Is the name of the nominator of another person's property for inclusion on the state's cultural register analogous to the name of someone making a complaint to a government agency? Are they both exercising a right that deserves privacy protection in the interests of the community at large? Will fewer nominations be made if the nominator cannot be assured of confidentiality?
This decision by the Queensland Assistant Information Commissioner answers these questions in the affirmative in upholding a determination by the Environmental Protection Agency to refuse access under the Freedom of Information Act to the name,on the basis that the named person had made the nomination was information concerning personal affairs, and there was no basis to find disclosure was in the public interest.
The FOI applicant was the owner of the property and claimed to be concerned about the motivation of the nominator, in the light of what were said to be false claims made in putting the nomination forward. The nomination form had been released with identifying particulars of the nominator deleted. Subsequent to the agency determination, the regulations were changed to provide in future nominations that the name of a nominator would not be disclosed without consent.
The conclusions of the Assistant Information Commissioner on whether a name in these circumstances is personal affairs information[34] and the public interest considerations[40-97]
make interesting reading.
Weighing privacy and other considerations is complex. However another take on this is that the name of the nominator is similar to the name of someone seeking to influence a government decision, where the public interest in open and transparent government is better served when the community at large (absent special factors that justify confidentiality) or anyone interested, knows who is pushing what barrow, and perhaps why. Not to be, in Queensland at least.
This blog takes an interest in issues associated with Freedom of Information (FOI) and privacy legislation in Australia. Information contained on this site is general in nature and does not constitute legal advice. Follow Peter Timmins on Twitter: @foiguru Follow the open government cause through the Australian Open Government Partnership Network. www.opengovernment.org.au and @opengovau
This is one of the most unreasonable FoI decisions I have ever seen, and I see alot of them.
ReplyDeleteThe Federal government's 2006 Productivity Commission Report into Preserving Built Heritage found there were many, many cases of revenge, retaliatory or persecutory heritage nominations including in commercial lease disputes. Wikkougby Council in NSW also made a submission stating they had cases of neighbours lodging heritage nominations as a back door method to try and stop a neighbour adding an otherwise legal second level to their house.
The Society of Heritage Owners NSW [www.sohonsw.com] is aware of such nominations in marital disputes after the court has sanctioned a property allocation one party regards as unfair. We are also aware of locally based heritage professionals such as architects with heritage speciality making phone calls or putting pressure on others to nominate properties for heritage listing. The heritage expert then rings the nominated property owner "offering" their services to either oppose the heritage nominations and/or to secure heritage funding from the Council to "do up" the property. In some cases these heritage professionals formed a closed circle in that they sit on the Council heritage committee, make heritage policy for the region in which they conduct their heritage business, and often are commissioned by the Council to write heritage reports and nominate properties for listing in those reports. It is nothing more than a heritage rort.
The nominator have been able to successfully exploit slack heritage nomination and heritage listing processes at local government level in order to devalue the former partner's assets by a few hundred thousands dollars. We are also aware of them using misused in neighbourhood disputes to try and rice a neighbour out of the area.
The 2007 Review of the NSW Heritage Act [released publicly in April 2008 ] also found serious problems with heritage listings most especially at the local government level. Many recommendations were made for reform of this system. One of the most fundamental reforms required is that no heritage nominations will be accepted or acted upon by any Council UNLESS the nominator agrees on the nomination form for all details to be disclosed. Councils already have such a procedure they use for anyone commenting on Development Applications. This is the only way to break the incestuous and quite corrupt heritage nomination cycle and rampant undeclared conflicts of interest that unfortunately characterises heritage nominations in Australia. This FoI decision is effectively providing a cloak to increase wrong doing and heritage corruption.
George,
ReplyDeleteI didn't know all this about Heritage nominations,but you can see from the post, my view is that transparency is the best way to deal with these issues. Peter
I agree totally Peter. I have been urging some Councils in NSW to adopt pro forma heritage nomination forms which include the name of the nominator as well as them formally declaring they:
ReplyDelete1. have no conflict of interest pecuniary, personal or otherwise - in respect of the property nominated or its owners;
2. that they agree their nomination form can be sent to the owner/made public and
3. they give the heritage reasons on which they are basing their nomination as well as any heritage or other qualifications they hold that are relevant to the nomination.
This simple approach will do a lot of weed out the abusive or persecutory heritage nominators, though not all of course. Unfortately NSW Councils seem reluctant to institute this simple reform measure to curb heritage nomination abuses, so I am now asking the NSW Minister for Planning's staff and the NSW Dept of Planning to write to NSW Councils telling them to do this. NSW Councils have heritage listed well over 30,000 properties and Australia wide around 200,000 properties are heritage listed by Councils. The entire heritage listing process from nomination to conclusion is a farce when it comes to natural justice and requires urgent reform.