Eric Anthony Foster v Department of Planning and Environment

The evidence

1. Eric Foster - The Applicant provided a statement that was a mixture of evidence and submissions. The Applicant is 79 years old and in the process of lodging an application for social housing. He requests street addresses of one bedroom villa/units in Hornsby, Umina Beach, Nelson Bay, Shoal Bay and Port Macquarie so he can use that information with Google Earth searches to evaluate location and distribution of social housing dwellings in those zones. The information he seeks is for his personal use and he undertakes to keep it confidential. The Applicant would use the information as to the number of applicants in a zone as well as the number that are high priority for a particular type of residence to assist him in deciding which allocation zones to prioritise in his application. Secondly, the information requested would permit him to determine the "services and facilities" in a particular zone. In refusing his application the Applicant contends that the Department is being excessively secretive, unreasonable and unfair.
2. Emma Nicholson - Ms Nicholson is the A/Head of Policy and Innovation for the NSW Land and Housing Corporation. Ms Nicholson provided an overview of the types of people who secure social housing including that there are 44,000 general applicants, that applicants are often older, have few social supports and limited income. The Department does take into account an applicant's preference as to location, but it cannot guarantee that an offer will be made in a preferred zone and the addresses of properties are not disclosed to an applicant until they become eligible for a property in the nominated allocation zone. The practice of the Department is to limit disclosure of addresses to other government departments like the Land and Housing Corporation and Department of Justice and individual addresses are not provided in answer to parliamentary Questions of Notice. I accepted Ms Nicholson's evidence based on her knowledge and experience. Her evidence was admitted without objection.
3. Lisa Cantori - Ms Cantori is the Acting Manager of the Department of Communities and Justice (DCJ). She confirmed that the DCJ does not disclose the addresses of specific social housing properties to applicants as part of the application process. She expressed concern that disclosing the information would put social housing tenants at risk including persons who are escaping domestic violence, make homes vulnerable to vandalism and property damage and make residents vulnerable to schemes promoted by unscrupulous repairers or other fraudulent scams. Ms Cantori noted that people often come to reside in social housing after a lifetime of work and to disclose their residency in social housing would undermine their right to privacy and dignity. I accepted her evidence based on her knowledge and experience. Her statement was admitted without objection.

The GIPA Act

1. The objects of the GIPA Act as set out in s 3 are to promote open government to the public. This is achieved by encouraging the proactive release of information by agencies and by giving members of the public a legally enforceable right to be provided with access to government information.
2. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Access to government information is to be restricted only when there is an overriding public interest against disclosure.

Overriding public interest against disclosure

1. There are two circumstances in which there will be an overriding public interest against disclosure. First, under s 14(1) of the GIPA Act, there is a Schedule which sets out examples where there is a presumption against disclosure of information. That Schedule does not apply in this matter. Secondly, there will be an overriding public interest against disclosure if there are sufficient public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure: see the definition of the Public Interest Test set out in s 13 of the GIPA Act.
2. Section 14(2) provides that only those considerations listed in the table to s 14 may be taken into account as public interest considerations against disclosure when determining whether there is an overriding public interest against disclosure. Relevantly for the purposes of this application, the Table to s 14 provides that there is a public interest against disclosure where disclosure could reasonably be expected to: 1. Prejudice the effective exercise by an agency of the agency's functions - clause 1(f); 2. Reveal an individual's personal information - clause 3(a); 3. Contravene an information privacy principle under the Privacy and Personal Information Protection Act 1998 (the PPIP Act) - clause 3(b); and 4. Contravene a provision of an Act that prohibits the disclosure of information - clause 6.
3. Under s 58(1)(d) of the GIPA Act an agency may refuse to provide access to information because there is an overriding public interest against disclosure.
4. The task of the Tribunal when undertaking an administrative review is to determine what the correct and preferable decision is: section 63 of the Administrative Decisions Review Act 1997 (Cth).

The public interest test

1. The Tribunal's task in determining whether there is an overriding public interest against disclosure is to determine if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure: Walker v SafeWork NSW [2022] NSWCATAD 94 at [11]. The Appeal Panel described the methodology as a two-step test in Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 at [25]: The agency case for refusal must rely on one or more than the s 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear to be both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government.

Public interest considerations in favour of disclosure

1. There is a general presumption in favour of disclosure of government information: s 12(1) GIPA Act. The Applicant is a self-represented litigant so it is unsurprising that his submissions do not address the two-step test in the manner of a lawyer. Nevertheless, in his submission filed 28 March 2022 the considerations in favour of disclosure are: 1. He would benefit by being given the number of units in any allocation zone as that can be weighed against the number of total application and high priority applications for each zone. His "chances" could be optimised by choosing the allocation zone with the most one-bedroom units and fewer applicants. 2. The Department's submission that it wishes to protect the identity of people who are possibly vulnerable and integrating them into housing in a discrete and low-key way is excessively secretive and disproportionate in that it would have the effect of frustrating his application. 3. The Department already makes known some of its housing developments in promotional material and other public statements. In his oral submissions the Applicant suggested that the information he seeks could be obtained by finding out the location of social housing generally and approaching residents to ask for what he seeks. 4. He otherwise adopts the submissions of the Information Commissioner.
2. The Department submits that the public interest considerations in favour of disclosure include the general public interest in favour of disclosure as provided in s 12(1) but otherwise determined in the Internal Review Decision that there were no public interest considerations that favoured disclosure. In respect of the specific addresses of one-bedroom units the Department submits that it takes no (or little) account of the procedure for a property being identified and offered for acceptance. The method is, a property becomes available in the relevant allocation zone which, if suitable, may be offered to the Applicant. He then is able to accept or decline that offer. A list of addresses of one-bedroom units provide no benefit to the Applicant in that context. The Applicant has been provided with less specific information regarding social housing in a particular zone such as the number and type of properties that may become available in a particular area, median rents and expected wait times. To that extent, the public interest has already been satisfied by the provision of that information.
3. In my view, there is a public interest in being provided information regarding the availability of social housing but it does not extend beyond the information that has already been provided to the Applicant.

Public interest considerations against disclosure

1. The Department identifies a number of public interest considerations against disclosure by reference to the Table in section 14 of the GIPA Act, specifically that it would reveal an individual's personal information. The disclosure of addresses of social housing properties would reveal an individual's personal information: Clause 3(a) of Table to s 14. Personal information is defined in Sch 4 Clause 4(1) to mean information or an opinion (including information of an opinion forming part of a database and whether or not recorded in material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. Reveal is also defined to mean to disclose information that has not already been publicly disclosed: GIPA Act Sch 4 Cl 1.
2. The Full Federal Court considered whether information was about an individual in Privacy Commissioner v Telstra Corporation Ltd [2017] FCAFC 4 in the context of the Privacy Act 1988 (Cth). The Court held, in the context of a request for metadata from Telstra, that (at [63]): The words "about an individual" direct attention to the need for the individual to be a subject matter of the information or opinion. This requirement might not be difficult to satisfy. Information and opinions can have multiple subject matters. Further, on the assumption that the information refers to the totality of the information requested, then even if a single piece of information is not "about an individual" it might be about the individual when combined with other information. However, in every case it is necessary to consider whether each item of personal information requested, individually or in combination with other items, is about an individual. This will require an evaluative conclusion, depending on the facts of the individual case, just as a determination of whether the identity can reasonably be ascertained will require an evaluative conclusion.
3. In this context, the Department submits that the request for information relates to buildings and properties used for social housing. The request goes further, however, as the information extends to the people that reside in those premises. To reveal the number and location of one-bedroom units will ineluctably reveal information about individuals who reside at those premises. Further information revealed includes: 1. That it is social housing and its residents are social housing tenants; 2. That its tenants are (or may be) in receipt of social housing assistance, income levels and financial circumstances of residents (there being criteria by which persons qualify for an offer); and 3. If provided the information requested the Applicant could attend the premises and observe the individual.
4. The Department also submits that the information requested by the Applicant could be used to "reasonably ascertain" the identity of individuals who reside in the social housing. Where a person's identity is reasonably ascertainable by taking no more than reasonable or moderate steps, it is personal information: WL v Randwick City Council [2007] NSWADT 12 at [22]; AIN v Medical Council of NSW [2016] NSWCATAD 5 at [44]; EFL v Secretary, Department of Education [2020] NSWCATAD 239 at [87]. The Department submitted that the test is not whether the Applicant can (or even intends to) obtain the personal information but whether any person could with the information requested: Public Transport Authority [2018] WASC 47. Further, only moderate steps are needed to be taken to obtain personal information.
5. The Department submits that I should also take into account that the disclosure would contravene an information protection principle under section 18 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). The Land and Housing Corporation and the Department of Communities and Justice have an obligation to maintain the safety of social housing tenants. Further, s 71 of the Housing Act 2001 (NSW) provides that information obtained in connection with the Act must not be disclosed without the consent of the person from whom the information was obtained. Ultimately, the Department submits that the public interest in favour of disclosure should be accorded minimal weight. Even accepting that the Applicant may have a legitimate reason to request the information it is of little value to him as he does not have the ability to nominate the suburb or properties that he would like to live.
6. Taken together, when the factors are weighed the overriding public interest is against disclosure of the requested information.
7. Mr Wilkins made oral submissions on behalf of the Information Commissioner. The starting point is to note that the Department bears the onus to justify its decision to not release the requested information. The Department already releases information about the location of social housing developments and it is publicly available. That information is not "about an individual" but identifies the properties as locations for social housing. The secrecy provisions in s 71 of the Housing Act 2001 is not listed in Sch 1and so may be overridden by s 11 of the GIPA Act: Miriani v Transport for NSW [2021] NSWCATAD 16 at [25]
8. The Applicant submitted that the issue of the vulnerability of residents is valid but all persons have a degree of vulnerability. His request is for one-bedroom properties. He does not want the house number but the geographical location. Much of the information is already in the public sphere. Secondly, weight should be given to his motivation and intention in requesting the information. He is not guaranteed an offer in the unit he seeks but the information will better inform the decision he makes when lodging his application.

Consideration

1. The following propositions as to the application of the GIPA Act are not in dispute: 1. There is a presumption in favour of disclosure of government information, unless there is an overriding public interest against disclosure: s 5 GIPA Act. 2. There is a general public interest in favour of disclosure of government information: s 12 GIPA Act. 3. There is a conclusive presumption that there is an overriding public interest against disclosure of any government information described in Sch 1: s 14(1) GIPA Act. There is a public interest against disclosure where disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions, reveal a person's personal information (Clause 3a)), contravene an information privacy principle under the PPIP Act and contravenes a provision of an Act that prohibits the disclosure of information (clause 6).
2. I am satisfied that the Applicant, as a person seeking to apply for social housing, has a legitimate interest in obtaining information that may assist him in making the application. The Applicant's basis for seeking the information requested is set out in email correspondence to the Department in the following terms: I am simply trying to identify a place of residence relative to transport and shopping services. I intend using Google maps to identify the location and allow me to understand the services in the area.
3. The Applicant further narrowed the scope of his request to street addresses of "single bedroom villa/units" and did not press for properties leased via the Aboriginal Housing Office, Community Housing Providers, emergency shelters and special needs housing. In my view, even by seeking to narrow the scope of his request for information it does not serve to overcome the public interest considerations against disclosure. I accept the evidence in the statement of Emma Nicholson that there is a large volume of information that is available in the public sphere to assist the Applicant including the current number of applicants for each allocation zone, the current waiting times for different types of properties within an allocation zone, and for some allocation zones, the number of types of dwellings within those allocation zones.
4. The Department has attempted to provide information that will assist the Applicant and has indicated it is willing to provide him with aggregate number of one-bedroom residences. The Department can engage on a personal level regarding social housing opportunities in specific zones which have high demand and to canvass options in alternative zones with lower demand. I also accept the statement of unchallenged evidence of Lisa Cantori that save for exceptional circumstances the usual waiting time for social housing properties is in the range of 5 to 10 years for the allocation zones that the Applicant has expressed interest. Put simply, demand outstrips supply.
5. I give minimal weight to the undertaken by the Applicant that he intends to use the information for his own use and will not share or distribute that information to third parties. Access to the information he seeks is subject to the GIPA Act and the principles must be applied by reference to the legislation. The principles must be applied not at the specific level but with reference to the broader consequences for each application: Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 at [26]. Further, section 15(e) of the GIPA Act provides that in the case of disclosure in response to an access application, a relevant consideration is that disclosure cannot be made subject to conditions on the use or disclosure of information.

Information about an individual

1. I agree with the submission of the Department that the information requested by the Applicant is "about an individual" for the following reasons. Information must be weighed against the totality of the information requested such that a single piece of information is not "about an individual" but when that information is combined with other information or subsequent enquiries might then be about an individual: Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4 at [63]. The information requested has, by its nature, a level of specificity, that goes beyond a request for addresses. It includes a requirement that it relate to social housing properties. It follows that the residents of the addresses requested are social housing residents. That information then has the effect of disclosing the personal circumstances of those residents such as income levels and circumstances that make residents eligible to reside at the premises. Once that information is produced an applicant could, for instance, make further reasonable enquiries to attend on each of those addresses and determine the number of residents, their broad ages and whether they reside with other people. Alternatively, the information produced could be used with other publicly available information like the Commonwealth Electoral Roll to determine the names of adult residents. I do not find that that is the Applicant's intention but it is a step that a different, less benign, applicant could use to locate a specific person in a specific allocation zone. Indeed, the Applicant conceded in is oral submissions that he could, in theory, go to a residence once he had a specific address to advance any enquiries he might then have.
2. This case is analogous to Marrickville Legal Centre v Chief Commissioner of State Revenue [2012] NSWADT 98. In that case the applicant, a community legal centre, sought access to information about the number of boarding houses in New South Wales and addresses of those boarding houses. The purpose of the request was to provide support and advocacy of tenants of boarding houses. The Department declined to produce the names and addresses of the boarding houses as it would disclose individuals' personal information. Member Isenberg affirmed that decision and found that once the addresses were revealed only "moderate steps" were needed to identify the registered proprietors of the premises: at [44] citing WL v Randwick City Council (2007) NSWADTAP 58.
3. In my view, the information sought by the Applicant is information which, when combined with further moderate steps, could reveal personal information about an individual: WL v Randwick City Council (No 2) [2010] NSWADT 84 at [22]. It follows that clause 3(a) applies as a public interest consideration against disclosure. I am further satisfied that the information is deeply personal in nature and serious consequences could flow to individuals who reside in social housing if their addresses were disclosed in this application, it would be a disclosure to the world at large. I accept Ms Nicholson's evidence that persons who reside in social housing have, by their nature, vulnerabilities that traverse physical or mental health disabilities, financial vulnerability and lack of social supports. In particular I give weight to her evidence which stated: Some LAHC (Land and Housing Corporation) properties are also used for crisis or transitional housing, including by women and children, or young people, escaping domestic and family violence or who have experienced homelessness. Privacy for people and households recovering from these circumstances can protect and promote their safety and recovery.
4. The Information Commissioner submitted that I should consider the interaction between the GIPA Act and the PPIP Act. In particular, if the public interest considerations in favour of disclosure outweigh those against, then the personal information can be revealed to the Applicant. I accept that the release of personal information under the GIPA Act is lawful where that information is not subject to an overriding public interest against disclosure. I have given weight to those submissions but I am satisfied that the factors in favour of non-disclosure prevail for the reasons given above.
5. I am also satisfied that disclosing the information would have the tendency prejudice the effective exercise of the agencies' functions. There is a reasonable expectation of residents of social housing that confidential information will be protected within reasonable and reviewable limits. To disclose the information requested by Ms Foster has the tendency to accentuate the vulnerability of residents as identified in the quote above of Ms Nicholson. I therefore give wight to clause 1(f) as a public interest consideration against disclosure.

Disclosure would disclose a secrecy provision

1. Another factor to weigh in considering whether the information could be disclosed is whether it would contravene a provision of legislation against the disclosure of information. Specifically, the Department submits that the information requested by the Applicant would contravene s 71 of the Housing Act 2001. Section 71 provides that information obtained in connection with the administration or execution of the Housing Act 2001 must not be disclosed without the consent of the person from whom the information was obtained or in connection with the administration or execution of the Act. I accept that the secrecy provisions of s 71 of the Housing Act 2001 are not listed in Sch 1 and, therefore, may be overridden by s 11 of the GIPA Act: Miriani v Transport for NSW [2021] NSWCATAD 16 at [25]. I am satisfied that the information withheld from disclosure is disclosed by a secrecy provision such that it was obtained in connection with the administration or execution of the Housing Act 2001. I am also satisfied that the public interest does weigh in favour against disclosure as it would have the effect of prejudicing the interests of residents of social housing and be inconsistent with access to safe and secure housing. I am not satisfied that any of the exceptions permitting disclosure in s 71 of the Housing Act 2001 apply to the circumstances of this application. The consequence is the information should remain undisclosed.
2. For the reasons given above, there are compelling and numerous reasons in favour against disclosure of the information requested by the Applicant. Taken together, the public interest considerations against disclosure far outweigh the public interest in favour of disclosure.
3. The decision under review is affirmed.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 July 2022