GR v Department of Housing [2003] NSWADT 268

Set aside by Appeal : Set aside in part by Appeal on 30 June 2004

CITATION: GR v Department of Housing [2003] NSWADT 268 DIVISION: General Division APPLICANT PARTIES: GR RESPONDENT Director-General, NSW Department of Housing FILE NUMBER: 023239 HEARING DATES: 29/04/03, 16/07/03 SUBMISSIONS CLOSED: 08/13/2003 DATE OF DECISION: 12/17/2003

BEFORE: Robinson MA - Judicial Member APPLICATION: Privacy - information protection principle - disclosure to third party MATTER FOR DECISION: Principal matter Privacy & Personal Information Protection Act 1998 LEGISLATION CITED : Residential Tenancy Act 1987 State Records Act 1998 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT L Karp, barrister ORDERS: 1. The Tribunal determines not to take any action on the matter.

1 This is an application pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 (NSW) ("the Privacy Act") for a review of the conduct of a public sector agency, the respondent, in its dealing with alleged personal information of the applicant. It is alleged by the applicant that the respondent contravened a number of information protection principles (sections 8, 9, 10 and 11(collection issues), 12(d) (retention), 17 (use), 18 & 19 (disclosure) of the Privacy Act) and $20,000 damages sought is pursuant to section 55(2)(a) of the Act. The respondent's case is that there was no breach of the Act established and, if there was, exemptions from compliance applied and if they do not, there should be no damages awarded. 2 I am satisfied that the Tribunal has jurisdiction to hear the matter. 3 The application to the Tribunal was filed on 18 October 2002. The applicant complained of the release of confidential and personal details from his file to an employee of Radio 2UE and others. On 29 July 2002, the applicant made an application for an internal review under the Privacy Act to the respondent and the review was conducted by an officer of the respondent. The internal review was completed on 27 September 2002. 4 There was a hearing before the Tribunal on 29 April 2003. The applicant appeared for himself and the respondent was represented by a barrister. The Privacy Commissioner was represented by an employed solicitor. As the applicant was not represented, and, as he had not clearly spelled out with any precision that which he was seeking from the Tribunal, the bulk of the first day was spent in ascertaining the parameters of the applicant's case. The matter came on for hearing again on 16 July 2003 and was fully heard and oral evidence was taken from two witnesses. 5 After the hearing, written submissions were received on some limited issues (that I had sought further assistance on) from the Privacy Commissioner filed 1 August 2003, the applicant filed 13 August 2003 and the respondent filed 15 August 2003. 6 The internal review document (exhibit 1) sets out the two main allegations of the applicant. The first allegation relates to the disclosure of personal information to Radio 2UE on about 27 June 2002. The second allegation relates to something that was said by a contractor engaged by the Department to undertake building work for a friend of the applicant in about mid 2002. In addition, the applicant desires that some personal information that is retained on his file, in particular, some photographs of the applicant's premises that was rented from the respondent and some political signs which he placed out the front yard of the premises (exhibit six), be removed from his file. The First Allegation – Radio 2UE 7 Attached to the internal review document, which was tendered without objection by the respondent, is an affidavit of Mr David Maher, a senior media liaison officer employed by the respondent for many years and a two-page letter from Ms Jo Fowler, a researcher or assistant to the morning radio show of Mr John Laws. Ms Fowler stated that during the course of her duties with the John Laws Radio Show she fielded dozens of calls each day from people in need of assistance and many of those calls related to government bodies and agencies such as the respondent. She said that she took a call from the applicant seeking help to resolve his issue with the respondent. She said to him that she would need to contact the Department in order to seek "further details of his case" and he had no objection to that. She said "naturally, we need to discover both sides of the story" to work out if there is a solution to the problem. She then telephoned Mr David Maher of the respondent who had "always been very helpful in seeking to resolve these disputes". She said Mr Maher informed her that the applicant was well known to the Department and he had been involved in some other disputes in the past. He mentioned an incident in Queensland but did not elaborate. She then telephoned the applicant to inform him that an official from the Department would be getting in touch with him. He replied that this was not sufficient, citing a conspiracy theory against him and he started to get "aggressive" over the telephone. She commented that this was not the first time he had had a problem and mentioned the Queensland incident (whatever that was). The applicant reacted "angrily" asking how she was aware of such information and Ms Fowler ended the telephone call. Later that day the applicant phoned back to apologise for his behaviour and to inform her that she might be the subject of a subpoena to give evidence in the future. 8 Ms Fowler stated that none of these conversations were ever broadcast and no issue relating to Mr GR's complaint was ever broadcast. 9 Mr David Maher's affidavit states in more detail the events that occurred on 27 June 2002. His contemporaneous notes are also provided as an attachment to the affidavit. He said that Ms Fowler first told him that the applicant telephoned the radio station wanting to speak to Mr John Laws. He said the officers of the Department were harassing him and that he was disabled and about to have a nervous breakdown from the stress he is under. He was asked can the Department help him. Mr Maher then made some telephone calls to other offices of the respondent and found out about the applicant. He was told by an officer then dealing with the applicant that the applicant was "a known troublemaker" and that the applicant had an ongoing complaint against the respondent relating to or stemming from the removal of a screen door from the applicant's unit in December 2001. The respondent removed the screen door because it did not comply with the Building Code of Australia. The applicant did not want it removed and commenced legal proceedings against the respondent in the Residential Tenancy Tribunal. He was told that the applicant lost his Tribunal case and appealed to the Supreme Court of New South Wales and that this appeal had not yet been heard or determined. The applicant's housing movements were described to Mr Maher and he was informed that in an earlier time (in a city outside of Sydney) the applicant had put up some large public signs about the local council in the front yard of the residential property he rented from the respondent. The council had approached the respondent to have the tenant remove those signs as they were considered by the council to be rude and offensive. There were also complaints that since the screen door incident, the Department would not do things for the applicant (presumably, in its capacity as a landlord) and that female staff of the respondent would swear at him from time to time (which was denied). 10 Mr Maher then telephoned Ms Fowler and told her that the screen door matter was before the Supreme Court and that the Department knew the applicant very well. He explained to her the history of the screen door incident and, in response to Ms Fowler's question "why is he so obsessed with the screen door?" He said: "He is a known troublemaker and it goes back to previous tenancies. Before he was in [his current suburb] he lived in [a previous city]. I am told he displayed publicly visible signs that contained rude and offensive words. Complaints were lodged by neighbours to council and council asked the Department of Housing as landlord to have the signs removed. This is why he feels the Department of Housing is harassing him." 11 Ms Fowler stated that as the matter was still before the Court, she would leave it at that. 12 Mr Maher explained in his affidavit that he said what he did to Ms Fowler because he considered that as the signs were public in nature, the applicant could have no real objection to the descriptive nature of his statement. 13 The applicant set out his version of events in his letter dated 29 July 2002 which was his initial request for the internal review (exhibit A). In that letter, the applicant said he was told by Ms Fowler when she telephoned him back that she had been told he was a known troublemaker and that he had displayed (in a previous tenancy in a different city) "very rude signs" in his front yard. He told her that this information was private and should not be kept on the respondent's file. 14 The applicant also tendered some character references (exhibit B and exhibit E) which show that the applicant is well regarded by some people and he made a further more wide-ranging statement by way of a letter to the Tribunal dated 6 April 2003 (exhibit F). In that statement, the applicant set out some more of the history of his dealings with the Department. He said that there are a great deal of people within the Department who are of the opinion that he is a known troublemaker and that all senior staff within the Department have been told this. 15 The applicant also tendered a copy of a newspaper article published in the local newspaper on 2 July 1999 (exhibit C) regarding the applicant's political protest against the local council, and, against one local government councillor in particular. The signs from the applicant's front yard were clearly visible next to the photograph of the applicant that appeared in the newspaper article. 16 The respondent tendered into evidence 9 photographs that were taken of the applicant's previous property outside of Sydney (exhibit six). Those photographs depict about 10 large signs prominently displayed at the very front of the yard of the applicant and were taken on about 12 July 1999. They were very plainly a political protest and, in some respects, a very personal protest against a particular local government councillor. I have no doubt that some in the community there would have regarded some of the signs as being rude and offensive. They were plainly intended to be inflammatory, as they were made as part of the political statement of the applicant at that time. 17 I find that the events as set out by Mr David Maher, Ms Fowler (as best as she could remember them) and the applicant are accepted by the Tribunal. There does not seem to be any significant dispute as to the facts in relation to the first allegation. 18 The applicant alleges that the respondent breached sections 9,11 and 18 of the Privacy Act regarding collection and disclosure of personal information. The respondent properly conceded in submissions at the hearing that the information given was "personal information" within the meaning of the definition in section 4 of the Privacy Act. In my view, what was said by the Department's officer to the Radio 2UE employee was plainly "information or an opinion" regarding the applicant within the meaning of that definition. 19 The respondent primarily relied on the assertion that the applicant consented to the disclosure and that this was a sufficient answer. The consent was said to be express and the submissions were based upon sections 17(a), 18(1)(a) and 25 of the Privacy Act. It was contended that the collection provisions of the Act did not apply (sections 8, 9, 10 and 11) as the Act does not apply to collection of information made prior to the date of the commencement of Part 2 of the Privacy Act, which was 1 July 2000. The information in the first allegation that relates to the political protests came from 1999. However, the information relating to the screen door dispute began in about December 2001 (Exhibit 1). It is not known when the formation of the opinion of the applicant as a "troublemaker" commenced. 20 Notwithstanding the difficulties involved in considering the "collection" issues, I consider that in relation to the first allegation, the respondent breached section 18(1) of the Privacy Act by disclosing the applicant's personal information without the consent of the applicant (express or implied). The respondent argued that consent was express, or in the alternative, implied. If it was express consent, the exemption in section 26(2) might have been relevant (which exempts agencies from complying with sections 10, 18 or 19 if there is express consent to the non-compliance). The Privacy Commissioner made helpful and detailed submissions going to the interplay between section 26(2) and section 17(a) (to which the respondent responded in further detailed submissions) which will need to be explored in a future matter. For the present, I consider that the only matter that the applicant gave the Radio Station permission to inquire into concerned his particular dispute with the respondent, which primarily related to the screed door incident. The applicant certainly gave no permission or consent to the respondent to inquire about other matters (going back to July 1999). 21 The respondent points out in submissions that at one point in the Tribunal hearing the applicant stated that he said to Ms Fowler "ask [of the Department] whatever you like". Even so, I consider that remark related to the screen door case and was not permission for the Department to talk about the applicant generally of to disclose other or unrelated personal information, which is what I find occurred. I also note that the respondent's officer, on his own evidence, did not receive advice from Ms Fowler that she had obtained any permission at all from the applicant for him to discuss anything with Ms Fowler. He simply responded to her query about the applicant. The Second Allegation 22 The second allegation related to an incident in mid-2002 whereby a contractor of the respondent allegedly disclosed personal information of the applicant to a friend of the applicant. 23 In the internal review decision, the reviewer sought a statement from the contractor concerned, Mr Peter Fahd, of Maincom Pty Ltd, who provided a brief statement to the respondent concerning the alleged event. The reviewer also wrote to Ms Robin French, a friend of the applicant seeking her statement of events. However, she failed to reply and the reviewer went on to make a determination accepting Mr Fahd's version of events. That version denied the allegation (that he told Ms French that the applicant was a known troublemaker) and he stated that his dealings with the tenants of the respondent was always on a professional level. 24 The respondent put on a detailed affidavit from Mr Fahd (exhibit 3) which was received into evidence without objection. Mr Fahd also gave oral evidence and was cross-examined by the applicant. He spoke of attending a unit in order to undertake renovation work on behalf of the respondent in mid-2002. He said he had workers there employed by his company undertaking the renovation work and he was supervising them from time to time. He said that the applicant was at Ms French's unit for a while during that period while she was in hospital. He said that during that time, the applicant was "interfering" with his work and the work of his contractor or employees by approaching them (and him) and speaking to them on an apparently regular basis and asking them questions. He said that when Ms French returned from hospital he approached her, introduced himself and said that he would prefer to deal with her rather than applicant. He said she agreed. He specifically denied saying to her that the applicant was a known troublemaker but he agrees he did say to her that the applicant was causing him some difficulties. He said he did not speak to any officer of the respondent before these incidents. However, he did speak to an officer of the respondent afterwards and said that the applicant was causing him grief. He did not waiver from this evidence in cross-examination in any relevant respect. He impressed me as a witness and I accept his evidence. 25 The applicant tendered a statement to the Tribunal by Ms French (exhibit G). In that statement, Ms French set out the background to the incident and the difficulties of having building workers at her premises while she was in hospital and her concerns for the safety of her personal possessions and her privacy. She said in her statement that Mr Fahd came up to her upon her return from hospital and told her that the workers were complaining about the applicant "causing problems" for them and asked her if the applicant could be asked by her to stay away from her unit, otherwise, no further work could be undertaken by them on her unit. In cross-examination, Ms French agreed that her memory was not very good and that she had difficulties in that regard. She said that Mr Fahd's conversations with her were usually polite and she noted that at times other residents had been yelling at Mr Fahd relating to the building project generally. While she said in her statement that Mr Fahd made "reference" to the applicant being a known troublemaker within the Department, she did not give firsthand evidence to that effect. I find that her evidence in this regard in cross-examination revealed that she had more of an impression that Mr Fahd regarded the applicant as a troublemaker than that Mr Fahd actually said to her the words "the applicant is a well known troublemaker within the Department". 26 Where the evidence of Ms French conflicts with that of Mr Fahd, I prefer the evidence of Mr Fahd. His memory is better than hers. 27 I find that there was no disclosure of personal information in respect of the second allegation and there was no breach of the Privacy Act. Information Residing on the Respondent's Files 28 The applicant also complained of the respondent's practice of maintaining personal information relating to the applicant on the applicant's tenancy file. Specifically, the applicant complained of the Department retaining the photographs of the political signs out the front of a former property tenanted by the applicant in exhibit 6. He said the Department had no right to retain those photos on his file. 29 In the internal review decision, the reviewer found that material on the applicant's file included material relating to his tenancy with the respondent in several dwellings. He said that this material was properly on the file as part of the history of the applicant's tenancies with the respondent. The inference of this finding was that the information will stay on the applicant's file. 30 At the hearing, the respondent relied upon the affidavit of Mr Tony Calcopietro (exhibit 5) which was read without objection. Mr Calcopietro is a solicitor within the respondent who has knowledge of the functions and responsibilities of the respondent. His evidence was that the respondent owns a large number of residential properties in New South Wales. Its main function is to provide housing at reasonable rentals to persons (known as clients) who may not otherwise be able to find suitable accommodation. 31 He said that the statute which governs the respondent's making of records is the State Records Act 1998, in particular section 12(1) of that Act. He said that section was taken by him to mean that the respondent must keep a record of any contact that it has with client, any communication that it has with another person about a client, and any record made (presumably about a property) which is to be, or has been, occupied by a client. 32 He also gave evidence about the practical need for keeping records so that the respondent, in its capacity as a landlord, can properly match a property to a client and fulfil its obligations under the Residential Tenancies Act 1987 and the evidence required and matters that it appears in at the Consumer, Trader and Tenancy Tribunal. In those matters, (particularly pursuant to section 64(4) of the Residential Tenancies Act 1987) the Tribunal is to be informed about serious adverse effects the tenancy has had on neighbouring residents or other persons. Evidence on past tenancies with the respondent would therefore be relevant to the Department's evidence before the Tribunal and on other tenancy decisions. The affidavit also set out other reasons why the retention of the history of a tenant's conduct is relevant to a future housing allocation decision. 33 Section 12(1) of the State Records Act 1998 provides: "12 Records management obligations (1) Each public office must make and keep full and accurate records of the activities of the office." 34 Section 25 of the Privacy Act states: "25 Exemptions where non-compliance is lawfully authorised or required A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if: (a) the agency is lawfully authorised or required not to comply with the principle concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998)." 35 The respondent submitted that in compiling this information (not relevant in this case as the photographs were collected before the relevant provisions of the Privacy Act commenced) and in retaining this information on file, it complied with section 11 of the Privacy Act and section 12 of the State Records Act. 36 In written submissions filed after the hearing, the respondent also argued that the Privacy Protection Principles were modified in relevant respects in relation to the retention of the photographs by the respondent's Privacy Code of Practice which was registered in late November 2001 (exhibit 2) and was made pursuant to section 20(2)(a) of the Privacy Act. In that document (at page six) the respondent is authorised to investigate complaints about tenants and collect information indirectly concerning a tenant about whom may complain has been made. 37 In very detailed submissions by the Privacy Commissioner, the Commissioner argued that the State Records Act and the Privacy Act should be read together in harmony. It was said that it was difficult to know the basis upon which the applicant based his assertion that the photographs and "things" should not remain on the file. As I do not have evidence before me as to what is contained on the respondent's files I shall confine my determination to the photographs issue alone. It was said that it was not clear whether the applicant's claim rested on an alleged breach of sections 8(1), 11, 15 or 16 of the Privacy Act. 38 The Commissioner also attached a copy of the State Records Authority's 1998 "Standard on Full and Accurate Records" which provides a number of detailed principles and standards by which record should be kept in New South Wales under the State Records Act. The records that should be made in accordance with that document (in particular, principle six) are very comprehensive and arguably relate to almost any document that can conceivably be made or that comes to the attention of an agency in the exercise of its functions. 39 State records are to be protected by the operation of section 21 of the State Records Act and, in particular, section 21(7) provides that an Act enacted after the commencement of the section "is not to be interpreted as prevailing over or otherwise altering the effect or operation of this section except insofar as that Act provides expressly for that Act to have effect despite this section". The Commissioner then noted that there are several provisions in the Privacy Act that show an awareness of possible conflict with the State Records Act and suggest that there was an intention to reduce or minimise such conflict. 40 I was then referred to section 3 (the definition of "State record"), and sections 4(4), 20(4), 25 & 29(3) of the Privacy Act. The Commissioner submitted, inter alia, that the Tribunal was permitted to order deletion of records where it finds that their retention breaches 15 of the Privacy Act (alteration of personal information). 41 The respondent submitted that section 21(7) of the State Records Act prevails and unless the Privacy Act expressly states it overrides the former Act, it should not override it. Further, it was submitted that the Tribunal should read down section 15 of the Privacy Act (when it is read with the State Records Act) so as to hold that the only "amendments" that can properly be made pursuant to section 15(1) are notations made pursuant to section 15(2) of the Privacy Act. I am not prepared to give section 15 that operation and, because of the views I have formed, I do not consider I need to resolve the issue of the operation of the two statutes in the present case. 42 I consider that the respondent is perfectly entitled to retain on file the information it has adduced to the Tribunal in the photographs. The photographs depict the state of one of the rental properties of the respondent at a time in mid-1999, taken from across the road and showing signs publicly displayed by the applicant. Those images are relevant for the respondent to take into account from time to time in undertaking its various tenancy obligations in accordance with the evidence from Mr Calcopietro, which I accept. It is not alleged they are inaccurate or misleading and the respondent has demonstrated their potential use on the file. I cannot comment about what else the respondent or may not have on its file. It is not in evidence before me. The Orders That Should be Made 43 I have found there was a breach of the Privacy Act in relation to the first allegation. The applicant has asked the Tribunal to award him damages in the order or $20,000 pursuant to section 55(2)(a) of the Privacy Act which provides that damages can be ordered not exceeding $40,000 "by way of compensation for any loss or damage suffered because of the conduct". By the operation of section 55(4)(b), such an order can only be made if: "the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency." 44 I have not been asked by the applicant to make any further or other order in connection with this issue. 45 In the present case, there is no suggestion of relevant financial loss or physical harm. The evidence of the applicant was that, as a disabled person, he was left in a very confused state and he was anxious (exhibit F). He tendered a medical report from a general practitioner dated 7 May 2003 (contained in exhibit E) which was objected to by the respondent. That medical report states that the general practitioner has treated the applicant for over three years and that he has suffered during that time from severe anxiety, depression and insomnia. It also stated that he is being treated for tension headaches and pain clinic and this is also affecting his interpersonal relationships. It is said his stress has been aggravated greatly "by his dealings with the Housing Department". 46 This evidence from the general practitioner is not sufficient to establish that the applicant is suffering from a physical or psychological condition "because of the conduct of the public sector agency" complained of in relation to the first allegation which has been proved. In order to persuade the Tribunal to the level of satisfaction required by section 55(4)(b) of the Privacy Act, particular evidence is required that the conduct of the agency that is complained of in the proceedings (and not the conduct of the agency more generally) has caused the harm identified in the section. I do not find that the disclosure to Radio 2UE has caused to any relevant compensable loss or harm to the applicant. 47 I have also considered whether or not the Tribunal should make any other order pursuant to section 55(2) of the Privacy Act. Given that the applicant has not asked me to, the disclosed information did not go to air, that it partly related to a matter that was before the courts (the screen door incident) and the only disclosure that was not in some fashion on the public record was the respondent's officer's opinion that the applicant was considered a troublemaker, I do not consider that I should make any order or take any action on a matter in this particular case. The respondent is now the subject of an adverse finding. The evidence before me satisfies me that the respondent is generally aware of its obligations in connection with the Privacy Act as modified by the respondent's Privacy Code of Practice. The respondent also now utilises a General Collection and Disclosure Authority form (contained in exhibit E) which is intended to provide clear and express instructions regarding collection and disclosure of personal information. If it was available for use as at the time of the Radio 2UE incident, it would have been preferable that it was used. However, there was no evidence led to the Tribunal as to when the respondent first commenced use of the disclosure form. In any event, I am not satisfied that I should take any further action in this particular matter. Determination 48 The Tribunal determines not to take any action on the matter.