International Law

NSW local councils still in the maze

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.

Full post as published by Open and Shut on August 11, 2009 (boomark / email).