Timely reminder – Principles applicable to public interest determination under the GIPA Act 

Staff members of the NSW Department of Planning and Environment (Department) have recently been found to have been giving advice to mining company, South32, in relation to its application for a coal mining extension. The emails containing the so called ‘advice’ were produced under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). 

The nature of the advice found to have been given, following the release of the documents, has generated notable negative attention from community groups and media outlets who, in summary, describe the Department’s communications with South32 as ‘coaching’ the mining company on how to ensure their application is favourably determined and evidence of there being a ‘fake assessment process’ having been undertaken. This is in circumstances where parts of the advice appears to be directed towards ensuring that the rationale provided by South32 in its application documents align with the government’s publicly stated rationale for classifying the project as State Significant Infrastructure.

The documents were released after community activist group, Protect Our Water Incorporated, applied to the Department for relevant documents under the GIPA Act. Some of the reported correspondence between South32 and the Department in the months leading up to their application included the advice below, given by Department staff to South32:

• “One area where the letter would benefit is some additional information in relation to the IPC’s commentary around Wongawilli Seam coal being the main supply source for Bluescope”
• “The IPC contended South32’s justification for the project (i.e. as a supply source for Bluescope, with related economic/employment implications) because Wongawilli Seam coal wasn’t going to be available until many years in the future.”
• “The letter could better address this point, confirming that the Bulli Seam coal targeted by the revised project is of a suitable quality to supply Bluescope.”
• “The report doesn’t clearly state that coal produced from the project is suitable for use by BlueScope….  Given the heavy reliance of the justification for the project on supplying BlueScope, a statement saying the coal meets BlueScope specs (or can meet specs with blending) would be useful”

Based on our review of some of the media publications we have seen, it is clear, in our opinion, that the release of this documentation is likely to have caused embarrassment for the Department and a loss of confidence in the Government, particularly from environmental groups.

Key Takeaways

This release serves as a timely reminder for all government agencies of two key features of NSW’s freedom of information scheme. Firstly, government information is defined broadly to include any information contained in a record held by a government agency (GIPA Acts 4). And second, in assessing an application for release of information and in balancing the public interest for and against release, the likelihood of embarrassment, loss of confidence in the Government or the fact that any information disclosed might be misinterpreted or misunderstood by any person as a result of the disclosure is irrelevant (GIPA Acts 15). 

It follows that government agencies should be alive to the risk that their communications with relevant stakeholders, and their internal communications about government decisions and alike, may be subject to a public information access request. Such agencies should therefore always exercise care and caution when drafting communications and documents, bearing in mind that many ‘internal’ communications and documents may not remain as such at all times and may often be readily accessed by members of the public.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.