Reflection in shop window

Reflection in shop window

In my post Report from the Gallery for 12th August 2014 one resident spoke about concerns regarding Marrickville Council’s apparent practice of disclosing to DA proponents the identifying particulars of people who make submissions on DAs.

The following is an excerpt of that resident’s speech to the Councillors at the Development Assessment Committee Meeting –

“Allowing access to identifiers creates a chilling effect on the community.  It creates a fear that personal information will be available to every developer. You get fewer submissions.   It is not for developers to be checking whether a submission is genuine & who made it.  This is Council’s function.  Identifiers do not improve a proponent’s capacity to respond to any community comments. People said to me this is not right.  I don’t want developers to know who I am, where I live, what my contacts are.  This is for Council to know.”    You can read the full speech here – http://bit.ly/1kADcV1

The following is a Guest Post by the same resident in response to the Question on Notice by Clr Phillips – Item 19: Consultation Practices & Personal Privacy for Residents & Persons Making Submissions in Relations to Development Applications that is on the agenda for this Tuesday’s Council Meeting of the 16th September 2014.

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Guest post by Resident 3

I had a concern about how much Council may disclose to a developer who may just ask to view/copy submissions. This came up because Council’s advertisement said:

“It should be noted that comments received will not be treated confidentially and may be viewed by the applicant.”  In my conversations with Council I was told that the developer would need to view the submissions at Council.

Similarly, Marrickville Council’s Publication Guide January 2014 at page 20 says:

“Council considers, on balance, the public interest in protecting the personal information of submitters, overrides the public interest in web-publication of submissions. However, Council will make submissions available for viewing at Council offices on Informal Access Application.”

These suggest that Council does not allow exceptions: names, addresses, contact details are up for disclosure to developers when developers might just go to Council’s offices and want access to submissions when no-one else knows they are doing so.  The issue was not about what documents Marrickville Council may post on its website.

When I called Marrickville Council on three occasions in May 2014 regarding my privacy rights for a submission re a DA, Council staff gave me inconsistent advice about Council’s disclosure practices.

At the Development Assessment Committee Meeting of 12th August 2014 a motion was passed for Council to prepare a report as to how it complies with the law and how it compares with other Councils.

If I asked an electrician what is the law about the thickness of wires for lights and power-points in my house, the answer will be only one: 1.5 mm for lights and 2.5 mm for power-points. If I asked a plumber for the size of the sewerage pipes at my home, the answer will by only one: 100 mm. This is because the professionals respect their clients’ rights to well-being and know the standards applicable in their profession. This does not seem to apply in various Councils when it comes to the community’s right to privacy.

Marrickville Council now published its report. This report does not refer to the advertisement I mention above.  It refers to pro-forma letters Marrickville Council uses and an advice sheet that says something different, namely that there are exceptions –

Your name will always be disclosed to developers, but if you do a statutory declaration to MC that yours and your family’s safety would be at risk, Marrickville Council will not disclose your address and contact details.  I was not told this when I spoke to Council staff on three occasions. I also did not receive a pro-forma letter, only the advertisement.

The report attaches and refers to the Information Commissioner’s Guidelines titled “Guideline 2: Development Applications – For local councils – Personal information contained in development applications: What should not be put on council websites.”  As I said above, the issue was not about what goes on Marrickville Council’s website, but about what Marrickville Council would show to a developer when asked directly.

The Guideline says: “ … the Guidelines deal only with personal information and only with the publication of the information on council websites. The Guidelines do not deal with or affect disclosure of personal information by other means.”  So why is Council referring to this as their guide?

Marrickville Council’s report quotes three paragraphs from the Guideline, but not from the next paragraph that says disclosure of DA related information contributes to transparent decision-making. And then says: “However, documents associated with DAs are likely to contain a significant amount of personal information. Local Councils are accordingly required to balance the disclosure requirements of the GIPA Act and the privacy provisions of the Privacy and Personal Information Protection Act…”

Marrickville Council’s report does not say how they would do this balancing when a developer goes in and asks to view/copy submissions from the community. The pro-forma letters seem to say your name will always be disclosed.  Only your address will be concealed and only if you satisfy MC about your safety.

But your fundamental right of privacy does not need protection only when you prove with evidence that safety is the issue.  It is there to protect you for a lot more reasons.  You give your Council your identifying particulars to enable your Council to check if you are real.  You have the right to claim anonymity from developers. Disclosing your identity to developers does not enhance Council’s transparency of DA processes. Such disclosure does more harm than good. Knowing that developers will be able to identify you discourages people from making submissions.

Marrickville Council’s report researched the practices of many other Sydney Councils.  The researcher quickly found huge inconsistencies, which the report described as “variability.”  It seems that the answer to the Question on Notice is: confusion and inconsistency.

Also the Question on Notice asked about compliance with the law. Marrickville Council’s report says nothing about whether the practices it describes actually comply with the law.  It just describes them, reveals the inconsistencies and relies on a Guideline that says people should not rely on it for the kind of situation that gave rise to this discussion.

It seems that the community cannot rely on how Marrickville Council (and some other Councils) interpret their privacy obligations.  As a minimum they are inconsistent.  Many practices are plainly contrary to the law because they don’t do the balancing of rights that the legislation requires.

And here is what seems to be the biggest problem with Marrickville Council’s practices:  The General Manager is set to decide what identifying information will be revealed to developers for the asking.  This is called under the GIPA Act an “informal disclosure.”  The person who would not want their identifying information revealed will have no appeal rights.  The General Manager will be judge and jury. Quite a dictatorial power. And your privacy just gets tossed out the window.

The only decent way to deal with developers asking for access to submissions is to require them to make a formal application under the GIPA Act.  This way those who may wish developers not get their identifying information can object and have appeal rights to the Tribunal.  It seems, in the confusion that reigns among Councils, only the Tribunal can be trusted to know the law and how to apply it in every case.  Councils’ practices should not be designed to deny the community this valuable right.

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