WRITTEN BY Victoria McGinness
In our experience, one of the key matters which arises for local council officers in determining an access application under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) is considering whether the disclosure of information is likely to reveal personal information, and whether access should be refused to protect the privacy of those individuals. This essential guide will assist local council officers in applying the public interest test under the GIPA Act where disclosure of information is likely to reveal the personal information of a third party.[1]
A more comprehensive summary of how GIPA applications are determined can be found in our previous essential guide here. In summary, the Council must provide government information requested by a GIPA applicant unless there is an overriding public interest against disclosure. This is determined by balancing the factors for and against disclosure.
Item 3(a) of the table in section 14 of the GIPA Act provides that there is a public interest consideration against the disclosure of information if such disclosure could reasonably be expected to reveal an individual’s personal information. This criterion can be broken down into three key elements:
The GIPA Act provides the following definition of personal information:
“personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.”[2]
This provision has been interpreted to mean that information or an opinion is personal information not only when an individual’s identity can be ascertained solely from the information or opinion, but also when their identity could be ascertained by combining the information or opinion with other publicly available information.[3]
Some examples of information which the NSW Civil and Administrative Tribunal (the Tribunal) has found to be personal information include:
There are certain exclusions to the meaning of personal information. Relevantly for local councils, information about an individual that reveals nothing more than the fact that the person was engaged in the exercise of public functions is not personal information.[6] This includes a Council officer’s name, non-personal contact details and position title.[7] The Tribunal has also found that the substantive content of an objection to a development application is not personal information, provided that it does not contain information about an individual.[8]
If information requested by an applicant is or includes personal information, the Council needs to consider if the disclosure is reasonably likely to “reveal” the personal information.
‘Reveal’ means “to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).”[9] To find that disclosure is “reasonably likely” to have that effect, the Council must be satisfied that there is “more than a mere possibility, risk or chance” and that expectation must be based on “real and substantial grounds”.[10]
If the personal information is not already publicly available, disclosing personal information in response to an access application should be considered to “reveal” that information.[11] This is because the GIPA Act does not allow an agency to impose conditions on how an applicant uses information once it has been disclosed.[12] It should therefore be assumed that any disclosure of information to an applicant will result in that information being publicly revealed (regardless of what an applicant states they intend to do with the information).[13]
Unless the information is publicly available (or already known to the applicant because of one of the narrow circumstances in s.59(1) of the GIPA Act) the Council should proceed to consider item 3(a) in applying the public interest test.
Determining whether there is an overriding public interest against the disclosure of information is a balancing exercise. As a starting point, there is a general public interest in favour of disclosure.[14] The Council is then required to consider whether the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.[15] In applying the public interest test, councils may take into account the personal factors of the applicant, including their identity, their relationship with any third party, and their motives for making the access application.[16]
Prior to disclosing information, the Council is also required to consult with any third party whose personal information may be disclosed if the Council reasonably expects that person to have concerns about the disclosure, and those concerns may reasonably be expected to be relevant to the public interest test.[17] This step is particularly important when considering the disclosure of a third parties’ personal information. Where a Council is unsure whether an individual may be concerned about the disclosure of their personal information, then we recommend adopting a cautious approach and consulting with them.
If the third party objects to the disclosure, that objection is relevant, but not determinative. The Council should take into account the nature of the personal information that is requested. Councils should be more reluctant to release personal information that is highly sensitive; for example, information relating to a an individual’s welfare or private family matters.[18] Conversely, councils should place limited weight on the disclosure of personal information that is “fairly benign.”[19] This may include information that “does not reveal any aspect of [the person’s] private opinions or beliefs” and information of a purely professional nature.[20]
The Council is entitled (and indeed required) to release the information if it has determined that, notwithstanding the third party’s objection, there is no overriding public interest against disclosure.
If a third party has objected to the release of information, but the Council determines to disclose it, the Council must inform the objector that it has decided to release the information and that the objector is entitled to have the decision reviewed. The Council must then delay providing the information to the applicant until the time for the objector to apply for review has passed, or until any such review has been concluded.[21]
When determining access applications under the GIPA Act, it is important that councils carefully consider whether disclosure of the requested information could reveal an individual’s personal information. However, Councils should also be aware that there is no universal prohibition on the disclosure of personal information, even when the person to whom the information relates objects to disclosure.
The Information Commissioner has also issued guidelines to assist councils in performing the public interest test, which must be taken into account when balancing the public interest.[22] They are available at https://www.ipc.nsw.gov.au/information-access/agencies/resources.
For more information, or for assistance in determining GIPA Applications, including the application of item (3)(a) in the table in section 14, please contact Victoria McGinness or another member of our Planning, Environment & Local Government team.
Please note that the information detailed in this Essential Guide is current as at 1 April 2025. The content contained in this guide is not legal advice, readers should contact us and receive our specific advice on the particular situation that concerns them.
[1] This guide is not intended to does not address circumstances where the personal information that has been requested is the personal information of the GIPA applicant.
[2] GIPA Act, sch 4 cl 4(1).
[3] Office of Finance and Services v APV and APW [2014] NSWCATAP 88, cited in Streater v Tamworth Regional Council [2024] NSWCATAD 195.
[4] Goodwin v NSW Treasury [2021] NSWCATAD 176.
[5] Bannister v Department of Finance, Services and Innovation [2018] NSWCATAD 33, at [81]-[82].
[6] GIPA Act, sch 4 cl 4(3).
[7] Commissioner of Police (NSW) v District Court (NSW) (1993) 31 NSWLR 606; Commissioner of Police (NSW) v District Court (NSW) (1993) 31 NSWLR 606; MJ v Department of Education and Commerce [2013] NSWADT 213.
[8] Donnellan v Ku-ring-gai Council (2013) NSWADT 115 [39]-[43].
[9] GIPA Act, Dictionary.
[10] Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254, citing Transport for NSW v Searle [2018] NSWCATAP 93.
[11] EHW v Secretary, Department of Education [2022] NSWCATAD 140 [132]-[135]; Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 [99]; Adams v Commissioner of Police, NSW Police Force [2024] NSWCATAD 243 [77]-[87].
[12] GIPA Act s 73 (subject to limited exceptions for medical or psychiatric information)
[13] GIPA Act s 15.
[14] GIPA Act s 12(1).
[15] GIPA Act s 13.
[16] GIPA Act s 55(1).
[17] GIPA Act s 54(1)-(2).
[18] Webb v Port Stephens Council [2019] NSWCATAD 47; McKinnon v Blacktown City Council [2012] NSWADT 44.
[19] Lonsdale v University of Sydney [2016] NSWCATAD 176;
[20] Lonsdale v University of Sydney [2016] NSWCATAD 176; Leda Developments Pty Limited v Tweed Shire Council [2013] NSWADT 121.
[21] GIPA Act s 54.
[22] GIPA Act s 15(b).