In this legal update we look at the recent Guidelines issued by the Office of the Information Commissioner (OIC) to assist local councils in dealing with requirements under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) with respect to development applications (DAs) and the returns disclosing the interests of councillors and designated persons.

The GIPA Act requires that local councils make certain information publicly available as a matter of course (‘open access information’). Schedule 1 of the Regulations prescribes certain information held by local councils as open access information, including a large amount of information about DAs, and information contained in the returns disclosing the pecuniary interests of councillors and designated persons.

The GIPA Act makes it a requirement that open access information be made available on a website, unless to do so would impose unreasonable additional costs on the agency. Prior to these requirements, councils had to make DA information and the pecuniary interest returns available in hard copy for inspection and copying. Publication on-line of information in DA applications and pecuniary interest returns naturally raises new issues of what sort of personal information should be disclosed in this way.

In considering whether to release open access information, councils are required to consider whether there is an overriding public interest against disclosure. In undertaking this consideration, councils are to take into account whether the disclosure will reveal an individual’s personal information, or breach an Information Protection Principle in the Personal Information and Privacy Protection Act 1998 (NSW), and balance this against the public interest in favour of disclosing the information.

The OIC consulted with local councils, the Privacy Commissioner, and the public (the consultation paper and report are available on the OIC website), and then developed Guidelines for councils to follow when balancing individuals’ right to privacy against the public interest in having open access to information; Guideline 1 deals with information in pecuniary interest returns, and Guideline 3 with information in DAs.

The Guidelines focus on the publication of open access information online, where it can be more readily accessed and reproduced by other persons.

The key conclusions arrived at by the Information Commissioner are:

  • On-line disclosure of as much information about DAs as is possible is consistent with the objects of the GIPA Act
  • It is not, however, in the public interest that personal contact details, signatures, personal financial information, health and medical information, or photos depicting people in DAs be disclosed on websites
  • On-line disclosure of information contained in pecuniary interest returns of councillors and designated persons does not sufficiently protect individual privacy; council web sites should therefore make clear that such information can be inspected and copied, and where this can be done, but not contain the returns themselves.

Interestingly, the GIPA Act does not make a decision to disclose information as open access information a “reviewable decision”, so the rights to internal review, review by the Information Commissioner and review by the Administrative Decisions Tribunal that the GIPA Act provides are not triggered. Section 739 of the Local Government Act 1993 (NSW) gives some protection to persons whose pecuniary interest information would be disclosed, but persons lodging DAs do not appear to have any right of objection or review in the GIPA Act.

Section 17 of the Government Information (Information Commissioner) Act 2009 (NSW) may be of some assistance, however. That section allows a person to make a complaint to the Information Commissioner about the exercise by an agency of a function under the GIPA Act. The Information Commissioner can then work to resolve the complaint, or investigate it and report on the matter.