The Honourable Adam Searle MLC applied to Transport for NSW under the Government Information (Public Access) Act 2009 (NSW) (the Act) for:
“Any and all version of any document or report, however recorded, by John ‘Jock’ Murray and/or King and Wood Mallesons about the Sydney Light Rail project (Project), held by the Department or any of its officers.”
Transport for NSW located four documents (Documents) containing information of the kind requested, which arose from reviews of the Project in 2016 by an independent expert panel.
Transport for NSW refused Mr Searle access to the Documents on the basis that they were Cabinet information as defined in the Act.
Upon Mr Searle applying to the New South Wales Civil and Administrative Tribunal (the Tribunal) for review of the decision, Transport for NSW submitted in the alternative, that there were public interest considerations against disclosure of the information.
The first issue for determination was whether the information was Cabinet information. The Act provides it is to be conclusively presumed that there is an overriding public interest against disclosure of Cabinet information contained in, relevantly:
- a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet’s consideration (whether or not the document is actually submitted to Cabinet); or
- a document that is a preliminary draft of, or a copy of or part of, or contains an extract from such a document.
The context included that there was evidence disclosed that the Documents had not been provided to Cabinet and that in the previous year, no gateway reviews and health check reports for the Project had gone to Cabinet. The Tribunal noted that this might indicate that the preparer of the Documents did not have as an object that they would go to Cabinet.
The Tribunal found that while Transport for NSW was able to demonstrate that a purpose of the Documents’ preparation was their submission to Cabinet, it was not the dominant purpose. The Tribunal found that the main purposes of preparing the Documents were to monitor the [Project] effectively and to provide summaries of the findings and recommendations of the reviews to Government, including Cabinet. In making this finding, the Tribunal noted that the Documents would have been prepared irrespective of whether there was any intention to submit them to Cabinet.
In considering Transport for NSW’s alternative submissions as to why there was a public interest consideration against disclosure of the Documents, the Tribunal found:
- disclosure of the Documents to Mr Searle would not prejudice the supply of confidential information to Infrastructure NSW in the future, as it could not be reasonably expected disclosure would cause public servants to fail to fulfil their duties to be candid and frank with the reviewing team
- disclosure of information concerning problems the Sydney Light Rail Delivery Office is having with stakeholders, commercial-in-confidence information and information containing criticisms of particular stakeholders could reasonably be expected to prejudice Transport NSW’s ability to effectively exercise its functions, but this was outweighed by public interest considerations in favour of disclosure
- disclosure of the Documents to Mr Searle would not place Transport for NSW at a competitive disadvantage in the market, nor would it prejudice the legitimate business and commercial interests of the Sydney Light Rail Delivery Office and Transport for NSW.
The Tribunal held that an overriding public interest against disclosure of the Documents had not been established and ordered Transport for NSW to provide Mr Searle with access to the information sought within 28 days, with the exception of some information contained in appendices to the Documents. In finding in Mr Searle’s favour, the Tribunal gave considerable weight to the fact that such disclosure could reasonably be expected to enhance the maintenance and advancement of a system of responsible and representative government that is open, accountable, fair and effective.