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NSW Government Bulletin

04 September 2019

#Government

Christine Jones

Published by Christine Jones

NSW Government Bulletin

Is fear of reputational damage a relevant public interest consideration against disclosure under the GIPA Act?

In Turner v Department of Planning and Environment [2019] NSWCATAD 166, an individual applied to the former Department of Planning and Environment (Department) under the Government Information (Public Access) Act 2009 (GIPA Act) seeking access to certain reports regarding the impacts from the Dendrobium coal mine in the Illawarra (Reports), including draft reports.

The Reports were sought on the basis that disclosure of the information could reasonably be expected to inform the public about:

  • the state of important resources which, given the potential impact of mining activity on the environment, economy and infrastructure of the state, is of considerable public interest
  • the operations of agencies specifically in the regulation of important resources. 

The Department refused access to certain requested Reports on the grounds that disclosure could reasonably be expected to prejudice the Department’s ability to obtain reliable expert opinion, thereby undermining its ability to provide appropriate advice to government, the community and industry. In essence, the Department relied on the following public interest considerations against disclosure found in s 14 GIPA Act, namely that the Reports:

  • 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
  • prejudice the effective exercise by an agency of the agency’s functions
  • prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of the agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

In response to this, the individual commenced this action in the NSW Civil and Administrative Tribunal (Tribunal) seeking a review of the Department’s decision.

Sections 5 and 9(1) of the GIPA Act establish a presumption in favour of disclosure of government information. This provides an applicant with a legally enforceable right to access the information requested unless the authority can establish that there is an overriding public interest against disclosing such information.

Is exposure of experts to potential criticism or reputational damage a relevant consideration?

The Dendrobium coal mine has been the subject of much public interest and media attention, particularly regarding its potential impact on the catchment area for Sydney’s drinking water supply.

Accordingly, the Department was concerned that if the Reports were released (particularly draft reports), it was highly likely that there would be considerable media attention given to the documents and that it may give light to initial lines of inquiry or preliminary findings that were later modified or discarded. The impacts of this would be exacerbated, the Department argued, where the inquiries were only intended to inform thinking about the project, but were never intended for publication.

The Department also argued that it relies heavily on being able to engage independent experts to supplement internal expertise and that the pool of experts that have the relevant expertise is very small. The Department was therefore concerned that disclosure of preliminary draft reports might have potential reputational repercussions for the authors that would dissuade them from working with the Department in the future.

Also, the Department noted that if experts were more cautious in providing draft versions of their reports and less forthcoming about their preliminary views (due to a concern about the release of these documents), then this would have a detrimental effect on the Department’s ability to rely on this expert assistance.

Conversely, the applicant argued that it was highly unlikely that an experienced professional consultant will have accepted a publicly funded engagement without being aware of the possibility that concerned citizens may seek information provided at all stages of the process. It was also noted that seasoned professional experts carrying out their work “without fear or favour” would have no reason to fear public scrutiny of their work.

Further to this, an argument was also raised that the author of the relevant Reports did not object to release of the draft work. It was submitted that this was demonstrative of the fact that the Department’s concerns regarding being able to engage relevant experts was unfounded.

Ultimately, the Tribunal found for the Department and held that exposing experts to potential criticism and reputational damage was a relevant consideration against the public disclosure of an expert report. In particular, the Tribunal found:

  • that the releasing of the draft report might prejudice the Department’s ability to obtain expert advice to assist it with its decision making functions which is necessary to supplement the knowledge of the Department’s officers, the impacts of which are exacerbated given that the Department is already experiencing difficulty in securing appropriately qualified experts that the absence of any objection to the release of the draft report by the relevant author did not necessarily mean that other experts, or experts in general, might not be more reluctant to work with the Department if they feared the release of their preliminary work.

View the full decision here

Author: Rosie Donnelly

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Choi v University of Technology Sydney [2019] NSWCATAD 176
ADMINISTRATIVE LAW — freedom of information — access to information – application for Tribunal to refuse to deal with review application under s 109 of the Government Information (Public Access) Act 2009 – application for summary dismissal of review application – Tribunal refused to deal with and dismissed review application.

Murrant v Building Professionals Board [2019] NSWCATOD 130
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Harris v Mathieson (in his capacity as an authorised officer under the Water Management Act 2000 (NSW) [2019] NSWSC 1064
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Frost v State of New South Wales, Department of Communities and Justice [2019] NSWCATAD 165
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Turner v Department of Planning and Environment [2019] NSWCATAD 166
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Zidar v NSW Department of Justice (Office of the General Counsel) [2019] NSWCATAD 164
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Subordinate Legislation (Postponement of Repeal) Order (No 2) 2019 (2019-442) — published LW 30 August 2019
Contaminated Land Management (Adjustable Amounts) Notice 2019 (2019-404) — published LW 23 August 2019
Dust Diseases Tribunal Regulation 2019 (2019-405) — published LW 23 August 2019
Film and Television Industry (Advisory Committee) Regulation 2019 (2019-406) — published LW 23 August 2019

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Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

Christine Jones

Published by Christine Jones

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