BB & BW v Hornsby Shire Council [2008] NSWADT [2008] NSWADT 247

CITATION: BB & BW v Hornsby Shire Council [2008] NSWADT [2008] NSWADT 247

DIVISION: General Division

APPLICANT BB and BW PARTIES: RESPONDENT Hornsby Shire Council

FILE NUMBER: 073240

HEARING DATES: 27 February 2008

SUBMISSIONS CLOSED: 27 February 2008

DATE OF DECISION: 2 September 2008

BEFORE: Wilson R - Judicial Member

CATCHWORDS: access to documents - personal affairs

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Privacy and Personal Information Protection Act 1998

APPLICANT P Waite, agent REPRESENTATION: RESPONDENT I Woodward, solicitor

ORDERS: 1. The decision under review is affirmed.

REASONS FOR DECISION 1 These proceedings have been commenced by the applicants seeking review of a decision made by the respondent under the primary legislation. They seek redress upon the basis that the respondent has acted in breach of privacy principles established by this legislation. The proceedings were heard on 27 February 2008 together with two other proceedings as some of the evidence was common to all three matters. This was a consensual arrangement between the parties as a matter of convenience to them. However, even though these three proceedings were heard on the same day they have been heard as separate matters. The several exhibits have been noted accordingly. The parties are aware that separate determinations will be made by the Tribunal. 2 One difficult consequence of this approach though has been that the agent acting for the applicants has put before the Tribunal a large volume of documents that have little relevance to the three applications that the Tribunal heard on 27 February 2008. The agent accepted this, in part, at hearing and also in his written outline (exhibit A2, page 4, last paragraph). This agent has a number of issues relating to the respondent which he is seeking to agitate, partly in the current proceedings under consideration and partly in other proceedings which are pending. This has made it difficult for both the Tribunal and the respondent to identify the precise nature of the issues for determination and to ascertain what parts of the evidence are relevant and, as such, should be taken into consideration. 3 Whilst the applicants' agent was able to articulate arguments well, it became clear as the hearing progressed that the agent had little understanding of how he could effectively adduce relevant evidence and put submissions that were directly in point. By way of example, the agent submitted during the course of these proceedings that a submission that he had put to the respondent was not taken into account by it, as it should have been, and, in addition, that the respondent ought to have dealt with a particular development application in a discretionary way by endeavouring to resolve the dispute between the applicants and the entity which had lodged the development application. This is not meant to be critical, as the agent was simply endeavouring to assist the applicants to the best of his ability. However, it has meant that the Tribunal has had to peruse a large amount of irrelevant materials in order to discern the specific issues that are required to be determined. This of course occurs from time to time when applicants are not legally represented. When it does, an applicant will often find that many of the arguments presented to the Tribunal are not dealt with because they have no true relevance to the issues at hand. The Tribunal is a statutory body which cannot exceed its jurisdiction and powers. 4 In relation to the matter here under consideration, the applicants initiated the process by submitting an internal review application to the respondent around 29 May 2007. This was done through an agent, who is also named as an aggrieved party (the application is contained in exhibit R1, page B-001). Whilst this is clearly an application in relation to a privacy complaint the respondent found that the scope of the application was difficult to determine, although it is clear that the complaint had a nexus with a particular development application that the respondent had considered in the past. Whilst the nature of the complaint is not articulated in the application form (see section 6, R1 B-001) it is clearly asserted that the respondent made public certain information obtained in relation to the development application (see section 5). Given this, the respondent was able to identify what personal information it possessed in its files in relation to the applicants and conducted an investigation to ascertain whether any of this information was incorrectly collected or dealt with, as the correspondence in exhibit R1 shows. 5 It was argued at hearing that, together with the development application, the respondent had received a document (the first petition) containing, inter alia, information personal to the applicants which had been gathered by the person (a legal entity) which had submitted the development application. At a later stage the respondent publicly sought comment in relation to this development application following which a further document (the second petition) was submitted to the respondent. This second document also contained information personal to the applicants. The fact that these two documents contained information personal to the applicants is not in dispute in these proceedings. The respondent ascertained that this was the position and then reviewed the application for internal review. A determination was made that the respondent had not dealt with any of the applicant's personal information in these two documents in breach of the primary legislation (exhibit R1, page B-014). 6 However, it was also argued at hearing that there was an additional issue. During consideration of the development application a public meeting was convened by the respondent on 02 May 2007 during the course of which further information personal to the applicants was revealed and which, because the meeting was recorded, became information which was held by the respondent (in the sound recording of the meeting). This is common ground. The applicants then submitted that this information was incorrectly dealt with in breach of the primary legislation. This same issue was in fact raised during the course of the internal review and the respondent elected to treat it as being within the scope of the internal review complaint. The same course has been followed in these proceedings. There is a difficulty with this as the application for internal review appears to confine itself to information in fact collected by the entity which lodged the development application and, in addition, the meeting was held on 02 May 2007 which is outside the period specified in the internal review application (being between October 2006 and March 2007). However, the respondent takes no issue about this and as it is quite a responsible position to adopt the Tribunal will follow the course proposed by the parties. 7 It is generally clear that the agent who lodged the privacy complaint for the two applicants has long running issues with the respondent as to several different matters. However, these proceedings are only concerned with issues arising under the primary legislation, and nothing else. The evidence adduced and submissions put by the applicants are difficult to follow, but the gist of their complaint may be adequately ascertained by reference to the evidence that the respondent has brought to the proceedings. There is much evidence that is common ground. The factual matrix concerning the development application and the two petitions has been noted above. The primary issue is whether the respondent has dealt with any of the personal information it obtained in breach of the requirements of the Act. 8 In relation to the information obtained by way of the two petitions the respondent submits that the first petition was provided voluntarily with the development application itself whilst the second was the result of its statutory duty to seek public comment. When inviting such comment the respondent advised interested persons that submissions received would be made available to third parties upon request (exhibit R2). There is no real issue here concerning the collection of the information. However, the applicants assert that this information was, in some way, made public, and this is the true gist of their complaint. The respondent issued a written report in relation to the development application. This report is in evidence as part of exhibit R1 (commencing at page B-021). This report notes the large number of submissions that were received from various interested bodies and persons (page B-022) and it summarises those submissions (at pages B-029ff). The respondent submits that the report is expressed in general terms so that the identity of the source of the information contained therein is not revealed. A perusal of the report shows that this submission is correct so that no information personal to the applicants was disclosed in that report. The applicants, at hearing, did not submit that their personal information derived from the two petitions was disclosed in any other way. 9 The meeting convened by the respondent on 02 May 2007 was in public session. Sufficient notice was given that the meeting would be recorded and made available to members of the public upon request (exhibit R1, pages B-052 and 053). It is common ground that the sound recording identifies persons by place of residence and that on occasions the person speaking for the applicants at this meeting mentioned them by name. However, it is quite clear on the evidence before the Tribunal that this information as disclosed at the meeting is information that is available in a publicly available publication within section 4(3)(b) of the primary legislation and therefore is not personal information for the purposes of the Act. 10 Consequently, the Tribunal finds that the respondent has not acted in breach of the primary legislation as is alleged in these proceedings and affirms the decision under review.