Miskelly v Transport for NSW [2017] NSWCATAD 75

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Miskelly v Transport for NSW [2017] NSWCATAD 75 Hearing dates: 29 November 2016 Decision date: 09 March 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: S Leal, Senior Member Decision: 1. The decision of the respondent is set aside.

2. The respondent is to release the documents as described in accordance with the orders at the conclusion of this decision. Catchwords: Government Information (Public Access) – public interest considerations in favour of disclosure – public interest considerations against disclosure – weight of evidence – presumption in favour of disclosure not displaced. Legislation Cited: Government Information (Public Access) Act 2009 Transport Administrative Act 1988 Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13 Fire Brigade Union v Fire and Rescue (NSW) [2014] NSWCATAD 13. Flack v Commissioner of Police, NSW Police [2011] NSWADT 286 Hurst v Wagga Wagga City Council [2011] NSWADT 307 McKinnon v Secretary, Department of Treasury [2006] HCA 45 Sobh v Police Force (Vic) [1994] 1 VR 41. Category: Principal judgment Parties: Greg Miskelly (Applicant) Transport for NSW (Respondent) Representation: Solicitors: P McKinnon (Applicant) K Sanders (Respondent) File Number(s): 1610278

REASONS FOR DECISION

Background 1. Mr Greg Miskelly, who is the applicant in this matter, is a producer for the Australian Broadcasting Corporation ('the ABC'). 2. On 20 February 2015, he made an application under the Government Information (Public Access) Act 2009 ('the GIPA Act') for access to information from Transport for NSW's 'Rapid Transit Network Taskforce.' The information requested was: * platform load modelling from 2018 for particular Sydney railway stations; * draft train and bus timetables from 2018 in relation to the Rapid Transit Network and the City Rail Network. * existing Timetable Impact Modelling for Epping to Chatswood repurposing; for 2018 Hurstville, Bankstown lines; 2018 Central Coast lines. 1. On 18 March 2015, Transport for NSW provided Mr Miskelly with a notice of decision in relation to his access application. In this notice of decision, Transport for NSW identified 26 documents as falling within the scope of the application, only some of which were released to Mr Miskelly. The schedule of documents attached to the notice of decision, and as set out below, itemises the 26 documents and sets out which were determined to be released and which were not: * Documents released in full: 1- 6; 8-13; * Documents released in part: 14; * Documents refused to be released: 7; 15-26. 1. Transport for NSW later agreed to release documents 18, 19 and 26. Pages 5 and 7 of document 14 were also released. 2. Accordingly, the following information remains in dispute: * Document 7: Central Coast 2019 timetable option at 22 August * Document 14 (pages 21 to 23 only): Silver Set Fleet Deployment Options 2014-05-15. * Document 15: draft timetables for 2(c) Northern to city and North Shore to city; 2(d) Central Coast; 2(e) Western line * Document 16: 2(c-e) for 2018 draft timetables * Document 17: Sector 2 Concept Timetable (Inner West) * Document 20: Down shore extract TT 2018 * Document 21: Up shore extract TT 2018 * Document 22: Down Blue Mountains TT 2018 * Document 23: Up Blue Mountains TT 2018 * Document 24: Down Newcastle TT 2018 * Document 25: Up Newcastle TT 2018 1. On 29 March 2016, the Information Commissioner published a review report in relation to the decision by Transport for NSW to produce some of the information requested by Mr Miskelly. 2. The Information Commissioner was not satisfied that that there were any public interest considerations against disclosure in relation to the information contained in the documents that were not released by Transport for NSW (at that time documents 7 and documents 14-26) and recommended that Transport for NSW make a new decision by way of internal review. In particular, the Information Commissioner was not satisfied that Transport for NSW had established either that the disclosure of the information could reasonably be expected to: a. reveal a deliberation or consultation conducted or an opinion or recommendation in such a way as to prejudice a deliberative process of the agency; or b. to prejudice the effective exercise by an agency of the agency's function. 3. On 11 April 2016, Transport for NSW wrote to the Information Commissioner advising that they did not agree with the recommendations set out in the report and so would not be undertaking an internal review of the original decision. This was for the following reasons: * The timetable development process relies on the confidentiality of timetable information to allow effective coordination and consultation between Transport for NSW and rail, ferry and bus operators prior to any decision or commitment being made in respect of these services. According to Transport for NSW, whilst public consultation is generally sought and provided for in the planning and delivery of major projects, unfettered public participation at every junction of the timetable development process has the very real potential to frustrate the entire process. * Whilst an agency may still be able to perform its functions with an increased level of 'public discussion' the release of the requested information could reasonably be expected to prejudice the effective exercise of this function. 1. On 28 April 2016, Mr Miskelly filed an application for review with this Tribunal. Assuming that Mr Miskelly received the report by the Information Commissioner on 29 March 2016 (which is the date of the report), his application was not filed within the 20 working days stipulated in s101(2) of the GIPA Act. 2. Mr Miskelly explained his failure to file the application for review within this time because he had been on annual leave and so had received late notice of Transport for NSW's decision to reject the recommendation of the Information Commissioner. I am satisfied that Mr Miskelly has provided a reasonable excuse for the delay in making his application for review and agree to extend the time for making his application thereby enabling the Tribunal to accept his application. 3. A hearing was held in the matter on 29 November 2016.

Legal principles 1. The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(1) - In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. 1. "Government information" is given a wide meaning under s4 of the GIPA Act being "information contained in a record held by an agency." Transport for NSW is such an agency: see s 4 and the definition of "public authority" in Schedule 4, clause 2 to the GIPA Act. 2. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9). 3. With respect to other government information, the Act establishes a principle that there is public interest in favour of disclosure (s 12(1)). 4. Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides - Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (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. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. 1. There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides - There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 1. The approach the Tribunal should take to applying section 13 has been discussed in a number of decisions including Flack v Commissioner of Police, NSW Police [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307. The consistently applied approach is that the test in section 13 of the GIPA Act requires decision makers to: * identify relevant public interest considerations in favour of disclosure, * identify relevant public interest considerations against disclosure, * attribute weight to each consideration for and against disclosure, and * determine whether the balance of the public interest lies in favour of or against disclosure of the government information. 1. In considering whether there is an overriding public interest against disclosure, s 16 of the GIPA Act provides that the following principles apply - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 1. The public interest considerations against disclosure are limited to those set out in the Table to s 14 of the GIPA Act. Section 14(2) provides that - The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. 1. In order for the considerations against disclosure set out in the table to section 14 of the GIPA Act to be raised as relevant, the agency must establish that the disclosure of the information could reasonably be expected to have the effect outlined in the table. 2. The words "could reasonably be expected to" are to be given their ordinary meaning: see Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 28 and Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words - ... require 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, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. 1. Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] that it is necessary for the Agency to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect. 1. In this case, four public interest considerations against disclosure have been raised by Transport for NSW as relevant: * disclosure could reveal a deliberation so as to prejudice the deliberative process of the agency (clause 1(e) to the table to section 14 of the GIPA Act); * disclosure could prejudice the effective exercise of an agency's functions (clause 1(f) to the table to section 14 of the GIPA Act); * disclosure could prejudice the conduct of any review by revealing its results (clause 1(h) to the table to section 14 of the GIPA Act). * disclosure could prejudice the conduct of research by revealing its results (clause 4(e) to the table to section 14 of the GIPA Act). 1. Section 15(d) of the GIPA Act stipulates that the fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. 2. Furthermore, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by s105 of the GIPA Act. (s105 (1)) 3. The mere fact that disclosure of the withheld information could reasonably be expected to lead to the identified outcome is not sufficient to allow the consideration against disclosure to override the presumption in favour of disclosure. It is necessary to determine what weight should be given to the various criteria having regard to the general terms of the GIPA Act, and the presumption in favour of disclosure."

What is the nature of the material requested? 1. To accommodate the development of the public transport infrastructure project, Sydney Metro (which was formerly known as the Rapid Transit Network) Transport for NSW is responsible for determining the Standard Working Timetable for the delivery of transport services by public transport agencies for all modes of transport in the metropolitan rail area. 2. In 2019, work is expected to begin on the first stage of Sydney Metro, Sydney Metro Northwest (formerly known as the North West Rail Link) which consists of 36km of rail from the northwest of Sydney to Chatswood. 3. In 2024, work is expected to begin on the second stage of Sydney Metro, Sydney Metro City and Southwest, consisting of 30km of rail from Chatswood, under Sydney Harbour, through new CBD stations and south-west to Bankstown. 4. To accommodate customers travelling between the northwest and the city via an interchange at Chatswood in the wake of work on the Sydney Metro Northwest, Transport for NSW is developing amendments to the Standard Working Timetable to commence in 2018. 5. Mr Miskelly has requested the following information from Sydney Metro (formerly the Rapid Transit Network): * Sydney platform load modelling (i.e. crowd modelling) from 2018 for the train stations at Chatswood, Epping, Concord West, North Strathfield, Rhodes, Central Station and Town Hall; * Draft train and bus timetables for 2018 and beyond for the Rouse Hill to Chatswood lines; the Hurstville/Illawarra lines; Northern to City, North Shore to City lines; Central Coast lines, West/Inner West lines * Draft Epping to Chatswood bus timetables for 2016, 2017, 2018 * Existing timetable impact modelling: Epping to Chatswood repurposing; 2018 Hurstville, Bankstown lines; 2018 Central Coast lines.

Evidence of Mr Nikolai Mark Prince 1. Mr Prince is the principal manager, Rail Service Planning, Transport for NSW. He has provided an affidavit to the Tribunal and gave oral evidence at the Tribunal hearing. 2. According to Mr Prince, Rail Service Planning has a number of planning teams which include the Short Term Planning team, the Medium Term team, the Customer Analysis team, the Simulation and Evaluation team and the Freight and Regional team. 3. The 2018 timetable is under development with the process having begun in 2014. The planning stage of the process involves the production of a 'Concept Design Timetable' which is modelled against customer demand. The 'Concept Design Timetable' is documented into a specification from which a Standard Working Timetable is produced and handed over to Sydney Trains. The Standard Working Timetable for the 2018 timetable will be produced in 2017. 4. According to Mr Prince: There are minor changes made to the timetable in the 6-12 months before it commences, and in the final 6 months, the timetable is effectively locked down. During the final 6 months, crews are rostered on and negotiations with staff take place to move them around the network as necessary…Until the Rail Service Planning team provides the specification and RailSys file to the Timetable Production and Intelligence team, the Concept Design Timetable has not been locked down. Until that point, it is still in the planning phase. 1. Mr Prince clarified that consultation with agencies and passengers is gauged at an earlier stage in the process and that 'there is no meaningful input that an individual could have at this stage of timetable development given the length and complexity of the process.' 2. Mr Prince highlighted the fact that information relating to the 2018 timetable is highly confidential. The confidentiality procedures include watermarking timetable extracts with an individual's name so that if a copy is made, it is clear where the information has come from. 3. Mr Prince explained that in 2013 the last major change was made to the Standard Working Timetable which was leaked approximately six months ahead of its commencement. This resulted in media articles and over 1500 complaints or queries that Transport for NSW was unable to respond to individually. Resources from Transport for NSW were instead expended on responding to the Minster's office and the media. There was an expectation that the timetable could be changed to accommodate concerns raised. At the time of the leak, however, it was too late to make any major changes. 4. Mr Prince offered the following views on the information requested by Mr Miskelly, and which remains in dispute ('the requested information'): * the material is not current and does not reflect Transport for NSW's current thinking regarding the 2018 timetable; * most if not all of the information in dispute has been superseded and simply reflects what was held by Transport for NSW at the time; * the information in dispute reflects a number of different ideas or approaches that had been floated at some point before the time the application was received and reflects some preliminary steps that preceded the rigorous planning process which followed; * if the information in dispute were made public now, it would prompt a large number of complaints and requests for further information which would not be well founded given the length and complexity of the task of developing the 2018 timetable. Transport for NSW would be obliged to deal with these complaints and requests; * a major change to the Standard Working Timetable has industrial implications. For example, crews mean need to turn back at different points. Consultation with unions and staff representative will occur at a later stage in a methodical way. Premature disclosure of information relating to possible changes in the 2018 timetable could lead to staff being unnecessarily concerned about possible changes to staffing levels, available shifts, hours of work and their start and finish locations. * disclosure of draft timetable information could also threaten the construction of major infrastructure projects, if unwarranted concerns about possible changes to the 2018 timetable were to lead to projects being postponed. For example, the 2018 timetable will have to incorporate changes to the Chatswood interchange, because of the construction of Sydney Metro Northwest. If there is a significant backlash to proposed changes to the timetable, this could impede the whole Sydney Metro project. 1. In oral evidence before the Tribunal, Mr Prince confirmed that he has thirty staff and some sub-contractors. Mr Prince told the Tribunal that the large majority of the information requested under this application by Mr Miskelly would now have been superseded. The information requested in his subsequent application, made on 12 April 2016 (and now before the Tribunal – file number 1610397) would be closer to the final timetabling solution although changes could still be made up until six months before its implementation. 2. Mr Prince agreed that whilst the principle purpose of the 2018 timetable was to accommodate the commencement of services on Sydney Metro Northwest, another purpose was to respond to forecast demand across the network. He confirmed that customer surveys are taken twice a year. The Opal card database is also used to provide updated information in relation to individual passenger trips. 3. He told the Tribunal that his department produces a 'timetable specification' which is an indicative concept finalised prior to NSW Treasury providing the money for its implementation. The indicative concept is then considered by NSW Treasury to get an indication of the required budget. 4. At the time of the hearing, the operational budget for the timetable had not been confirmed and the planning team was continuing to refine the timetable. 5. In response to the suggestion that further ad hoc consultation with the public might be of benefit if it were to identify a major or minor problem with the timetable, Mr Prince said that customer outcomes are incorporated in the earlier stages of planning. He told the Tribunal that any ad hoc consultation with the public would only be useful if it was provided within the relevant time periods. Outside of such a time period, any problems identified would be too late to be able to be incorporated into the timetable. He agreed that public input could be useful, but only at the start of the timetabling process when the input could be considered in the development of the timetable. Once the timetable had been locked down, public input would be futile. 6. He agreed that confidentiality procedures were introduced in relation to timetable planning after details of the 2013 draft timetable were leaked. Mr Prince wasn't sure how this leak had occurred. He wasn't sure if any changes had been made to the draft 2013 timetables following the leak: he couldn't remember any being made. 7. He told the Tribunal that confidentiality was important because customers are impacted by change and until a product has been settled, it's hard to know which customers will be impacted and to what degree. Keeping the information confidential aims to avoid confusing the customer with information that is not current. 8. He told the Tribunal that in 2013, as a result of the leak, 1500 complaints had been received over the following four-week period. This required staff having to be taken off other duties to respond to the complaints. If information about the timetable were now to be released to the public, Mr Prince told the Tribunal that he anticipated that there might be even more complaints than in 2013 because of the greater scale of change and the greater impact on the travelling public. 9. He reiterated his view that the release of the requested information would be of minimal use in terms of changes to the timetable given that significant changes have already been made since those dates nominated in the GIPA application. He was unsure whether Transport for NSW could inform the public that the information in question was no longer relevant, as he is not responsible for the communication area of Transport for NSW. 10. He confirmed his view that the disclosure of the requested information would have industrial implications, as is always the danger when information is released in an uncontrolled way and can be misunderstood by staff. He didn't agree that a press conference would allay concern by staff. He told the Tribunal that the planning division did not want to confuse staff by consulting with unions prior to a detailed timetable solution having been developed. The relevant consultation would occur 12 months prior to the implementation. 11. He told the Tribunal that in 2013, there had not been any union problems as the vast majority of consultation had already taken place given that he leak had been close to 6 months before the implementation of the 2013 timetable. 12. He wasn't aware of any examples of infrastructure projects being cancelled following the release of information however he did note that the projects could be deferred or postponed. He agreed that once a project had been commenced the government is generally reluctant to then stop it. 13. Mr Prince itemised the public involvement in relation to the 2018 timetable: * in the customer service division, by way of questionnaires; * in the planning division, by way of consultation and freight strategy; * through public talks; * through analysis of Opal card data.

FINDINGS AND REASONS

Considerations against disclosure

1(e) disclosure could reveal a deliberation so as to prejudice the deliberative process of the agency. 1. There is a public interest consideration against disclosure of information if disclosure could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of an agency: GIPA Act, section 14 table, clause 1(e). 2. The 'deliberative process' of an agency has been described as its 'thinking processes…including those by which it seeks internal input and discussions as to different courses of action, evaluates the wisdom of them, and the relative benefits and detriments of them: Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13 at 66, or its 'internal thinking': Fire Brigade Union v Fire and Rescue (NSW) [2014] NSWCATAD 133. 3. 'Prejudice 'has its ordinary meaning, i.e. 'to cause detriment or disadvantage' or 'to impede or derogate from': Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60], Sobh v Police Force (Vic) [1994] 1 VR 41. 4. Transport for NSW has set out the procedure for developing a new train timetable. In brief, this involves a planning stage followed by the development of the overall strategic plan. 5. The planning stage involves gathering the strategic vision for the project, the latest customer trends and analyses and the relevant government commitment, which enables a concept design timetable to be developed. This concept design timetable is then tested and developed, modelled against customer demand. The concept design timetable is developed into a specification, which is then 'locked down' (i.e. no longer subject to amendment) when it is given to the Timetable Production and Intelligence team to be developed into the Standard Working Timetable. 6. The Standard Working Timetable provides specifications for the frequency of services, daily service periods, size and carrying capacity of trains, buses and ferries, the movement of trains, buses and ferries when not in service and access and non-operational times for maintenance and other operational purposes, for the daily provision of rail, bus and ferry services by public transport agencies. 7. According to Transport for NSW, the NSW Government has not yet fully approved funding for the operational costs associated with the 2018 timetable. 8. Transport for NSW has submitted that the disclosure of the information in dispute would reveal the preliminary steps that preceded the rigorous planning process that followed. 9. According to Transport for NSW, the information relating to the 2018 timetable is highly confidential with any copying of material watermarked with the copier's name. This high level confidentiality, it seems, was a consequence of a leak to the media in 2013 of changes to the Standard Working Timetable which led to over 1500 complaints or queries from the public as a time when it was already too late to make changes to the timetable. This required Transport for NSW to expend resources responding to these complaints and to inquiries from the Minister's office and the media. 10. It is Transport for NSW's submission that disclosing the information in dispute would prejudice its deliberative process because it: * would result in a very large number of complaints and requests for further information being made, which Transport for NSW would have to deal with; * could have adverse industrial implications; * could threaten the construction of major infrastructure projects, if unwarranted concerns about possible changes to the 2018 timetable were to lead to projects being postponed and thereby impede the whole Sydney Metro project. 1. Mr Miskelly submits that Transport for NSW has not provided any evidence that the release of the requested material would lead either to projects being postponed or cancelled. It is Mr Miskelly's submission that Transport for NSW will continue to develop the timetable irrespective of whether information is released through the GIPA process. 2. For the following reasons, I am not satisfied that the disclosure of the requested documents could reveal a deliberation so as to prejudice the deliberative process of Transport for NSW. 3. On the evidence of Mr Prince, the information requested in this application consists of 'snapshots' of proposed rail timetables taken at the time of application, namely 20 February 2015. On Mr Prince's own evidence, this information will now have been superseded by more recent information, informed by the more recent ideas put forward by the Rail Service Planning unit of Transport for NSW. The material requested is therefore outdated and I cannot be satisfied that the release of outdated information such as this could reasonably be expected to reveal a deliberation so as to prejudice the deliberative process of the agency. 4. The evidence before me is that the deliberative process of the agency has since progressed to such an extent that, according to Mr Prince, 'it does not reflect Transport for NSW's current thinking regarding the 2019 timetable.' Given these changes, even if the requested information were to reveal the preliminary steps that preceded the rigorous planning process that followed, I cannot be satisfied that, at this late stage of the planning process, the release of the requested material could reasonably be expected to prejudice the deliberative process of the agency. 5. On the evidence before me, I am not satisfied that the deliberative process of Transport for NSW could reasonably be expected to be disadvantaged by anticipated complaints or requests made by the public in relation to the requested information. Whilst responding to the public may be inconvenient for Transport for NSW, given that any input by the public would be futile at this stage of the planning process, I am not satisfied that the responses could not be simply handled by Transport for NSW by way of form letter or media release. I am not satisfied that the resources required to provide such responses would be such as to prejudice the agency's deliberative process. 6. I do not accept that the release of the requested material would prejudice its deliberative process because it could have adverse industrial implications. On the evidence of Mr Prince, the information in dispute is not current. On this basis, it does not disclose reliable information in relation to any implications for the rail workforce. The fact that disclosure of the information may be misinterpreted or misunderstood (for example, seen to be current rather than historical) is irrelevant and cannot be taken into account in my determination (s15(d) GIPA Act). 7. I am not satisfied that the release of the requested information could threaten the construction of major infrastructure projects, if unwarranted concerns about possible changes to the 2018 timetable were to lead to projects being postponed, thereby impeding the whole Sydney Metro project. There is no evidence before me that the release of the requested material would lead either to projects being postponed or cancelled. 8. On the evidence of Mr Prince, the Standard Working Timetable for the 2018 time will be produced this year. On his evidence, any consultation with agencies and passengers has already taken place with no meaningful input being able to be provided by an individual at this stage. I interpret this evidence to mean that any further input that were to be provided by such an individual would simply not be considered. This infers that regardless of any attempts to provide late input into the process, the project will continue regardless, in accordance with the pre-arranged timetable. Nothing in this evidence satisfies me that the release of the requested information could reasonably be expected to lead to the postponement or cancellation of the project and thereby reveal a deliberation in such a way as to prejudice a deliberative process of Transport for NSW. 9. Transport for NSW has highlighted that the information relating to the 2018 timetable is highly confidential. On the evidence before me, it appears that this was a consequence of a leak to the media of the 2013 changes to the Standard Working Timetable which resulted in a high number of complaints and enquiries that needed to be dealt with by staff of Transport for NSW who could have otherwise been deployed elsewhere. There is no evidence before me that as a result of the leak, the 2013 Standard Working Timetable was either postponed or cancelled, or even changed. According to Mr Prince, he couldn't remember any changes being made. There is no evidence before me to show that the consequences of releasing the requested material would differ from what happened following the 2013 leak, namely that there would simply be some inconvenience and extra work for staff of Transport for NSW. 10. On the evidence before me, the public interest consideration against disclosure of the requested information on the basis that it could reveal a deliberation…in such a way as to prejudice a deliberative process of Transport for NSW has not been made out.

1(f) disclosure could prejudice the effective exercise of an agency's functions. 1. There is a public interest cconsideration against disclosure of information if disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency's function: GIPA Act, section 14 table, cl. 1(f) 2. One of the roles of Transport for NSW is to determine the Standard Working Timetable for the delivery of transport services by public transport agencies for all modes of transport in the metropolitan rail area, in consultation with the various public transport agencies concerned, which include RailCorp, RMS, the State Transit Authority and Sydney Ferries. 3. According to Transport for NSW, such information has not been released under the GIPA Act previously. Transport for NSW is of the view that disclosure of the information in dispute could prejudice the effective exercise of an agency's functions because: * the information in dispute is highly confidential; * its release would result in a very large number of ill-founded complaints and requests for information which Transport for NSW would have to deal with; * the time and resources required to deal with any resulting backlash would be considerable; * any requests by individuals to have a say in timetable development or to have personal preferences accommodated would be futile; * disclosure could result in industrial action; * disclosure could threaten the construction of major infrastructure projects; * because Transport for NSW is a single integrated authority with responsibility for a Standard Working Timetable, its functions are complex and could reasonably be expected to prejudice the effective exercise by the respondent of its functions. 1. It is the view of Mr Miskelly that the Tribunal should give little weight to the submission that Transport for NSW would be forced to reply to many enquiries and complaints from the public were the requested material to be disclosed. This is because, according to Mr Miskelly, Transport for NSW has the resources to deal with such issues. Furthermore, Mr Miskelly submits that if, as Transport for NSW has stated, the material requested is historical, it is difficult to understand how it would generate large numbers of complaints. 2. I am satisfied that the relevant function of Transport for NSW encompasses the need to deliver transport services including timetabling various modes of transport (see 1(e), 1(f), 1(h) and 5(1) of Schedule 1 to the Transport Administrative Act 1988.) 3. For the following reasons, I am not satisfied that the disclosure of the requested information could reasonably be expected to prejudice the effective exercise of these functions. 4. Transport for NSW has submitted that the release of the requested information 'would result in a very large number of ill-founded complaints and requests for information which Transport for NSW would have to deal with.' 5. By 'ill-founded' I understand Transport for NSW to mean that the information may be misunderstood and that the public may wrongfully believe that its input could be taken into account by Transport for NSW when, on the agency's own evidence, it would be too late for it to do so. That the requested information might be misinterpreted or misunderstood by any person is, however, irrelevant and must not be taken into account in my determination. (s15(d) of the GIPA Act.) 6. Given that, on Mr Prince's evidence, any feedback by the public would be futile at this stage of the proceedings, I am not satisfied that the release of the requested information could reasonably be expected to affect the effective exercise of Transport for NSW's functions, including delivering transport services and timetabling various modes of transport. 7. Transport for NSW has submitted that the disclosure of the requested information could prejudice the effective exercise of the agency's functions as it could result in industrial action. 8. There is no evidence before me that the leak of the 2013 Standard Working Timetable either caused industrial action or threatened the construction of major infrastructure projects, nor is there any evidence before me as to why this could reasonably be expected to be the case now, particularly as the requested material is no longer current. 9. On the evidence before me, the public interest consideration against disclosure of the requested information on the basis that it could reasonably be expected to prejudice the effective exercise by Transport for NSW of its functions has not been made out.

1(h) Disclosure could prejudice the conduct of any review by revealing its results 1. It is the submission of Transport for NSW that the Standard Working Timetable is akin to a review, the disclosure of which would prejudice its conduct or effectiveness by revealing its purpose or results. 2. This is because: * the information in dispute is highly confidential; * its release would result in a very large number of ill-founded complaints and requests for information which Transport for NSW would have to deal with; * the time and resources required to deal with any resulting backlash would be considerable; * any requests by individuals to have a say in timetable development or to have personal preferences accommodated would be futile; * disclosure could result in industrial action; * disclosure could threaten the construction of major infrastructure projects; * disclosure could affect the co-operation of staff members given that the Timetable had been produced for internal use only, had limited circulation and is highly confidential, even within Transport for NSW. 1. According to Mr Miskelly, Transport for NSW has not provided evidence to support its contention that the requested material would lead to concern among staff members, nor does it consider 'the ability of the government to advise unions about the document release and its ramifications for union members.' 2. Mr Miskelly submits that: To the extent the documents reveal the project is proceeding as outlined by the government and will achieve its goals at completion, GIPA release would assure the public that administrative and management functions are good. However, if the documents when reviewed by the tribunal reveal systematic or serious problems or flaws, the public release is not only appropriate but warranted to ensure a project of such magnitude is proceeding as announced by the government. 1. For the following reasons, I am not satisfied that the disclosure of the requested material could reasonably have the effect of prejudicing the conduct of any review by revealing its results. 2. I accept the submission by Transport for NSW that the Standard Working Timetable is akin to a review, in that it looks at current timetabling in its function to provide a new Standard Working Timetable. I also accept that the information requested may give an indication of what results may be forthcoming in the final version of the Standard Working Timetable. I am not satisfied, however, that the release of a draft timetable from 2015 is akin to revealing the actual results of the Standard Working Timetable. 3. In relation to the submission by Transport for NSW that disclosure of the requested information could affect the co-operation of staff members given that the draft timetable had been produced for internal use only, had limited circulation and is highly confidential, I am not satisfied that, given the stage of the timetabling process, this would be such as to reasonably be expected to prejudice the conduct of the review. 4. In relation to the other considerations raised - namely that the information in dispute is highly confidential; the time and resources required to deal with any resulting backlash would be considerable; any requests by individuals to have a say in timetable development or to have personal preferences accommodated would be futile; disclosure could result in industrial action; disclosure could threaten the construction of major infrastructure projects – Transport for NSW has not clarified how these issues could reasonably be expected to prejudice the conduct of any review by revealing its results. On the evidence before me, I am not satisfied that any of these issues show that the disclosure of the requested material could be reasonably expected to prejudice the conduct of the review by revealing its results. 5. On the evidence before me, the public interest consideration against disclosure of the requested information on the basis that it could reasonably be expected to prejudice the conduct of any review by revealing its results has not been made out.

4(e) Disclosure of the information could reasonably prejudice the conduct of research by revealing its results 1. According to Transport for NSW, the timetable development process involves research, namely consultation with passengers and analysis of transport statistics dates, information from customer satisfaction surveys, information from complaints and Opal date. 2. Transport for NSW submits that revealing the information in dispute could prejudice the conduct of research by revealing its results. 3. For the following reasons, I am not satisfied that the disclosure of the requested documents could reasonably prejudice the conduct of research by revealing its results. 4. The requested information is simply a snapshot of draft timetabling. It does not include any background research material and there is no evidence before me that the release of the requested material would prejudice any further research. 5. On the evidence before me, it appears that the research has been conducted and completed at an earlier time and that the process is now at the end of the planning stage. Given that the material requested is historical and not current, I am not satisfied that it could reasonably be expected to prejudice the conduct of research by revealing its results. 6. On the evidence before me, the public interest consideration against disclosure of the requested information on the basis that it could reasonably be expected to prejudice the conduct of any review by revealing its results has not been made out.

Considerations in favour of disclosure 1. There is a general public interest in favour of the disclosure of government information: s12(1) of the GIPA Act. 2. Nothing in the Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. 3. Examples of public interest considerations in favour of the disclosure of information are that the disclosure of the information could reasonably be expected to inform the public about the operation of agencies, enhance Government accountability or contribute to positive and informed debate on issues of public importance. 4. There is no dispute between the parties that, in this matter, disclosure of the information could reasonably be expected to inform the public about possible options for train timetabling. 5. It is the view of Mr Miskelly that disclosure would be in the public interest given that over 900 000 will be affected by the project and given that transport is crucial to people's lives. 6. It is the view of Transport for NSW, however, that the public interest is negligible because the data requested is not current and there is little that its disclosure could do in a meaningful way to assist the timetable itself. 7. It is the view of Transport for NSW that there is no evidence that it is reasonably likely that major or minor problems could be revealed as a result of public input. 8. I accept that the Sydney Metro Northwest project and the relevant timetabling changes it will entail could affect many residents for whom public transport is crucial. 9. I am satisfied that this is a consideration in favour of the disclosure of the requested information in that it could reasonably be expected to inform the public about possible options for train timetabling. 10. I accept that the value of the information – and its consequential public interest - is reduced because the requested information is not current and because there is little that, at the late stage of the planning process, its disclosure could do to influence the new Standard Working Timetable.

Attributing weight – considerations in favour of disclosure & against disclosure 1. As set out above, I am not satisfied that the arguments against the disclosure of the requested information have been made out. I accept that the release of the material may be misinterpreted or misunderstood by the public but this is not something I can take into account in my determination. On the evidence before me, I am not satisfied that there is an overriding public interest against disclosure of the requested material. 2. If, however, I am wrong and there is enough to establish the factors– namely 1(e), 1(f), 1(h) and 4(e) in the Table to s14 of the GIPA Act – as considerations to be weighed, I would give them each low weight. 3. I am satisfied that the disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance government accountability and contribute to positive and informed debate on issues of public importance - in this case, the commencement of services on Sydney Metro Northwest, and the ability of any train timetabling to accommodate passengers. 4. I accept that the public interest is reduced (but not erased) by the fact that the requested information is no longer current and that any input by the public would be unlikely to be taken into consideration in the development of the new Standard Working Timetable.

Whether the balance of the public interest lies in favour of or against disclosure of the government information 1. Having considered all the evidence before me, I am not satisfied that there is an overriding public interest against disclosure of the requested material. Rather, I am satisfied that the balance of the public interest lies in favour of disclosure of the information. The presumption in favour of the disclosure of the information has therefore not been displaced. 2. For this reason, the determination by Transport for NSW should be set aside and the following information requested by the applicant should be released: * Document 7: Central Coast 2019 timetable option at 22 August * Document 14 (pages 21 to 23 only): Silver Set Fleet Deployment Options 2014-05-15. * Document 15: draft timetables for 2(c) Northern to city and North Shore to city; 2(d) Central Coast; 2(e) Western line * Document 16: 2(c-e) for 2018 draft timetables * Document 17: Sector 2 Concept Timetable (Inner West) * Document 20: Down shore extract TT 2018 * Document 21: Up shore extract TT 2018 * Document 22: Down Blue Mountains TT 2018 * Document 23: Up Blue Mountains TT 2018 * Document 24: Down Newcastle TT 2018 * Document 25: Up Newcastle TT 2018

Orders 1. The decision of the respondent is set aside. 2. In addition to the information already released to the applicant, the following information is to be released: * Document 7: Central Coast 2019 timetable option at 22 August * Document 14 (pages 21 to 23 only): Silver Set Fleet Deployment Options 2014-05-15. * Document 15: draft timetables for 2(c) Northern to city and North Shore to city; 2(d) Central Coast; 2(e) Western line * Document 16: 2(c-e) for 2018 draft timetables * Document 17: Sector 2 Concept Timetable (Inner West) * Document 20: Down shore extract TT 2018 * Document 21: Up shore extract TT 2018 * Document 22: Down Blue Mountains TT 2018 * Document 23: Up Blue Mountains TT 2018 * Document 24: Down Newcastle TT 2018 * Document 25: Up Newcastle TT 2018 I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2017