By Patricia Gardiner
A Review Report issued by the Information and Privacy Commission(IPC) has labelled ESC’s decision to ‘refuse access’ and to ‘defer access’ to financial information regarding the BBRAALC as ‘unjustified,’ under the GIPA Act.
Under the Government Information Public Access(GIPA) Act, everyone has a legally enforceable right to access government information, unless there is an overriding public interest against disclosure.
On the 20th Aug 2020, I lodged a GIPA request with Eurobodalla Shire Council(ESC) for the Capital Expenditure Review information that it had provided to the Office of Local Government(OLG) in regard to the $69 million Batemans Bay Regional Aquatic, Arts and Leisure Centre(BBRAALC) project.
Councils are required to submit such a Review prior to committing to any major project, thereby ensuring ‘accountability and prudent financial management of council resources.’(OLG Circular 10-34)
Although I was provided with some information, ALL FINANCIAL information was either refused or deferred. I found council’s reasons for non disclosure questionable. Consequently, I undertook some further research and then sought an EXTERNAL REVIEW by the IPC as is my right under the GIPA Act.
EXTERNAL REVIEW REQUEST
I sought:
* a review of ESC’s decision to refuse access to financial information re financial modelling undertaken by SGS Economics and Planning Pty Ltd. * a review of the decision to defer access to grant funding milestones and payments and financial information relating to the BBRAALC project costs as these costs are irrelevant to the tenders being sought for management of the completed project.
In regard to the Financial Modelling undertaken by a consultant – SGS Economics and Planning Pty Ltd in 2017, Council’s Notice of Decision, 1 Oct 2020 advised: 34.2.1. The financial modelling information commissioned by Council from a third party consultant was provided for Council’s use on a confidential basis. The consultant has confirmed that this modelling remains their intellectual property and should be used and maintained in confidence by Council and not publicly disclosed. 42. Council has previously consulted with a third party about the disclosure of their financial modelling information for the BBRAALC, commissioned by Council. I was advised that this third party maintains their objection to the public disclosure of that information, which they say should be maintained in confidence by Council. 61. As identified above, there is an overriding public interest against disclosure of some (but not all) of the requested information. That information is: extract of financial modelling provided to Council by a third party consultant. The third party has maintained an objection to the public disclosure of this information and advised that it should be maintained in confidence by Council. 62. Access to this information is therefore REFUSED, under section 58(1)(d) of the GIPA Act. As the Information Officer stated that she was ‘advised’ rather than consulting the third party (SGS) herself, I rang SGS Economics & Planning. I was told that the report was NOT confidential and that they were unaware of ESC contacting SGS for third party consultation on releasing their report. SGS also said that ESC had paid for the financial modelling report, so it was theirs to use as they wished. It appears that a staff member of ESC may have provided incorrect advice to the Information Officer dealing with my GIPA application, with the intent to influence the decision on disclosure of that information. That incorrect advice being: * the Financial Modelling report was confidential * the modelling remains the intellectual property of SGS * ESC had contacted and consulted SGS as a third party, and that * SGS had confirmed their objection to the report’s release ESC’s Information Officer also advised: * “financial information relating to project costs, .......... and details of grant funding milestones and payments(from grant agreements with funding bodies)” would be deferred as they were “provided to council in confidence.” * “Council is conducting competitive tender processes to appoint suitable contractors in relation to the facilities.” * “For this reason, premature disclosure of the financial information during the tender process would prejudice the effective exercise of council’s functions relating to the BBRAALC project, provision of facilities, and expenditure of public funds. This statement has no relevance as the current tendering process is in relation to the management of the facility. It has nothing to do with “expenditure of public funds” or the “provision of facilities.” This decision has already been made with the tender awarded to ADCO. QUOTES FROM IPC FINDINGS The agency [Eurobodalla Council] has: “not provided evidence to support its contention” ”not provided adequate reasoning to establish.....”. “not specifically explained how disclosure of the information ........” “not justified its decision in respect of clause.....” And:
“the agency’s reasons for decision are not supported by findings of fact or references to the sources of information on which those findings are based”
“the agency needs to show more than mere possibility, risk or chance...... it must be based on real and substantive grounds.”
“without further explanation, it is unclear how the financial information could have a prejudicial effect....”
“.... absence of any information from the agency to support its claim....”
IPC CONCLUSION
On the information available, I am satisfied that:
a. the Agency’s decision to defer access to information under section 78 is not justified
b. the Agency’s decision to refuse access to information based on an overriding public interest against disclosure is not justified, and
c. the Agency’s decision to impose a processing charge is not justified.
IPC RECOMMENDATIONS
* I recommend under section 93 of the GIPA Act that the Agency make a new decision, by way of internal review.
* I ask that the Agency advise the Applicant and the IPC within 10 working days of the actions to be taken in response to our recommendations.
COUNCIL RESPONSE
Council responded on the 10th day stating it “will reconsider its decisions concerning:
a. The deferral of access to information, and
b. The refusal of access to information based on an overriding public interest against disclosure.”
“Reconsideration of those decisions will be done by way of internal review”
“Council will make its decisions on the internal review and give you notice of those decisions within 15 working days (the ‘review period’) of the date of this letter.”
The internal review will be done by Council’s Public Officer who is not the original decision-maker and is senior to the original decision-maker.”
So now we must wait till June 1st.
Will council’s new decision agree to release some of, if not all, the financial information regarding the BBRAALC?
OR
Will it refine/reword its excuses for non disclosure?
OR
Will it simply abide by its original decision?
Whatever it decides, it is most reassuring to know that there is at least one independent statutory body willing to acknowledge the confidential nature of ESC’s operations and take steps to improve its accountability.
