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  • Unreported Judgment

Screen Queensland Pty Ltd v Information Commissioner

 

[2019] QCATA 122

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Screen Queensland Pty Ltd v Information Commissioner [2019] QCATA 122

PARTIES:

SCREEN QUEENSLAND PTY LTD

(applicant)

 

v

 

INFORMATION COMMISSIONER

(first respondent) 

GLASS MEDIA GROUP PTY LTD

(second respondent)

DEPARTMENT OF PREMIER AND CABINET

(third respondent)

MUKIRI PRODUCTIONS PTY LTD

(fourth respondent)

APPLICATION NO/S:

APL310-16

MATTER TYPE:

Appeals

DELIVERED ON:

5 August 2019

HEARING DATE:

12 July 2017

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan

ORDERS:

  1. The appeal is allowed;
  2. The decision of the Information Commissioner made on 18 August 2016 is set aside;
  3. The information is exempt under Schedule 3,  s 2(1)(b) of the Right to Information Act 2009 (Qld). 

CATCHWORDS:

ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – RIGHT OF ACCESS – GROUNDS FOR REFUSAL – where Information Commissioner determined to grant access to information held by the applicant under the Right to Information Act 2009 (Qld) (RTI Act) – where the appellant appeals that decision of the Information Commissioner – whether the Information Commissioner erred in law in construing Schedule 3, s 2(1)(b) of the RTI Act as not including the document in issue – whether the Information Commissioner erred in law in reading Schedule 3, s 8 of the RTI Act as importing a separate consideration of public interest – whether the Information Commissioner erred in law in misconstruing the “contrary to public interest” test in Schedule 4 of the RTI Act  – whether the Information Commissioner erred in law in taking into account irrelevant considerations and/or failing to take into account relevant considerations – whether the decision of the Information Commissioner was vitiated on the ground that it was unreasonable

Right to Information Act 2009 (Qld), s 23, s 47, s 49, s 119, Schedule 3, Schedule 4

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 25, s 27, s 146

Allesch v Maunz (2000) 203 CLR 172, cited

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, cited

Coco v AN Clark (Engineers) Ltd [1969] RPC 41, doubted

Commonwealth of Australia v John Fairfax & Sons (1980) 147 CLR 39, explained and distinguished

Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) and Another (1987) 14 FCR 434, applied

Esso Australia Resources Ltd and Others v Plowman and Ors (1994) 183 CLR 10, applied

Interfirm Comparison (Australia) Pty Ltd v Law Society of NSW [1975] 2 NSWLR 104, cited

Minister for Immigration and Citizenship v Li [2013] HCA 18, followed

National Roads and Motorists Association Ltd v Geeson (2001) 40 ACSR 1, cited

NP Generations Pty Ltd v Feneley (2001) 80 SASR 151, cited

Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281, cited

Ramsay Health Care Ltd v Information Commissioner & Anor [2019] QCATA 66, applied

Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [2005] WASC 255, cited

Re Witherford and Department of Foreign Affairs (1983) 5 ALD 534, cited

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, cited

Wilson v Ferguson [2015] WASC 15, cited

APPEARANCES
& REPRESENTATION:

 

Applicant:

J N Horton QC, instructed by Clayton Utz Lawyers

First Respondent:

S A McLeod, instructed by the Office of the Information Commissioner

Second Respondent:

CA Boyd, of Glass Media Group Pty Ltd

Third Respondent:

G P Sammon, instructed by the Crown Solicitor for the State of Queensland

Fourth Respondent:

No appearance

REASONS FOR DECISION

  1. [1]
    This appeal is against the decision of the Information Commissioner to grant access to Glass Media Group to information the subject of an application under the Right to Information Act 2009 (Qld) (RTI Act). 
  2. [2]
    Glass Media had sought access to: 

The undisclosed total financial incentive amounts granted to the Walt Disney Companies International Production, the fifth instalment of the ‘Pirates of the Caribbean’ film series, from the Queensland Government.

Official Documentation, emails or internal memos.

Date Range: 13 March 2015 – 14 July 2015.

  1. [3]
    The request followed the making of a Production Incentive Payment by the Queensland Government to the Walt Disney Corporation (Australia) Pty Ltd (Disney) in October 2014 to secure production in Queensland of the feature film, “Pirates of the Carribean: Dead Men Tell No Tales”.  Negotiations with Disney as to the amount and structure of this payment were carried out by the applicant in this appeal, Screen Queensland Pty Ltd (Screen).  Screen is a registered proprietary limited company, owned by the State of Queensland, with its objects including increasing the level of film and television production in Queensland. 
  2. [4]
    In response to the request, by letter dated 19 August 2015 the Department of the Premier and Cabinet notified Glass Media that searches had been conducted and a single document relevant to the application had been located. 
  3. [5]
    Glass Media were notified that a decision had been made to provide partial access to the one document.  The one document was described as a background information document.  In providing the document the dollar amount of the Production Incentive Payment which was contained in the document was blanked out.
  4. [6]
    The Department’s response indicated that such information was exempt information pursuant to s 47(3)(a) and Schedule 3, s (8)(1) of the RTI Act.  It was said that it was considered that there was an equitable obligation of confidence and that disclosure of that amount would found an action for breach of confidence. 
  5. [7]
    On 21 August 2015, Glass Media lodged an application to the Office of the Information Commissioner seeking a review of the Department’s decision to blank out the amount of the payment. 
  6. [8]
    In the process of conducting the review, the Information Commissioner sought and obtained submissions from Screen and the Department.  In addition, the Information Commissioner sought the views of Disney, as a third party who may reasonably be expected to be concerned as to the potential release of the information. 
  7. [9]
    On 10 March 2016, Disney provided a submission, asserting the confidential nature of the information in question as being the result of discussions held in confidence between Disney and Screen. 
  8. [10]
    By a decision dated 18 August 2016, the Information Commissioner set aside the Department’s decision, and decided that there were no grounds upon which access to the information in issue may be refused under the RTI Act.[1] 
  9. [11]
    Screen appeals that decision under s 119 of the RTI Act.  Such appeals are by way of rehearing and may only be on a question of law.[2] 

Grounds

  1. [12]
    The Application for Appeal, and the submissions of the applicant, Screen, and of the Department, set out six grounds of appeal, specifically that the Information Commissioner had made the following errors of law:
    1. (a)
      Misconstruction of Schedule 3, s 2 of the RTI Act in deciding that disclosure would not reveal a consideration of cabinet, when the payment and its amount was the subject of consideration by the Cabinet Budget review Committee;
    2. (b)
      Misconstruction of Schedule 3, s 8 of the RTI Act by applying a public interest test, finding the confidentiality exemption incapable of applying to information communicated by and received from a government or public body, applying the Fairfax doctrine or failing to find that it was satisfied;
    3. (c)
      Misconstruction of the “contrary to public interest” test in s 47(3)(b), s 49 and Schedule 4 of the RTI Act;
    4. (d)
      Taking irrelevant considerations into account namely the Commissioner’s subjective views as to how the benefit to the local community ought to be measured, the views contained in a report by the Queensland Competition Authority on selective industry assistance and giving those views irresistible weight;
    5. (e)
      Failing to take relevant considerations into account by conflating the “Additional Factors Favouring Non-Disclosure” with the Factors Favouring Non-Disclosure, and failing to take into account the facts that disclosure would seriously prejudice the ability of the State to attract major international productions and events and advantage other States to attract such undertakings by allowing them to know the arrangements of Queensland and the desire of other contracting parties to keep such arrangements confidential; 
    6. (f)
      Unreasonably exercising the Commissioner’s power by failing to give proper weight to the facts stated in sub-paragraph (e). 
  2. [13]
    The Department supported the appeal.  The Information Commissioner objected to the tender of new material, but otherwise indicated it would abide by the order of the Tribunal.  A person from Glass Media appeared, but chose not to make any submissions.  There was no appearance from the fourth respondent.
  3. [14]
    The grounds relied upon in this appeal for non-disclosure were considerably narrower than those relied upon before and dealt with by the Information Commissioner.  It is desirable to deal with each of the grounds in turn.

Ground 1: Misconstruction of Schedule 3, s 2(1)(b) of the RTI Act

  1. [15]
    The RTI Act gives a right of access to the documents of an agency and the documents of a Minister, subject to the provisions of the Act.[3]  Access to a document may be refused to the extent that it comprises “exempt information”.[4] 
  2. [16]
    “Exempt information” includes information the disclosure of which would reveal any consideration of Cabinet or would otherwise prejudice the confidentiality of Cabinet considerations or operations.[5]
  3. [17]
    Under Schedule 3, the term “cabinet” includes a cabinet committee or sub-committee.[6]  The term “consideration” includes a decision.[7]
  4. [18]
    The Information Commissioner decided that the information in issue was not “exempt information”.  During the course of the reasons, the Information Commissioner stated that:

The information in issue is a brief and summary overview of the structure and value of the Incentive Payment to Disney, and is sufficiently distinct from the terms of either the CBRC submission or the CBRC decision such that its disclosure would not, in my view, reveal of itself that decision nor any Cabinet ‘discussion, deliberation’ or ‘noting’.  It discloses nothing about those considerations nor reveals anything about cabinet operations, such that confidentiality of either stand to be prejudiced by disclosure.[8]

  1. [19]
    This description does not, however, deal with the issue in this ground of appeal; namely whether the information in the document would disclose a decision of the Cabinet. 
  2. [20]
    Ms K Herring, the then Deputy Director General of the Department responsible for Arts Queensland discloses in her affidavit, which has not been challenged, the process for securing funds in circumstances where existing appropriations were insufficient.  In summary, the process requires that a submission is made to Cabinet (in the form of the Cabinet Budget Review Committee (CBRC), a Committee of Cabinet) and the CBRC approve the expenditure.  Ms Herring states that “CBRC made the decision to approve the incentive payment on 10 July 2014.”[9]
  3. [21]
    The Information Commissioner said that:

… it is, after all, the case that many if not most actions of government are ultimately referable to Cabinet considerations, deliberations and decisions.  The test for exemption under this provision is, as I have noted, to be evaluated by reference to the effects of disclosure of the information in issue itself.  For the reasons given above, I am not persuaded that disclosure of the information in issue in this case would occasion any of the prejudices or adverse consequences against which Schedule 3, s 2 (1)(b) of the RTI Act seeks to safeguard.[10]

  1. [22]
    The purpose of the RTI Act is one of the factors to be considered in construing it.  The process of construction also includes text and content.  The language of Schedule 3, s 2(1)(b) is, however, clear: if the information would reveal a decision of a cabinet committee it is exempt.
  2. [23]
    On any reading, disclosure of the information in question is exempt information under Schedule 3, s 2(1)(b).  Clearly, disclosure of the dollar amount of the Production Incentive Payment would reveal the amount Cabinet considered should be expended on the project.  It is thus exempt under Schedule 3, s 2(1)(b) of the RTI Act.
  3. [24]
    The appeal should be upheld on this ground.

Ground 2: Misconstruction of Schedule 3, s 8 of the RTI Act

  1. [25]
    A second category of exempt information is information that is subject to a duty of confidence.  Schedule 3, s 8(1) of the RTI Act provides that:

Information is exempt information if its disclosure would found an action for breach of confidence.

  1. [26]
    It is settled that in order to make out a case in equity for protection of confidential information, a plaintiff must be able to prove:
    1. (a)
      The information is specifically identifiable;
    2. (b)
      The information has the necessary quality of confidence about it (and is not for example, common or public knowledge);
    3. (c)
      The information was communicated in such circumstances as to import an obligation of confidence; and
    4. (d)
      There was an actual or threatened misuse of the information.[11]
  2. [27]
    In concluding that there was no equitable obligation of confidence the Information Commissioner held that the third element, that the information be communicated in confidence, could not be satisfied.
  3. [28]
    The Information Commissioner concluded that she was not satisfied that the circumstances in which any communication to the Department may have occurred justified the imposition upon it of an equitable obligation of confidence.  The Information Commissioner held that the information was not communicated in confidence by Disney to the Department, but even if it could be so characterised, the breach of confidence exemption could not apply.  The Information Commissioner was of the view that even if the information actually embodied a communication from Disney to government, the communication occurred in a context justifying disclosure. 
  4. [29]
    The Information Commissioner also rejected the argument that the third element was satisfied in relation to Screen.  The Information Commissioner held that the information was not passed from Disney to Screen or Screen to the Department, but even if it had done so, there was a public interest in the information being disclosed.
  5. [30]
    The Information Commissioner’s preferred view was that the information in issue flowed from a communication outward from government to Disney, reflecting what had been approved after considered deliberation by government of material, some of which it was accepted may have initially been communicated by Disney.
  6. [31]
    No legal basis was stated in the reasons of the Information Commissioner for adopting a public interest test in a consideration of the third element. 
  7. [32]
    The third element raises, however, an interesting argument that was not dealt with in submissions by the parties, and that is whether the specific information, namely the amount of the payment, was communicated in circumstances so as to import an obligation of confidence.  It was no doubt communicated to Disney in confidence, but the communication to Disney is not the issue.  The issue is whether the release of the amount of the funding by the government would found an action for breach of confidence.
  8. [33]
    In Re Witheford and Department of Foreign Affairs, the Commonwealth Administrative Appeals Tribunal (with Davies J presiding) appeared to proceed on the basis, as submitted by the Department, that no equitable duty would arise where one public servant gave information to another on the basis that the recipient was under a duty to keep the information confidential.[12] 
  9. [34]
    Gummow J discussed the decision of Re Witherford in Corrs Pavey Whiting & Byrne v Collector of Customs and appears to indicate that the doctrine is not so limited; leaving open the idea that the doctrine could apply to communications intra-government.[13]  Whilst his Honour was in dissent, this issue was not dealt with by the majority. 
  10. [35]
    An alternative way of characterising the information is that it was communicated as part of the commercial discussions between Screen and Disney.  The nature of those discussions may have been, to use the language of Bowen CJ in Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales, “the kind of discussion which would generally be assumed by those taking part would be treated as confidential.”[14] 
  11. [36]
    The Information Commissioner dealt with communications between the various parties generally, but did not determine the issue as to whether the information was communicated intra government in confidence.  The second ground of appeal related to whether the confidentiality exemption applied to communications between government bodies generally, but this specific issue, and, in particular the information at issue, was not the subject of either a ground of appeal or submissions.
  12. [37]
    The issue that was raised by the second ground of appeal was the decision of the Information Commissioner that in considering this ground of exemption, regard had to be had to the public interest.  This issue stemmed from the Commissioner’s view that there were five cumulative criteria to be met in order to give rise to an equitable obligation of confidence.  Four of these elements were essentially the same as the ones quoted earlier.  The fifth element added by the Commissioner was that the disclosure must cause a detriment to the plaintiff.  The Commissioner stated that, in applying that element to a government body, it was necessary to consider whether disclosure would be detrimental to the public interest. 
  13. [38]
    The concept of detriment was referred to by Megarry J in Coco v AN Clark (Engineers) Ltd.[15]  In the course of his judgment Megarry J stated that three elements were required if a breach of confidence were to succeed:

First, the information itself must “have the necessary quality of confidence about it.”  Secondly that information must have been imparted in circumstances importing an obligation of confidence.  Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.[16]

  1. [39]
    Whether or not detriment is a necessary element may now be doubted; see National Roads  and Motorists Association Ltd v Geeson;[17] NP Generations Pty Ltd v Feneley[18] and Wilson v Ferguson.[19]  It is, moreover, not generally included as one of the four elements of the cause of action referred to earlier.
  2. [40]
    The third element involving the obligation of confidence was referred to by Mason J in Commonwealth of Australia v John Fairfax & Sons,[20] but in the context of his reasoning that when applied to government confidences it was necessary to take into consideration the public interest.  His Honour stated that equitable principles had been fashioned to protect the personal, private and proprietary interests of citizens, not to protect the very different interest of the executive government.  He said,

That is not to say that Equity will not protect information in the hands of government, but it is to say that when Equity protects government information it will look at the matter through different spectacles.[21]

  1. [41]
    The decision in John Fairfax involved a refusal by Mason J of an interlocutory injunction to restrain the publication of a book and documents said to contain classified material relating to Australia’s defence and foreign policy.  In the course of his reasons, his Honour stated:

It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism.  But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism.  It is unacceptable, in our democratic society, that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.

Accordingly, the court will determine the government’s claim to confidentiality by reference to the public interest.  Unless disclosure is likely to injure the public interest, it will not be protected.[22]

  1. [42]
    Mason J in John Fairfax had recognised the challenges raised by government information and referred to the conflicting considerations being finely balanced.  His Honour commented:

The court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects.  Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs.  If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained.[23]

  1. [43]
    Applying the decision of the High Court in John Fairfax, the Information Commissioner stated that a higher burden is placed on government bodies and entities than private individuals to justify the secrecy of information in their possession.
  2. [44]
    The context in which the decision was made in John Fairfax, however, is quite different to that under consideration in this case; namely whether the release of the information could found an action for breach of confidence.
  3. [45]
    Moreover in Esso Australia Resources Ltd v Plowman, Mason CJ (with whom Dawson and McHugh JJ agreed) stated that the precise scope of the public interest exemption remained unclear.[24]  Toohey J agreed with that observation.[25]  The observations were made in the context of a discussion relating to whether or not an obligation of confidence existed over documents disclosed in a private arbitration.  Relevantly Mason CJ also specifically affirmed what he said in John Fairfax.
  4. [46]
    Importantly there is no suggestion by any court that the public interest is an additional and separate issue to the four elements which are traditionally viewed as being required in order to establish a cause of action for breach of confidence.  It is one of the circumstances relevant to whether or not the obligation of confidence is owed and to the relief that is granted, but there is no reason in law to elevate it further. 
  5. [47]
    In Ramsay Health Care Ltd v Information Commissioner & Anor, Daubney J (sitting as the President of the tribunal) reached a similar conclusion that the public interest was one of the circumstances to be considered in order to ascertain whether information was held subject to an equitable obligation of confidence, and did not constitute a separate test for the purposes of the RTI Act.[26] 
  6. [48]
    Although the decision possibly raises an issue separate to the present one, it should be noted that the majority of the Full Court of the Federal Court in Corrs Pavey, in considering a similar ground of exemption in the Freedom of Information Act 1982 (Cth), did not consider it imported considerations of public policy.  The legislation being considered in that case conferred an exemption on the ground that “its disclosure under this Act would constitute a breach of confidence”.[27]  Jenkinson J, (with whom Sweeney J agreed) held that the section should be construed so as not to refer to equitable considerations (such as clean hands, iniquity and public interest) which the courts have allowed to influence whether to grant or withhold remedies for breach of confidence.[28] 
  7. [49]
    This ground of appeal is made out insofar as it relates to whether or not a public interest test is required in considering the exemption. 
  8. [50]
    Absent further consideration of the third element of the cause of action for breach of confidence, it is not appropriate to determine whether the claimed exemption applies and a finding to that effect was not sought in any event. 

Ground 3: Misconstruction of the “contrary to public interest” test

  1. [51]
    The RTI Act contains a general provision which allows information to be withheld if it is, on balance, contrary to the public interest to disclose it.[29]  The Act by Schedule 4 sets out the factors to be taken into account in deciding this issue.[30]  Section 49 (3) of the RTI Act further sets out the steps an agency or minister is required to take in deciding this issue.  The steps include identifying any factors that are irrelevant (including any factor mentioned in Schedule 4, Part 1), identifying factors favouring disclosure (including any factor mentioned in Schedule 4, Part 2) and identifying any factor favouring non-disclosure (including any factor mentioned in Schedule 4, Part 3 or 4).  Most of the factors referred to in Schedule 4, whether being irrelevant to disclosure, favouring disclosure and favouring non-disclosure, not only state a circumstance, but ask whether the disclosure “could reasonably be expected” to do certain things which favour disclosure or non-disclosure as the case may be. 
  2. [52]
    Screen submits that the Information Commissioner elevated the factors favouring non-disclosure to whether, in the Information Commissioner’s opinion, the disclosure would in fact do the things contended, and thereby misconstrued the relevant test. 
  3. [53]
    The factors said to disfavour disclosure were that disclosure could reasonably be expected to:
  1. prejudice the business, professional, commercial or financial affairs of entities (Schedule 4, Part 3, Item 2);
  2. prejudice the business affairs of an agency or person (Schedule 4, Part 3, Item 15);
  3. cause a public interest harm because it would disclose information that has a commercial value to the agency or other person and could reasonably be expected to destroy or diminish the commercial value (Schedule 4, Part 4, s s7(1)(b)); and
  4. cause a public interest harm because it would have a substantial adverse effect on the ability of government to manage the economy of the State (Schedule 4, Part 4, s 9(1)(a)). 
  1. [54]
    The Information Commissioner considered that the first two claimed factors would only arise where the information concerned activities or affairs that are carried on in a business-like fashion for the purpose of generating income or profits.  The Information Commissioner held that given that Screen only administered an incentive scheme those factors were not directly applicable.[31] 
  2. [55]
    It is clear from the decision that the Information Commissioner considered that Screen did not have any commercial or business affairs. 
  3. [56]
    The Information Commissioner, however, then went on to consider whether the next two claimed factors, namely whether the information had commercial value sufficient to be diminished by disclosure, or could its disclosure reasonably be expected to prejudice or adversely affect its commercial or business affairs, or prejudice or substantially adversely affect the economy of the State.  In both cases, the Information Commissioner found it did not.[32] 
  4. [57]
    There is nothing in the reasoning which suggests the Information Commissioner did not reach the conclusion regarding the four factors using the proper test; namely whether disclosure could reasonably be expected to prejudice the business affairs of Screen, or cause a public interest harm because it would disclose information of commercial value to the agency or have a substantial adverse effect on the ability of the government to manage the economy of the state. 
  5. [58]
    This ground of appeal fails. 

Ground 4: Irrelevant Considerations

  1. [59]
    One of the recurring themes in the reasons of the Information Commissioner was the contention that decisions by government to transfer public wealth to private interests should be subject to the highest levels of transparency and accountability.[33]  The Information Commissioner stated that her view was reinforced by the fact that there appeared to be some debate about whether selective industry assistance of the type granted to Disney was publicly beneficial.[34]  In support of the latter view the Information Commissioner quoted and relied upon a report by the Queensland Competition Authority in 2015.  
  2. [60]
    Screen contends that these matters were irrelevant considerations. 
  3. [61]
    The RTI Act provides that those things favouring disclosure would be information which could reasonably be expected to promote open discussion of public affairs and enhance the government’s accountability, contribute to positive and informed debate on important issues or matters of serious interest and ensure effective oversight of expenditure of public funds.  The Information Commissioner said she relied upon those grounds in reaching her conclusion. 
  4. [62]
    It will be immediately seen that the concept that decisions by government to transfer public wealth to private interests should be subject to the highest levels of transparency and accountability is relevant to the factor favouring disclosure, namely that it would enhance accountability, debate and oversight. 
  5. [63]
    It will also be seen, however, that the fact that there is debate about the worth of such transfers is not a matter which could be said to relate to any ground favouring disclosure under the Act; let alone the fact that the Queensland Competition Authority had a view about that matter. 
  6. [64]
    In taking those last matters into consideration the Information Commissioner had taken into account irrelevant considerations.  Taking into account irrelevant considerations is a well-recognised error of law.  The appeal is upheld in this respect.

Ground 5: Additional Non-Disclosure Grounds

  1. [65]
    There remains to be considered whether the Information Commissioner should have, but failed to consider two factors which Screen urged would justify non-disclosure. 
  2. [66]
    In the decision, the Information Commissioner does state that Screen submitted that disclosure of the information could reasonably be expected to prejudice: 
    1. (a)
      Screen’s capacity to compete with other jurisdictions in attracting films;
    2. (b)
      its proper functioning; and
    3. (c)
      the proper performance and operation of an investment incentive scheme.
  3. [67]
    The last submission was specifically rejected by the Information Commissioner on the basis that as the ground did not specifically fit within the grounds which dealt with incentive schemes in Schedule 3, s 11 the concept could not be relied upon in another way.[35]  There is no appeal against this finding.
  4. [68]
    In the decision, the other two submissions were mentioned during the recitation of the argument relating to Screen’s business or commercial interests,[36] and partly dealt with during that consideration.[37]  Certainly, the Information Commissioner did not specifically decline to deal with the issues on the ground that the factors in Schedule 4 were an exclusive list.  Clearly,  they are not exclusive, and Schedule 4 merely sets out a non-exclusive list of factors to be considered. 
  5. [69]
    A fair reading of the decision shows, however, that, in the end, they were not addressed in reaching the conclusion that disclosure was not contrary to the public interest, or, to the extent they were addressed, they were given little weight in the context of the Commissioner’s firm view that the amount of the payment should be disclosed in the public interest. 
  6. [70]
    Screen submitted to the Commissioner that, if the amount of an Incentive Payment is disclosed Screen will then lose its competitive leverage and capacity to undertake robust, competitive negotiations with production companies in the future.[38]  The consequence was said to be that this could then adversely affect the attraction of production studios to Queensland. 
  7. [71]
    The submission was supported by a letter from Ausfilm, the Commonwealth body with functions analogous to Screen’s own functions. 
  8. [72]
    Screen filed additional evidence that was not before the Information Commissioner. An affidavit was sworn by the Chief Executive of Film Victoria (Ms Tosi).  Ms Tosi says there is strong and robust competition across Australia and the international film production sector to entice and encourage production studios to make film and TV productions in particular locations.  Ms Tosi says that the amount of incentive payments are kept confidential because otherwise jurisdictions would use the information to out-bid or out manoeuvre the payer, disclosure could influence trends and patterns as to the amount of funds paid and hence distort the market, a production studio would gain leverage in future negotiations from knowledge of what a jurisdiction was willing to pay and economic and employment opportunities and other benefits (such as skill development and expansion of the film industry) would be lost as a consequence. 
  9. [73]
    The Information Commissioner objected to the affidavit on the basis that an appeal to the tribunal was by way of a “rehearing”, and that this material was not before the Information Commissioner and hence could not be used to conclude that the decision of the Information Commissioner was unreasonable. 
  10. [74]
    The appeal is being held under the appellant jurisdiction of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).[39]  Under that Act the Tribunal may confirm or amend the decision, set aside and substitute its own decision, set aside the decision and remit it to the entity who made the original decision or make any other order it considers appropriate.[40]  These provisions suggest that the Tribunal is not confined to the materials before the Information Commissioner and can receive additional evidence.[41]
  11. [75]
    The affidavit was originally justified as only going to ground 6: the unreasonableness of the decision.  If that were its only use its utility would be doubtful; as the Information Commissioner argued. 
  12. [76]
    In the end it is unnecessary to rely upon it.  The evidence contained in the affidavit is little more than sworn testimony about the same facts that was placed before the Information Commissioner, and contains a statement of facts which reflects no more than what an experienced person would expect to take place in the commercial world. 
  13. [77]
    In the decision the Information Commissioner stated that it was not clear to her why the fact that a production house might attempt to use the information as a starting point in future negotiations would of itself occasion any prejudice to the business affairs of Screen or the Department, and stated that negotiations would surely start by reference to an analysis by Screen and the Department of the costs and benefits of a proposed production.[42] 
  14. [78]
    This view reflects, as Screen submits, a particular view of government operations, and assumes that governments do not negotiate for favours.  It shows no appreciation of the fact that information is power and that negotiations depend upon each side attempting to get as much as they can out of the other side.  The fact that the government had offered a particular amount to another production house would be a powerful factor in being able to persuade the government to do so again; assuming the government wished to have the production occur in Queensland. 
  15. [79]
    To the extent that the Information Commissioner considered the fact that Queensland competes with other jurisdictions in this market, the consideration was done by adopting what had been said in a previous decision of the Information Commissioner.[43]  In Berri, it was said that the information would only affect matters if it enabled another government to outbid Queensland in circumstances where each government was only given one chance to bid and that a range of factors would be considered by a grant applicant in reaching a decision on which package to accept. 
  16. [80]
    The Information Commissioner rejected the argument by Screen that the information would prejudice Queensland in its capacity to compete with other jurisdictions, partly be reference to the fact that the payment was made two years ago, and also on the basis that it was premised on international feature film production being good for the local community, a proposition which the Information Commissioner said could not be evaluated without factoring in the cost of attracting that production. 
  17. [81]
    As this recitation of the reasons shows, the Information Commissioner rejected the considerations advocated by Screen.  The RTI Act obliges the Information Commissioner to evaluate the considerations set out therein and any others.  The decision shows, however, that the evaluation exercise in the end had the result that the Information Commissioner really failed to take into account these relevant considerations. 
  18. [82]
    The latter conclusion was emphasised when the Information Commissioner dealt with the final component of the decision regarding the public interest exemption, namely the balancing of the public interest.  The Information Commissioner found that the public interest favoured disclosure.  This was said to be on the basis that decisions by government to transfer public wealth to private interests should be subject to the highest levels of transparency and accountability.[44]  The Information Commissioner stated that her view was reinforced by the fact that there appeared to be some debate about whether selective industry assistance of the type granted to Disney was publicly beneficial.[45]  In support of the latter view, the Information Commissioner quoted and relied upon a report by the Queensland Competition Authority in 2015.  In reaching her final conclusion, the Information Commissioner failed to give proper consideration to the factors favouring non-disclosure. 
  19. [83]
    Failing to take into account relevant considerations is a well-recognised error of law. The appeal should be upheld in respect of this ground. 

Grounds 6: Unreasonableness

  1. [84]
    The views expressed about decisions by governments to transfer wealth to private interests being subject to the highest levels of scrutiny and the worth of the debate about selective industry assistance are, as Screen submits, highly subjective views.  It is clear that these views, as Screen submits, were also given very significant weight.
  2. [85]
    Apart from the expression of these views in that part of the decision dealing with Schedule 4, the views also formed part of the decision rejecting the exemption based upon confidentiality.  After deciding that the Information Commissioner was entitled to take matters of public interest into account in evaluating whether there was an equitable obligation of confidence,[46] the Information Commissioner held that a statement of an amount of public assistance committed to a private entity “occurred in a context justifying disclosure”.[47]
  3. [86]
    It is also clear that the Information Commissioner gave very little weight to those factors that Screen submitted favoured non-disclosure. 
  4. [87]
    The final question is whether the approach taken by the Information Commissioner favouring public disclosure on public policy grounds and rejecting the submission that disclosure would seriously impede Screen in its public tasks vitiated the decision on the ground that it was unreasonable.  If established, this ground would amount to an error of law sufficient to make the decision void. 
  5. [88]
    The considerations which were referred to throughout the decision and particularly as regards the balancing exercise, namely that selective industry assistance may not be publicly beneficial, are not referred to in the RTI Act as a matter justifying disclosure.  It will no doubt be said that this view is relevant to accountability and oversight of expenditure of public funds which are factors to be considered under the RTI Act.  The view, however, receives elevated importance in the decision and seems to be the primary reason for the decision to disclose the figure, rather than mere accountability. 
  6. [89]
    The significant difficulty which disclosure of the amount of the incentive payment would create for those wishing to encourage production houses to Queensland is vigorously rejected by the Information Commissioner.  That conclusion is contrary to the material placed by Screen before the Information Commissioner and logic. 
  7. [90]
    This appeal is not a merits appeal.  The Information Commissioner is allowed to make a decision based on her own views of the relevant factors required to be taken into account in making a decision. 
  8. [91]
    The decision, however, read fairly, as previously found, shows that the Information Commissioner has, in balancing the various public interests taken into account irrelevant considerations and failed to properly take into account relevant ones. 
  9. [92]
    The decision for the reasons mentioned is unbalanced.  It really proceeds on the basis that the information should be disclosed because selective industry assistance may not be beneficial.  The next issue is whether it could thus be said that the decision was therefore so unreasonable that no reasonable authority could have ever come to it. 
  10. [93]
    It is said to be a rare case where that conclusion is reached.  This is especially so if the Wednesbury test is applied; namely that the decision is so unreasonable that no reasonable decision-maker could make it.[48] 
  11. [94]
    In Minister for Immigration and Citizenship v Li, Hayne, Kiefel and Bell JJ held that Wednesbury was not the starting point for the standard of reasonableness, nor should it be regarded as the end point.[49]  In particular their Honours held that the standard of unreasonableness was not limited to what is in effect an irrational, if not bizarre, decision.  Their Honours stated: 

Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[50]

  1. [95]
    French CJ emphasised that after all the requirements of administrative justice have been met, there is generally an area of decisional freedom.[51]  He added:

Within that area reasonable minds may reach different conclusions about the preferable decision.  However, the freedom thus left free by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.[52]

  1. [96]
    In this case, Screen submits that the unreasonableness consists of the Information Commissioner failing to give proper weight to the fact  that disclosure would seriously prejudice the ability of the State to attract major international productions and events and advantage other states who attract such undertakings by allowing them to know the arrangements of Queensland and the desire of other contracting parties to keep such arrangements confidential. 
  2. [97]
    There is merit in the objection that the process of reasoning was unreasonable.  The decision itself, however, is not one which could be described, applying the language used in Li, as arbitrary, capricious or lacking in intelligible justification. 
  3. [98]
    This ground of appeal is dismissed.

Orders

  1. [99]
    The result is that: 
  1. The appeal is allowed;
  2. The decision of the Information Commissioner made on 18 August 2016 is set aside;
  3. The information is exempt under Schedule 3, s 2(1)(b) of the Right to Information Act 2009 (Qld). 

Footnotes

[1] Glass Media Pty Ltd and Department of the Premier and Cabinet; Screen Queensland Pty Ltd (Third Party); The Walt Disney Company (Australia) Pty Ltd (Fourth Party) [2016] QICmr 30 (18 August 2016) (Glass Media Decision).

[2]  RTI Act, s 119(5).

[3]  RTI Act, s 23.

[4]  RTI Act, s 47(3)(a).

[5]  RTI Act, Schedule 3, s 2(1)(b).

[6]  RTI Act, Schedule 3, s 2(5).

[7]  RTI Act, Schedule 3, s 2(5).

[8]  Glass Media Decision, [24].

[9]  Affidavit of Kirsten Herring sworn 19 February 2016 at [23].

[10]  Glass Media Decision, [26].

[11] Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [2005] WASC 255, [79] (Rapid Metal) Johnson J quoting the dissenting judgment of Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) and Another (1987) 14 FCR 434; Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281, 290 [39], adopting Gummow J in Smith Kline & French Laboratories (Aust) Ltd v Secretary to the Department of Community Services & Health (1991) 22 FCR 73, 87.

[12]  (1983) 5 ALD 534, 542 (Re Witherford).

[13]  (1987) 14 FCR 434, 448 (Corrs Pavey).

[14]  [1975] 2 NSWLR 104, 108.

[15]  [1969] RPC 41, 48.

[16]  Ibid.

[17]  (2001) 40 ACSR 1, 10-11 [58]

[18] (2001) 80 SASR 151, 157 [21].

[19]  [2015] WASC 15, [43].

[20]  (1980) 147 CLR 39, 51-52 (John Fairfax).

[21]  Ibid.

[22]  Ibid, 52.

[23]  Ibid.

[24]  (1995) 183 CLR 10, 31.

[25]  (1995) 183 CLR 10, 48.

[26]  [2019] QCATA 66, [81]-[83].

[27]  (1987) 14 FCR 434, 435.

[28]  Ibid, 437.

[29]  RTI Act, s 47(3)(b) and s 49(1).

[30]  RTI Act, s 49(2).

[31]  Glass Media Decision, [112].

[32]  Glass Media Decision, [116], [136] and [137].

[33]  Glass Media Decision, [151] and [173].

[34]  Glass Media Decision, [152].

[35]  Glass Media Decision, [138]-[140].

[36]  Glass Media Decision, [106].

[37]  Glass Media Decision, [132]-[133].

[38]  Written Submissions to OIC dated 26 February 2016.

[39]  (QCAT Act), ss 25 and 27.

[40]  QCAT Act, s 146.

[41] Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, 621, Allesch v Maunz (2000) 203 CLR 172, 180-181 [23].

[42]  Glass Media Decision, [125].

[43] Seeney, MP and Department of State Development; Berri Limited (Third Party) (2004) 6 QAR 354 (Berri).

[44]  Glass Media Decision, [151] and [173].

[45]  Glass Media Decision, [152].

[46]  Glass Media Decision, [53].

[47]  Glass Media Decision [49]; see also [50], [53], [61], [67], [71], [92], [96] and [97].

[48]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 234.

[49]  (2013) 249 CLR 332, [68] (Li).

[50]  Ibid, [76].

[51]  Ibid, [28]; see also Hayne, Kiefel and Bell JJ, [66].

[52]  Ibid, [28].

Close

Editorial Notes

  • Published Case Name:

    Screen Queensland Pty Ltd v Information Commissioner

  • Shortened Case Name:

    Screen Queensland Pty Ltd v Information Commissioner

  • MNC:

    [2019] QCATA 122

  • Court:

    QCATA

  • Judge(s):

    Sheridan J

  • Date:

    05 Aug 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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