Is an Opinion on a DA ‘personal information’?
In Donnellan v Ku-ring-gai Council [2013] NSWADT 115, the Administrative Decisions Tribunal considered a claim that access to submissions on a development application (DA) should not be granted to the proponent of the DA under the Government Information (Public Access) Act 2009 (GIPA Act) on the basis that they contained ‘personal information’.
Under s6(1) of the GIPA Act, submissions on DAs are ‘open access information’ which must be published (regardless of whether an application is made for access) unless there is an overriding public interest against disclosure of the information.
The GIPA Act defines what can constitute a public interest consideration against disclosure. One such consideration is whether the disclosure would reveal an individual’s personal information.
‘Personal information’ is defined as ‘information or an opinion…about an individual..whose identity is apparent or can reasonably be ascertained from the information or opinion.’
There was no dispute in the case that the telephone numbers of the objectors contained in the submissions were personal information. The Tribunal also found that the email addresses of the objectors were also personal information.
However there was dispute about whether the substance of the submissions contained personal information.
The Tribunal said that the submissions ‘relate to issues concerning the respondent’s consideration of the development application…and the relevant zoning of the land. While I accept that the information in some of the emails contain expressions of opinion, in my view, they are primarily opinions about the development application…and not about an individual.‘
On this basis, the bulk of the substance of the submissions was not personal information.
However there was some information in the emails which was held to be personal information. That information was not published in the Tribunal’s judgment, and therefore it is difficult to comment on the extent to which a submission may be held to contain personal information. Presumably, if in making a submission an objector revealed information about their personal circumstances, such as health conditions, and then that would constitute personal information.
It is to be noted that in this case, the identity of the objectors was already known to the proponent of the DA. In circumstances where the person seeking access does not already know the identity of an objector, for any information in a submission to be personal information it would be necessary for the information to reveal the identity of the objector or for that persons identity to be ascertainable from the information.
If the name, address and contact details of the objector were redacted from the submission, then the identity of the objector could not be ascertained from the substance of the submission, unless, for example, the submission referred to the location of the objectors home. If the objectors identity cannot be ascertained, then nothing in the submission could constitute personal information, regardless of its nature
The Tribunal went on to consider whether, even if the opinions on the DA in the submissions were personal information, that would outweigh the public interest in favour of disclosure.
The Tribunal said that the public interest considerations in favour of disclosure in these circumstances were that disclosure could reasonably be expected to enhance accountability of government decision making, contribute to informed debate on development applications and inform the public about council’s operations and practices for dealing with members of the public. The tribunal also considered the fact that submissions on development applications are ‘open access information’.
The Tribunal found that on balance, even if the substance of the emails was personal information, the emails should be disclosed subject to deletion of the phone numbers, email addresses and certain private information not revealed in the judgment.
The Tribunal also considered a claim that disclosure of the submissions would prejudice court proceedings by revealing matter prepared in relation to current or future proceedings. The Tribunal dismissed such a claim on the basis that the Court proceedings to which some submissions arguably related had concluded, and the basis of the remoteness of any future proceedings to which the submissions could relate.
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