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Tuesday, December 19, 2006

Privacy and other issues in web publication of development applications

Summer Blog

Privacy NSW has posted on its What's New page a note (see 5 December 2006) concerning local councils and the inclusion on websites of development applications and associated documents. Privacy NSW says that councils should obtain their own legal advice, but suggests it isn't prudent. In any event, Privacy NSW says, councils should remove or black out personal information such as signatures and names/addresses of third parties.

My guess is that legal advice will be to the effect that publication of any document on the web that includes personal information is not a breach of the NSW Privacy and Personal Information Protection Act, where the individual concerned is aware, or likely to be aware, that information of this kind will be included on the council's website. If councils ensure there are appropriate references to plans to pubish certain documents on the web, they are likely to have a defence to any claim of breach of privacy principles.

This doesn't mean that the caution from Privacy NSW regarding the inclusion of signatures in documents posted on the web shouldn't be taken seriously. The rise of identity theft means that councils (and others) may find it difficult to explain why this sort of detail should be disclosed to the world, even though technically it might not constitute a breach of privacy principles.

Posting on the web information about development applications clearly facilitates public access, and will be seen as a much more convenient opportunity for members of the public to follow what is happening in the neighbourhood. It should facilitate increased participation in local government affairs generally. It certainly is a big step forward from the minimum requirement in the Local Government Act and other laws concerning development control matters that state that council must make certain documents available for inspection at council premises during business hours.

Privacy isn't the only issue that councils need to consider prior to posting documents on the web. There are also copyright issues, and the possibility, in publishing public comments received in response to a development application, without a vetting process, runs the risk of exposure to action for defamation in the event that a person's character or reputation could be affected.

There are practical answers to managing these risks, and the more information easily accessible about the conduct of council public functions the better. However councils need go into this type of exercise with eyes wide open, and to manage risks in an appropriate manner.

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