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 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:
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:
View the full decision here
Author: Rosie Donnelly
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