BN v Hornsby Shire Council [2008] NSWADT 250

CITATION: BN v Hornsby Shire Council [2008] NSWADT 250

DIVISION: General Division

APPLICANT BN PARTIES: RESPONDENT Hornsby Shire Council

FILE NUMBER: 073239

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 In person REPRESENTATION: RESPONDENT I Woodward, solicitor

ORDERS: 1. The decision under review is affirmed.

REASONS FOR DECISION 1 These proceedings have been commenced by the applicant seeking review of a decision made by the respondent under the primary legislation. He seeks 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 applicant 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 applicant accepted this, in part, at hearing and also in his written outline (exhibit A2, page 4, last paragraph). The applicant 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 in identifying the precise nature of the issues for determination and in ascertaining what parts of the evidence are relevant so that they may be taken into consideration. 3 Whilst the applicant was able to articulate arguments well, it became clear as the hearing progressed that he had little understanding of how he could effectively adduce relevant evidence and put submissions that were directly in point. This is not meant to be critical, as the applicant was simply endeavouring to assist 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 applicant initiated the process by submitting an internal review application to the respondent around 29 May 2007 (exhibit R3, page C-001). This is clearly an application in relation to a privacy complaint the substance of which is that the respondent's officers had formed a particular view about the applicant and had disseminated this view in communication with others, government entities such as the Office of the Ombudsman in particular (see section 5 thereof). The complaint was particularised in various ways in section 6 of the document so as to invoke consideration of many of the relevant privacy principles relating, inter alia, to collection, use and accuracy. There is no substance in the allegations that there has been improper collection, storage, use (apart from acts of disclosure) and refusal of access. Equally, the allegation that information held is not accurate is not made out on the evidence. The information in question was unsolicited and it was securely kept and properly used for dealing with the issues that the applicant had raised. The respondent's investigations into these several allegations are set out in exhibit R3 at pages C-007 ff. At the end of the day, the applicant accepted at hearing that the true issue here is the disclosure of information to third parties, as his initial application alleges. 5 The applicant's case is that his personal information was disclosed to Council staff by way of memoranda and to government agencies (The Office of the Ombudsman, the Department of Local Government and ICAC). It is common ground that the respondent did disclose personal information about the applicant to these several recipients (R3, page C-006). The relevant facts are in short compass. On or about 26 May 2006 a Council officer made a tentative determination that future communications from the applicant would only be responded to where they raised serious issues for consideration (R3, page C-011). The officer advised the General Manager of this decision and invited the applicant to make any submissions he should wish before the determination became absolute. On or about 02 March 2007 this determination was affirmed and the government agencies were notified about this (exhibit R3 pages C-19, 20 and 21) pursuant to clause 18 of the respondent's then current policy (see now clause 22 exhibit R4 page P-76). These are the relevant acts of disclosure, which the applicant relies upon in these proceedings. These agencies were notified that the demands of the applicant were significantly and unreasonably diverting resources and that future communications would only be responded to where they raised specific, substantial and serious issues. 6 It is perhaps difficult to see these particular items of information as being personal information about the applicant. Rather, they inform the recipients of the view taken by the respondent that the repeated communications from the applicant are diverting resources and about the steps they have decided to take in response to this. Thus these particular items seem personal to the respondent, rather than to the applicant. However, as the communications do inform the recipients that the applicant has made numerous demands of the respondent and they identify the applicant, the s.4 definition of personal information is satisfied on the facts. Further, the view taken by the respondent and the steps that it had decided to take in relation to future communications from the applicant clearly do concern him as well. 7 Therefore the respondent did hold at relevant times information personal to the applicant within s.4 of the Act. That information consisted of the fact that he had made numerous demands as well as the fact that the respondent viewed his conduct as diverting resources and would decline to correspond with him further unless the issue raised is serious. This information was disclosed to the named government agencies as the applicant alleges, there being no issue on this point. At hearing the applicant did not press the argument that the respondent, by informing its employees of the position, had breached any privacy principles. 8 Section 18 of the Act prohibits disclosure of personal information that is in fact held by the respondent. Whilst the respondent did not solicit any of the relevant information, section 4(4) of the Act provides that information is held by an agency where it has possession or control of it. Thus s.18 has application where an agency has not taken any steps soliciting the information, that is, where the information has not been collected by an agency within section 4(5) but has been provided to it simpliciter. It also has application where the information disclosed about the applicant is in the nature of opinions that the respondent, or its officers, have formed about the applicant. This is the case here. However, this prima facie absolute prohibition is qualified by sections 18(1)(a) & (b) and sections 25, 26 and 28 of the Act. These sections have potential application here, but the respondent relied upon section 18(1)(b) primarily. 9 By letters dated 02 June 2006 and 24 January 2007 to the applicant, the respondent invited comment as to the extent of the applicant's earlier communications and the respondent's proposed decision and advised that it intended to report its actions to the Department of Local Government and the office of the Ombudsman. In relation to disclosures to these two entities, section 18(1)(b) clearly has application. The advice that the respondent was acting pursuant to its policy demonstrates that this was the usual procedure followed in like matters. However, these letters did not refer to making any report to ICAC so that this sub-section does not apply to this disclosure. 10 However, section 18(1)(a) of the Act has a potential application to this disclosure to the Ombudsman. The section applies to any personal information in fact held by the respondent about the applicant, irrespective of the manner in which it came to be held. Despite this, one of the elements that must be established is that the disclosure be directly related to the purpose for which the information was collected. The respondent did not in fact solicit the information: it was either provided by the applicant without request or it was the product of deliberations of Council officers. The better view is that the word collected in section 18(1)(a) does not require acts of solicitation by an agency so as to bring the relevant information to the files maintained by an agency: for the purposes of this sub-section the information may be collected in any manner. This is consistent with the broad reach of s.18 to any information in fact held by an agency. Also, section 18(1)(a) does not in its terms refer to information collected by an agency. 11 The next question is whether the disclosure of the information to ICAC was directly related to the purpose for which the information was collected, in the sense that this means the purpose for which the information was provided. The purpose with which the applicant provided parts of the information was to seek action by the respondent to address the issue raised in each particular communication. The respondent no doubt understood this to be the case. Apart from addressing the issues raised by the applicant in his many communications, the respondent was motivated to consider how it should respond to the multiplicity of these communications, as it was clearly entitled to do. Having determined that it would limit its future responses to further communications from the applicant the respondent then made the subject disclosure to ICAC pursuant to its then current policy in such cases. The respondent does not assert that it was under any statutory obligation to do so. This clearly was a responsible step to take in the circumstances. 12 Clearly, a disclosure, which furthers the purpose of collection, would fall within the section. However, the relationship of which section 18(1)(a) speaks between the act of disclosure and the purpose with which the information is collected is not confined by its terms to disclosures falling within the scope of the purpose nor to disclosures which further that purpose. It is possible that the act of disclosure may be directly related to a particular purpose in other ways, and a direct relationship is all that is required. Still, the relationship must be a direct one. 13 The information that was disclosed to ICAC in this case is shown in exhibit R3 page C-019. The respondent disclosed that the applicant had made numerous and continuing requests from the applicant and that this was diverting the respondent's resources unduly and consequently the respondent only proposed to answer future communications that raised specific, serious and contemporary issues. It is possible to see a broad purpose with which the applicant made these several communications, namely, by making complaint where necessary, to ensure that the respondent carried out its functions properly in the manner that the applicant thought appropriate. This was a continuing purpose. The disclosure to ICAC was directly related to this broader purpose because the steps taken by the respondent circumscribed that purpose so that in future the respondent would only consider communications which met certain criteria that it had imposed. Further, in the circumstances, the Tribunal is satisfied that the respondent had no reason to believe that the applicant would object to the disclosure that was made to ICAC. Consequently, section 18(1)(a) has application to this disclosure. the Tribunal notes in this regard that, as this sub-section was not specifically pressed by the respondent, the applicant has had no opportunity to respond to it. 14 Whilst it may well have been apposite for the respondent to press submissions based on sections 25 or 26 of the Act, this did not eventuate and the Tribunal, in the absence of argument in point, does not express any view as to the application of these sections. 15 If the correct position be that section 18(1)(a), on its proper construction, has no application to the disclosure to ICAC, the Tribunal, in such circumstances, would take no action on the matter pursuant to sections 55(2) of the Act, given the same disclosures made to the Office of the Ombudsman and to the Department of Local Government and the fact that the disclosure to ICAC was for the purpose of notifying that body of the respondent's determination with respect to the applicant, should review or comment be appropriate. 16 As the respondent has not acted in breach of the primary legislation the respondent's decision is affirmed.