Case Note: Eric Anthony Foster v Department of Planning and Environment

Read the decision here: Eric Anthony Foster v Department of Planning and Environment [2022] NSWCATAD 235

Summary

The Applicant lodged an access application with the NSW Department of Planning and Environment (the Respondent) seeking access to a list of addresses of social housing properties in specified allocation zones. The Respondent refused access to the information on the basis that there was an overriding public interest against disclosure because it was the personal information of the social housing property residents and would contravene a secrecy provision.

The Tribunal held that the addresses alone would not be personal information under the GIPA Act. However, when combined with other information or subsequent enquiries, the addresses were about an individual and therefore personal information.

What you need to know

Information which would not ordinarily be personal information under the GIPA Act may become personal information when combined with other information or enquiries.

Legislative background

GIPA Act

Section 11 Act overrides secrecy provisions in other legislation

Section 12 public interest considerations in favour of disclosure

Section 14 public interest considerations against disclosure

Section 15 principles that apply to public interest determination

Schedule 1 overriding secrecy laws

PPIP Act

Section 18 limits on disclosure of personal information

Housing Act

Section 71 disclosure of information

Factual background

The Applicant lodged an access application with the Respondent seeking access to a list of addresses of social housing properties in specified allocation zones. The Respondent determined that street addresses on their own would not necessarily be considered personal information. However, when an address can be linked to some other type of information, it becomes personal information. The Respondent was of the view that when an address was linked to the knowledge that it was owned/managed by NSW Land and Housing Corporation, the information was the personal information of the individuals who live in those properties, who could be identified as public housing tenants. The Respondent therefore refused access to the information on the basis that there was an overriding public interest against disclosure.

The issues for determination by the Tribunal were:

• whether the information was about an individual; and
• whether disclosure was prohibited by a secrecy provision in another Act.

Tribunal findings

Information about an individual

The Tribunal agreed with the submission of the Respondent that the information requested by the Applicant was ‘about an individual’ for the following reasons:

• information must be weighed against the totality of the information requested such that a single piece of information is not ‘about an individual’ but when that information is combined with other information or subsequent enquiries then it might be about an individual
• the information requested included the requirement that it relate to social housing properties. Therefore, access to the addresses would identify the residents of those properties as social housing tenants. The fact that the residents are social housing tenants is personal information. Once that information was produced, an applicant could make further reasonable enquiries to attend each of those addresses and determine the number of residents, their broad ages and whether they reside with other people. Alternatively, the information produced could be used with other publicly available information like the Commonwealth Electoral Roll to determine the names of adult residents.

Disclosure would disclose a secrecy provision

The Respondent submitted that information obtained in connection with the administration or execution of the Housing Act 2001 must not be disclosed without the consent of the person from whom the information was obtained. The Tribunal also noted that the secrecy provisions in the Housing Act 2001 may be overridden by the GIPA Act.

The Tribunal was satisfied that:

• the information was obtained in connection with the administration or execution of the Housing Act 2001 and
• disclosure would have the effect of prejudicing the interests of residents of social housing and be inconsistent with access to safe and secure housing.

Tribunal outcome

The Tribunal affirmed the Respondent’s decision that there was an overriding public interest against disclosure of the information.