Privacy Law & Policy Reporter --- "Cases and complaints" [2006] PrivLawPRpr 11; (2006) 11(8) Privacy Law and Policy Reporter 238

• Cases + Complaints

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Cases + complaints

NV v Randwick City Council [2005] NSWADT 45,

NSW Administrative Decisions Tribunal 4 March 2005

Letters of complaint, written by NV to the local council about her neighbours, were disclosed by the council to the neighbours. Tribunal lacked jurisdiction because internal review lodged out-of-time, but otherwise would have found breach of IPP 11 and ordered $40,000 compensation.

Background facts

NV had a long-running dispute with her neighbour, stemming from additions to the neighbour’s home, which had been opposed by NV. The alterations included windows which looked onto NV’s property.

NV wrote letters to the Council both when the additions were first proposed, and then after construction. Some of NV’s letters, written in 2001, included suggestions that the neighbours were peering into NV’s home day and night from the new windows, and that the neighbours were ‘peeping toms’ or ‘voyeurs’.

The respondent Council placed copies of NV’s letters, and Council’s responses to those letters, on the development application file relating to the neighbour’s property.

Some time later, the neighbour requested access to the development application file, under s.12 of the Local Government Act. The Council provided the neighbour with access to the file in May 2001, and again in August 2002.

In August or September 2003 the neighbours commenced defamation action against NV in relation to the content of the letters. The defamation case settled in February 2004, with NV paying $25,000 to the neighbours, the neighbours installing opaque glass on their windows, and each party paying their own legal costs.

The internal review

NV lodged her request for an internal review in October 2003. When asked by the Council when she had first become aware of the alleged disclosure, she replied that it was around September 2003, when she first received the defamation statement of claim from the neighbours’ solicitors, which included copies of her letters.

The Council conducted its internal review and advised NV that it had legal advice suggesting it had not breached the PPIP Act, on the basis that (i) the letters were unsolicited, (ii) the letters did not contain ‘personal information’, and (iii) s.12 of the Local Government Act authorised the disclosure.

Two months later the Council sent a further letter to NV in relation to her internal review request, noting that there was no public interest reason not to disclose the letters to the neighbours, and thus it was obliged to make the disclosure under s.12(6) of the Local Government Act.

Was there a valid request for internal review?

Requests for internal review must be lodged within 6 months of the applicant becoming aware of the conduct at issue, unless the respondent allows additional time (s.53(3)(d) of the PPIP Act).

NV lodged her request for internal review in October 2003, and thus for her internal review request to be valid, NV needed to show that either (i) she first became aware of the conduct complained of some time after April 2003, or (ii) the Council had allowed her an extension of time.

There was evidence to suggest that the applicant may have first discovered in August 2002, during an argument, that her neighbours had read (or at least knew of the content of) her letters, but the applicant argued that she did not know that the neighbours had copies of those letters until September 2003.

The Tribunal defined the scope of the conduct at issue as being the disclosure of information to the neighbours – a broader concept than the provision of a copy of documents to the neighbours – and thus found the applicant NV had definitely ‘become aware’ of the conduct by March 2003, if not earlier in August 2002. In either case, it was more than six months before NV lodged her request for internal review.

The respondent Council argued that it had not knowingly permitted NV to lodge her request for internal review out-of-time (having relied on NV’s assertion that she had first become aware of the alleged disclosure in September 2003), and thus had never granted an extension of time. The Council therefore argued that there had never been a valid internal review application that could trigger the jurisdiction of the Tribunal.

Findings

The Tribunal found that there had not been a valid request for internal review made by NV, as her application was not lodged within time or within the terms of a granted extension of time. The Tribunal therefore found that it had no jurisdiction to review the case.

However Robinson JM went on to deal with other matters, in case his decision in relation to jurisdiction is found to be wrong.

Whose personal information was it?

The respondent Council argued that the content of the letters written by NV was not ‘personal information’ about NV, but ‘personal information’ about the neighbours. The Tribunal accepted that the letters contained personal information about NV and her neighbours, although it did not provide comprehensive reasoning on this point.

Does s.12 of the Local Government Act authorise non-compliance with the disclosure principles?

Section 25 of the PPIP Act allows non-compliance with certain IPPs, including the disclosure principle IPP 11 (s.18), if another Act or law lawfully authorises, requires, permits, necessarily implies or reasonably contemplates non-compliance.

The respondent Council argued that s.12 of the Local Government Act is such a law.

Section 12(1) of the Local Government Act allows any person to inspect certain listed documents, including development applications “and associated documents”, free of charge. “Associated documents” is not defined. Section 12(6) applies to all other documents held by councils, and requires that access be given subject to a ‘public interest’ test.

The neighbour demonstrated to the Tribunal that the Council had first disclosed the information to her (by way of allowing her to access and photocopy the development application file) in May 2001. The respondent Council nonetheless had no record of that disclosure, only the second access in August 2002.

The Tribunal found that the Council had not considered the ‘public interest’ test in either May 2001 or August 2002, prior to disclosing information to the neighbour.

The Tribunal did not make a finding on whether or not s.12 of the Local Government Act authorised non-compliance with IPP 11, as it found that the Council had not formally applied s.12, in that the ‘public interest’ test in s.12(6) had not been followed, and therefore could not “call section 12 in aid” [36].

A breach were it not for being out of time

The Tribunal concluded by noting that had the internal review been lodged by NV within the time limits required by the PPIP Act, it would have found that the Council had breached IPP 11.

The Tribunal further noted that it would have ordered the payment of the maximum amount of $40,000 in compensation, having found that the disclosure of the information to the neighbours caused NV to suffer financial losses of $25,000 by way of settlement of the defamation proceedings, and more than $15,000 by way of her own legal costs in relation to the defamation proceedings.

Commentary

This case is notable for the conclusion that the Tribunal would have been prepared to order the maximum limit of compensation allowable under the Act, were it not for the procedural issue that barred its jurisdiction.

It thus demonstrates the risks to councils of allowing relatively open access to council files, without subjecting requests to access such files to further scrutiny in the context of the ‘public interest’ test in the Local Government Act and the privacy principles in the PPIP and HRIP Acts.

Anna Johnston, Salinger & Co.

GA v Department of Education and Training [2005] NSWADT 47

NSW Administrative Decisions Tribunal, 4 March 2005

Interlocutory decision re scope of conduct to be reviewed at hearing

Background

GA had previously made a privacy complaint about the disclosure of information by a school principal to the police. In the course of a hearing into that incident, GA summonsed material from the Department. The material included hand-written notes written by a Departmental investigator following an interview with the school principal. That report suggested or reflected other conduct by the school principal, which GA, in this case, then sought to review as well.

Scope of conduct at issue

GA framed this current privacy complaint by way of naming a number of the IPPs, and then quoting 15 passages from the hand-written notes, which he claimed breached one or more of those IPPs.

The Tribunal therefore had to draw inferences about what conduct GA was complaining about, but noted that GA would have to identify the “precise nature and extent of the conduct” prior to the hearing of this matter.

Is GA aggrieved by the conduct?

The passages in the report highlighted by GA included information about GA himself, but also passages about his sons, the girlfriend of one of his sons, and her family.

The Tribunal noted the beneficial intention of the PPIP Act, and a line of cases suggesting a broad interpretation is appropriate. However Hennessy DP also noted at [8] that “the person must nevertheless be “aggrieved” because he or she believes that the conduct constitutes a breach of the PPIP Act, not for any extraneous reason.”

GA alleged that inaccuracies about his son’s girlfriend affected the credibility with which he and his family members were treated by the respondent agency, and that this “negative attitude of the Department ... generally tainted the Department’s response to his complaints” [10].

The Tribunal found that GA is aggrieved “not because he believes that the conduct constitutes a breach of the PPIP Act in relation to the student, but because of the way he says the comments have affected the Department’s attitude to his complaints”. The Tribunal found that GA’s complaint did not relate to concerns about the protection of personal information or a person’s privacy, but to “unrelated matters”. [11]

The Tribunal therefore found GA had no standing to pursue that aspect of his complaint which related to passages in the hand-written notes which were about his son’s girlfriend.

Commentary

The conclusion drawn by the Tribunal in this case suggests a narrow view of the purpose of the IPPs in protecting ‘personal information’ and ‘privacy’.

In framing this case, GA appears to have identified not only the alleged breach of privacy (breach of the accuracy principle), but also the harm that flowed from the alleged breach (prejudice).

Yet in describing the harm as part of his framing of the ‘conduct’ complained of – the prejudice he suffered, or “the way he says the comments have affected the Department’s attitude to his complaints” – the Tribunal believed GA was not describing conduct that is reviewable.

GA identified the nub of why the ‘accuracy’ principle is one of the IPPs: reliance on inaccurate information (whether inaccurate or out-of-date in factual terms, or misleading, irrelevant or intrusive) can, just like an unauthorised disclosure of private information, result in prejudice to the subject person. Unfortunately for GA, the Tribunal did not see this as a ‘privacy’ issue.Anna Johnston, Salinger & Co.

NZ v Director General, New South Wales Department of Housing [2005] NSWADT 58

NSW Administrative Decisions Tribunal, 18 March 2005

Investigations into applicant, and into her sister. Disclosure of conclusions drawn about applicant, to her sister, were not necessary for investigation.

Background

The respondent agency, the Department of Housing, had undertaken some investigations into whether their tenant, NZ, had undisclosed property assets or undisclosed income. As a result of their investigations the Department increased NZ’s rent, and later obtained eviction orders.

Both these decisions were overturned following appeal. However NZ claimed psychological harm from these events. NZ claimed the Department had taken this action against her on the basis of misunderstandings and mischievous allegations made against her by her estranged family members.

NZ’s sister, X, was also a tenant of the Department of Housing. The agency had received some anonymous complaints about X, which it had investigated and concluded were false.

The two letters

X had sought an AVO against NZ, and the agency received a subpoena to produce documents to those court proceedings. Amongst the documents produced to the court under subpoena were copies of two letters written from the agency to X.

The first letter to X was to communicate the results of an investigation by the Department into the anonymous complaints made about X. The letter stated in part:

“I am satisfied that the allegations are false. On balance I am satisfied with your explanation that the information has come from your sister [NZ]. I confirm we discussed the possibility that [NZ] may be a vexatious complainant.”

The second letter did not make any reference to NZ in the text of the letter. However the copy from the court file included a handwritten note at the foot of the letter, apparently written by X’s daughter about a meeting she and X had with the author of the letter. That handwritten note mentioned NZ in the context of making “false claims”.

Narrowing of issues

NZ’s claim related both to the Department’s investigation of her, and in relation to the accuracy and disclosure of the information contained in the two letters to X. Her original application claimed breaches of IPPs 5, 9, 10 and 11.

Following planning meetings the issues that remained to be determined at hearing were:

• the collection of information about land titles relating to NZ in relation to a rental investigation

• the use of that information about land titles relating to NZ

• the disclosure of information to X

The collection and use

The Tribunal was satisfied that the Department’s investigation was a lawful purpose warranting collection of personal information about NZ, in the form of land title information.

The Tribunal was likewise satisfied that the Department took reasonable steps to ensure the accuracy of that information before relying upon it to make its decisions. President O’Connor noted that the Department had held several meetings with NZ, and engaged in other contact with her, as part of their attempt to establish the true nature of her land holdings. The Tribunal also found that the Department used the information for a lawful purpose.

Thus the Tribunal found no breach of IPPs 1, 9 or 10 in relation to the agency’s investigation activities.

The disclosure

The Tribunal was satisfied that the second letter, as amended with the handwritten note, was not disclosed by the Department to the local court. (It appeared it had been provided to the court by X as part of her evidence.) The typed text of the letter alone did not contain any personal information about NZ, and therefore no breach was found.

However in relation to the first letter, the Tribunal found that the information contained in the letter contained two opinions about NZ, which were not strictly necessary to have been communicated to X.

The agency argued that there was no disclosure of information about NZ to her sister, because it was merely a ‘reporting back’ of what the sister had told the agency officer. The Tribunal rejected this argument, noting that the agency’s officer “clearly communicated an opinion formed in her capacity as an officer of the agency, after investigation, one that was negative to the applicant”. The Tribunal thus found that personal information was disclosed about NZ to her sister.

The agency argued the disclosure was authorised by an exemption, being a Direction issued by the Privacy Commissioner under s.41. The Direction related to investigative functions, and the version that applied at the time of the conduct allowed non-compliance with the disclosure principle (IPP 11) if it was ‘reasonably necessary for the proper exercise of any of the agency’s investigative functions’.

The Tribunal accepted that the Department was conducting a lawful investigation, however found no evidence to suggest that the investigation would have been hampered had the letter to X not included the final two of the three quoted sentences:

“The investigation into the allegations against X could have been concluded simply by the finding that the investigator was satisfied that the allegations were false, without conveying to X the views in relation to a possible source of the allegations or the behaviour of that source.”

President O’Connor therefore found a breach of IPP 11.

This matter is yet to be determined in relation to an appropriate remedy. The applicant has claimed compensation for psychological harm, and has tendered a report attributing the cause of her agoraphobia to conduct by the agency.

However in the course of planning meetings prior to this hearing, the agency agreed to remove the two letters and any copies from NZ’s tenancy file. The Tribunal described this as a “significant agreement” in seeking to meet NZ’s concern about the possible future uses of the correspondence.Anna Johnston, Salinger & Co.

GA v DET & Police (no 3) [2005] NSWADT 70

NSW Administrative Decisions Tribunal, 31 March 2005

Disclosure by school was for ‘law enforcement purposes’, even though information not relevant. Collection by police was covered by ‘unsolicited’ exemption. Information was not ‘used’ by either respondent.

Background facts

This case followed on from previous cases including an appeal case. The only remaining matter to be reviewed was a paragraph in a letter from a school principal to a police officer investigating a complaint by GA. Other paragraphs in the letter had been found in earlier cases to not contain ‘personal information’, because of the exemption to the definition for information arising out of a Part 8A complaint about police.

Complaints regarding the Police

The Police argued the relevant paragraph in the letter did not contain ‘personal information’, arguing the Appeal Panel had erred in finding this one paragraph was not also covered by the exemption for Part 8A complaints. The Tribunal was not willing to re-open the Appeal Panel’s earlier finding, and therefore examined GA’s allegations.

GA claimed the Police breached IPP 1 (relevant collection) in its collection of the information from the school principal, in that the information was not relevant to their investigation. The Tribunal agreed that the information was not directly relevant, but found the information was “gratuitous” or unsolicited. Thus the ‘unsolicited’ exemption from the collection principles could be relied upon by the Police.

GA also alleged a breach of IPP 2 (indirect collection) and IPP 3 (collection notification) by the Police. Again the Tribunal found the respondent could rely on the ‘unsolicited’ exemption.

GA alleged a breach of IPP 9 (accuracy) by the Police. The Tribunal found the Police did not ‘use’ the information contained in the particular paragraph of the letter, as it was not relevant to their investigation. Thus IPP 9 did not apply, as it requires checking the accuracy of the information before ‘use’.

Therefore no breaches by the Police were found.

Complaints regarding the Department of Education

In contrast to the Police, the Department of Education accepted that the letter included personal information about GA.

GA argued breaches of IPP 5 (security) and 9 (accuracy) by the Department of Education but failed to produce evidence to support his claims, and these aspects of his complaint were dismissed.

GA also claimed a breach of IPP 10 (use). The Department of Education argued that the school principal had disclosed the information without using it. The Tribunal accepted this assessment, noting the distinctions drawn between ‘use’ and ‘disclosure’ in earlier cases such as FM v Macquarie Uni [2003] NSWADT 78. Therefore no breach of IPP 10 was found.

The Department of Education accepted that the letter disclosed personal information about GA to the police, and that the disclosure did not comply with IPP 11 (s.18). However the Department argued that the non-compliance was authorised by an exemption.

The Department claimed exemptions relating to law enforcement (s.23(5)(a)-(b)), investigations (s.23(5)(d)(ii)), the ‘other law’ exemption (s.25) and a direction by the Privacy Commissioner under s.41.

The Tribunal followed an earlier interpretation of ‘law enforcement purposes’ from the case of JD v Department of Health (No 2) [2004] NSWADT 227, which included disciplinary action under an Act for breaches of professional standards.

The Tribunal found the school principal supplied the information for the sole purpose, “rightly or wrongly”, of assisting the police investigation – even though the information was neither relevant nor used in the investigation. The exemption in s.23(5)(a) did not require relevance, necessity or “reasonable belief” – only a purpose for the disclosure of law enforcement purposes. The Tribunal accepted the exemption was made out in this case.

GA’s claim in relation to IPP 11 was therefore dismissed.

Anna Johnston, Salinger & Co.