer fire brigades, by the respondent Commissioner, with the approval of the Minister. That section also makes provision for the respondent Commissioner to provide suitable premises and equipment to these fire brigades and to maintain the permanent fire brigades and pay subsidies to the volunteer brigades.

68 Subs 6(1) of the FB Act provides that the respondent Commissioner has a duty to take all practical measures for:

(a) preventing and extinguishing fires and protecting and saving life and property in case of fire; and

(b) protecting and saving life and property endangered by hazardous material incidents

69 Subs 6(2) of the FB Act imposes a duty on the Commissioner of the respondent to take all practicable measures for:

(a) protecting and saving life and property endangered by hazardous material incidents,

(b) confining or ending such an incident, and

(c) for rendering the site of such an incident safe.

70 The general authority vested on the respondent Commissioner is set out in s 7. That section provides that the Commissioner is authorised to take measures anywhere within NSW to protect persons from injury or death and property from damage, whether or not fire or a hazardous material incident is involved.

71 Subs 45(1) of the FB Act provides that the Minister must prepare and subject to the Treasurer's agreement adopt an estimate of fire brigades expenditure each financial year. Subs 45(3) of the FB Act provides that the Commissioner is to assist the Minister by providing a report on the estimate of expenditure each financial year.

72 Section 70 of the FB Act provided that the Director General of the respondent is the employer of the members of the permanent or volunteer fire brigades for the purpose dealing with industrial matters before a competent tribunal having jurisdiction to deal with such matters. In this regard the Director General is authorised to fix salaries and wages for permanent fire brigades and payments for voluntary brigades: s 71. He is also given power to enter agreements in regard to such matters: s 72. Where the Director General has fixed salaries, wages or payments or has entered an agreement for such, the Commissioner is required to give effect to these: s73.

73 It is the respondent's contention that a disclosure of the disputed information would undermine the respondent's capacity to develop and implement any budget savings strategies so as to meet the requirements of the Government's Wages Policy and the wages cap. The Tol arrangements being one of these ongoing strategies.

74 In my view, the evidence and findings above equally apply to this public interest consideration against disclosure in that budget savings strategies are also relevant to the effective exercise of the respondent's functions. These, as noted above include the matters over which the Commissioner is given responsibility and the Director General's functions in regard to wages, salaries and payments for permanent and voluntary members of fire brigades.

75 On the basis of the evidence of Mr Husdell, Mr Summons and Mr Last and the nature of the information in dispute, I am satisfied that the information in documents 3, 4, 38, 40, 60, 79, 81 and 84 (i.e. the redacted information) if disclosed could reasonably be expected to prejudice the effective exercise of the respondent's functions.

(d) Does the public interest consideration in clause 5(e) apply?

76 In order to establish this public interest consideration against disclosure the respondent must establish that a disclosure of the information in issue could reasonably be expected to expose any person to an unfair advantage or disadvantage as a result of the premature disclosure of information concerning any proposed action or inaction of the respondent.

77 The respondent contends that this public interest consideration applies as a disclosure of the information in documents 38, 40, 60, 79, 81 and 84 would expose the respondent to an unfair disadvantage in its wages negotiations with the applicant. It was argued that a disclosure of the information would however give the applicant an unfair advantage in those negotiations. The respondent's contention, if correct, equally applies to the information in document 3 and 4.

78 I accept that an argument can be made that if the information in issue were to be disclosed to the applicant the applicant might be placed at an advantage and the respondent might be disadvantaged. However, I do not accept that the information in issue falls within the terms of cl 5(e).

79 As I have noted, the respondent has at all times contended that the information in issue is part of its ongoing 'internal thinking processes'. I have accepted this to be the case. Accordingly, it is difficult to see how it could also be information of 'proposed action' or 'inaction' of the respondent.

80 In this regard I note the respondent's witnesses have not attested to the disclosure of the information having such an effect.

81 Accordingly, I find that the respondent has failed to establish that a disclosure of the information in issue could reasonably be expected to have the effect as prescribed in cl 5(e) of the table to subs 14(2) of the GIPA Act.

Public interest considerations in favour of disclosure

82 Section 12(1) of the GIPA Act provides that there is a general public interest in favour of disclosure of government information. Subs 12(2) provides that public interest considerations in favour of disclosure are not limited. The section goes on to provide some examples of public interest considerations in favour of disclosure of government information. These include:

Note. The following are examples of public interest considerations in favour of disclosure of information:

(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d) The information is personal information of the person to whom it is to be disclosed.

(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

83 The respondent has identified the following public interest considerations in favour of disclosure of the information in issue:

• obtaining information concerning the budgetary considerations of government agencies; and

• obtaining information concerning the workings of government agencies.

84 As I understand the applicant's submissions, it argues that the public interest considerations in favour of disclosure include the following:

• inform the community of the government's operations including its policy, rules, guidelines, practices, code of conduct and its dealings with members of the community;

• allow or assist an enquiry to possible deficiency in the conduct or administration of a government agency;

• reveal the reasons for a government decision and any background or contextual information that informed the decision;

enhance the scrutiny of government decision making;

• assist in an informed debate on a matter of public importance; and

• promote effective oversight of public expenditure.

Where does the balance lie?

85 In my view the public interest considerations in cl 1(e) and 1(f) should be given considerable weight. As indicated by the heading of this clause these public interest considerations against disclosure concern responsible and effective government. In these applications, the information in issue forms part of the respondent's ongoing deliberations about budgetary strategies for cost savings in accordance with the Government's Wages Policy and Labour Expenses Cap. These deliberations, as I have explained canvas a number of options, some of which may change or not be implemented as the deliberative process progresses.

86 I also accept that the public interest considerations in favour of disclosure are strong. I also take into account the presumption in favour of disclosure in s 5 of the GIPA Act and the general public interest in favour of disclosure in subs 12(1) of the Act.

87 However, having regard to the nature of the information in issue, I find, on balance that the public interest consideration against disclosure outweighs the public interest consideration in favour of disclosure.

88 Accordingly, I am satisfied that the respondent has established that its decision to refuse the applicant access to the information in document 3, 4, 38,40, 60,79, 81 and the redacted information in document 84 is justified.

Conclusions and orders

89 In summary, for the reasons set out above I am satisfied that the respondent has established that its decision in refusing the applicant to access to the information in document 1, 2, 3, 4, 38,40, 60,79, 81 and the redacted information in document 84 is justified. On this basis, the appropriate order is to affirm the decision of the respondent.

90 In regard to the information in document 50 I have found, at paragraph [60] above, that the decision of the respondent is not justified in its entirety. However, as I have found that the respondent's decision in respect of some of the information in this documents, it is appropriate to set aside the decision of the respondent and remit it for reconsideration, under s 63 of Administrative Decisions Tribunal Act 1997 (now s 63 of the Administrative Decisions Review Act 1997), in accordance with these reasons for decision.

Orders

File no 123306

(1) The decision of the respondent in regard to the information in document 38,40, 60,79, 81 and the redacted information in document 84 is affirmed.

(2) The decision of the respondent in regard to the information in document 50 is set aside and remitted for reconsideration by the respondent in accordance with these reasons for decision.

File no 133223

(3) The decision of the respondent is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

Decision last updated: 06 August 2014