WL v Randwick City Council [2007] NSWADT 12

Set aside by Appeal : Set Aside by Appeal on 5 October 2007: WL v Randwick City Council (GD) [2007] NSWADTAP 58

CITATION: WL v Randwick City Council [2007] NSWADT 12

DIVISION: General Division

APPLICANT PARTIES: WL RESPONDENT Randwick City Council

FILE NUMBER: 063139

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 13 September 2006

DATE OF DECISION: 10 January 2007

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Jurisdiction

MATTER FOR DECISION: Principal matter

Environmental Planning and Assessment Act 1979 LEGISLATION CITED : Local Government Act 1993 Privacy and Personal Information Protection Act 1998

Commissioner of Police v District Court of NSW 31 NSWLR 606 CASES CITED: Re Colakovski and Australian Telecommunications Commission (1991) 29 FCR 429 WL v La Trobe University (General) [2005] VCAT 2592

APPLICANT In person REPRESENTATION: RESPONDENT A Seton, Solicitor

ORDERS: The application is dismissed for want of jurisdiction

REASONS FOR DECISION 1 In these reasons the names of all private individuals have been anonymised so as to preserve the privacy of their personal affairs. In these reasons the Applicant is referred to as WL. 2 This an application pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 ("the Privacy Act") for a review of the conduct of the Randwick City Council in relation to its dealing with alleged personal information of WL. WL alleges that the Council being 'a public sector agency' as defined in the Privacy Act has contravened information protection principles ("IPPs") contained in Division 1 of Part 2 of the Privacy Act. Background 3 With the exception of some minor details, the background to this application is generally agreed. WL was at all relevant times the owner and lessor of the residential premises in a block of units ("the block") in Coogee ("the Premises"). In June 2005 the Council received a complaint that renovations had been carried out on the Premises for which the complainant believed no development application had been lodged. On 7 June 2006 a Council Officer (Mr Kerr) attended the block and was allowed entry to the Premises by a person who was apparently in occupation and carrying out work there at the time. Mr Kerr took photographs of various internal and external aspects of the Premises ("the photographs"). 4 The following day, Mr Kerr had a telephone conversation with a solicitor in the employ of Bright & Duggan Pty Ltd, the Manager of the Owners Corporation for the Strata Plan within which the Premises is situated ("the Strata Managers"). He later forwarded a copy of the photographs to the solicitor. 5 On the same day the Council issued a Notice of Intention to give an Order under Section 121B of the Environmental Planning and Assessment Act 1979 ("the EPA Act") in terms of Order No. 12. That Notice of Intention ("the Notice") was issued by the Council and signed by Mr Kerr in his capacity as a Planning and Environment Compliance Officer. Mr Kerr subsequently forwarded a copy of the Notice to the Strata Managers. The Alleged Contraventions 6 The conduct which WL alleges was in contravention of the IPPs is: i. that a Council Officer entered the Premises without consent and prior notification; ii. that a Council Officer took the photographs without consent and prior notification; iii. that a Council Officer forwarded copies of the photographs to an employee of the Strata Managers without WL's knowledge, consent and prior notification, and without taking any reasonable precautions to protect the forwarded information against further dissemination; and iv. that a Council Officer forwarded a copy of the Notice to the proprietors of the Strata Plan in which the Premises are situated without WL's knowledge, consent and prior notification, and without taking any reasonable precautions to protect the forwarded information against further distribution, and that the Notice contained incomplete and misleading information, including WL's name and investment property address. The Orders Sought 7 The orders that WL is seeking in these proceedings are: i. that the Council request the Infringement Processing Bureau to withdraw the penalty infringement notice that has been issued by the Council to WL under the EPA Act; ii. that the Tribunal investigate the Privacy Act breaches related to Council's dissemination of private information to third parties; iii. that the Tribunal brings the matter to the attention of the Minister for Local Government; iv. that the Council be ordered to take specified steps to remedy any loss or damage suffered by WL as a result of the Council's conduct; v. that the Council pay to WL damages of $40,000.00 as compensation for any loss or damage suffered because of the Council's conduct. Jurisdiction 8 The Council contends that the Tribunal has no jurisdiction to determine this application because none of the conduct which is alleged falls within the ambit of the Privacy Act as it does not involve or concern 'personal information' as defined in that Act. 9 The question of the Tribunal's jurisdiction is to be determined as a preliminary issue. Applicable Legislation 10 The term 'personal information' is defined in section 4 of the Privacy Act. Subsection 4(1) relevantly provides: "4 Definition of "personal information" (1) In this Act, "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 whose identity is apparent or can reasonably be ascertained from the information or opinion." 11 Subsection 3 provides for a number exceptions to the more general definition found in subsection 4(1). Subsection 4(3)(b) provides: "(3) Personal information does not include any of the following: … (b) information about an individual that is contained in a publicly available publication" 12 Section 10 provides for steps to be taken by an agency when collecting personal information: 10 Requirements when collecting personal information If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following: (a) the fact that the information is being collected, (b) the purposes for which the information is being collected, (c) the intended recipients of the information, (d) whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided, (e) the existence of any right of access to, and correction of, the information, (f) the name and address of the agency that is collecting the information and the agency that is to hold the information. 13 Section 17 provides for limits on use of personal information: 17 Limits on use of personal information A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless: (a) the individual to whom the information relates has consented to the use of the information for that other purpose, or (b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or (c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person. 14 Section 18 provides for limits on disclosure of personal information: 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it. 15 Section 41 provides for a written direction by the Privacy Commissioner to exempting agencies from complying with specified IPPs and codes: 41 Exempting agencies from complying with principles and codes (1) The Privacy Commissioner, with the approval of the Minister, may make a written direction that: (a) a public sector agency is not required to comply with an information protection principle or a privacy code of practice, or (b) the application of a principle or a code to a public sector agency is to be modified as specified in the direction. (2) Any such direction has effect despite any other provision of this Act. (3) The Privacy Commissioner is not to make a direction under this section unless the Privacy Commissioner is satisfied that the public interest in requiring the public sector agency to comply with the principle or code is outweighed by the public interest in the Privacy Commissioner making the direction. 16 The Direction on Processing of Personal Information by Public Sector Agencies in relation to their Investigative Functions ("the section 41 Direction") issued by the Acting Privacy Commissioner under section 41 on 19 December 2003 provides in part: This Direction is to apply to each public sector agency, as defined in section 3 of the Privacy and Personal Information Protection Act (the PPIP Act), which is listed in the schedule to the Direction (relevant agency). This Direction applies to the collection, storage, use and disclosure of personal information for the purpose of the exercise by a relevant agency of its investigative functions. This Direction will not apply to "health information", as defined in section 6 of the Health Records & Information Privacy Act 2002 (HRIP Act), from the date of commencement of the HRIP Act, which is expected to be 1 July 2004. A relevant agency need not comply with sections 9, 10, 13, 14, 15, 17, 18, or 19(1) of the PPIP Act if non-compliance is reasonably necessary for the proper exercise of any of the agency's investigative functions or its conduct of any lawful investigations. The provisions of paragraph 4 of this Direction are not intended to override and do not override any other legal requirement dealing with the collection, use or disclosure of information by a relevant agency. For the purpose of this Direction: "investigation" of a matter includes any examination of or any preliminary or other inquiry, including but not limited to a preliminary inquiry within the meaning of the Public Sector Management Act, into the matter. This includes matters where it is decided to take no further action on the information and matters which arise by way of complaint or otherwise; "investigative functions" of an agency refer to those functions that are directly related to a lawful investigation and that are necessary for the conduct of that lawful investigation; "lawful investigation" means an investigation carried out by an agency under specific legislative authority or where the power to conduct the investigation is necessarily implied or reasonably contemplated under an Act or other law. It covers only those investigations which may lead to the agency taking or instituting formal action in relation to the behaviour under investigation. Such formal action may include, but is not limited to, prosecution, warning, cautioning, the administration of a penalty or the removal of a benefit or approval" 17 The Council is listed in the schedule to the Direction. The Council's Submissions 18 The Council submits that in order for the Privacy Act to have any application and the Tribunal to have jurisdiction to deal with an allegation that the conduct of a public sector agency was in contravention of an information protection principle that applies to the agency it is firstly necessary that the conduct concern 'personal information'. 19 The Council contends that the mere attendance or entry of Mr Kerr to the Premises does not of itself amount to 'information or an opinion' about an individual. The question of whether or not Mr Kerr has lawfully attended or entered the Premises is not a matter in respect of which the Privacy Act has any application. 20 The Council further contends that there was no 'personal information' collected as a result of the attendance at the Premises. The photographs that were taken by Mr Kerr did not identify any individual or contain information about an individual whose identity was apparent or could reasonably be ascertained from the photographs. Accordingly, the Council submits, even if the entry was unlawful it was not related to nor did it concern the collection of any 'personal information'. 21 The Council relies on views expressed in the Victorian Civil and Administrative Tribunal decision in WL v La Trobe University (General) [2005] VCAT 2592 where Deputy President Coghlan stated: "17 For the applicant's identity to be apparent, one would need to be able to look at the information collected and know or perceive plainly and clearly that it was information about the applicant. Thus for example, one's identity would be "apparent" if the information mentioned one's name or was a photograph of a person. … Is the applicant's identity "Reasonably Ascertainable" from the information? ... The reference to "reasonably" in the context in which it appears in the definition of "personal information" indicates that whether an individual's identity can reasonably be ascertained is not assessed in a vacuum. The particular information and the circumstances will be relevant to the question of reasonableness. For example, it is not to be assessed as if the information were freely available to all the world where it is not. Taking moderate steps, can the identity of a person be ascertained from the information collected and recorded during the interview? Adopting the dictionary definitions and the ordinary meaning of the words used, the applicant's identity must, reasonably in the circumstances, be able to be found out or determined as a definite or certain fact from the information collected and recorded during the interview before it can be considered as personal information. In that way, the definition is reflexive: whether information is "personal information" depends on its capacity, alone, to yield an individual's identity in the context of the particular circumstances." 22 The Council submits that WL's identity is not apparent from the photographs nor is WL's identity reasonably ascertainable from the photographs as it would take more than moderate steps to determine WL's identity from the photographs. Accordingly, the photographs do not involve 'personal information'. If this is correct, it follows that the forwarding of the photographs by Mr Kerr taken does not involve 'personal information'. 23 For the purposes of submissions the Council conceded that the copy of the Notice forwarded to the Strata Managers contained WL's name and address. It submits that it is a question of fact in every case as to whether or not the name or address of a person amounts to 'personal information'. The Council relies on views expressed by Justice Lockhart in Re Colakovski and Australian Telecommunications Commission (1991) 29 FCR 429 at [27]: 27. There is a real question as to whether the name and telephone number of a person can answer the description of "information relating to the personal affairs" of that person under s. 41(1). Viewed as an abstract conception I would be inclined to the view that it could not, but such questions are not considered by Courts in the abstract. The present case must be approached on the basis that the relevant documents containing the deleted material state the names, addresses and telephone numbers of persons making the calls or of the subscriber. Plainly enough it would be revealed from the documents when the telephone calls were made, the telephone number from which they emanated, the name of the subscriber, and, at least in some cases the name of the caller and perhaps a pattern of telephone calls. 24 The Council relies on views expressed in Commissioner of Police v District Court of NSW 31 NSWLR 606 (Perrins case). Kirby P. (as he then was) observed at pages 624-5: "The result of these authorities and of the plain language of the exemption is that in each case where the exemption is invoked, the decision-maker must consider whether disclosure of a name appearing in documents of the agency to which access is requested amounts to disclosure of information concerning the "personal affairs" of the person named. It is appropriate to go beyond the deleted words and to examine the document as a whole when considering whether the words disclose information concerning the personal affairs of the person named: cf Re Wong and Department of Immigration and Ethnic Affairs (1984) 2 AAR 208 at 210. There is no simple rule that disclosure of the name of a person will in every case amount to disclosure of information concerning the named person's "personal affairs". The Commissioner so submitted. However, I would reject that submission. It is true that disclosure of a name will disclose information concerning the person. But the submission pays insufficient attention to the composite phrase "the personal affairs". The importance of the word "affairs" has been emphasised in the Federal Tribunal: see, eg, Re Corkin & Department of Immigration and Ethnic Affairs (1984) 2 AAR 214; Re Wong and Department of Immigration and Ethnic Affairs (at 211). That word is to be interpreted as it is commonly understood in ordinary speech." 25 The Council submits that the information contained in the Notice is not information about the individual rather when read in context it is information about alleged unauthorised work that has been carried out on a premises. The Council submits that the information contained in the Notice is information about work carried out on a building and things that the Council was proposing to order to be done in respect of that building. It is not a document that discloses anything about the Applicant. The only information about WL contained in the Notice is WL's name and address. Such information was publicly available in Council's rates records which may be inspected pursuant to section 12(6) of the Local Government Act 1993. 26 The Council agrees that a 'Notice of Intention to Give an Order' dated 22 June 2005 ("the second Notice") was forwarded to the Proprietors of premises in the strata plan. It submits that the second Notice contained no information about an individual whose identity is apparent or can reasonably be ascertained from the information contained in the notice. It is in fact a notice proposing to require the proprietors of the strata plan to do certain things and does not mention WL at all. 27 Accordingly, the Council submits, that information would not be 'personal information' due to the operation of section 4(3)(b) of the Privacy Act which excludes 'information about an individual that is contained in a publicly available publication'. 28 In the alternative, the Council submits that if the Notice did contain personal information it was disclosed in the exercise of the Council's 'investigative functions' under the EPA Act as defined in the section 41 Direction and that it is therefore exempt from compliance with section 18 of the Privacy Act. WL's Submissions 29 WL provided detailed submissions in support of his argument that the Tribunal has the jurisdiction to determine this application. WL was not legally represented and objected to the Council having legal representation. I do not agree with the request that the Council be prevented from having legal representation. 30 WL's submissions comprise 41 pages. Most of that material is not relevant to the issue to be determined. It focuses on the assertion that Council's entry to the Premises was unlawful, that assertions made in relation to the work at the Premises are inaccurate and that the Notice wrongly alleges WL's breach of provisions of the EPA Act. It also elaborates on WL's assertion that the Council intentionally provided misleading information as a part of their cover-up actions. 31 Of relevance to the jurisdictional issue, WL argues that the photographs do expose WL's identity within the Strata without any effort assumed and carry great capacity to expose the identity of the unit's owner within the Owners Corporation. At the relevant time WL was an active member of the Owners Corporation. 32 WL argues that the conduct complained about concerns 'personal information'. It is asserted that the purpose of the Notice is to notify an individual held responsible about possible action resulting from an alleged breach of law and alleged structural damage to a building. As such, the Notice directly connects the allegations disclosed in the Notice to the person concerned. WL argues that for this reason the allegations together with the name and address revealed in the Notice, satisfy the definition of 'personal information' in the Privacy Act. 33 WL asserts that sending the photographs together with the address of the Premises to the Strata Managers in one email file disclosed WL as an owner, and a person responsible for the unit. The Notice was addressed to WL. Therefore sending it to the Strata Managers clearly disclosed WL's name and address. The second Notice was sent to all Proprietors of the Strata Plan. WL asserts that the second Notice contained incomplete, incorrect, and damaging allegations, disclosed 'personal information', and described the 'personal affairs' of the Applicant without any protection against further misuse. WL asserts that a number of IPPs were breached by that act. Findings 34 Copies of the photographs, the Notice the second Notice are in evidence. I have examined those documents. 35 I agree with the Council that the photographs do not identify any individual or contain information about an individual whose identity was apparent or could reasonably be ascertained from them. Accordingly, I agree that they do not fall within the definition of 'personal information' in section 4 of the Privacy Act. Provision of the photographs to the Strata Managers cannot therefore be in breach of any IPPs. 36 The Notice is a document that identifies WL and the Premises. It makes certain allegations and requires WL to do certain things. The possible 'personal information' is WL's name and address. I agree that the authorities to which the Council has referred me are relevant to this matter. It is a question of fact in every case as to whether or not the name or address of a person amounts to 'personal information'. I am satisfied that the information that could be readily ascertained from the Notice or from a combination of the Notice and the photographs is information that is readily accessible pursuant to section 12(6) of the Local Government Act 1993 and is within the scope of subsection 4(3)(b) of the Privacy Act. In the circumstances of this matter I do not consider that the information is within the definition of 'personal information' in section 4 of the Privacy Act. 37 It is apparent from the face of the 'Notice of intention to give an Order' dated 22 June 2005 that it is addressed to the Proprietors of premises in the strata plan. It clearly identifies the Premises but does not identify WL. I accept that it is probable that individuals with knowledge of the activities of the Owners Corporation may be able to identify this as a document that relates to WL, because of the knowledge of WL's ownership of the Premises. However I do not agree that this brings the information within the definition of 'personal information' in section 4 of the Privacy Act. Again, this is information that is readily accessible pursuant to section 12(6) of the Local Government Act 1993. 38 In my view, none of the information to which WL has referred is information that falls within the definition of 'personal information' in section 4 of the Privacy Act. It follows that the Tribunal has no jurisdiction to hear and determine this matter. 39 In any event, I am satisfied that the section 41 Direction applies to the Council's action in disclosing the information to the Strata Managers and the Proprietors of premises in the strata plan. The Council is therefore exempt from compliance with section 18 of the Privacy Act. Order The application is dismissed for want of jurisdiction.