Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Hall v Department of Premier and Cabinet [2012] NSWADT 46
• Decision date: 21 March 2012
• Jurisdiction: General Division
• Before: S Higgins, Deputy President

Decision

1.The decision of the respondent in regard to the information in paragraphs 4.1.5, 4.2.1, 4.2.2, 4.2.3, 4.5.1 (first paragraph), 4.6.3, 4.6.4, 4.9.1, 4.9.4, 4.9.6 and 5.2.3 and attachment 7.1 is set aside and in substitution thereof a decision to grant the applicant access to that information.

2.The decision of the respondent in regard to the information in paragraphs 4.9.5 and 4.9.7 is varied with a decision to grant the applicant access to the information that is the first sentence in each paragraph.

3.The decision of the respondent in regard to the information in attachment 7.2 is varied with a decision to grant the applicant access to the information, other than the event hiring information as identified in paragraph 62 of these reasons for decision.

4.The decision of the respondent in regard to the information in attachment 7.3 and paragraph 4.5.1 (other than the first paragraph) is set aside and remitted for further consideration by the respondent in accordance with these reasons for decision. The decision of the respondent, on reconsideration, to be provided to the applicant within 28 days of the publication of these reasons for decision.

5.The decision of the respondent in regard to the information in attachment 7.4 is affirmed.

• Catchwords: Access to government information - Cabinet information - document containing the Cabinet information came into existence more than 10 years ago - information concerning the business interests of agencies and other persons
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Freedom of Information Act 1982 (Cth); Freedom of Information Act 1989 (NSW) (repealed); Government Information (Public Access) Act 2009; Sydney Olympic Park Authority Act 2001
• Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR 180; Cannon and Australian Quality Egg Farms Ltd [1994] QICmr 9; Hoy v Department of Lands [2010] NSWADT 193; Media Research Group v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7
• Category: Principal judgment
• Parties: Louise Hall (Applicant); Department of Premier and Cabinet (Respondent)
• Representation: L Hall (Applicant in person); Crown Solicitor's Office (Respondent); Office of the Information Commissioner
• File Number(s): 113018

REasons for decision

Introduction

1 GENERAL DIVISION: (S HIGGINS, DEPUTY PRESIDENT): In September 2010, the applicant, Ms Louise Hall, a journalist from Fairfax Media, made an application to the respondent department, Premier and Cabinet, seeking access to a number of Cabinet documents relating to the 2000 Olympics. The applicant's application was made under the Government Information (Public Access) Act 2009 (GIPA Act).

2 The respondent determined to grant the applicant access to a number of the documents requested but refused to grant access to others. In regard to the documents for which the respondent refused access, the respondent found that there were public interest considerations against the disclosure of the information contained in these documents and that, on balance, this public interest against disclosure outweighed the public interest considerations in favour of disclosure: see section 13 of the GIPA Act.

3 The applicant, being dissatisfied with the decision of the respondent, made an application to the Tribunal seeking review of the respondent's decision, which she was entitled to do: see section 100 of the GIPA Act.

4 On 22 February 2011, at a planning meeting, by consent, I made an order pursuant to paragraph 55(3)(b) of the Administrative Decisions Tribunal Act 1997 (ADT Act) to deal with the application's application even though she had not made an application for internal review. At a subsequent planning meeting, on 24 May 2011, by consent, I made an order setting aside the decision of the respondent in regard to documents A1 to A3 and document A5 to A10 and in substitution thereof made an order that the applicant be granted access to these documents. In regard to the remaining document, document A4, I made an order, by consent, pursuant to section 65 of the ADT Act, remitting the decision of the respondent for further consideration.

5 Document A4, is Cabinet Committee Minute SC 99-3: entitled 'Stadium Australia - AFL Reconfiguration', dated 19 January 1999. The respondent had determined to refuse the applicant access to this document in its entirety.

6 On 9 June 2011 the respondent filed and served a copy of its decision on reconsideration of the applicant's request for access to document A4. Document A4 is eleven pages in length and contains 8 attachments.

7 In its decision on reconsideration, the respondent varied its earlier decision and found that, in part, there was an overriding public interest against disclosure of the information in this document (including the attachment). In accordance with that decision, the respondent filed and served a redacted copy of document A4. However, the respondent affirmed its earlier decision in regard to the redacted information. The respondent's decision, as varied was summarised as follows:

Grant access to attachments 7.5, 7.6, 7.7 and 7.8 which are attached to document A4;

Grant access in part to Documents A4, with paragraphs 4.1.5, 4.2.1, 4.2.2, 4.2.3, 4.5.1, 4.6.3, 4.6.4, 4.9.1, 4.9.4 to 4.9.7 and 5.2.3 redacted because there is an overriding public interest against their disclosure; and

Refuse to grant access to Attachments 7.1, 7.2, 7.3 and 7.4 because there is an overriding public interest against their disclosure.

8 In its reasons, the respondent again identified 'business interests of agencies and other persons' as the relevant public interest consideration against disclosure, in particular those prescribed in item 4(c) (disclosure of the information could reasonably be expected to diminish the competitive commercial value of the information) and item 4(d) (disclosure of the information could reasonably be expected to prejudice any person's legitimate business, commercial or financial interests) in the Table to section 14 of the GIPA Act.

9 The applicant continued to press access to this information. I made orders, by consent, for the filing and serving of evidence and submissions. I also made an order, by consent, pursuant to section 76 of the ADT Act, that the application should be determined on the papers.

Relevant legislation

10 The objects of the GIPA Act are set out in section 3, which provides as follows:

3 Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2) It is the intention of Parliament:

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

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

11 The term 'government information' is broadly defined in subsection 4(1) of the GIPA Act to be 'information contained in a record held by an agency'. The word 'agency' is also defined in subsection 4(1) of the GIPA Act. It is not disputed that the information, the subject of this application is government information and is held by an agency.

12 Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure.'

13 Subsection 9(1) of the GIPA Act gives every person who makes an access application for government information under the GIPA Act a legally enforceable right to be provided with access to the information in accordance with the Act, unless there is an overriding public interest against the disclosure of information.

14 Subsection 12(1) provides that there is a 'general public interest in favour of the disclosure of government information.' Subsection 12(2) provides that nothing in the Act limits any other public interest consideration in favour of the disclosure of government information, which may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government Information. The subsection also sets out a number of examples of public interest considerations in favour of disclosure of government information.

15 The public interest considerations against disclosure are set out in subsections 14(1) and (2) of the GIPA Act, which relevantly provide as follows:

14 Public interest considerations against disclosure

(1) 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.

(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) ...

Table

1 ...

2 ...

3 ...

4 Business interests of agencies and other persons

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) diminish the competitive commercial value of any information to any person,

(d) prejudice any person's legitimate business, commercial, professional or financial interests,

(e) ...

16 Schedule 1 of the GIPA Act includes Cabinet information: see clause 2. However, sub-clause 2(2) excludes Cabinet information which is 10 years old (i.e. 10 years have passed since the end of the calendar year in which the document, containing the Cabinet information, came into existence). As more than 10 years have passed since the Cabinet Minute the subject of this application, came into existence, subsection 14(1) of the GIPA Act has no application.

17 Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure. That test 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 interests considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

18 Section 15 of the GIPA Act sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. 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.

19 Section 54 of the GIPA Act contains a requirement that an agency is to take steps, which are reasonably practicable to consult with specified persons before providing access to information. That requirement only applies to information which is of a kind that requires consultation under subsection 54(2) (see subsection 54(1)). The information requiring consultation includes information that concerns the person's business, commercial, professional or financial interests (see paragraph 54(2)(b) of the GIPA Act).

20 On an application for review to the Tribunal, section 105 of the GIPA Act places the onus on the agency to establish that the decision the subject of review is justified: see subsection 105(1) of the GIPA Act.

21 Section 107 of the GIPA Act makes provision for the procedure in dealing with the procedure before the Tribunal in dealing with public interest considerations. That section provides as follows:

107 Procedure for dealing with public interest considerations

(1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3) On an ADT review, the ADT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:

(a) the public and the applicant, and

(b) the applicant's representative if the ADT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

22 In accordance with subsection 107(3), the Tribunal received into evidence, in the absence of the public and the applicant and the applicant's representative, the information in dispute and statements, in part or whole, of witnesses of the respondent. That evidence is dealt with more fully below. By reason of subsection 107(1) of the GIPA Act, these published reasons for decision do not contain those parts of the reasons which would disclose information falling within that subsection.

The evidence

23 Document A4 . That part of the Cabinet Minute, which has been disclosed, identifies the author as Michael Knight, the then Minister for the Olympics. The main purpose of the Minute was stated to be:

'To obtain approval to amend the Project Document to allow the stadium to be reconfigured to allow a broader range of activities to be held, including the playing of AFL football and for OCA to contribute $6m plus a loan of up to $3m for this purpose.'

24 The reference to the 'stadium' is the Olympic Stadium, which is now known as the ANZ Stadium. The reference to the 'OCA' is the then Olympic Co-ordination Authority' and the 'AFL' is a reference to the 'Australian Football League.' The 'Project Document', which I understand to be the agreement between OCA and Stadium Australia, included a requirement that Stadium Australia undertake certain re-configuration work on the stadium following the Olympics and the Paralympic Games (see paragraph 4.1.1 of the Cabinet Minute). The agreed re-configuration work, according to the Minute, would be too small for AFL and what was being proposed was a change to the seating arrangements in the stadium, including the addition of moveable/retractable seating so that the size of the field could be altered to accommodate a football field (see paragraph 4.3).

25 Stadium Australia is a group of companies, identified by the respondent as the Stadium Australia Group (SAG). It is unnecessary for the purpose of this application to identify the various companies within this group. Accordingly, I have used the same global term used by the respondent, SAG.

26 The Cabinet Standing Committee approved the proposal, as contained in the Cabinet Minute.

27 As I have already indicated, the respondent provided the Tribunal with a full copy of the Cabinet Minute pursuant to subsection 107(3) of the GIPA Act.

28 The respondent filed and served a number of statements. These included:

(a) two statements, each dated 1 April 2011, of Michael Toohey, Senior Project Manager, Investment and Economic Development, Major Co-ordination of the respondent. One statement was an open statement, a copy of which was provided to the applicant and the Information Commissioner. The other statement was provided to the Tribunal in confidence pursuant to subsection 107(3) of the GIPA Act;

(b) a statement of Timothy Frank Laing, Chief Financial Officer of Sydney Swans Limited, dated 11 April 2011. Paragraphs 5 to 7 of this statement were redacted and were provided to the Tribunal, in confidence, pursuant to section 107(3) of the GIPA Act;

(c) a statement of Karen Smith, the Acting Executive Director of the Legal Branch of the respondent, dated 15 April 2011;

(d) a supplementary statement of Mr Toohey, dated 18 April 2011, and a confidential supplementary statement of Mr Toohey, dated 15 April 2011. The confidential statement was provided to the Tribunal pursuant to subsection 107(3) of the GIPA Act;

(e) a statement of Tony Partridge, Commercial Director of Stadium Australia Management Ltd (i.e. SAG), dated 12 May 2011. Paragraphs 5 and 6 of this statement were redacted and were provided to the Tribunal, in confidence, pursuant to section 107(3) of the GIPA Act; and

(f) a further supplementary statement of Mr Toohey, dated 1 July 2011, and a further confidential supplementary statement of Mr Toohey dated the same day. Again, the confidential statement was provided to the Tribunal pursuant to subsection 107(3) of the GIPA Act.

29 In regard to the evidence provided to the Tribunal in confidence, pursuant to subsection 107(3) of the GIPA Act, I made orders under subsection 75(2) of the Administrative Decisions Tribunal Act 1997 , prohibiting the publication or disclosure of that evidence to the public, the applicant and the applicant's legal representative.

30 In his open statement, dated 1 April 2011, Mr Toohey explained that

the SAG has been operating the stadium since the early 1990's. It has been operating the stadium pursuant to a lease and Project Agreement that it entered into with the OCA. Under the terms of the lease and the Project Agreement, SAG will lease the stadium until 31 January 2031.

31 Mr Toohey said that, in 2002, the OCA was dissolved and most of its assets (including the stadium), rights and liabilities were transferred to the Sydney Olympic Park Authority (SOPA). I note that SOPA is a statutory body established under the Sydney Olympic Park Authority Act 2001 .

32 Mr Toohey said that, between 2001 and 2003, SAG borrowed $12 million from the OCA and subsequently from the SOPA to fund the re-configuration work at the stadium. Contractual arrangements regarding the loan are part of the Project Agreement. Mr Toohey's evidence is that payments SAG makes on the loan benefits the State's overall budget position in that the amount needed to fund the SOPA from consolidated revenue is reduced.

33 Mr Toohey's evidence is that as at 30 June 2010, the $12 million loan from SOPA to SAG had a balance of approximately $27.6 million. Mr Toohey went on to say that the Government was currently considering a proposal in relation to the Project Agreement. This proposal having been referred to a Government Steering Group and Government Negotiation Group, which was made up of representatives of the respondent, Treasury and SOPA. It was Mr Toohey's evidence that disclosure of some of the redacted information in the Cabinet Minute would prejudice the respondent, Treasury and SOPA's business, commercial or financial interests. I have dealt with this evidence in more detail below.

34 In her statement, Karen Smith, gave evidence of the steps she took in regard to consulting (see section 54 of the GIPA Act) the SAG, the AFL and the Sydney Swans in regard to the relevant attachments to the Cabinet Minute and other documents for which the applicant had sought access. As I have explained, the only document in dispute is document A4.

35 In regard to the attachments to the Cabinet Minute, it was the evidence of Ms Smith that, at the time of making her statement, she had received a response from Mr Andrew Dillon, General Manager - Legal and Business Affairs of the AFL. Mr Dillon responded by saying that the AFL had no objection to the release of attachment 7.1.

36 From the material provided to the Tribunal, it would appear that the list of attachments, at paragraph 7, of the Cabinet Minute has not been disclosed. Yet the respondent has provided a description, in its written submissions, of those attachments that have not been disclosed. Accordingly, I have assumed that the failure to disclose the list of attachments is an oversight. Nevertheless, all references to these attachments in these reasons for decision are those contained in the respondent's written submissions.

37 In his open statement, Mr Partridge said that the SAG is a commercial private entity operating in a competitive market where most of its competitors are government entities, one of which is the Sydney Cricket Ground Trust (SCG Trust). It was his evidence that the Cabinet Minute contained commercially sensitive and confidential information about venue hiring terms, amendments to documents concerning the management and operation of the stadium and the terms of loans and financing arrangements. He went on to say that, if access were to be provided to this information, there was a significant risk that SAG would be placed in a disadvantaged position compared to the SCG Trust or any other competitor in the market.

38 In his open statement, Mr Laing said that the Sydney Swans objected to the disclosure of the material in the Cabinet Minute, which would reveal the commercial arrangements between the Sydney Swans and the operator of the stadium, SAG. He said that the Sydney sporting and ground hiring environment is very competitive between the various sporting codes and each guards jealously the terms of its ground hire arrangements and any disclosure of its terms with the SAG would commercially disadvantage the Sydney Swans.

39 In support of its determination, the respondent provided detailed written submissions. The Information Commissioner also provided detailed written submissions, to which the respondent provided detailed submissions in reply.

Consideration

40 As pointed out by the Information Commissioner, the GIPA Act relates to access to 'information' contained in a record held by a government agency. It is not concerned with access to 'documents' per se.

41 In its written submissions, the respondent has categorised the disputed (i.e. redacted) paragraphs and attachments into three categories. It is convenient to deal with the information in dispute in accordance with these categories.

42 Paragraph 4.6.3 and 5.2.3 . Paragraph 4.6.3 appears under the heading at paragraph 4.6, which is entitled 'Sydney Cricket Ground'. Paragraph 5.2.3 is contained within paragraph 5, which deals with 'benefits'. Paragraph 5.1 deals with economic benefits and the entirety of this paragraph has been disclosed. Paragraph 5.2 deals with social benefits. There are three subparagraphs to this paragraph and the first two subparagraphs have been released in their entirety.

43 It is the evidence of Mr Toohey that disclosure of the information in paragraphs 4.6.3 and 5.2.3 could reasonably be expected to prejudice the respondent, Treasury and SOPA's business or financial interests, including in relation to the Project Agreement (see the open statements of Mr Toohey at paragraph 9, 3 and 4 respectively). That is, the disclosure of this information could reasonably be expected to adversely impact on the State's financial position by jeopardising the current negotiations with SAG (see paragraph [33] above) and would mean a reduced return to the State in relation to the operation of the stadium and a reduction in the amount that the State would have available to spend on other items. That is, a disclosure of these paragraphs could reasonably be expected to have the effect of prejudicing the legitimate business, commercial, professional or financial interests of the State: see item 4(d) of section 14 of the GIPA Act. The respondent has not been specific as to whether all or only some of the interests referred to in this item are relied on. However, on the basis of Mr Toohey's evidence, it would appear to rely on the State's financial interests.

44 The words 'could reasonably be expected' have been the subject of considerable judicial consideration in regard to their use in the repealed Freedom of Information Act (1989)(NSW) (FOI Act (repealed)) and the Freedom of Information Act (1982) (Cth). It is well accepted that the words are to be given their ordinary meaning: see Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In Cockcroft , Bowen CJ and Beaumont J explained, at 190, that the words - 'require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous to expect the prescribed consequences.'

45 I agree with the respondent's submissions the 'could reasonably be expected to have the effect' enquiry in item 4 of the Table in section 14 of the GIPA Act 'simply calls for an objective assessment', on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is of course a question of fact.

46 As I have already explained, the onus is on the respondent to first establish that the public interest consideration against disclosure, as prescribed in item 4(d) of section 14 of the GIPA Act, applies to the information in question. In this regard the respondent relies on the evidence of Mr Toohey, as set out in his open and confidential statements.

47 There is no dispute that at the time Mr Toohey made his statement, the State was in the process of negotiating with the SAG in regard to the Project Agreement. However, the question is whether the disclosure of the information in paragraphs 4.6.3 and 5.2.3 could prejudice the State's legitimate financial interests. On the basis of the confidential reasons set out below, I am not satisfied that the respondent has established, to the requisite standard, that a disclosure of the information in these paragraphs could reasonably be expected to prejudice the financial interests of the State. That is, I am not satisfied, having regard to the information in question (including the date on which it came into existence and the context in which it appears) that the disclosure of that information today could reasonably be expected to have the asserted effect on the State's financial interests in the relevant sense.

48 [CONFIDENTIAL].

49 [CONFIDENTIAL].

50 [CONFIDENTIAL].

51 [CONFIDENTIAL].

52 As a result of my finding above, it is unnecessary for me to consider whether the public interest considerations against disclosure, on balance, outweigh the public interest considerations for disclosure. However, I would add that in my view there are a number of public interest considerations in favour of disclosure of the information in the disputed paragraphs. The stadium is an important public asset and disclosure of the disputed information (now 13 years old) and could reasonably be expected to enhance Government accountability and ensure effective oversight of the expenditure of public funds.

53 Attachments 7.1 and 7.2 and paragraphs 4.2.1, 4.2.2, 4.2.3 and 4.6.4 . The respondent has described attachment 7.1 as a letter, dated 30 November 1998, from the Chief Executive Officer of the AFL to SAG, setting out the terms of the AFL's commitment to SAG. A summary of that commitment is contained in paragraphs 4.2.1 to 4.2.3 of the Cabinet Minute.

54 In its written submissions, the respondent explained that Attachment 7.2 is a letter, dated 24 December 1998, from Stadium Australia to the Chief Executive of the Sydney Australian Football Club Ltd (the 'Sydney Swans') discussing the terms of and attaching two pages of an 'Event Agreement' between Stadium Australia Management Ltd and the Sydney Swans. Paragraphs 4.2.1, 4.2.2 and 4.6.4 of the Cabinet Minute contain information that is found in the attachments.

55 It is the contention of the respondent that the disclosure of the information in these attachments and paragraphs could reasonably be expected to diminish the competitive commercial value of the information contained therein (see item 4(c) of section 14 of the GIPA Act), or prejudice the legitimate business, commercial or financial interests of the Sydney Swans and the SAG (see item 4(d)).

56 Recently, in Media Research Group v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7, at [48], the Appeal Panel considered the meaning of the term 'commercial value' as it appeared in clause 7(1)(b) of Schedule 1 of the repealed Freedom of Information Act 1989 . After noting the descriptions given to this term in Hoy v Department of Lands [2010] NSWADT 193 at [16] and Cannon and Australian Quality Egg Farms Ltd [1994] QICmr 9, the Appeal Panel held that for information to have a 'commercial value' there should be 'some uniqueness attaching to the information that justifies treating it as exclusive, secret or confidential.'

57 As I have indicated, the AFL has no objection to the release of the information in attachment 7.1. This does not mean that the information, if disclosed, could reasonably be expected to have the effect as asserted by the respondent. It is the evidence of Mr Laing and Mr Partridge that the information in both attachments is commercially sensitive and confidential. In particular, they refer to the information about the terms of ground hire arrangements between SAG, the AFL and the Sydney Swans. This information Mr Laing and Mr Partridge assert has a competitive commercial value and its disclosure would diminish that value, as well as prejudice the legitimate business, commercial and financial interests of the SAG and the Sydney Swans.

58 On the basis of the confidential reasons set out below, I am satisfied that the disclosure of the 'event hiring' information as contained in attachment 7.2 could reasonably have the effect as asserted by Mr Laing and Mr Partridge. However, I am not satisfied that the disclosure of the remaining information in attachment 7.2 could reasonably have the asserted effect. I make a similar finding in regard to the information contained in attachment 7.1 and paragraphs 4.2.1, 4.2.2, 4.2.3 and 4.6.4 in the body of the Cabinet Minute.

59 [CONFIDENTIAL].

60 [CONFIDENTIAL].

61 [CONFIDENTIAL].

62 [CONFIDENTIAL].

63 Accordingly, I am satisfied that there is a public interest consideration against the disclosure of the 'event hiring' information, as identified in my confidential reasons, in attachment 7.2. The question is whether this public interest outweighs, on balance, the public interest considerations in favour of disclosure. As I have indicated, section 12 of the GIPA Act provides that the public interest considerations in favour of disclosure are unlimited. In this regard I note the presumption in favour of the disclosure of government information as set out in section 5 of the GIPA Act.

64 In my view balancing the respective public interests, I find that there is an overriding public interest against disclosure. The disclosure of the 'event hiring' information, which I have found is commercial in confidence information that has a competitive commercial value, is that agreed to between two private entities. Furthermore, it is still relevant today as there is an ongoing agreement between the parties. At the same time a disclosure of the information would not enhance Government accountability.

65 Attachments 7.3 and 7.4 and paragraphs 4.1.5, 4.5.1, 4.9.1 and 4.9.4 to 4.9.7 . The respondent has described attachment 7.3 as a proposed letter of offer (undated) from the OCA to SAG. The letter, the respondent explains, sets out the terms on which OCA would, subject to Cabinet approval, provide financial assistance to SAG in relation to the AFL reconfiguration works. This included proposed amendments to the Project Agreement, as agreed to by SAG. The amendments, the respondent went on to explain, included matters such as interest rates. Attached to the letter is a copy of the Project Agreement, in part, which is marked with the proposed amendments, in the event the proposal, as set out in the Cabinet Minute, was approved. Also attached were two drawings of the Stadium.

66 The respondent asserts that paragraphs 4.5.1 and 4.9.7 in the Cabinet Minute contain information that is found in attachment 7.3.

67 Attachment 7.4 is described by the respondent as a letter, dated 4 January 1999, from the ANZ Bank to SAG. The respondent explained that the letter sets out the terms and conditions of an increase in SAG's Term Facility to fund the AFL reconfiguration works, including the interest rate payable on the funds provided and the conditions precedent to SAG drawing down the funds. The respondent also asserts that paragraphs 4.9.1, and 4.9.4 to 4.9.7 of the Cabinet Minute contains information that is found in attachment 7.4.

68 It is convenient to first deal with attachment 7.4. On the basis of the evidence of Mr Partridge, the content of the information in this attachment, and the fact that it is a communication between SAG and its private financier, I am satisfied that a disclosure of the information in this document, could reasonably be expected to prejudice the legitimate business, commercial and financial interests of SAG. I make this finding in regard to the entirety of the information in this document. [CONFIDENTIAL ]

69 In regard to the information in paragraphs 4.9.1 and 4.9.4 to 4.9.7, in my view, it is only the information at the first dot point in paragraph 4.9.4, which could be argued is information concerning the business, commercial or financial interests of SAG. However, as Mr Partridge has not specifically given any evidence that the disclosure of the information in this paragraph could reasonably be expected to prejudice the business, commercial or financial interests of SAG, or that the information had a competitive commercial value and that its disclosure could reasonably diminish that value, I am not satisfied that the respondent has established, to the requisite onus, that its disclosure could reasonably have the asserted effect.

70 In regard to the information in attachment 7.3, it is my understanding that the terms of the offer as set out in the letter were subsequently agreed to and the appropriate amendments were made to the Project Agreement. As I understand it, that Agreement and the amendments to it, is classified as a Government Contract because one of the parties, OCA (now SOPA), was a Government entity. While the provisions as to the disclosure of Government Contracts has changed over time, it would appear that the respondent has not given any consideration as to the application of these disclosure requirements to the information in attachment 7.3. In my view, the respondent should be given the opportunity to do so and it should have regard to the disclosure requirements that apply today and not those that applied in 1999. Even if I am incorrect in my classification of the Project Agreement, the respondent should have regard to the general principles that are set out in these reasons for decision.

71 Consistent with my findings in regard to paragraph 4.6.3 and 5.2.3, I find that the respondent has failed to establish that the disclosure of the first paragraph in paragraph 4.5.1 of the Cabinet Minute could reasonably be expected to have the asserted effects on the business, commercial or financial affairs of SAG. As the remainder of the information in this paragraph relates to the information contained in attachment 7.3, it is appropriate to also remit the respondent's decision in regard to that information. I would however add that, in my view, in weighing the public interest considerations, the information contained in this paragraph and that contained in attachment 7.3 should be assessed independently of each other. That is, even if it is found that there is an overriding public interest against disclosure of the information in attachment 7.3, this does not give rise to an automatic conclusion that there is an automatic overriding public interest against the disclosure of the remaining information in paragraph 4.5.1.

72 Finally, it is necessary to make some additional findings in regard to the disputed information in paragraphs 4.1.5, 4.9.1, 4.9.4, 4.9.5, 4.9.6 and 4.9.7. In my view the respondent has failed to establish that the disclosure of the information in paragraphs 4.1.5 and 4.9.1 could reasonably be expected to have an effect on the business, commercial or financial interests of AFL, SAG or Sydney Swans as prescribed in item 4 of section 14 of the GIPA Act. The information appears to be purely factual and uncontroversial. I make a similar finding in regard to paragraphs 4.9.4 and 4.9.6. The latter I note relates to the OCA.

73 In regard to paragraphs 4.9.5 and 4.9.7, I find that the disclosure of the information in the second and third sentences in each paragraph could reasonably be expected to prejudice the business, commercial or financial interests of the AFL, Sydney Swans and SAG. I make this finding on the basis that this information concerns (a) the 'rental fee' under which the AFL and Sydney Swans have agreed to hire the stadium and (b) the terms of the OCA loan to SAG.

74 In summary, my findings as to whether the information in this last category of information in dispute gives rise to the asserted public interest consideration against disclosure, are as follows:

(a) I am satisfied that the respondent has established, to the requisite standard that the information in attachment 7.4 and the second and third sentence in paragraphs 4.9.5 and 4.9.7, if disclosed, could reasonably prejudice the business, commercial or financial interests of SAG, the AFL or the Sydney Swans. Accordingly, having established a public interest consideration against disclosure of this information, this public interest must be weighed against the public interest for disclosure, in accordance with the test section 13 of the GIPA Act;

(b) I have found that the respondent should be given an opportunity to reconsider the information in attachment 7.3 and the information in paragraph 4.5.1, other than the first paragraph. Accordingly, the appropriate order is to set aside the decision of the respondent in this regard and remit this information for reconsideration, pursuant to subsection 63(3) of the Administrative Decisions Tribunal Act 1997 ;

(c) I am not satisfied that the respondent has established to the requisite standard that the information in paragraphs 4.1.5, 4.5.1 (the first paragraph), 4.9.1, 4.9.4 and 4.9.6, if disclosed reasonably have the asserted effect on the business interests of SAG, AFL or the Sydney Swans. Accordingly, the appropriate order is to set aside the decision of the respondent in regard to the information in these paragraphs.

75 In regard to the information in attachment 7.4 and the second and third sentences in paragraphs 4.9.5 and 4.9.7, on the basis of my findings that there is a public interest consideration against disclosure and having regard to the matters set out in paragraph [63] above, I find that the public interest considerations against disclosure, when weighed against the public interest considerations for disclosure, is on balance, an overriding one. Once again, the information is commercial in confidence. In regard to attachment 7.4 the information relates to an agreement between non government agencies and to the extent there is a public interest consideration in favour of disclosure, this is adequately addressed in what is contained in paragraph 4.9.4, which I have found should be disclosed. My findings in regard to paragraphs 4.9.5 and 4.9.7 are based on similar grounds.

Orders

For the reasons set out above the tribunal makes the following orders:

1. The decision of the respondent in regard to the information in paragraphs 4.1.5, 4.2.1, 4.2.2, 4.2.3, 4.6.3, 4.6.4, 4.9.1, 4.9.4, 4.9.6, 4.5.1 (first paragraph) and 5.2.3 and attachment 7.1 is set aside and in substitution thereof a decision to grant the applicant access to that information.

2. The decision of the respondent in regard to the information in paragraphs 4.9.5 and 4.9.7 is varied with a decision to grant the applicant access to the information that is the first sentence in each paragraph.

3. The decision of the respondent in regard to the information in attachment 7.2 is varied with a decision to grant the applicant access to the information, other than the event hiring information as identified in paragraph 62 of these reasons for decision.

4. The decision of the respondent in regard to the information in attachment 7.3 and paragraph 4.5.1 (other than the first paragraph) is set aside and remitted for further consideration by the respondent in accordance with these reasons for decision. The decision of the respondent, on reconsideration, to be provided to the applicant within 28 days of the publication of these reasons for decision.

5. The decision of the respondent in regard to the information in attachment 7.4 is affirmed.

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Decision last updated: 21 March 2012