CYX v City of Ryde Council [2017] NSWCATAD 324

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CYX v City of Ryde Council [2017] NSWCATAD 324 Hearing dates: 10 October 2017 Date of orders: 10 November 2017 Decision date: 10 November 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior Member Decision: The application is dismissed. Catchwords: ADMINISTRATIVE LAW – privacy – disclosure of personal information – whether individual reasonably likely to have been aware that information of that kind is usually disclosed Legislation Cited: Privacy and Personal Information Protection Act 1998 ss 18, 55 Environmental Planning and Assessment Act 1979 s79C Cases Cited: Vice-Chancellor, Macquarie University v FM (No.2) (GD) [2004] NSWADTAP 37 AHW v President, Anti- Discrimination Board [2012] NSWADT 164 KP v Narrandera Shire Council [2011] NSWADTAP 15 Category: Principal judgment Parties: CYX (Applicant) City of Ryde Council (Respondent) Representation: Solicitors: Storey and Gough (Respondent) File Number(s): 2017/00054750

REASONS FOR DECISION 1. This is an application for review of conduct under s 55 of the Privacy and Personal Information Protection Act 1998 ("the PPIP Act"). The applicant is a resident in the Ryde Council area. 2. He claims that the respondent disclosed his personal information, namely his name, address and signature, to a third party, and that this disclosure was a breach of the information protection principle in s 18 of the PPIP Act. The respondent does not dispute that the applicant's personal information was disclosed, but says its conduct was justified by s 18(1)(b) of the PPIP Act. This 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: … (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…" 1. It was also not in dispute that the disclosure occurred as part of the Council's process for assessing a development application. A development application was lodged with the Council on 24 May 2016. The development application was publicly notified and a notification letter was sent to the applicant, as the owner of a neighbouring property. On 15 June, 28 July and 4 August 2016 the applicant submitted three letters of objection to the Council. On 1 August 2016 the Council disclosed two letters of objection to the applicant who had lodged the development application ("the DA applicant"). The letters contained CYX's name, address and signature. 2. Section 79C of the Environmental Planning and Assessment Act 1979 requires the Council to take into account any submission made under the Act when determining a development application. 3. The respondent submits that the applicant was reasonably likely to have been aware that information of the kind which was disclosed to the third party, was usually disclosed to such persons (namely a DA applicant) as part of the assessment process. 4. It relies upon the following evidence: 1. A notification letter sent by the Council to the applicant on 31 May 2016 which contained the following: "Please note that in accordance with a Council resolution, all submissions received in relation to rezoning and development applications will be publicly accessible on request…. Q. Will my representations remain confidential? Council resolved on 26 November 1996 that as of 1 January 1997 all submissions received in relation to rezoning and development applications will be publicly available on request." 1. An information sheet titled "Having your Say" which was sent with correspondence to the applicant on 30 June 2016, 10 August and 26 August 2017 containing the following statement: "Are my comments confidential? No – Council has a policy allowing submissions to be viewed by any interested persons." 1. I note that the information sheets sent on 10 and 26 August post-dated the disclosure of the personal information on 1 August 2017 and are therefore not relevant to determining whether the applicant was reasonably likely to have been aware at that time that such information was usually disclosed. 2. Evidence of the process was provided by Mr Colin Murphy, Senior Coordinator of the Fast Track Team within the Assessment Department at the City of Ryde Council. His unchallenged evidence was that a contract planner, Mr Chris Conserdyne, who has since left the Council, assessed the development application. On 1 August 2016 Mr Conserdyne sent the submissions of CYX made 15 June and 28 July 2016 to the DA applicant, and requested that they be addressed. 3. Mr Murphy was Mr Conserdyne's supervisor at the time. He said he could not recall the DA applicant asking for the submissions. However he said it was very common for a DA applicant to call and seek an update of their application, and ask for copies of any submissions received. He said it was part of Council's procedure to make the submissions available to the applicant to enable the applicant to address the issues raised in the submission. 4. Mr Murphy's evidence was that if a person making a submission asked for their personal information to be withheld, the Council would accommodate that. 5. One of CYX's submissions referred to "my property (No.51) and "my garden". The respondent submitted that it was necessary to disclose the address of the objector to make sense of this part of the submission. 6. CYX does not seek review of the disclosure of the content of his submissions. He only takes issue with the disclosure of his name, address and signature on the submissions without first redacting it or seeking his consent. 7. He said that he did not understand that the Council would disclose that part of his submission without his knowledge. 8. It will be noted that the information sheet and correspondence relied upon by the Council stated that "all submissions… will be publicly available on request." The Council conceded there was no evidence of a request having been made by the DA applicant prior to the disclosure. It is apparent in any event from Mr Murphy's evidence and the respondent's submissions that submissions concerning development applications were made available to DA applicants if they contained issues Council believed should be addressed by them, whether the DA applicant requested them or not. 9. The development application was approved on 29 August 2016 subject to conditions. 10. The applicant made a complaint on 15 September 2016 about the disclosure of his personal information. On 30 March 2017 the respondent provided its internal review decision. The decision was that the Council had acted appropriately and had not breached the Information Privacy Principles or the applicant's right to privacy generally. The decision stated: "Council officers shared your submission with the DA applicant as part of the assessment process so that your specific issues could be considered by the applicant with the aim of resolving your concerns." 1. The applicant lodged his application with this Tribunal on 21 February 2017. On 18 April 2017 at a case conference it was noted that the respondent had agreed to provide the applicant with an apology from the General Manager, and that it would carry out an external review into its procedures with a view to improving those procedures. 2. The applicant was not satisfied with the apology he received. 3. The applicant also sought a copy of the external review undertaken by the Council. He received a copy of this on 29 September 2017. The respondent's position was that it is currently considering the review, but has not yet decided if it will implement any of the recommendations. 4. The applicant referred to the practices of a number of other councils which removed signatures and contact details from submissions before releasing them. However, while these may be examples of best practice, they are not relevant to whether it was more or less likely for the applicant to be aware that the City of Ryde Council would act in the way it did. Similarly practices in other States are not relevant.