Services Sydney scores a rare win

Services Sydney, a private infrastructure development company has been involved in a long battle to try to access the assets of the NSW Government owned monopoly provider, Sydney Water, in order to be able to provide some services in competition.

Given this background, it may have been surprised by the substantial win in the NSW Administrative Decisions Tribunal recently in a case involving 10 documents(now four years old), claimed to be exempt by the Independent Pricing and Regulatory Tribunal and Sydney Water. The documents related to a pricing review of Sydney Water by IPART in 2005.The win resulted mainly from the failure of the two agencies to provide the ADT with evidence to support their arguments about the sensitivity of the information contained in the documents.

The ADT rejected claims in respect of four documents on the basis that the agencies had not demonstrated through evidence that particular detriments would follow disclosure.With regard to five other documents claimed exempt as Cabinet documents, the Tribunal was not prepared to accept assertions by public servants about the documents, and before deciding their status wants to see chapter and verse, the documents themselves,before a further hearing in May.

The Tribunal decided that two of these documents, a report and appendices prepared for a government agency by the Institute for Sustainable Futures and the Centre for International Economics,were not prepared for submission to Cabinet:

"An objective assessment of the material before the Tribunal suggests that the Report was prepared for the purpose of DIPNR and the relevant Minister(s) being able to prepare a Metropolitan Water Strategy/Plan, which would be submitted, to Cabinet for consideration. That is, the Report was not a document, which was envisaged as being a document for submission to Cabinet, it was a document on which a further document was to be created and it was this further document, which was prepared for Cabinet. It was a document prepared so that it could form a basis on which a submission to Cabinet would be prepared and therefore not exempt under this particular paragraph of clause 1 of Schedule 1 of the FOI Act".(at 84)

Still, the Tribunal upheld an exemption claim for one document.

It's unusual for a government agency to come unstuck in the ADT because of a failure to adduce evidence to support exemption claims.