WRITTEN BY Alice Menyhart & Victoria McGinness
This essential guide will assist Local Councils to consider and apply item (1)(d) to the table in Section 14 of the Government Information (Public Access) Act 2009 (NSW) (the Act) to access applications. That section provides that there is a public information consideration against disclosure of information where the disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions. Section 14(1)(d) is commonly relied upon by Councils where an applicant is seeking access to documents relating to a complaint or investigation, often in conjunction with 14(1)(f).
The GIPA Act establishes a presumption in favour of the disclosure of information. As such, unless a Council determines that there is an overriding public interest against the disclosure of such information, it must be provided to the applicant.
To determine whether information should be released to an applicant it is necessary to apply the “public interest test” in accordance with the principles set out in section 15 of the GIPA Act. This involves
When dealing with a request for access of information under the GIPA Act, a Council will need to carefully consider the relevant public interest considerations to determine whether the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. The balancing exercise ‘is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation’. It should be done for each document or category of documents for which access is sought.
Section 14 of the Act includes a table listing public interest considerations against disclosure. This guide considers the application of item (1)(d).
The relevant elements of s.14(1)(d) are:
Local Councils may receive information in confidence in a range of contexts, including through investigations, petitions, complaints and briefings. Whether information supplied is ‘confidential information’ is a question of fact. It well established that, even where information is not expressly stated to be provided to an agency in confidence, this can be inferred from the circumstances in which it was provided. The Tribunal provided the following guidance on when information will be ‘confidential information’ in Williams v Department Industry and Investment  NSWADT 192:
The term ‘prejudice’ has been given its ordinary meaning of ‘to cause detriment or disadvantage’ or ‘to impede or derogate from’. In determining whether the release of information ‘could reasonably be expected’ to have the effect of causing prejudice to a Council’s exercise of its functions, it is appropriate
to consider the particular circumstances in which the information was supplied as well as, more generally, whether the Council’s ability to obtain confidential information in the future would be impaired.
This question is to be answered at an ‘operational level’. It is not a question of whether a particular person may refuse to supply information in the future, but whether an inference can reasonably be drawn that the agency’s general ability to obtain such information in the future would be likely to be prejudiced.
Impact on Council function
The information sought must also be information which ‘facilitates’ the effective exercise of the Agency’s functions. In applying 14(1)(d) it is therefore necessary to identify the relevant function the Council considers would be prejudiced by release of the information. In this regard the Tribunal has acknowledged that Councils perform a broad range of functions under a wide range of legislation.
Reasonably be expected to have that effect
It is also necessary that the disclosure of the information could ‘reasonably be expected to’ have the prejudicial effect on Councils functions. This requires “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”. The test is objective, based on what a reasonable decision-maker would consider to be the effect of disclosure. In considering whether a council officer is satisfied that disclosure “could reasonably be expected” to have a particular effect, the following principles from the Tribunal’s Appeal Panel should be applied:
(1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;
(2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;
(3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses [or the public officer].
Councils should be conscious of the three elements of section 14, item 1(d), as set out in this guide and ensure each requirement is met before relying on this public interest consideration against disclosure.
The Information Commissioner has also issued guidelines on the public interest considerations for and against disclosure, and the application of the public interest test, which may be of assistance to Councils. They are available at https://www.ipc.nsw.gov.au/information-access/agencies/resources.
For more information, or for assistance in determining GIPA Applications, including applying item (1)(d) to the table in Section 14, contact Alice Menyhart or another member of the Planning, Environment & Local Government team.
 Government Information (Public Access) Act 2009 (NSW) s 5.
 Government Information (Public Access) Act 2009 (NSW) s 13.
 Flack v Commissioner of Police, New South Wales Police  NSWADT 286.
 Government Information (Public Access) Act 2009 (NSW) s 14.
 Collins v Department Finance, Services & Innovation  NSWCATAD 60
 See also Bright v Eurobodalla Shire Council  NSWCATAD 287
 Hurst v Wagga Wagga City Council  NSWADT 307 at 
 Leydon v Commissioner of Police  NSWCATAD 267 at .
 Commissioner of Police, NSW Police Force v Camilleri  NSWADTAP 19; Transport for NSW v Searle  NSWCATAP 93
 Attorney-General’s Department v Cockcroft (1986) 10 FCR 180; CGU Workers Compensation (NSW) Ltd v Department of Planning and Environment  NSWCATAD 169
 Leech v Sydney Water Corporation  NSWADT 298
 Newcastle City Council v Newcastle East Residents Action Group  NSWCATAP 254