Posted on July 30, 2023 by Emma Wei and 4

When is an objector’s opinion considered personal information in a GIPA Application?

In a recent decision of Stalvies v Snowy Monaro Regional Council [2023] NSWCATAD 166 (‘Stalvies case‘), the NSW Civil & Administrative Tribunal has given detailed consideration to when expressions of opinion, or purported statements of fact, may be found to be personal information under the Government Information (Public Access) Act 2009 (NSW) (‘GIPA Act‘).

Legislative Framework

Clause 3 of the Table to section 14 of the GIPA Act provides:

“There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects—

“(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.”

Facts

On 16 July 2020, the Applicant initially sought to have the decision of the Respondent to refuse access to seven documents reviewed. On 3 December 2020, the Tribunal made orders varying Council’s decision.  The Applicant appealed this decision. On 26 August 2022, the Appeal Panel determined that the matter should be partly remitted for redetermination of the following documents:

Letter to the respondent from a third party dated 29 August 2016  (Document 1).

Letter to the respondent from a third party dated 23 February 2017 (Document 2).

File note of the respondent dated 19 December 2018 (Document 5).

Documents 1 and 2 concerned works undertaken on the applicant’s property and certain activities by the applicant on that property. The file note forming Document 5 contained a record of communications with one of the authors of the two letters.

On remission, Senior Member Mulvey referred to a previous decision by her where she had provided a detailed summary of the relevant decisions regarding what constitutes “personal information” under the GIPA Act and  the Privacy and Personal Information Protection Act 1998 (PPIP Act), for which the definition of personal information is the same: DRP v Orange City Council [2020] NSWCATAD 220 (DRP case).

In the DRP case, the Senior Member referred to the following authorities at [42] – [44]:

• Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4 where the Court found that:

‘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.

Our emphasis added.

• Turnbull v Strange [2018] NSWCA 157 which held: ‘‘The phrase ‘about an individual’ provides an essential qualification of the subject matter of the definition, namely ‘information or an opinion.’
  
• Donnellan v Ku-ring-gai Council (2013) NSWADT 115 where the Tribunal held that mobile, home and work telephone numbers, and email addresses was personal information. However, ‘not all of the information contained in emails by objectors to the agency is their personal information. Where information comprised expressions of opinion, it was opinions about the development application and not about an individual.’

Conclusion

Applying the above authorities to the Stalvies case before her, Senior Member Mulvey held that:

1. The information contained in Documents 1 and 2, apart from the names of the objectors is not personal information as they consisted of expressions of opinion from the objectors which relate specifically to the Applicant’s property and the activities she conducted on the property, rather than expressions of opinion about the objectors themselves. The identity of the objectors could not reasonably be ascertained from the information of the opinion (at [52]).
2. There would be no breach of any information protection principle under the PPIP Act if the information was revealed, as they do not contain “private information” of the objectors, other than their names and addresses (at [53]).
3. The redacted line in Document 5 contains a recording of a concern that the Applicant’s neighbour had in relation to a dividing fence and records part of a conversation between the Respondent’s officer and the neighbour. The concern raised by the Applicant’s neighbour was personal to her and was about the neighbour’s state of mind. Accordingly, the neighbour’s identity can be ascertained by the opinion and was found to be “personal information” within the definition of the GIPA Act (at [55] and [56]).

Implications

The decision illustrates the importance of an Agency considering if each piece of information captured under a GIPA Application would be personal information under either the GIPA Act or PPIP Act. Whether each piece of personal information is actually ‘about an individual’ must be considered individually and in combination with other information.

Furthermore, when considering whether an expression of opinion is personal information, the Agency must have regard to the subject matter of the opinion and also whether such opinion could reasonably identify the person, for instance whether the opinion is about a development application generally or a personal concern as discussed above. The subject matter of the opinion must be considered before making this determination.

The full decision is available here.

If you have any questions about this blog post please contact Sue Puckeridge on 02 8235 9702 or Emma Wei on 02 8235 9725.