Halcyon Waters Community Pty Ltd and Gold Coast City Council (210822)

Application number:
210822
Decision date:
Monday, Sep 14, 2009

Halcyon Waters Community Pty Ltd and Gold Coast City Council
(210822, 14 September 2009)

Section 49 of the FOI Act – matter affecting financial or property interests 

 

The applicant requested a range of information from Gold Coast City Council (Council) relating to Council’s acquisition of land in its capacity of constructing authority.   

 

The matter in issue was contained in one page of the minutes from a meeting of Council’s Health and Community Services Committee, was marked ‘Confidential’ and could be described as:

·       a figure relating to a per hectare valuation amount for the purchase of land for sporting purposes

·       the figure nominated for the acquisition of land as part of Council’s Land Acquisition Program

·       figures showing the funding available to Council to secure the proposed sites.

 

Council refused the applicant access to the matter in issue under section 49 of the Freedom of Information Act 1992 (Qld) (FOI Act) and provided a number of reasons in support of its case:

 

a)         Council submitted that the matter in issue in this review is not the same as the information considered in the Information Commissioner’s decision in Little; Cantoni and Department of Natural Resources (1996) 3 QAR 170 (Little) because:

·       the information quoted in the matter in issue is based on an englobo assessment of the cost of open space at Hope Island at that time

·       the information is not contained within the valuation report for the applicant’s land

·       the rate quoted in the matter in issue is not specific to the site in question, rather it is a generic amount for all open space at Hope Island at that time.

 

Assistant Commissioner Henry found that:

·       the matter in issue in this review could be distinguished from the matter in issue in Little as it was not information contained in a valuation report specific to the applicant’s land

·       however, the general principles from Little were relevant as Council’s submissions indicated that the matter in issue could reasonably be expected to impact on the applicant’s position in its negotiations.

 

b)         Council submitted that:

·       it ‘has fulfilled its obligation of being fair and just, by providing its valuation report as required under Little’

·       the matter of compensation is to be resolved through negotiation and not through the release of information under the FOI Act.

 

Assistant Commissioner Henry found that:

·       although the issue of compensation is to be resolved by negotiation, that was not a reason to find the matter in issue was exempt from disclosure under the FOI Act and the release of information under the FOI Act is a separate process to the negotiation process with the applicant

·       the matter in issue was not information which must be provided to the applicant as part of the acquisition of land process.  

 

c)         Council submitted that:

·       Release of the matter in issue in this review could reasonably be expected to provide the applicant with a financial advantage in its negotiations for compensation and strengthen or weaken Council’s position in its negotiations.

·       The applicant would not ordinarily be privy to information such as the matter in issue when negotiating the compensation for the land.  Release of the matter in issue to the applicant could result in Council paying more for the land than Council would ordinarily have been able to negotiate if the applicant was not privy to the matter in issue.

 

·       Release of the matter in issue could prevent Council negotiating to obtain land or obtain the land at a viable price considering the project as a whole.

·       Premature release of certain financial information including property valuations and budgets could provide sufficient leverage for certain property owners such as the applicants to threaten the viability of the project and that the success of the community project could be threatened by failure to secure certain properties.

 

In relation to these submissions, Assistant Commissioner Henry referred to the relevant principles from Little and found that:

 

·       The amount of compensation to be paid by a local government authority acquiring land for public purposes should be determined objectively by reference to what is fair compensation.

·       If the matter in issue had no relevance to what is fair compensation, then its disclosure would not have provided the applicant with a financial advantage and weaken Council’s position in negotiations.

·       If a relevant substantial adverse affect is able to be established (because the matter in issue is relevant to compensation) then the public interest would strongly favour its disclosure as:

o      any citizen may be affected by a government proposal to acquire private property for public purposes and the interest in fair treatment of citizens by the government in the course of the acquisition processes is therefore an interest common to all citizens and for their benefit

o      it would be short sighted to suggest that the public interest in saving public money would justify a government agency in seeking to negotiate the acquisition of a citizen’s property on less than just terms.

·       On balance, the public interest considerations favouring disclosure of the matter in issue are significant and outweigh all public interest considerations favouring non-disclosure of the matter in issue.

·       The matter in issue is not exempt from disclosure under section 49 of the FOI Act.