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Grey Gulls at Tempe

Gulls at Tempe

On 12th August 2014 I reported on concerns about Marrickville Council’s apparent practice of disclosing to developers identifying particulars of people who make submissions on Development Applications.   See – http://bit.ly/1kADcV1

Marrickville Council then produced a report about its practices of what personal information it discloses to developers.

In a follow up post on 15th September 2014 I reported on a resident’s response to Marrickville Council’s report.  See – http://bit.ly/1y4lwag

The following is a Guest Post by the same resident.

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The reasons for my involvement in this were three :

  1. Marrickville Council’s advertisement of a DA bluntly said that comments received from the community “will not be treated confidentially and may be viewed by the applicant.”   It seemed to me that Council was not allowing for any anonymity and was not proposing that contact details (address or email or telephone number) were going to be treated as confidential.
  1. When I rang Marrickville Council three times about that, I received inconsistent information about Council’s practices and ultimately it was confirmed that Council releases submitters’ contact details, not just the essence of what one may have submitted.
  1. I thought that such practices were contrary to a public agency’s obligations under information access and privacy laws, and more importantly, when the community knows that developers will be able to identify each individual submitter, the community will be discouraged from exercising its democratic right of expressing its views about developments.

Marrickville Council’s report added some new information that was not at play when I responded to the particular advertisement for that particular DA.  Namely, that Council has letters and guidance materials, which are not as blunt as the advertisement.

They seem to say that a person may satisfy the General Manager that there is a need to keep the contact details of a submitter confidential, but only if the submitter provides a statutory declaration that satisfies the General Manager that the submitter’s safety or their family’s safety would be at risk from a release of their personal information. None told me about that when I rang Council.

I then thought and I still think that this is inconsistent with Council’s obligations under the relevant laws.  In my previous guest post I wrote:

“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.”

Marrickville Council’s report highlighted the fact that many other Councils also have confused and inconsistent practices, with the ultimate outcome being that they violate people’s privacy as they please.

The NSW Privacy Commissioner now completed enquiries into Marrickville Council’s practices.   In her letter to Marrickville Council dated 7 November 2014 the Commissioner expressed concerns about Council’s practices.  The letter included the following:

“The Council’s current approach of releasing all information (except the submitter’s address) only where there is a statutory declaration attesting to concern of safety for that person or their family, does not appropriately capture the requirement of the public interest test to be conducted under the GIPA Act by Council prior to disclosing personal or any other information.

Having considered the guidance made available by the Information Commissioner, I am not satisfied that Council’s current approach of publication of all submitters personal information (except where there is a statutory declaration attesting to concerns of safety) is a requirement of the GIPA Act or regulations.

I am also concerned that the current approach adopted by Council in relation to the publication of submitter’s personal information does not take into account the obligations imposed upon councils under the PPIP Act.”   (PPIP Act is the NSW privacy law).

In our times we see many of our rights washed away by governments who think of them as mere red tape.  Our privacy is an important right and as long as we do not say offensive things our anonymity allows us to offer our opinions about issues that concern us without the fear that those who may have different opinions, such as developers in this case, will identify us or obtain our home and contact details.

If a public authority is planning to violate our rights by revealing our identity to developers, as a minimum, we should have the right to say no and the right to appeal to a proper body that will make an impartial decision.

Any revealing of our identity and contact details should be done only when a developer makes a formal application, so that we can have the right to appeal the General Manager’s decision. Anything short of that is dictatorial and causes tremendous harm to us as a collective of people who place our trust in those to whom we grant some powers to manage public affairs on our behalf.

I hope this becomes an example to Marrickville Council, and the other Councils that appear to be just as arrogant in managing our privacy, and I hope that the General Manager takes control of this issue, so that he can adopt the Privacy Commissioner’s recommendation to mend Council’s ways and so that Council staff learn what the law requires of them and cease providing inconsistent and wrong information when people contact them.

End of Guest Post.

Kookaburra

Kookaburra

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.

Marrickville Raven

Marrickville Raven

This was the Development Assessment Committee Meeting. Absent: Clrs Tsardoulias, Hanna, Brooks & Leary.

The Councillors & Wards are as follows – LABOR:  Iskandar/Central, Haylen/North, Tsardoulias/West, Woods/South. GREENS:  Phillips/Central, Ellsmore/North, Brooks/West, Leary/South.  LIBERALS: Gardener/North, Tyler/West INDEPENDENT:  Macri/Central, Hanna/South.

The following is how I understood the meeting & all mistakes are mine.

459-463 Illawarra Road Marrickville – extend the trading hours of Woolworths supermarket to 7.30am – 10pm on Saturdays & 8am – 10pm Sundays & public holidays. Council considered that extended trading hours would not have a detrimental effect on the surrounding area & recommended a 12-month trial.

First speaker from Woolworths: Said customers needed to be explained why store closed at 4pm on Sundays. There were 560 signatures on a petition to allow extended trading hours. Woolworths distributed 15,000 leaflets. Said trading to 4pm is inconsistent with other stores & what is proposed is consistent with zoning. There are no proposed changes to the loading dock. The store employs 130 people. Woolworths is a local company owned by hundreds & thousands of Australians. The supermarket sells the essentials of life. The changes make things easier for families to buy essentials when they want to buy them.

Resident 1:  This application is similar to the one in 2011 that Council rejected because it would have a significant impact on the surrounding area. Nothing has changed. It will still generate a high level of traffic, trolley dumping, loitering, noise & litter. The business paper has a perspective that this is a commercial area, but it is a predominantly a residential area. The business paper says approval would be unlikely to result in an increase in traffic & noise. This cannot be correct. Many of the shoppers use cars. If you walk down Renwick Street at 5pm on Sunday, this is the only quiet time in the whole week. The business paper also points out other shops open after 4pm. The figures are wrong. Only eight operate after 8pm. These are boutique shops, not comparable to large Woolworths. The fact is that these small corner stores cater to shoppers past 4pm. Shoppers can also go to Wolli Creek & Metro. Market Town in Leichhardt operates from 10am – 4pm on Sundays. I am asking Council not to reconsider its 2011 decision. If there is a 12-month trial, traffic monitoring of the area is needed. More work needs to be done for pre & post traffic measurement for it to be a meaningful trial.

Resident 2:  We have no objections to extra hours on Saturday & think that 10am – 4pm on Sunday is ample. We encounter daily high traffic, blocked driveway, rubbish everywhere. People sit under the ramp & drink alcohol & urinate. Faeces can be smelt. Alcohol use outside Woolworths has risen ten-fold since the liquor outlet was opened. There has been an increase in robberies & bags stolen from homes. We have a small respite in the week & we would like to keep it. When it is quiet, the street is not packed with cars. We can hear the PA system at 10pm. Woolworths doesn’t need the extra income. Wolli Creek, Metro & Banana Joes is open on Sunday evenings. The residents deserve to keep this small window.

Resident 3:  I will not address the merits of the DA. What I will say is about Council’s conduct. The business paper speaks about Community Consultation. What it does not tell you is that the advertisement that I saw said: “It should be noted that comments received will not be treated confidentially and may be viewed by the applicant.” It is a blanket practice allowing access to identifiers: names, addresses, contact details. No-one has a say as to whether they wish their identifiers not be accessible to DA proponents. This is inconsistent with others Councils.  For example, Sydney Council’s invites subitters to say if they wish their anonymity to be respected.  A similar direction is on the Information and Privacy Commission’s website.  Council’s advertisement is not consistent with its obligations under the GIPA Act.  The GIPA Act does not say that Council must allow access to personal information in DA files. It does not say that Council is permitted to allow access without undertaking the statutory balancing exercise to ascertain if there is an overriding right that makes access inappropriate. The community’s privacy right is such a right. It protects identifiers & contact details.

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.  A person said I am a silent voter. I will not make any submissions to Council when it allows access to my name & address. Just knowing that identifiers may be accessible is enough to create a chilling effect.

The business paper does not tell you that the Privacy Commissioner is examining Council’s practice & has now written to Council. There have been two Tribunal decisions where developers tried to obtain access to identifiers, which they did not know. Both developers lost.

You may choose to approve the recommendation. But it is the product of a process inconsistent with Council’s privacy obligations. The right thing is a resolution that asks Council to re-advertise the DA, clearly saying what the law is.  That is, identifiers will not be accessible without an opportunity to have a say about privacy & without Council complying with the test that the GIPA Act requires of all government agencies. Your resolution should also include a paragraph that asks Council to write to submitters & clearly inform them if Council allowed access to un-redacted submissions in this case & exactly to whom it allowed access, so that submitters can think about whether they wish to make privacy complaints.

Clr Macri moved the motion to support extended trading hours for Woolworths.

Clr Phillips:  Said he will not support the motion, but was moving two amendments. I used to live in South Marrickville & felt confused when Woolworths shut down at 4pm.   I do think extended hours will support the community. It does affect the residents’ convenience. The headlights shine directly into the lounge room opposite. Council should do something about that issue. Amendment 1: Woolworths to work with Marrickville Council to do streetscape work to stop lights affecting this house. Amendment 2: Recognise this is a residential area & that residents do rely on this respite. 8pm is a reasonable compromise & recognizes residents’ amenity.   He thanked the resident regarding the issue of privacy. I am of a mind to raise a matter arising about how Marrickville Council compares & whether submitter details were passed on to Woolworths.

Staff: The Manager of Governance looks after this. My understanding is that certain details are always redacted. This is not my area, so I cannot comment.

Clr Macri: This is only a 12-month trail, so there is a lot of pressure on Woolworths in how they fit into the community. We are looking at a Plan of Management for that site & environs so they are appropriately managed. They are changing their status quo. Regarding the community safety issues; passive surveillance means there is less crime. With no people, there is a rise in crime. The liquor hours will be staying as they are. I am comfortable with a trial. I am happy to support the amendment regarding the streetscape opposite. I’d like a discussion with residents without first thrusting it upon them. We need to actually allow the full trial with the hours they are asking.

Mayor Haylen:  I appreciate the concerns of residents. Woolworths has an action plan re loitering, litter etc. I am satisfied on this front.  I am looking forward to shopping there on a Sunday. The shops around here told me they are looking forwards to more business too.  134 people are employed & an extra 6-hours allows more kids an employment opportunity.  If Woolworths doesn’t uphold its end of the bargain, they will be back in 12-months. I support amendment 1, but not amendment 2.

Clr Gardiner: I don’t support Amendment 1. It bothers me that an application can be ambushed. What does it mean – Woolworths to work with Marrickville Council? Stop headlight spill – which house? It’s half-baked & not thought through. The amendments should been discussed with staff.

Clr Phillips: Amendment change – That Woolworths work with Marrickville Council & local residents. I have faith that Woolworths want to do the right thing. The wording is vague. I would hope that Marrickville Council works with Woolworths & residents. I’ve driven out the Woolworths driveway 150 times. We are asking for approval for something that will have an impact on these residents. It is not half-baked.

Vote on Amendment 2 – Opening hours Sunday 8am – 8pm – For: Clrs Ellsmore & Phillips. Against: Mayor Haylen, Clrs Macri, Iskandar, Woods, Gardiner & Tyler. Lost.

Vote on Amendment 1 – streetscaping to stop headlight spill into a house – For: Mayor Haylen, Clrs Ellsmore, Phillips & Macri. Against: Clrs Iskandar, Woods, Gardiner & Tyler. Carried with Clr Macri’s casting vote.

Vote to approve the Motion for extended operating hours for Woolworths – For: Mayor Haylen, Clrs Ellsmore, Phillips, Gardiner, Tyler & Macri. Against: Clrs Woods & Iskandar. Carried.

Clr Phillips: Privacy Issue Arising: Motion that Council prepare a report about its consultation practices & personal privacy as to how they compare with other councils & comply with the law. Motion carried unanimously.

NOTE: Resident 3 told me he spoke with Council staff during 3 phone calls in May & after some initial inconsistent advice, he was told that Council does allow developers to view community submissions without concealing identifiers.

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