Kate Singleton Pty Ltd and SJ Connelly CPP Pty Ltd t/as Planners North v Department of Planning and Environment

NCAT Administrative and Equal Opportunity|2019-03-28

REASONS FOR DECISION

In September 2017 the applicant, Kate Singleton Pty Ltd and SJ Connelly CPP Pty Ltd t/as Planners North (Planners North), submitted a planning proposal to Byron Shire Council. The planning proposal was for residential and associated development and covered a series of lots of land around Saddle Road near Brunswick Heads. Planners North had been engaged to prepare the planning proposal by some but not all the landowners whose land falls within the area covered by the planning proposal. Not all land owners whose land is within the area covered by the planning proposal want the land rezoned as proposed by Planners North.
Council staff prepared a report recommending that Council not support the planning proposal. However, before the staff report was made public, staff decided not to report the matter to Councillors and continued negotiations with the proposal's proponent.
On about 20 December 2017, a third party applied to the Department of Planning and Environment (the respondent) for a rezoning review by completing a "Rezoning Review Application Form" and including a cheque for the application fee. Under a rezoning review an independent body reviews a request for a planning proposal in certain circumstances rather than the Council.
The document "Local Environmental Plans: A guide to preparing local environment plans" issued by the respondent, indicates that, if a proponent has submitted a planning proposal, the proponent may ask for a rezoning review. On 10 January 2018 Ms Tamar Price, Acting Director Regions, Northern, Planning Services wrote to the third party to advise that the respondent could not process the application for a rezoning review as the third party was not the proponent of the relevant planning proposal and arranged for the cheque to be returned.
On 15 February 2018, the respondent received a request under the Government Information (Public Access) Act 2009 (GIPA Act) from Planners North seeking access to: All information and documentation, including covering letter, relating to the invalid application request for review of the Planning Proposal/rezoning review of Saddle Road (Area 17) (reference Tamara Prentice).

The legislative scheme

The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
It was not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act.
There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": s 5 of the GIPA Act. There will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and the section sets out a non-exhaustive list of some examples of such considerations. The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act. Those that are relevant to this application are discussed further below.
The decision-maker's task is to determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure.
The considerations against disclosure set out in the table to s 14 of the GIPA Act and the examples of considerations in favour of disclosure in s 12 have the requirement that disclosure of the information could reasonably be expected to have the nominated effect.
The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC."
The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42].

Public interest considerations in favour of disclosure

Both parties referred in their submissions to the general public interest in favour of disclosing government information contained in s 12(1) of the GIPA Act and the need to interpret the Act in accordance with its objects as set out above.
Ms Prentice gave evidence that, when a valid application for a rezoning review is received, the application, which contains the name of the proponent, is put on the respondent's website. Both parties agree that the disclosure of the proponent's name in these circumstances is in the public interest as it likely to promote open discussion of public affairs, enhance government accountability and contribute to positive and informed debate on issues of pubic importance.
The respondent argues that there is a negligible public interest in disclosing the name and other personal details of a person who makes an invalid application for a rezoning review. Planners North note that the party making the application would have been aware that their personal information would be made publicly available.

Public interest considerations against disclosure

The respondent has identified two public interest considerations against disclosure in the table to s 14. These are: 1. cl 3(a) reveal an individual's personal information; and 2. cl 3(b) contravene an information protection privacy principle under the Privacy and Personal Information Protection Act 1998.
These two clauses concern the release of personal information. The definitions of "personal information" in the GIPA Act and in the Privacy and Personal Information Protection Act 1998 (PPIP Act) are similar. Both relevantly provide that personal information means information about an individual whose identity is apparent or can reasonably be ascertained from the information (GIPA Act Sch 4 cl 4; PPIP Act s 4).
In this matter, Planners North seek the name, contact details and other information relating to the third party who applied for a rezoning review. I am satisfied that the redacted information in the documents is "personal information" within the meaning of GIPA Act Sch 4 cl 4. In relation to the information in handwriting on the second document set out above, in Marden v Pharmacy Council of NSW [2017] NSWCATAD 34 the Tribunal found that handwriting was personal information in circumstances where the identity of the complainant was not known to the applicant. The same principle applies in this case.
Section 18 of the PPIP Act sets out limits on the disclosure of personal information. That section 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: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (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, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.
The exception in s.18(1)(c) is not relevant to this application. In relation to paragraph (a), the third party has explicitly stated to both the respondent and the Tribunal that it objects to disclosure of the information. Planners North state that it was only after the third party's application for a rezoning review was rejected that the third party raised an objection to the release of personal information. That may be correct but does not alter the fact that the third party has so objected and therefore this brings the information within the exception in paragraph (a).
In relation to paragraph (b), the evidence of Ms Prentice is that when a valid rezoning application is received and the fee paid, a copy of the application is placed on the respondent's website. The relevant council and the proponent are notified of the application and comments are requested from the council. There then follows a process of assessment and decision. Ms Prentice states that it is not the case, where an application of any kind has been declined at the outset, that the name of the person who has lodged the application is disclosed. Ms Prentice does not recall a situation where a person has lodged an application for a rezoning review which has been declined at the outset because the person making the application is not the proponent.
The respondent submits that, in these circumstances, it cannot be concluded that information of this kind "is usually" disclosed to the proponent. Planners North submit that, simply because the application for a rezoning by the third party failed, that cannot circumvent the fact that, at the time of lodging the application, the third party knew it was very likely their personal information would be disclosed, including to the proponent.
While it is undoubtedly true that an applicant for a rezoning review would be aware that, if their application is accepted by the respondent, the application, which would include their personal information, would be made publicly available and disclosed to the proponent, there is no evidence that invalid applications are treated in a like manner. It would not, in my view, in the normal course be expected that an application for a rezoning review which is not accepted and which does not progress would be made available to the public and the proponent. It therefore cannot be concluded that information of this kind is usually disclosed to the proponent.
Disclosure of the information would therefore contravene one of the information protection principles, namely the disclosure of personal information contained in s 18 of the PIPP Act. None of the exceptions set out in s 18(1) apply.

Consideration

I have considered the unredacted documents that have been provided by the respondent. In summary, I am satisfied that disclosure of the redacted information could reasonably be expected to reveal the third party's personal information. I am also satisfied that disclosure of the information could reasonably be expected to contravene an information protection principle. These are public interest considerations against release.
The respondent has referred in its submissions to several cases of this Tribunal and its predecessor which deal with the public interest in protecting the disclosure of personal information. The cases referred to concern different legislative provisions to those presently under consideration but have as a central tenet the legitimate need to balance the public interest in personal privacy against the public interest in people having access to information held by government.
The respondent refers to the case of Veall v Department of Planning and Environment [2018] NSWCATAD 47 where the applicant sought to find out the name of a person who had made a complaint. The Tribunal stated at [28]: There is no identifiable public interest in the bona fides or intent behind complaints made by a member of the public to an agency, because anyone can make a complaint to an agency, for any reason. The public interest only arises when the agency deaIs - or doesn't deal - with the complaint, in the manner that it engages its resources, functions and processes to consider, investigate, determine, and react to the complaint and any consequences for the agency or for the public as a result of those processes.
In this case, the third party applied for a rezoning review and the application was never considered as it was found to be invalid. Planners North have been provided with the substance of the rezoning review application and the only information redacted is information that would disclose the identity of the third party who made the application. Planners North submits that redaction would only be appropriate in circumstances where the third party had sought, from the outset, confidentiality. Neither the GIPA Act or the PIPP Act require information to be provided to an agency on a confidential basis for it to be protected from release.
Planners North have not put forward any cogent reasons why it is in the public interest for the personal details of a party who made a rezoning review application which was invalid and therefore did not proceed to be made public. I agree with the respondent that in these circumstances the public interest in disclosure is negligible. While disclosure of the third party's personal information may be of interest to Planners North as the proponent of the planning proposal, disclosure of that information would not advance a system of responsible, and representative democratic government or further the object of open, accountable, fair and effective government.
The release of the redacted information therefore would not benefit the public or promote government accountability. In my view, there is no identifiable public interest in the disclosure of the identity of the third party.
In general, striking a balance between the public's right and desire to be provided with government information against the public's right to privacy in their personal affairs is a difficult task. In this case, disclosing the redacted information to Planners North (and therefore generally) would reveal personal information about a private citizen but would do little, if anything, to enhance government accountability.
I am of the view that, on balance, the public interest considerations in favour of disclosure do not outweigh the considerations against disclosure and there is an overriding public interest against disclosure of the redacted information contained in the report. Accordingly, it is my view that the respondent's decision to refuse access to that information is the correct and preferable decision. The decision should therefore be affirmed.

Order 1. 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: 28 March 2019

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Cases Cited (3)