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Sunday, October 21, 2007

Messy privacy and disclosure issues for local councils

Two recent NSW Administrative Decisions Tribunal cases deal with matters concerning disclosure of information by local councils and the vexed question about the interplay between privacy legislation and other legislative obligations to disclose council documents.

WL v Randwick City Council (2007)NSWAP58 is an Appeal Panel decision on a matter decided in January in favour of the Council. We commented at the time that the reasoning in the original decision was thin. The Appeal Panel has now found errors in the decision. The upshot will give rise to some head scratching in the local government community. The Appeal Panel has found that photographs of unauthorised building work being undertaken in an apartment block, when combined with the name of the property owner is 'personal information' and subject to privacy principles in the NSW Privacy and Personal Information Act. The Appeal Panel found there had been a breach of the disclosure principles when information about the unauthorised work had been sent to the strata manager and other unit owners.

In WT v Auburn Council (2007)NSWADT253, the Council conceded a breach of privacy principles. The only issue in the decision was whether an award of damages should be imposed upon the Council. The Tribunal awarded $5000 to the complainant.

The Council had released information to a firm of solicitors about complaints received concerning the state of the applicant's property, orders and infringement notices issued to the applicant under the Local Government Act, correspondence between the applicant and the Council, photographs of the complainant's property, an internal memorandum and medical reports.

The firm of solicitors was representing an insurance company in a matter involving a claim for compensation by the complainant. Before they received the documents from the Council they made an offer of financial payment but withdrew the offer after the Council documents suggested flaws in the complainant's case.

The Council said the release of the documents was an 'unintentional' disclosure as the Council officer concerned had released the documents after incorrectly relying on written advice from the solictors who sought the documents and said they "were available under Section 12 of the Local Government Act".

Everyone who has looked at the complex set of legislation that applies to local councils in this area agrees it's a mess. The Government asked the NSW Law Reform Commission to look at this 18 months ago but there has been no developments to date.

Meanwhile councils still struggle to make sense of it all.

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