CYX v City of Ryde Council

[2017] NSWCATAD 324

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CYX v City of Ryde Council [2017] NSWCATAD 324
Hearing dates:	10 October 2017
Date of orders:	10 November 2017
Decision date:	10 November 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	The application is dismissed.
Catchwords:	ADMINISTRATIVE LAW – privacy – disclosure of personal information – whether individual reasonably likely to have been aware that information of that kind is usually disclosed
Legislation Cited:	Privacy and Personal Information Protection Act 1998 ss 18, 55 Environmental Planning and Assessment Act 1979 s79C
Cases Cited:	Vice-Chancellor, Macquarie University v FM (No.2) (GD) [2004] NSWADTAP 37 AHW v President, Anti- Discrimination Board [2012] NSWADT 164 KP v Narrandera Shire Council [2011] NSWADTAP 15
Category:	Principal judgment
Parties:	CYX (Applicant) City of Ryde Council (Respondent)
Representation:	Solicitors: Storey and Gough (Respondent)
File Number(s):	2017/00054750

REASONS FOR DECISION

1. This is an application for review of conduct under s 55 of the Privacy and Personal Information Protection Act 1998 (“the PPIP Act”). The applicant is a resident in the Ryde Council area.

2. He claims that the respondent disclosed his personal information, namely his name, address and signature, to a third party, and that this disclosure was a breach of the information protection principle in s 18 of the PPIP Act. The respondent does not dispute that the applicant’s personal information was disclosed, but says its conduct was justified by s 18(1)(b) of the PPIP Act. This provides:

“18 Limits on disclosure of personal information

(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:

…

(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body…”

3. It was also not in dispute that the disclosure occurred as part of the Council’s process for assessing a development application. A development application was lodged with the Council on 24 May 2016. The development application was publicly notified and a notification letter was sent to the applicant, as the owner of a neighbouring property. On 15 June, 28 July and 4 August 2016 the applicant submitted three letters of objection to the Council. On 1 August 2016 the Council disclosed two letters of objection to the applicant who had lodged the development application (“the DA applicant”). The letters contained CYX’s name, address and signature.

4. Section 79C of the Environmental Planning and Assessment Act 1979 requires the Council to take into account any submission made under the Act when determining a development application.

5. The respondent submits that the applicant was reasonably likely to have been aware that information of the kind which was disclosed to the third party, was usually disclosed to such persons (namely a DA applicant) as part of the assessment process.

6. It relies upon the following evidence:

1. A notification letter sent by the Council to the applicant on 31 May 2016 which contained the following:

“Please note that in accordance with a Council resolution, all submissions received in relation to rezoning and development applications will be publicly accessible on request….

Q. Will my representations remain confidential?

Council resolved on 26 November 1996 that as of 1 January 1997 all submissions received in relation to rezoning and development applications will be publicly available on request.”

2. An information sheet titled “Having your Say” which was sent with correspondence to the applicant on 30 June 2016, 10 August and 26 August 2017 containing the following statement:

“Are my comments confidential?

No – Council has a policy allowing submissions to be viewed by any interested persons.”

7. I note that the information sheets sent on 10 and 26 August post-dated the disclosure of the personal information on 1 August 2017 and are therefore not relevant to determining whether the applicant was reasonably likely to have been aware at that time that such information was usually disclosed.

8. Evidence of the process was provided by Mr Colin Murphy, Senior Coordinator of the Fast Track Team within the Assessment Department at the City of Ryde Council. His unchallenged evidence was that a contract planner, Mr Chris Conserdyne, who has since left the Council, assessed the development application. On 1 August 2016 Mr Conserdyne sent the submissions of CYX made 15 June and 28 July 2016 to the DA applicant, and requested that they be addressed.

9. Mr Murphy was Mr Conserdyne’s supervisor at the time. He said he could not recall the DA applicant asking for the submissions. However he said it was very common for a DA applicant to call and seek an update of their application, and ask for copies of any submissions received. He said it was part of Council’s procedure to make the submissions available to the applicant to enable the applicant to address the issues raised in the submission.

10. Mr Murphy’s evidence was that if a person making a submission asked for their personal information to be withheld, the Council would accommodate that.

11. One of CYX’s submissions referred to “my property (No.51) and “my garden”. The respondent submitted that it was necessary to disclose the address of the objector to make sense of this part of the submission.

12. CYX does not seek review of the disclosure of the content of his submissions. He only takes issue with the disclosure of his name, address and signature on the submissions without first redacting it or seeking his consent.

13. He said that he did not understand that the Council would disclose that part of his submission without his knowledge.

14. It will be noted that the information sheet and correspondence relied upon by the Council stated that “all submissions… will be publicly available on request.” The Council conceded there was no evidence of a request having been made by the DA applicant prior to the disclosure. It is apparent in any event from Mr Murphy’s evidence and the respondent’s submissions that submissions concerning development applications were made available to DA applicants if they contained issues Council believed should be addressed by them, whether the DA applicant requested them or not.

15. The development application was approved on 29 August 2016 subject to conditions.

16. The applicant made a complaint on 15 September 2016 about the disclosure of his personal information. On 30 March 2017 the respondent provided its internal review decision. The decision was that the Council had acted appropriately and had not breached the Information Privacy Principles or the applicant’s right to privacy generally. The decision stated:

“Council officers shared your submission with the DA applicant as part of the assessment process so that your specific issues could be considered by the applicant with the aim of resolving your concerns.”

17. The applicant lodged his application with this Tribunal on 21 February 2017. On 18 April 2017 at a case conference it was noted that the respondent had agreed to provide the applicant with an apology from the General Manager, and that it would carry out an external review into its procedures with a view to improving those procedures.

18. The applicant was not satisfied with the apology he received.

19. The applicant also sought a copy of the external review undertaken by the Council. He received a copy of this on 29 September 2017. The respondent’s position was that it is currently considering the review, but has not yet decided if it will implement any of the recommendations.

20. The applicant referred to the practices of a number of other councils which removed signatures and contact details from submissions before releasing them. However, while these may be examples of best practice, they are not relevant to whether it was more or less likely for the applicant to be aware that the City of Ryde Council would act in the way it did. Similarly practices in other States are not relevant.

Consideration

21. Section 55 of the PPIP Act requires the Tribunal to review the conduct of the respondent and make a finding as to whether or not there has been a contravention of an information protection principle (KP v Narrandera Shire Council [2011] NSWADTAP 15]).

22. The issue is whether the statements in the correspondence and information sheets sent to the applicant were sufficient to render it “reasonably likely” that the applicant would have been aware that names, addresses and signatures were usually disclosed by the respondent as part of the development assessment process.

23. The Appeal Panel has said that s 18(1)(b) is “clearly addressed to circumstances where information is being collected in a systematic way, ordinarily for inclusion in databases” (Vice-Chancellor, Macquarie University v FM (No.2) (GD) [2004] NSWADTAP 37 at [27]).

24. In AHW v President, Anti- Discrimination Board [2012] NSWADT 164, the applicant was told that a copy of his written complaint to the Board would be provided to the respondent to his complaint. Afterwards, he complained that he did not expect his contact details to be disclosed. It was held in that case that while it is not usually best practice to provide a complainant's contact information to the other party, a failure to adhere to best practice does not necessarily mean a breach of an information protection principle has occurred.

25. The evidence supports a finding that the applicant was informed before his personal information was disclosed:

1. that his submissions would be publicly available and/or accessible on request;

2. that his representations and comments were not confidential; and

3. that the Council allowed submissions such as his to be viewed by any interested persons.

26. In my view only the statement in (c) is relevant to whether it was reasonably likely that the applicant would have been aware that personal information such as names, addresses and signatures on his submissions was usually disclosed to a DA applicant. A DA applicant is clearly an “interested person” in this context and it is reasonable to read the reference to a submission as meaning the entire submission.

27. The statement in (a) is not relevant because it refers to information being provided in response to a request, and the clear evidence was that the Council regularly disclosed submissions, including personal information, without a request, as it did in this case.

28. The statement in (b) is excluded as it is limited to “representations and comments.” I am not satisfied that it is reasonably likely that the applicant, having read this, would have been aware that personal information was included in that description.

29. I find that it was reasonably likely that the applicant would have been aware prior to 1 August 2016 that personal information such as names, addresses and signatures on his submissions would be usually disclosed to a DA applicant, because he was informed on 30 June 2016 that his submission could be viewed by any interested person. I therefore determine that s 18 was not breached by the respondent.

30. On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders set out in s 55(2). As there is no breach, I have decided not to take any action in this matter.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 November 2017