Case alert - Darley v City of Parramatta (No 2)

Darley v City of Parramatta (No 2) [2025] NSWCATAD 86

We acted for the City of Parramatta Council in defending its decision regarding two separate applications for access to information (the GIPA requests) by Councillor Darley (a councillor of the City of Parramatta), under s 100 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). These administrative review proceedings were heard over several days in the NSW Civil and Administrative Tribunal (NCAT) before Senior Member Riordan. The result was a win for the Council.

Background

Councillor Darley’s GIPA requests sought information in relation to a three-year contractual partnership between the Council and the Parramatta Eels (the Eels) that was entered into in early 2024. The Council had excluded several documents from those released to the Councillor, and redacted parts of other documents based on public interest considerations in clauses 4(c) and (d) of section 14 of the GIPA Act. The Council had determined that releasing most of the commercially sensitive material, financial information, and sensitive information with commercial value to the Eels could reasonably be expected to diminish the competitive commercial value of the information and could reasonably be expected to prejudice the Eels’ legitimate business, commercial, professional or financial interests.

Councillor Darley informed the Council that she did not seek third-party correspondence and was content with third-party information being redacted.

The NCAT's decision in the interlocutory proceeding Darley v City of Parramatta [No 1] [2024] is here.

Key issues

The key issues in these proceedings were whether, on the balance of public interest, the excluded information should have been excluded. This involved a dispute about whether the excluded information was commercially sensitive information of the Eels, (see [110] to [115]), and whether the applicant, as a Councillor of the City of Parramatta with restricted access to the disputed information, was prevented under the GIPA Act from receiving the documents.

The Council had adduced evidence from the Eels supporting its contention that the excluded information was not in the public domain and was commercially sensitive, and so its release would be prejudicial.

The Council had also adduced evidence from its staff that: (1) the Council’s well-established practice of considering commercial tenders, contracts and agreements in closed sessions was to protect external entities’ interests; and (2) the Councillor had access to the excluded reports to Council containing such commercially sensitive information (at [100]), albeit as a Councillor and not for the purposes of release to the world. This put the Council in a position to maintain on the remitter decisions its exclusion of the confidential commercial information of the Eels on the further grounds that releasing the information could reasonably be expected to:

1. lead to an action against the Council for breach of confidence
2. diminish the competitive commercial value of that information, and
3. prejudice the Eels’ legitimate business, commercial, professional, or financial interests.

With respect to the reports to Council, it was submitted that the disclosure of staff and councillor discussions, which included commercial material of other entities, had to be held in a frank and fearless manner without fear of subsequent release of those discussions.

Additionally, there was a risk that other commercial entities would be unwilling to tender or contract with the Council or supply it with confidential information if they thought that any confidential information they supplied to the Council would ultimately be released. See [55] and the immediately following paragraphs and further discussion at [74] and following.

The NCAT concluded that:

1. With certain minor exceptions, the Council’s case was upheld: first, that the commercial information of the Eels should be protected; and second, that the documents the Council had excluded as being out of scope were in fact out of scope documents (see [171]-[173] and in more detail at [179]-[190]).
2. Certain documents could be excluded on the grounds that legal professional privilege applied, per clause 5 Schedule 5 of the GIPA Act and s 118 of the Evidence Act 1995 (NSW).
3. However, regarding the argument that information was already accessible to Councillor Darley under s 59(1)(d) of the GIPA Act, as a Councillor, the Senior Member accepted the Applicant’s position that this was not a reason to reject the GIPA requests, although these documents were excluded for other reasons outlined above.
4. As to Councillor Darley’s assertions that the Council’s conduct was a public interest factor favouring disclosure, and that the public should have access to the excluded information, the Senior Member did not agree (see [201]-[206]).

Our key takeaway for Councils is that, provided there is solid evidence available to support maintaining confidentiality with respect to Councils’ contractual arrangements, the public interest considerations in the GIPA Act can prevail over the presumption of availability.

Councillor Darley has filed an appeal.

If you have any concerns with a current GIPA application before you, please get in touch.