In Meldru v Wollondilly Shire Council [2017] NSWCATAD, a resident applied to Wollondilly Shire Council (the Council) under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act), seeking access to video surveillance taken in the Council’s foyer (the Video Footage). The Video Footage was sought on the basis that it apparently showed the resident being illegally detained by employees of the Council.

The Council refused the access application on the following grounds (the Decision):

  • the Video Footage contained “personal information” of people other than the resident who may be reasonably identifiable;
  • the Council did not have the internal resources to edit the Video Footage to obscure the images of third parties; and
  • the resident had a history of conflict with the Council and had displayed a “pattern of unreasonable behaviour”.

The resident sought a review of the Decision in the NSW Civil and Administrative Tribunal (the Tribunal).

General principles

Sections 5 and 9(1) of the GIPA Act establish a presumption in favour of disclosure of government information. This, in essence, provides an applicant with a legally enforceable right to access the information requested unless the authority can establish that there is an overriding public interest against disclosing such information.

The only public interest considerations against disclosure that can be considered are those identified in Section 14 of the GIPA Act. This includes considerations set out in Schedule 1 to the GIPA Act.

Does the Video Footage contain “personal information” of a sufficient nature to overturn the presumption in favour of disclosure?

The Council argued that just because it was unable to identify the specific individuals (third parties) who appeared in the Video Footage, does not necessarily mean that the individuals would not be generally identifiable. The Council also argued that release of images of these identifiable individuals would contravene an information protection principle.

The Tribunal agreed, stating that the Video Footage contained personal information as the image/s may cause individuals to be reasonably identifiable. This, along with a potential breach of an information protection principle were relevant considerations against disclosure of the Video Footage.

However, the Tribunal rejected the Council’s claim that it was unable to edit a copy of the Video Footage so as to obscure the identities of the members of the public whose personal information would otherwise be identified by its release. The Tribunal found that the Council had failed to undertake reasonable attempts to ascertain whether pixelating or splicing of the Video Footage was possible, either internally or externally. The Council had also failed to identify the monetary and time costs of attending to such alterations.

As such, the Tribunal set aside the Decision to the extent that it withheld access to the Video Footage and ordered the Council provide to the resident the Video Footage, edited to de-identify members of the public whose facial features were visible.