JS v Snowy River Shire Council (No 2)

[2009] NSWADT 210

CITATION:	JS v Snowy River Shire Council (No 2) [2009] NSWADT 210 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT JS REPSONDENT Snowy River Shire Council
FILE NUMBER:	083300
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	21 May 2009
DATE OF DECISION:	7 August 2009
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Privacy - information protection principle - disclosure to third party – preliminary issue
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998 Local Government Act 1993
CASES CITED:	JR & anor v Snowy River Shire Council [2009] NSWADT 3 MY v Director General, Department of Community Services [2004] NSWADT 203 NV v Randwick City Council [2005] NSWADT 45 NZ v Health Care Complaints Commission [2006] NSWADTAP 56 NZ v Health Care Complaints Commission [2006] NSWADT 111 WT v Auburn City Council [2007] NSWADT 253 WT v Auburn City Council [2008] NSWADTAP 16.
REPRESENTATION:	APPLICANT In person REPSONDENT A Bradbury, solicitor
ORDERS:	1. The Tribunal determines not to take any action on the matter.

1 The Applicant (“JS”) lodged an application under section 53 of the Privacy and Personal Information Protection Act 1998 (“the Privacy Act”) for review of conduct of the Snow River Shire Council (“the Council”).

2 The chronology of events that lead to the application to the Tribunal is discussed in an earlier decision recorded as JR & anor v Snowy River Shire Council [2009] NSWADT 3. Mr Bradbury has conveniently summarised the relevant background as follows:

(a) Mr Toohey and his wife (“the Tooheys”) own a property at …;

(b) on 1 December 2004, [JS] and her husband wrote a letter to the Council concerning construction on the Tooheys' land (“the complaint”);

(c) the complaint was placed on a Council property file relating to the Tooheys' land;

(d) the Tooheys attended the Council's offices in January 2006 and asked to inspect the Council's property file relating to the Tooheys' land;

(e) the Council allowed the Tooheys to do so;

(f) at the Tooheys' request, the Council made a copy of the complaint for the Tooheys.

3 The Council has raised a preliminary issue in the following terms:

Does the Council need to comply with the principles in the Privacy Act in making the complaint available to the Tooheys?

4 Each of the parties has provided submissions in relation to this issue. The Council has also filed a statement of its General Manager, Mr Joseph Vescio dated 23 March 2009 and a statement of Mr Bernard Toohey dated 23 March 2009.

5 The Council submits that it was exempted from complying with section 18 of the Privacy Act in this case because section 12(6) of the Local Government Act 1993 required or, if not required, authorised or permitted the Council to make the complaint available for inspection. It says that it would have been a breach of section 12(6) of the Local Government Act for the Council to refuse access to the complaint in the circumstances of this case. It says that a Council can only lawfully refuse access if the Council is satisfied that allowing inspection of the document would, on balance, be contrary to the public interest; or if the document is one to which section 12(7) of the Local Government Act applies.

Relevant legislation

6 The Tribunal's jurisdiction to review the conduct of an agency in respect of the Privacy Act is pursuant to section 38 of the Administrative Decisions Tribunal Act 1998 ('the ADT Act') and section 55 of the Privacy Act.

7 Section 38 of the ADT Act states:

38 Conferral of jurisdiction to review reviewable decisions

(1) Conferral of review jurisdiction

The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator:

(a) in the exercise of functions conferred or imposed by or under the enactment, or

(b) in the exercise of any other functions of the administrator identified by the enactment.

...

8 Section 55 of the Privacy Act states:

55 Review of conduct by Tribunal

(1) If a person who has made an application for internal review under section 53 is not satisfied with:

(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application,

the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53.

...

9 Section 25 of the Privacy Act states:

25 Exemptions where non-compliance is lawfully authorised or required

A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if:

(a) the agency is lawfully authorised or required not to comply with the principle concerned, or

(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

10 Section 12 of the Local Government Act states:

12 What information is publicly available?

(1) Everyone is entitled to inspect the current version of the following documents free of charge:

-the model code prescribed under section 440 (1) and the code of conduct adopted by the council under section 440 (3)

-the council’s code of meeting practice

-annual report

-annual financial reports

-auditor’s report

-management plan

-EEO management plan

-the council’s policy concerning the payment of expenses incurred by, and the provision of facilities to, councillors

-the council’s land register

-register of investments

-returns of the interests of councillors, designated persons and delegates

-agendas and business papers for council and committee meetings (but not including business papers for matters considered when part of a meeting is closed to the public)

-minutes of council and committee meetings, but restricted (in the case of any part of a meeting that is closed to the public), to the resolutions and recommendations of the meeting

-the register of current declarations of disclosures of political donations to councillors kept in accordance with section 328A

-the register of councillor voting on planning matters kept in accordance with section 375A

-any codes referred to in this Act

-register of delegations

-annual reports of bodies exercising delegated council functions

-development applications (within the meaning of the Environmental Planning and Assessment Act 1979) and associated documents

-local policies adopted by the council concerning approvals and orders

-records of approvals granted, any variation from local policies with reasons for the variation, and decisions made on appeals concerning approvals

-records of building certificates under the Environmental Planning and Assessment Act 1979

-plans of land proposed to be compulsorily acquired by the council

-leases and licences for use of public land classified as community land

-plans of management for community land

-environmental planning instruments, development control plans and contributions plans made under the Environmental Planning and Assessment Act 1979 applying to land within the council’s area

-the statement of affairs, the summary of affairs and the register of policy documents required under the Freedom of Information Act 1989

-Departmental representatives’ reports presented at a meeting of the council in accordance with section 433

-the register of graffiti removal work kept in accordance with section 13 of the Graffiti Control Act 2008.

(1A) Despite subsection (1) and the other provisions of this Act, a person does not have the right to inspect so much of a development application as consists of:

(a) the plans and specifications for any residential parts of a proposed building, other than plans that merely show its height and its external configuration in relation to the site on which it is proposed to be erected, or

(b) commercial information, if the information would be likely:

(i) to prejudice the commercial position of the person who supplied it, or

(ii) to reveal a trade secret.

(2) Everyone is entitled to inspect free of charge:

(a) a document that was replaced by a current document referred to in subsection (1), and

(b) if a document referred to in subsection (1) is produced annually—the corresponding document produced for the previous year.

(3) The documents may be inspected at the office of the council during ordinary office hours.

(4) (Repealed)

(5) The council must allow inspection of versions of the documents other than the current and immediately preceding versions if those other versions are reasonably accessible.

(6) The council must allow inspection of its other documents free of charge unless, in the case of a particular document, it is satisfied that allowing inspection of the document would, on balance, be contrary to the public interest.

(7) However, subsection (6) does not apply to the part (if any) of a document that deals with any of the following:

(a) personnel matters concerning particular individuals (other than councillors),

(b) the personal hardship of any resident or ratepayer,

(c) trade secrets,

(d) a matter the disclosure of which would:

(i) constitute an offence against an Act, or

(ii) found an action for breach of confidence,

(e) that part of a draft or adopted plan of management that is the subject of a resolution of confidentiality under section 36DA.

(8) For the purpose of determining whether allowing inspection of a document would be contrary to the public interest, it is irrelevant that the inspection of the document may:

(a) cause embarrassment to the council or to councillors or to employees of the council, or

(b) cause a loss of confidence in the council, or

(c) cause a person to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.

Note. Subsection (8) is in similar terms to section 59A (Public interest) of the Freedom of Information Act 1989.

Note. A council could also make copies of the documents available at other places, for example, at libraries.

A council may have other information available for inspection free of charge: for example, the rate record, the valuation list and the register of dog registrations.

11 Section 739 of the Local Government Act states:

739 Protection of privacy

(1) A person may request that any material that is available (or is to be made available) for public inspection by or under this Act be prepared or amended so as to omit or remove any matter that would disclose or discloses the person’s place of living if the person considers that the disclosure would place or places the personal safety of the person or of members of the person’s family at risk.

(2) A person who may make a request under this section includes a person who is entitled to be enrolled as an elector.

(3) The request is to be made to the general manager or, in the case of the residential roll for an area, the Electoral Commissioner.

(4) The request is to be in the form prescribed by the regulations, to give particulars of the relevant risk and to be verified by statutory declaration by the person making the request or by some other person.

(5) The person to whom the request is made may grant the request if satisfied that disclosing or continuing to disclose the matter would place or places the personal safety of the person or of members of the person’s family at risk.

(6) The person to whom the request is made must notify the person concerned of the decision to grant or refuse the request.

(7) The Electoral Commissioner must not include in the residential roll for an area the address of an elector whose request under this section is granted by the Electoral Commissioner.

(8) The general manager, in relation to:

(a) the non-residential roll and the roll of occupiers and ratepaying lessees for the area, and

(b) any other material that is available (or is to be made available) for public inspection by or under this Act,

must not include in the roll or other material the address of a person whose request under this section is granted by the general manager. However, in the case of material other than a roll, the general manager may include the address of a person if the name of the person is excluded from the material.

The Council’s case

12 The Council relies on statement by Mr Joseph Vescio and Mr Toohey. Both statements are dated 23 March 2009.

Bernard Toohey

13 In his statement, Mr Toohey stated that at some time prior to the end of January 2006, the Tooheys attended the Council offices and asked to view the Council's file relating to his property. A female Council officer provided him with the file to inspect. During his inspection of the file, he came across a letter to the Council dated 1 December 2004 from JS and her husband. He asked the Council officer for a copy of the letter and a copy was provided to him.

14 He stated that he cannot recall the identity of the council officer who gave him the letter. He also stated that the Council has never provided him with any other letters written by JS or her husband.

Joseph Vescio

15 In his statement, Mr Vescio stated that he has been employed by the Council since May 2004 and have occupied the position of General Manager since November 2006. In October 2008 he caused searches to be made of Council's records and files to identify the letters the subject of JS’s application. These searches identified two letters written by JS or her husband to the Council as the letters most likely to have been those referred to in the application. He also identified the Council staff who have had access to the Council's files relating to JS and her husband between 1 December 2004 and 12 December 2007 (the date of the local court proceedings in which Mr Toohey referred to the letters). He stated that each of those staff members has informed him that, to the best of their recollection, they have not at any time provided copies of any letters from JS or her husband to the Tooheys.

16 He stated that he has been unable to identify any person who has provided copies of letters from JS or her husband to the Tooheys.

17 Mr Vescio further stated that there is no formal procedure involved in the provision of information under section 12 of the Local Government Act. He stated that, in his opinion, the provision of a copy of the letter to Mr Toohey was both required and authorised by section 12. He does not believe that any information contained in the letter could properly be characterised as being of a confidential nature, even though the letter is marked "without prejudice" and "private and confidential".

18 The Council concedes that, in general terms, section 18 of the Privacy Act prohibits the Council from disclosing personal information to another person or agency unless certain exemptions apply. However, it points to section 25 of the Privacy Act which provides that a public sector agency is not required to comply with section 18 if the agency is lawfully authorised or required not to comply with the principle concerned, or non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law.

19 The Council argues that either section 12(6) of the Local Government Act authorise or require it not to comply with section 18 of the Privacy Act; or that non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under the Local Government Act.

20 Mr Bradbury referred to a number of cases in which the Tribunal has dealt with the interaction between section 18 of the Privacy Act and section 12 of the Local Government Act however he submits that the issue that has arisen in this matter has not previously been directly considered. In WT v Auburn City Council [2007] NSWADT 253, the Tribunal said that the respondent council in that case 'misconceived and misunderstood' the interaction between section 18 of the Privacy Act and section 12 of the Local Government Act. The Tribunal's decision was the subject of an appeal to the Appeal Panel: WT v Auburn City Council [2008] NSWADTAP 16. At paragraph [31] the Appeal Panel seems to have assumed that the respondent council should have refused the request for access under section 12.

21 In NV v Randwick City Council [2005] NSWADT 45 at paragraph [36], the Tribunal held that it did not ‘need to finally resolve the asserted tensions between … section 18 of the Privacy Act … and section 12 of the Local Government Act’ as section 12 had not been formally applied.

22 The Council contends that there is no tension between section 18 of the Privacy Act and section 12 of the Local Government Act. Mr Bradbury submits that Parliament has legislated and made its intention clear in section 25 of the Privacy Act. If another law requires, authorises or permits disclosure of personal information, then there is no breach of section 18 of the Privacy Act if personal information is disclosed in accordance with that other law. Therefore, he submits, the only relevant question is: Did the Local Government Act authorise, require or permit the Council to disclose the complaint? He says that section 18 of the Privacy Act has no role to play in answering that question.

23 The Council says that in the circumstances of this case, section 12(6) required the Council to make the complaint available for public inspection. Unless and until the Council was satisfied that making the complaint available would, on balance, be contrary to the public interest, it was compelled to make it available for inspection.

24 Section 12(6) in its current form was inserted into the Local Government Act by the Local Government Amendment (Open Meetings) Act 1997 (‘the Open Meetings Act’). In its original form the section 12 merely did not 'prevent the Council from allowing inspection free of charge of any other of its documents'. Mr Bradbury referred to the Explanatory Note to the Local Government Amendment Bill 1997 (‘the Open Meetings Bill’) as support for his assertion that the change was intended to impose an obligation on Councils to make their documents publicly available. The Explanatory Note states:

Rather than merely empowering a council to allow inspection of its other documents free of charge, proposed section 12 (6) requires a council to do so, unless the council is satisfied that allowing inspection of the document would, on balance, be contrary to the public interest.

25 Mr Bradbury submits that section 12(6) therefore operated to compel the Council to make the complaint available for inspection by the Tooheys when they asked for it. Section 12B of the Local Government Act required the Council to provide them with a copy of it, when requested. He says that the Council had no choice unless it formed the view that disclosure would be contrary to the public interest. It clearly did not form that view and the Council's decision is not reviewable by the Tribunal.

26 In the alternative, the Council contends that section 12(6) authorised it to make the complaint available for public inspection. That is, the Council had a choice in regard to whether a document should be made publicly available under section 12(6). It decided to make it available for public inspection. Section 12(6) authorised it to do so.

27 Finally, the Council says that the Local Government Act permits, or necessarily implies or reasonably contemplates, non-compliance with section 18 of the Privacy Act. It says that the obligation to make the Council's 'other documents' available for public inspection arises independently from the Privacy Act. That obligation necessarily implies non-compliance with section 18 of the Privacy Act.

28 Mr Bradbury submits that whatever be the correct characterisation (required, authorised or permitted), the conclusion must be that section 25 of the Privacy Act exempts the Council from complying with section 18 of the Privacy Act. That conclusion, in the Council's submission, is supported by the following additional factors:

(1) Section 12(7) of the Local Government Act specifically lists the kinds of information excluded from the requirement to make publicly available the Council's 'other documents'. If Parliament had intended that 'personal information' also be excluded it could easily have said so.

(2) The complaint does not relate to any of the matters described in section 12(7). It is noted that the applicant's letter of 1 December 2004 is marked "Without Prejudice Private and Confidential". However, a reading of the letter quickly reveals that it does not contain any information the disclosure of which would found an action for breach of confidence.

(3) Section 739 of the Local Government Act contains provisions about the protection of privacy in certain, limited circumstances (none of which are relevant to this case). In the Council's submission, this provision demonstrates that the making of documents publicly available under the Local Government Act should not be subject to the restrictions of the Privacy Act. Were it otherwise, parts of section 12(7) and section 739 would be otiose.

29 It is the Council's submission that it would be a breach of section 12(6) for the Council not to provide access to the complaint in the circumstances of this case. Not having satisfied itself that the release of the document would, on balance, be contrary to the public interest, section 12(6) compelled the Council to make the complaint available for public inspection. In order to comply with section 12(6), it had no other choice.

30 The Council says that a restricted application of the Privacy Act in relation to the provision of information under section 12(6) of the Local Government Act is also supported by the Second Reading Speech for the Open Meetings Bill which contains the following explanation:

An overriding public interest test, requiring that the disclosure of information would be contrary to the public interest, will be applied to any proposals to close council meetings to the public. It will be similar to the qualification contained in a number of exemptions in schedule 1 to the Freedom of Information Act 1989. However, it will not override the privacy of individuals in cases of personal hardship and personnel matters or of trade secrets. The bill will also apply the public interest criteria to the provision of information to the public by councils under section 12 of the Local Government Act , subject to the same protection of the privacy of individuals when it relates to personal hardship and personnel matters concerning particular individuals and trade secrets. Some councils have closed meetings to the public for the whole of an item under discussion despite the fact that only a portion of the debate concerns genuinely confidential information.

31 Further, the Council says that the Second Reading Speech confirms that Parliament made a deliberate decision to bring about transparency in the operation of local government even if at the expense of the protection of personal privacy, which was to be protected only where it involved personal hardship or personnel matters. The trade-off was acknowledged by the Minister in the Second Reading Speech in the following terms:

From a public policy perspective, it is essential that the legislation achieve an appropriate balance between these two competing policy objectives - that of maximising open decision making and that of protecting, where necessary, genuinely confidential information. The Government believes, as a matter of principle, that this balance should be struck so that it furthers rather than hinders the democratic aspirations of local communities.

32 In the Council's submission it was the clear intention of Parliament in enacting sections 12(6) and (7) in their current form that a Council should be under an obligation to make all of its information publicly available unless:

(a) the Council was satisfied that the release of the information would be contrary to the public interest; or

(b) the information falls within the narrowly prescribed circumstances set out in section 12(7).

33 The Council submits its argument also finds support in the Tribunal's decision in NZ v Health Care Complaints Commission [2006] NSWADT 111. In that matter, NZ alleged that the respondent Commission had disclosed her complaint to the person to whom the complaint related in breach of section 18 of the Privacy Act. The Commission relied on section 16(1) of the Health Care Complaints Act 1993 which provided that the Commission 'must give written notice of the making of complaint, the nature of the complaint and the identity of the complainant to the person against whom the complaint is made.' The Tribunal also noted section 16(4) which allowed the Commission not to give notice under section 16(1) in certain circumstances. The Tribunal’s President said at paragraph [35]:

[Section 16(4)] provides the Commissioner with a power not to proceed in the usual way. Whether the Commissioner should, or should not, have exercised this power in the circumstances is, in my view, not a matter that the Tribunal need inquire into. Section 25(a) deals with circumstances where an agency is 'authorised' or 'required' to disclose personal information. At the least, this was a situation where the agency had the relevant authorisation. That is all the Tribunal needs to address in order to reach a conclusion as to compliance with the Privacy Act.

34 NZ v Health Care Complaints Commission was the subject of an appeal to the Appeal Panel. The Appeal Panel did not disturb the Tribunal's findings cited above: see NZ v Health Care Complaints Commission [2006] NSWADTAP 56 at paragraphs [23] – [24].

35 In the Council's submission, the situation under section 12(6) of the Local Government Act is no different. The Council may withhold the production of a document where it is satisfied that its disclosure is, on balance, contrary to the public interest. Unless the Council decides that the release of a document would be contrary to the public interest, it is under an obligation to make the document available and the Council's decision as to whether the disclosure of the document would be contrary to the public interest is not reviewable by the Tribunal in a matter brought under the Privacy Act.

36 In MY v Director General, Department of Community Services [2004] NSWADT 203, the Tribunal considered whether section 248 of the Children and Young Persons (Care and Protection) Act 1998 provided an exemption to sections 13, 14 and 15 of the Privacy Act. Section 248 allowed the respondent Department to collect information relating to the safety, welfare and wellbeing of a child or young person from a range of sources. The Tribunal held:

[T]he intention of section 248 of the Children and Young Persons (Care and Protection) Act 1998 is that the Agency is able to exchange information that is necessary for carrying out its obligations with respect to the care and protection of children and that such exchange of information should not be subject to the constraints that would otherwise be imposed on an agency. In my view, non-compliance is necessarily implied for the purposes of section 25 of the Privacy Act.

37 The Council contends that its argument is consistent with the Tribunal's findings in MY v Director-General, Department of Community Services. Non-compliance with the section 18 of the Privacy Act is necessarily implied by section 12(6) of the Local Government Act.

38 Accordingly, the Council submits that it was exempted from complying with section 18 of the Privacy Act in this case because section 12(6) of the Local Government Act required or, if not required, authorised or permitted the Council to make the complaint available for inspection. It would have been a breach of section 12(6) of the Local Government Act for the Council to refuse access to the complaint in the circumstances of this case. The only circumstances in which a Council can lawfully refuse access are if the Council is satisfied that allowing inspection of the document would, on balance, be contrary to the public interest; or if the document is one to which section 12(7) applies.

39 The Council further submits that the Council's decision as to whether allowing inspection of the complaint would be contrary to the public interest or as to whether the complaint falls within the range of documents referred to in section 12(7) are decisions made entirely under the Local Government Act and are not decisions that are subject to review by the Tribunal.

40 In those circumstances the Council submits that this application should be dismissed.

JS’s case

41 JS filed submissions in relation to the issue. She disputes Mr Toohey’s evidence and contends that the Council’s procedure to access property files is not as Mr Toohey has described it. She asserts that Mr Toohey is an unreliable witness who could not be believed. She referred to evidence that Mr Toohey gave at Queanbeyan Local Court in which her referred to copies of “about four" letters that he had been given. She asserts that Mr Toohey’s evidence to the Tribunal that the Council provided him with a copy of a letter dated 1 December 2004 but has not provided any other letters written by JS or her husband is contradictory to what he said under oath in Queanbeyan Local Court on 12 December 2007. JS also notes that Mr Toohey’s evidence does not mention how he received a copy of her letter dated 26 June 2005.

42 She stated that she does not believe that Mr Toohey could walk in off the street and access his property file. She asserts that it is necessary to make an appointment, subject to the availability of an officer, to arrange a date and time to access a file. She asserts that letters of complaint are held in sealed envelopes on the property file, and that access or photocopying is not permitted. She submits that the Council is obligated to treat all rate payers with equal fairness and can not have one set of rules for Mr Toohey and another set of rules for her.

43 JS stated that she typed the words "Private and Confidential" on her letters to the Council because she wanted her correspondence to be treated as private and in confidence. She did not want her letters to be disclosed or copied and given out to anyone and, in particular, she did not want her letters to be given to Mr Toohey. She asserts that she does not believe that Mr Vescio has discretion to decide whether or not the contents of the letters are private and confidential without first discussing it with her.

44 In JS’s submission, her correspondence dated 1 December 2004 and 26 June 2005 was not part of Mr Toohey's development application and associated documents and therefore is not publicly available information pursuant to section 12 of the Local Government Act. She stated that her letters were not part of the public consultation process. They were written after the "submission period" had ended and after Mr Toohey was given approval to proceed and building work had commenced. Therefore, she says, they do not fall under Section 12(6) of the Local Government Act.

45 In support of her assertions she referred to a Department of Local Government circular to councils concerning best practice in regard to Development Application files; and the Privacy NSW Fact sheet, No 2 August 2003 concerning Disclosure.

46 JS asserts that her correspondence contains 'personal information' as defined in the Privacy Act. She says that the letter dated 1 December 2004 contained her personal information including name, address, phone number, and her personal views. Her letter dated 26 June 2005 and attachments contained personal, sensitive and health information regarding her physical health at the time. She says that she marked her correspondence as "Private and Confidential" and that she did not give consent for the Council to disclose the correspondence. She also says that the Council never informed her that her correspondence could be or had been disclosed to Mr Toohey. She further submits that her personal and health information is not of public interest, that there is no public interest or benefit in releasing her personal and health information, and that the disclosure to Mr Toohey was unreasonable and unnecessary. She says that release of this information is not consistent with the provision for the protection of privacy contained within section 739 of the Local Government Act or the Privacy Act.

The Privacy Commissioner’s Submission

47 The Privacy Commissioner filed written submissions and indicated that he agrees with the Council’s argument that the actions taken were permitted by section 25 of the Privacy Act. He noted that the interaction of the Local Government Act, the Privacy Act and the Freedom of Information Act is a matter of great legal difficulty. It is currently being examined by the New South Wales Law Reform Commission as part of its reference on privacy.

Discussion

48 In this matter, it is not in dispute that the Council provided Mr Toohey with a copy of the complaint. There is some doubt as to whether the Council provided Mr Toohey with any other documents authored by either JS or her husband. Mr Toohey’s evidence is that he only received a single document from the Council. JS asserts that Mr Toohey’s evidence should not be accepted, as it is inconsistent with evidence that he gave in other proceedings.

49 On the evidence before me it is clear that an unidentified Council officer gave Mr Toohey a copy of the complaint. I have no basis on which to conclude that the Council gave Mr Toohey any other document that could be said to contain JS’s 'personal information'.

50 It is not in dispute that the complaint contains 'personal information' as defined in the Privacy Act. It contains information or an opinion about an individual whose identity is apparent. Section 18 of the Privacy Act places limits the disclosure of personal information by agencies. The Local Government Act provides for access to specified documents held by local councils. Thus, there is overlap between these two Acts.

51 In my opinion, the complaint is a document that falls within the scope of section 12(6) of the Local Government Act. While it may be arguable that the complaint is an ‘associated document’ with respect to the Tooheys’ development application and is therefore a public document pursuant to Section 12(1) of the Local Government Act, there can be no doubt that it is one of the Council’s ‘other documents’ for the purposes of section 12(6).

52 The Council’s discretion to refuse access to the complaint is therefore limited. There is no suggestion that the complaint falls within one of the exceptions set out in section 12(7) of the Local Government Act. The only circumstances in which the Council could have lawfully refused access to the complaint would have been if the Council was satisfied that allowing inspection of the document would, on balance, 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.

54 I agree with the Council’s submissions that it was exempted from complying with section 18 of the Privacy Act with respect to the complaint. In my view, non-compliance is either permitted or is necessarily implied or reasonably contemplated by section 12(6) of the Local Government Act. The material relating to ‘the Open Meetings Act’ and ‘the Open Meetings Bill’ to which I have been referred supports this view.

55 I also agree that this Tribunal is unable to review a council's decision as to whether allowing inspection of the complaint would be contrary to the public interest.

56 In the circumstances, I cannot be satisfied that the Council has acted in breach of any provisions of the Privacy Act. The appropriate order pursuant to section 55(2) of the Privacy Act is for the Tribunal to decide not to take any action on the matter. The application should therefore be dismissed.

Orders

1. The Tribunal determines not to take any action on the matter.

21/08/2009 - Error in citation - Paragraph(s) Coversheet