The case of the council manager's performance review-and sundry others.

A number of recent decisions on Freedom of Information issues of direct relevance to local councils, and perhaps of interest to a wider audience are noted in this post.  The NSW  Administrative Decisions Tribunal decisions concern the Freedom of Information Act, repealed and replaced by the Government Information (Public Access) Act from 1 July, but the "tail" of matters before the Tribunal is continuing.

The NSW decisions concern documents relating to the performance review of a council general manager, disclosure of documents relating to the engagement of recruitment consultants, disclosure of details of council staff education and qualifications, and credit card expenditure by councillors and staff. In Western Australia, the Information Commissioner considered issues concerning disclosure of a transcript of tape recording of a council meeting despite a councillor's submission that it contained personal information, and shouldn't be released, and the status of an elected person as "an officer" of the council. Decisions should be read against the particular facts, and bearing in mind access laws differ in the various jurisdictions.

A few cracks in Queensland's "best of breed" law

In an opinion piece in today's Courier Mail, I point out that recent concessions to local government there put something of a dent in Queensland Government claims to lead the nation on open government. Amendments to the Right to Information Act passed in June exempt from disclosure information considered in the course of a local council's budgetary processes, and accord the work of the Brisbane City Council's Establishment and Coordination Committee, consisting of the Lord Mayor and the chairs of other council committees, the same level of cabinet secrecy claimed essential to the operation of government at state and federal level. Both sides of parliament supported the changes. Only the six independent members of the Assembly voted against.

There is no harm test - both exemptions protect innocuous as well as other information for 10 years after it comes into existence - or any requirement to weigh public interest factors that would require consideration of benefits of disclosure of particular information. Reasons given for the changes are weak and unconvincing.

"Information brought into existence in the course of a local government’s budgetary processes” is broad and imprecise and capable of wide interpretation by councils. Local Government Minister Boyle said at the time, perhaps more in hope than anything else, that councils didn't have to use what amounts to a discretion to refuse access.This exemption is based on a similar exemption in the RTI act since inception for information held by an agency other than a council. There was no reference to exemptions of this kind in the Solomon Report. The Premier's response to the report includes this statement:

The government also considers that there is a compelling public interest in protecting the confidentiality of material prepared in the course of budget deliberations, particularly in terms of options for budget revenue and expenditure measures, and will also include this material in the Cabinet exemption.

Nothing else was made of this at the time. I'm not aware of any similar broadly drawn blanket exemption in other FOI/RTI acts for government agencies or local councils, or any precedent elsewhere for giving a local council committee a cabinet type exemption.

The text of the article follows-it didn't make it into the online edition of the paper.

McKinnon's Open Queensland picture not so pretty after all

Michael McKinnon FOI Editor, Seven Network might be taking back some of those fine words of praise for Premier Bligh and Queensland's approach to open government. In an article in yesterday's Courier Mail under the headline "Sordid deal makes a mockery of open government" (no link- the CM didn't post in online) McKinnon picks up from an article earlier in the week that had raised concern about a cabinet style exemption for the Brisbane City Council. I think giving the Executive Committee of a local council cabinet status and similar protections from disclosure would be a first for local authorities in Australia, but have a vague recollection of something similar in the UK. An extract from the article and the proposal follows.

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.

Transparency still a struggle despite the law.

www.imagingstation.com.au

It's not clear from this report about a broader local council issue whether the Sydney Morning Herald was or wasn't sidetracked by the response from Burwood Council chief architect Albert Becerra:

"When asked for access to his pecuniary interest declaration, Mr Becerra said the Herald would have to submit a freedom-of-information request."

For the last 16 years Section 12 of the NSW Local Government Act has stipulated that"(e)veryone is entitled to inspect the current version of," among a whole raft of documents free of charge, "returns of interests of councillors, designated persons and delegates." Chief architect and other senior council staff are certain to be designated persons.

The Council's website acknowledges availability: it says all you need do to see returns is "Contact the Governance Section within Council." But nothing posted on the web. Perhaps there is scope for looking again at the level of detail of interests that need to be declared by those in local government, but in this day and age it's hard to justify the "come to the office during business hours" approach built into this and many other aspects of our supposedly transparent systems of accountability.

The issue last week was the need for an official on-line seachable register of interests of federal parliamentarians.It's the same at state government level. In the NSW Parliament the latest register of members' financial interests has just been tabled. I can find only one media report-by Brian Robins in the Sydney Morning Herald yesterday. Only the declarations of two members get a mention- Matt Brown is 99% of the story and there is a passing reference to George Souris. There are something like 140 members. Want to know about the others?- off to Macquarie St Sydney to inspect the paper records- business hours, of course. We should expect a lot better at all three levels of government.

NSW "name and shame" initiative second best option

Good to see the commencement of publication of the details of fines imposed for breach of food standards on the NSW Food Authority website, bringing this state at least somewhere closer to the good practice standard of comparable countries such as the UK, and many parts of the US, and Canada. There is not much sign of movement in the other states.

The Government's initiative is rolled out under the "name and shame" banner, from the Minister's media release, the use of this term on the web page, and predictably in media reporting. What a pity we haven't embraced a fully transparent scheme with real potential to lift food hygiene standards that would come from routine release of information about compliance-good, bad and indifferent-or through a rating system. Either would acknowledge good as well as poor performance, and provide an added incentive to all to lift their game

Examples of penalties that appeared on the "name and shame" website’s first day of publication included:

• A restaurant in the Fairfield Council area fined $660 for dirty premises or equipment.
• Two restaurants in North Sydney fined $660 and $330 each; one for a person smoking in a dry food store and the other for a dirty meat slicer.
• A McDonald’s restaurant on the Central Coast fined $660 for failing to maintain fixtures and fittings in good repair.
• Two restaurants in the Penrith Council area fined a total of $1320 for four counts of poor cleanliness and maintenance issues.
• A Wollongong restaurant fined $660 for failing to maintain potentially hazardous food under temperature control.
• A Subway on the Central Coast fined $660 for poor cleanliness.

The matrix used to determine what constitutes a serious breach and therefore justifying publication is also reassuring after concern about the absence of this detail in the legislation that established the register earlier this year.

It's worth recalling that all this only came about after a two year campaign involving numerous Freedom of Information applications by the Sydney Morning Herald FOI editor Matthew Moore, and frequent refusals by different councils to disclose details on the basis that disclosure would have an unreasonable adverse effect on business affairs that was not outweighed by the public interest in disclosure, in at least one case supported by the Ombudsman. Congratulations to Blacktown and Woollahra councils who early on went against the tide and recognised a strong case of the public right to know when they saw one.

Anonymity not warranted for significant agency mistakes

An unnamed local council in Victoria released 223 pages of documents to a Freedom of Information applicant who was involved in a protracted dispute with a neighbour, including 185 pages of information provided largely in confidence by the neighbour about their side of the story, and without any consultation.It proved to be an expensive failure to process the application correctly.

First an investigation by the Ombudsman, that resulted in an acknowledgment by the council that it "may have erred seriously in its management of the FOI request". Then when the council did not follow the Ombudsman's recommendations to resolve the matter, the neighbour complained to the Privacy Commissioner who was able to investigate an alleged breach of privacy because the council appears to have released the documents as a routine disclosure, not under the FOI Act. As a result of a finding by the Commissioner of breach of the disclosure principle, the council agreed to payment of an undisclosed sum in compensation.

While the aggrieved party is entitled to expect privacy in the handling of these complaints, wouldn't the local citizens be better off if the council was publicly named, rather than hidden behind "Local Council" in the case note issued by the Privacy Commissioner? That might enable any of them interested, to ask relevant questions. Quite apart from final compensation, how much did this cost in terms of staff time and any other assistance sought to deal with two investigations, and why did the council fail to act on the Ombudsman's recommendations?

NSW Councils advertising inserts may breach privacy law

It's fairly common practice for NSW local councils to include in the mail out of rates and other notices, advertising material for which they receive a direct or indirect benefit. Some recipients regard this as unsolicited advertising, and it would be wise for councils to at least provide an opportunity to "opt out". One ratepayer has taken the matter to the NSW Administrative Decisions Tribunal arguing that the practice involves a breach of the use principle in privacy legislation (Section 17 of the Privacy and Personal Information Protection Act (PPIPA)).

In AK v Gosford City Council (2007) NSWADT289 the complainant argued that a four page flyer that consisted of advertising material for companies linked to a prize for the early full payment of rates sent to him with his rates notice, was a use of personal information for a purpose not directly related to the purpose for which the personal information had been collected. The Council had been engaged in this practice since 1992. The ADT decided that it was unobjectionable to include in an insert information about the Council, and information about prizes relating to the payment of annual charges. However the inclusion of other material about company products or services could could involve a breach of the privacy principle.

The Tribunal (para. 20-23) was of the view that an exemption in the Privacy Code of Practice for Local Councils may apply, and (at para. 25) that the ratepayer may have in effect consented to this use if material of this kind had been sent to him and he had failed to previously complain about misuse of personal information.

As the Tribunal did not have evidence on these matters it referred the issue back to the Council for resolution.

Local Government: too much public business in private

No we are not talking about Wollongong or any of the other NSW councils much in the news recently.

The Victorian Ombudsman has released a report on Conflict of interest in local government (1.7MB) with a range of recommendations for improvement in governance. The Ombudsman says that conflict of interest is part of a broader problem of public sector ethics and is an important factor in the weakening of citizens' trust in public institutions.

Lack of transparency is part of the problem, with some decisions often made inappropriately in private. (See page 18-19):

“Removing discussions and decision making from the public arena leads to the promotion of private interests and the corruption of proper administration.

Situations must be avoided where councillors, meeting informally and in a context where there is no requirement to declare any conflict of interest, influence the proper decisions and actions of the council officers”.

There is a similar broad ranging report by the Ombudsman and Macquarie University on conflict of interest in the state public sector.

There are echoes of the issues identified in these reports in other jurisdictions throughout the country. Victoria however may have some special problems given the absence of an anti corruption commission.

Disclosure can help achieve policy outcomes

Summer holiday blog

Most Australian governments continue to be over cautious about release of information concerning compliance by private sector bodies or government agencies with policies or standards that apply, or should apply, in the provision of goods or services that have public health or safety implications.

So congratulations to the Queensland Government for its plans to disclose compliance notices issued to day care centres that failed to comply with state standards. As the article recounts, recent attempts to access the list of centres under Freedom of Information failed - the business interests of the centres was said to outweigh any public interest in disclosure.

But another brick bat for the NSW Government for a decision to refuse access to the names of schools where the school canteen was found to have failed food hygiene standards.

The NSW Office of State Revenue recently decided to release details about fines imposed by local councils including $900 imposed by Hunters Hill Council on the owner of Cucinetta for placing two non approved pot plants on the pavement.

But no, the NSW Food Authority decided we shouldn't know which school canteens (or restaurant) sold food that led to a gastro outbreak, had mice dropping in pie ovens, cockroaches in sandwiches and dirty nappies changed near food! Geez.

Our regulatory policy buffs should do a bit more research and reading about the positive policy effects of disclosure of information about compliance with the law. They could start with "Full Disclosure: The Perils and Promises of Transparency" by researchers at Harvard University.

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.

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.

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.

NSW Contract Disclosure requirements to apply from 2 January 2007

The NSW Freedom of Information Amendment (Open Government - Disclosure of Contracts) Act received assent on 4 December and will apply to contracts entered into after 2 January 2007. The text of the amendments is on the link below.

Freedom of Information Amendment (Open Government - Disclosure of Contracts) Act 2006 No 115

The Act applies to any agency subject to the NSW FOI Act except State Owned Corporations, and until the making of a regulation, local councils. In effect, the legislation creates new publishing requirements under Section 15 of the FOI Act, and amends the business affairs exemption by adding a new limited "commercial in confidence" provision.

As previously indicated here, the Act will require an agency to publish on a central government website within 60 days, contracts for more than $5million, and details of other contracts for more than $150.000. Material variations of any contract must also be published.

Some types of information may be excluded if they come within "commercial in confidence" as defined in the Act - the contractors financing arrangements, cost structure, profit margins, full base case financial model, intellectual property, matter the disclosure of which would place the contractor at a substantial commercial disadvantage.

While these publishing obligations are not entirely new for large government departments and authorities, they will involve a whole new ball game for some organisations such as universities and other bodies subject to the FOI Act, but not normally seen to be part of the NSW government system.

The central government website mentioned in the Act currently seems geared to provide information to prospective tenderers. If the new Act is to provide a useful accountability mechanism, whatever website is used will need to have some additional search capabilities, for example to enable access to information about all contracts entered into by a particular agency, and to details of all contracts awarded to a particular contractor.

NSW ADT awards highest damages to date for breach of privacy

The NSW ADT in JD v NSW Medical Board(No.2) (2006) NSWADT 345 has awarded $7500 in damages to an applicant, following a finding of a breach of privacy. While this fell far short of applicant's claim for damages (in excess of $100,000, an amount that would have exceeded the $40,000 ADT limit) it's the highest award since the introduction of the NSW Privacy and Personal Information Protection Act in 2000.

The Tribunal in an earlier finding, ruled that the disclosure of information in a psychiatric report about the medical practitioner had been forwarded by the Board to the Pharmaceutical Services Branch of the NSW Department of Health, in breach of the disclosure principles in Sections 18 and 19 of the Act.

In this case the Tribunal accepted that the practitioner had suffered financial loss and psychological harm as a result of the disclosure.

Other cases involving award of damages by the ADT include RD v Department of Education and Training (2005) NSWADT 195, where the Tribunal awarded damages of $2000 for a breach of privacy that occurred when the Department sent health information about the applicant to a wrong address.

In two other cases in which the Tribunal found it lacked jurisdiction, it said that it would have awarded $40,000 for a breach involving disclosure of letters about a neighbour sent to the mayor of a local council (NV v Randwick City Council (2005) NSWADT 45) and $15,000 to an applicant who an agency employee described as a "well known trouble maker" to a radio program producer (GR v Department of Housing (No.2) (2005) NSWADT51).

The JD v NSW Medical Board case is the 5th ADT case involving alleged breaches of privacy by the Board or the Department of Health arising from an investigation of a complaint about the medical practitioner and the self administering of drugs.

Wheels and justice move slowly - JD's original complaint about a breach of privacy was made in April 2003.