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Wednesday, August 12, 2009

NSW local councils still in the maze

Local councils in NSW will from the commencement of the Government Information (Public Access) Act, early in 2010, be freed from some of the complexity associated with access to information issues, as Section 12 of the Local Government Act is to be rescinded, a different publishing requirement, a modified version of Section 12 (1), will be imposed under the new legislation, and applications for other information are to be dealt with in accordance with GIPA. Sometime the NSW Law Reform Commission will also report on the inquiry into the state's privacy laws and the relationship between them and access to information laws.In the meantime, two developments worth noting.

In JS v Snow River Shire Council (No 2) [2009] NSWADT 210 the Administrative Decisions Tribunal decided to take no further action on a complaint of a breach of privacy as a result of a disclosure by the Council to the owner of a property of a letter from the applicant concerning construction on the land. Judicial Member Montgomery said the letter was arguably a document required to be made publicly available under Section 12 (1) of the LGA and certainly an "other document" required to be disclosed under Section 12 (6) unless on balance disclosure would be contrary to the public interest.

"53 Section 25 of the Privacy Act provides that a public sector agency is not required to comply with section 18 of the Privacy Act if non-compliance is ‘otherwise permitted (or is necessarily implied or reasonably contemplated)’ under an Act. The words ‘otherwise permitted (or is necessarily implied or reasonably contemplated)’ are extremely broad. For the reasons argued by the Council, it is my view that section 12(6) of the Local Government Act satisfies this provision."

And in this case note [2009] NSW PrivCmr2 issued by Privacy NSW (with a rider that it does not constitute legal advice) the publication on a council's website of development applications including the applicant's name, address, telephone numbers and signature without having informed the proponent, involved a breach Section 10(c) of the PPIP Act, which requires an agency to take reasonable steps to inform people of the intended recipients of that information, when collecting their personal information. No breach of the disclosure principle was involved because under Section 12 of the Local Government Act 1993, development applications are "public documents" that members of the public are entitled to inspect. Publication of the complainants' development applications on its website did not involve a breach of s. 18 of the PPIP Act. Finally it was determined that there was sufficient security in place to comply with Section 12 of the PPIP Act, which requires personal information to be stored securely and be protected from unauthorised access, use or disclosure. The development applications were uploaded in "Tiff" and "Jpeg" format which, to a degree, was considered to prevent modification of the documents. Additionally, before the website can be accessed, a user is required to agree under an exclusive licence only to view the website content.


  1. Anonymous1:48 pm

    NSWPrivCmr commented: "The development applications were uploaded in "Tiff" and "Jpeg" format which, to a degree, was considered to prevent modification of the documents."
    Could those more technically minded please consider this comment - while not a binding judgement, it is a useful guide ot better practice for the new web-publising regimes for FOI in most, if not all, jurisdictions.
    However, if from a technical viewpoint, usign .tiff or .jpeg file type creates more problems than it solves (notable security of uploaded documents through minimising tampering), then the myth needs to be busted.

  2. Peter Timmins1:36 pm

    Any more technically minded than me care to add to this?

  3. Anonymous2:20 pm

    What is given is also taken away. The removal of section 12 of the Local Government Act is a retrograde step as the exemptions applicable to FoI did not apply to s12. This meant tbose applying to local Councils under s12 in NSW had far more information rights. Local Council staff have been behind getting rid of this as it now means they will now have more reasons to be able to reject access to a Council document.

  4. I'm not sure you're right on this.The right to inspect council documents under Section12(1) of the LGA is to be replaced in GIPA by obligations on a council to make the Section 12 information plus an even wider range of materials available on the internet free of charge, and in other ways.The details are in Schedule 5 of the GIPA Act.The right to inspect "other documents" under Section 12(6) of the LGA unless disclosure on balance would be contrary to the public interest is replaced with an obligation under GIPA to publish or disclose all other information held unless there is an overriding public interest against disclosure. Public interest factors that weigh in favour and against disclosure are spelled out in the Act. The Act also extends to information held by a contractor engaged to carry out services for the public on a council's behalf.There are some "win some lose some" outcomes when it comes to the grounds on which access may be refused.Overall however it is a step forward not back. But the proof of the pudding as they say....

  5. Anonymous9:22 am

    Under s12 LGA we can make as many applications as well want, which is useful for a number of reasons. For example, accessing some documents leads you to a trail to related material, neccessitating a second application. Or documents claimed not to exist or be able to be found are referred to in the first released material, suggesting a fruitul line for a second application. Or someone tips you off that the computerised records management system has either accidently or deliberately used an obscure search/retrieval heading for keeping certain sensitive material. The problem with dumping of s12 LGA in the GI(PA) Act 2009 is the presumption against making more than 2 applications in s60. There are no time limits on this so for example someone who makes 4 applications over 4 years could be refused whereas under s12 LGA there are no such limitations. s60 is pernicious and aimed squarely at sputting a spoke in the wheels of repeat [read experienced] applicants and in particular, will impact badly on media organisations especially when the decision maker can choose to label people or organisations as related entities/persons and the provisions allowing weight against disclosure to an applicant's motives [s55]. These provisions and others collectively work to put the applicant and their associates 'on trial' and legitimises it as grounds for non-disclosure. This is a very serious back ward step.

  6. As I've said before there are some "win some lose some" elements in some of the changes. Section 60 is only relevant to repeat applications for information substantially the same as that sought in a previous request. Not sure this is "pernicious" or that the media or experienced applicants are in the firing line here.Section 55 only allows personal factors to be taken into account against disclosure of particular kinds of information. On the other hand consideration of personal factors in favour of disclosure to a particular applicant is a good thing.I'd encourage you to keep a close eye on all this to see how it starts to pan out.