“What are you doing with my taxes?” – GIPA and Government Transparency

Key Points:
  • Applications to access government information will be granted if the requested agency believes that disclosure is in the public interest.
  • A key consideration in favour of disclosure is whether the disclosure would improve transparency of government activities, including public expenditure.
Access Applications under the Government Information (Public Access) Act 2009 (NSW) (‘GIPA Act’) are a common avenue for citizens to obtain government information. The Tribunal Appeal Panel (‘Appeal Panel’) recently illustrated that the public interest in maintaining transparency of government activities can be incredibly influential in determining whether to disclose government information. This was considered in Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254.

Background

This case concerned a group of Newcastle residents who applied to the Council for information about the ‘Newcastle 500 Supercars Event’. After considering the public interest considerations in favour of and against disclosure of the information, the Resident Action Group (‘RAG’) was refused access to some of the requested information.

The RAG appealed the Council’s decision to the Tribunal on the basis that disclosure of the information was in the public interest. The Tribunal accepted this argument and granted the RAG access to most of the requested documents (deeds, agreements and correspondence between the Council, V8 Supercars Australia and Destination NSW).

This decision was then appealed by the Council to the Appeal Panel.  While the Appeal Panel agreed that the Tribunal had made errors at law, it affirmed the Tribunal’s substantive decision on the basis that the public interest considerations in favour of disclosure outweighed the considerations against disclosure. Notably, significant weight was given to the fact that the information’s disclosure would stimulate discussion about government affairs, particularly about how the government was spending public funds.

Public interest considerations in favour of disclosure: Government transparency

The Appeal Panel noted that there was a general public interest in favour of disclosure, particularly because the public has the right to know ‘the nature and extent of those benefits’ which the Council receives in exchange for payments ‘in cash or in kind’. This is reflected in GIPA Act s 12(2) which states that considerations in favour of disclosure include whether the:

(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; and

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

The Council conceded that these considerations were prominent within the current access application, reluctantly accepting that disclosure of the requested information would help promote government accountability. This was confirmed by the Tribunal and the Appeal Panel which gave ‘significant weight’ to these factors in their decision to grant access to the Applicants.

The Tribunal and the Appeal Panel also thought it was a relevant consideration that the RAG was comprised of residents from the area in which the event was conducted for the purposes of GIPA Act s 55. However, neither the Tribunal nor the Appeal Panel discussed the weight which either body attributed to that consideration.

Public interest considerations against disclosure: Disclosing commercial information

GIPA Act s 54 requires government agencies to consult with persons who may be reasonably expected to have concerns about the disclosure of information. Within this case, relevant third parties included V8 Supercars Australia and Destination NSW, which both objected to disclosure, contending that the requested information was commercially sensitive.

However, the Tribunal and the Appeal Panel decided that these parties’ interests would not be prejudiced by the information’s disclosure. For the Appellants to succeed in their argument that their interests were prejudiced, it would have needed to prove that there was a ‘real and substantial’ risk that disclosure would have an effect outlined in GIPA Act s 14. However, the Appeal Panel was not satisfied that the disclosure of this information would create this risk. Accordingly, the presumption in favour of disclosure was not displaced and the access application was granted.

Further, even if the decision maker or the Tribunal disclosed prejudicial information to an applicant pursuant to the GIPA Act, s 113 would operate to protect the disclosing entity from an action for breach of confidence or defamation. This statutory protection is an important consideration for any business dealing with government agencies.

Takeaway

If requested information will increase government transparency, it will generally be disclosed subject to any pressing public interest considerations against disclosure.

Post by Paralegal, Joshua Yan and Partner, John Kell

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