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Monday, January 29, 2007

Two local council ADT decisions of interest

Two ADT decisions involving local councils were handed down in January, one concerning FOI and the other relating to privacy.

In Hattch v Dubbo City Council (2007) NSWADT 4 the Tribunal found that statements provided by Council employees to Council officer in connection with a complaint by the FOI applicant against them concerning bullying and harassment, were exempt on grounds that disclosure would have a substantial adverse effect on the management of personnel (Clause 16(a)(iii) of Schedule 1 of the Act) - employees would no longer have confidence in the confidentiality of the grievance process if documents of this kind were disclosed. One interesting aspect of this case was that the Council was prepared to permit the applicant to view the file including these statements, but was not prepared to provide copies. The FOIA doesn't make a distinction between the exempt status of copies of documents, and the viewing of originals. The Tribunal didn't seem fussed - presumably it took the view that the Council had a discretion to make access available to the originals while denying access to copies.

WL v Randwick City Council NSWADT (2007) NSWADT 12 involved an application for review under the Privacy and Personal Information Protection Act. WL claimed that the taking of photographs of work being undertaken at his property by a Council inspector, and the forwarding of these photos together with a notice that included his name and address, to proprietors of the strata plan and the strata managers, was a breach of privacy principles.

The Tribunal found that the photographs of the premises did not include personal information as defined in the Act - they did not contain information or opinion about an individual.

The disclosure of the name and address of the owner was not a breach of privacy principles - the information was in the rates record of the Council which the Tribunal found to be a "publicly available publication" and thus not caught by the definition of personal information. In any event the Council had not breached the privacy disclosure principle as Section 12(6) of the Local Government Act justified disclosure in these circumstances, as did the Privacy Commissioner's Direction on the use of information for investigation purposes.

Although I don't disagree with the end result, the reasoning and evidence in this case is thin when compared to the detailed examination of the relationship between the Local Government Act and privacy legislation in NV v Randwick City Council (2005) NSWADT 45.

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