11 April 2016
Our reference: RWC-001006
Ms Wendy Bacon
Right to Know
Email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear Ms Bacon
Notice of decision on your access application under the Government Information (Public Access)
Act 2009 (GIPA Act)
Applicant:
Wendy Bacon
File reference:
RWC-001006
Decision maker:
Clarinda Campbell
Due date:
24 March 2016
Extended due date:
11 April 2016
Date of decision:
11 April 2016
1.
Your access application
1.1
On 25 February 2016 we received your access application under the GIPA Act for the following
information:
I am inquiring about the Dial a Dump site at Albert St, St Peters. This is now known locally
as the Alexandria Landfill Site and as far as I am aware is known as that to RMS.
WestConnex Delivery Authority took it over in December 2014 but it was later transferred
to RMS and is currently in its possession. I want all documents and records including
information about or relating to any storm damage on site after a storm event in April
2015. Even if any such records were originally WDA records they would be included in
RMS records for the site.
1.2
On 11 March 2016 we informed you that we were required to consult third parties in relation to
your application. In accordance with section 54 of the GIPA Act, we extended the timeframe for
deciding your application to 11 April 2016.
1.3
On 29 February 2016 in your email to Mr Andrew Seccombe, you clarified your application terms
to include:
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I want all documents and records in any form relating to any damage on the old Dial a
Dump site at Albert St, St Peters (Alexandria Landfill Site) otherwise known as the site for
the St Peters Westconnex Interchange which occurred as a result of either a storm or
flood event in April 2015. This includes any documents now held by RMS whether or not
they were originally RMS documents.
1.4
In your email to Mr Seccombe on 11 March 2016, you advised:
I would agree it advance to any personal addresses or personal phone numbers
being deleted about communications with third parties.
1.5
In your email to Mr Seccombe on 11 March 2016, you advised the following documents are within
the scope of your application:
AECOM Site Inspection Report – St Peters Interchange Slope Failure
AECOM Proposed Site Stabilisation Works - Concept Design St Peter Interchange (SPI)
AECOM – WestConnex – St Peters Interchange (Geotechnical Desktop Study and Slope
Risk Assessment
Progress reports from July 2015, August 2015, September 2015 and October 2015 (only
parts of these reports briefly refer to the progress of the stabilisation works).
2.
Searches for information
2.1
Under the GIPA Act, we must conduct reasonable searches to locate the government information
you have applied for.The following areas of this agency have conducted searches:
• Network Sydney, Journey Management Division (JMD)
• Network Motorways, JMD
• Legal, Corporate and Commercial Division.
2.2
Information has been identified as falling within the scope of your application.
3.
Decision
3.1
I am authorised by the Principal Officer, for the purposes of section 9(3) of the GIPA Act, to
decide your access application.
3.2
Please see below a summary of my decision
Page Number
Description of Item
Release/Withheld
PART ONE 1-57 Pages
Pages 1-5
Letter from Roads &
Release
Maritime Services (Roads
& Maritime) to NSW EDO
dated 9 October 2015
Pages 6-10
Letter from NSW EDO to
Release
WestConnex Delivery
Authority (WDA) dated
15 September 2015
Pages 11-40
Proposed Soil
Release
Conservation Works
WestConnex – Alexandria
Landfill: Minor Works
Review of Environmental
Factors dated July 2015
Pages 41-47
Letter from AECOM to
Release
WDA dated 15 June 2015
and attachments
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Pages 48-51
Briefing for Project
Release
Director – Delivery dated
18 May 2015
Pages 52-53
Briefing for Project
Release
Director – Delivery dated
18 June 2015
Pages 54-57
Internal Roads & Maritime
Release
email and attached letter
to Marrickville Council
dated 4 November 2015
PART TWO 1-203 Pages
Page 1
Holding Lines –
Alexandria landfill slope
failure dated 21 May 2015
Pages 2-9
Brief for Chief Operating
Part Release (Item 4(d) in
Officer – Approval of the
the table to section 14 of
Reimbursable Notice
the GIPA Act)
(RWCN001). Emergency
slope stabilisation
variation dated
8 July 2015 including
attachments letter to WDA
dated 7 July 2015 and
letter from Ward Civil
Engineering Pty Ltd
(Ward) dated 6 July 2015
Pages 10-20
Letter from AECOM to
Part Release (Item 4(d) in
WDA dated 27 May 2015
the table to section 14 of
and attachment
the GIPA Act)
Page 21-40
Letter from AECOM to
Release
WDA: Proposed
Stabilisation Works –
Concept Design St Peter
Interchange (SPI) dated
18 June 2015 and
attachments
Pages 41-158
AECOM Report – WDA –
Release
St Peters Interchange
(Geotechnical Desktop
Study and Slope Risk
Assessment) dated 10
November 2015
Pages 159-168
WDA Managing
Release (information out of
Contractor-St Peters
scope has been redacted)
Interchange Site
Preparation Works -
Progress report from
July 2015
Pages 169-182
WDA Managing
Release (information out of
Contractor-St Peters
scope has been redacted)
Interchange Site
Preparation Works -
Progress report from
August 2015
Pages 183-203
WDA Managing
Release (information out of
Contractor-St Peters
scope has been redacted)
Interchange Site
Preparation Works -
Progress report from
September 2015
Pages 204-218
SMC/WDA Managing
Release (information out of
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Contractor-St Peters
scope has been redacted)
Interchange Site
Preparation Works –
October 2015
PART THREE
Pages 1-70
Correspondence
Clause 5 in Schedule 1 of
(including drafts) between
the GIPA Act
Roads & Maritime and
Marrickville Council,
Ashurst law firm, Office of
the Minister for Roads,
Maritime and Freight,
NSW EDO regarding the
Alexandria Landfill Site
dated 15 September 2015
to 4 November 2015 and
internal Roads & Maritime
correspondence
3.3
Please be aware that for some of the records above (specifically the WDA Managing Contractor-
St Peters Interchange Site Preparation Works Progress Reports from July to October 2015), I
have solely included the pages that fall within the scope of your application. This accounts for the
pages in those reports which I have not provided. Further, within the pages provided, I have
further redacted other content that does not fall within the scope of your application.
3.4
I have decided that there will be no processing charges payable for access to this information.
4.
Reasons for decision
Under section 9(1) of the GIPA Act, you have a legally enforceable right to access the information
you asked for, unless there is an overriding public interest against its disclosure.
Under section 5 of the GIPA Act, there is a presumption in favour of disclosing government
information unless there is an overriding public interest against its disclosure.
4.1
Conclusive presumption of an overriding public interest against disclosure
Section 14(1) of the GIPA Act states:
It is to be conclusively presumed that there is an overriding public interest against
disclosure of any of the government information described in Schedule 1.
Clause 2(1) of Schedule 1 of the GIPA Act relevantly provides:
5 Legal professional privilege
(1) It is to be conclusively presumed that there is an overriding public interest against
disclosure of information that would be privileged from production in legal proceedings
on the ground of client legal privilege (legal professional privilege), unless the person
in whose favour the privilege exists has waived the privilege.
(2) If an access application is made to an agency in whose favour legal professional
privilege exists in all or some of the government information to which access is
sought, the agency is required to consider whether it would be appropriate for the
agency to waive that privilege before the agency refuses to provide access to
government information on the basis of this clause.
(3) A decision that an agency makes under subclause (2) is not a reviewable decision
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under Part 5.
I am informed that documents itemised under PART THREE (Pages 1-70) in the table at
paragraph 3.2 above were prepared for the dominant purpose of obtaining or giving legal advice.
Such communication is, and is understood to have been, made in confidence.
Legal professional privilege will only attach to a confidential communication made for the
dominant purpose of obtaining or giving legal advice or for use in legal proceedings. The
protection of legal professional privilege is not limited to communications made between a
solicitor and client as communications between a client’s legal representative and third parties
may also attract privilege if it can be shown that the document was prepared for the dominant
purpose of actual or contemplated legal proceedings.
I have examined the documents in question which, by their very nature were obviously prepared
for the dominant purpose of the provision of legal advice and as such there is an overriding public
interest against their disclosure by virtue of Schedule 1 Clause 5(1) of the GIPA Act.
I have also taken into account the provisions of Clause 5(2) of the GIPA Act which requires
consideration of whether it would be appropriate to waive the privilege before Roads & Maritime
makes a decision to refuse access on the basis of this clause. I am informed that Roads &
Maritime has elected not to waive privilege in relation to these documents.
4.2
Public interest test
To decide whether or not there is an overriding public interest against disclosure of the
information you asked for, I applied the public interest test, which is set out in section 13 of the
GIPA Act.
I applied the public interest test by:
a. identifying any public interest considerations in favour of disclosure;
b. identifying any relevant public interest considerations against disclosure;
c. attributing weight to each consideration for and against disclosure; and
d. deciding where the balance between them lies.
4.3
Public interest considerations in favour of disclosure
Under section 12(1) of the GIPA Act, there is a general public interest in favour of disclosing
government information. Section 12(2) of the GIPA Act sets out some examples of other public
interest considerations in favour of disclosure. However, I am not limited to those considerations
in deciding your application.
I find the following considerations in favour of disclosure are relevant to your application:
• there is a general public interest consideration in favour of disclosing government
information
• 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
• disclosure of the information could reasonably be expected to inform the public
about the operations of agencies
• disclosure of the information could reasonably be expected to ensure effective
oversight of the expenditure of public funds.
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4.5
Public interest considerations against disclosure
When applying the public interest test, the only public interest consideration against disclosure
that I can take into account are those set out in the table to section 14 of the GIPA Act.
I have identified the following considerations against disclosure as being relevant to your
application:
• Item 4(d) in the Table to section 14 of the GIPA Act – the disclosure of the
information could reasonably be expected to prejudice any person’s legitimate
business, commercial, professional or financial interests.
Item (4)(d) in the table to section 14 of the GIPA Act
The records contain the business information of relevant third parties: AECOM, NSW EDO,
Jones Nicholson Consulting Engineers (Jones Nicholson) and (Ward).
The records relating to AECOM include correspondence for a slope stability assessment and a
Site Inspection Report. The records contain assumptions, methodology, test results, risk
assessments, recommendations and certain cost/budget estimations which were submitted in
confidence. Due to the variety of potentially commercially sensitive information, the records, if
released, may prejudice AECOM’s legitimate business, commercial, professional or financial
interests.
The records relating to NSW EDO includes NSW EDO’s correspondence with WDA on behalf of
its client regarding WDA’s compliance with its health and safety obligations for the Alexandria
Landfill Site.
The records relating to Jones Nicholson include a building plan.
The records relating to Ward include Ward’s cost structure and Variation Budget Calculation
information, included in its correspondence to WDA.
AECOM and Ward’s financial information concern those entities’ financing arrangements, cost
structure or profit margins and I consider it is information which is commercially sensitive to
AECOM and Ward.
I am satisfied that the disclosure of AECOM and Ward’s financial information to the public at
large will enable this information to be made available to competitors and it is reasonably
expected that this may impact on those entities’ business, commercial and financial interests.
For this reason, I have attributed significant weight to the public interest considerations against
disclosure for AECOM and Ward’s financial information.
4.6
Consultation
The information that you asked for includes information that is business information. I was
therefore required to consult with those people before releasing the information (under section 54
of the GIPA Act).
No response has been received from either NSW EDO or Ward.
There were no objections to the release of the information from Jones Nicholson.
There was an objection to the release of some of the information from AECOM.
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The objection does not mean I cannot release the information. However, I must take it into
account when making my decision. I have therefore considered it when applying and balancing
the public interest test.
I have attributed significant weight to the public interest considerations against disclosure for
AECOM’s financial information.
4.7
Balancing the public interest considerations
I have considered the relevant public interest considerations in favour of and against disclosure
of the information that you have requested.
I have attributed a significant amount of weight to the public interest considerations in favour of
disclosure as there is a general public interest consideration in favour of disclosing government
information. Further,
State Government Agencies have obligations to inform the public about the
operations of agencies and, in particular, their policies and practices for dealing with members of
the public and matters of compliance. I also note that a transparent investigation and reporting
process enhances Government accountability.
With regard to AECOM and Ward’s budget and cost structure information, I have attributed a
significant amount of weight to the public interest considerations against disclosure. The financial
information is sensitive to AECOM and Ward and has been provided to Roads & Maritime in
confidence. Disclosure of this information is reasonably expected to prejudice their business,
commercial and financial interests. In striking a balance with the public interest considerations in
favour of disclosure, I have decided to release the relevant correspondence minus this sensitive
financial information.
Having weighed up the considerations, I have decided to:
• in relation to the majority of the information there is not an overriding public interest
against the disclosure. As such I have decided to provide access to this information
in accordance with section 58(1)(a) of the GIPA Act.
• in relation to AECOM and Ward’s budget and cost structure information there is an
overriding public interest against the disclosure. As such I have decided to refuse
access to this information in accordance with section 58(1)(d) of the GIPA Act).
5.
Access
5.1
Form of access
In accordance with section 72(1)(b) of the GIPA Act you will be provided with a copy of the
information identified for release.
I note the documentation is separated into Part One (57 pages) and Part Two (203 pages) and
the records are numbered accordingly.
In accordance with section 74 of the GIPA Act, information within the WDA Managing Contractor-
St Peters Interchange Site Preparation Works Progress reports (July to October 2015) has been
deleted as it is information that falls outside the scope of your application.
In accordance with section 74 of the GIPA Act, information relating to AECOM and Ward’s
budget and cost structure information has been deleted as it is information you have been
refused access to.
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6.
Processing Charges
Under sections 64(1) and 64(2) of the GIPA Act, we may require you to pay processing charges,
at a rate of $30 per hour, for the time spent dealing with your access application. The application
fee of $30 counts as payment of one hour of the processing charges.
I have decided not to impose any additional processing charges for dealing with your application.
7.
Disclosure Log
If information that would be of interest to other members of the public is released in response to a
formal access application, an agency must record certain details about the application in its
‘disclosure log’ (under sections 25 and 26 of the GIPA Act).
In the letter dated 26 February 2016 acknowledging receipt of your valid application, you were
told about the disclosure log. You were also advised of your right to object to the inclusion of
details about your access application in the disclosure log.
You did not object to details about your application being included in the disclosure log.
I have decided not to include the details about your access application in the disclosure log.
8.
Review rights
If you disagree with my decision, you may apply for this decision to be reviewed by seeking:
• an internal review by another officer of this agency, who is no less senior than me;
• an external review by the NSW Information Commissioner;
• an external review by the NSW Civil and Administrative Tribunal (NCAT).
You have 20 working days from the date of this letter to apply for an internal review and 40
working days to apply for an external review by the NSW Information Commissioner or the
NCAT.
9.
Further information
For your information and assistance, I have enclosed a fact sheet explaining your rights to have
my decision reviewed.
Please do not hesitate to contact Mr Seccombe on 02 9563 8685 or
xxxxxx.xxxxxxxx@xxx.xxx.xxx.xx if you have any questions about this letter.
Yours sincerely
Ms Clarinda Campbell
Manager
Information & Privacy Unit
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