Set aside by Appeal : CITATION: KP v Narrandera Shire Council [2010] NSWADT 206 DIVISION: General Division APPLICANT KP PARTIES: RESPONDENT Narrandera Shire Council FILE NUMBER: 083362 HEARING DATES: 23 March 2010 SUBMISSIONS CLOSED: 27 April 2010 DATE OF DECISION: 19 August 2010 BEFORE: Wilson R - Judicial Member CATCHWORDS: Access to personal information held by an agency.Costs sought by respondent. LEGISLATION CITED : Privacy and Personal Information Protection Act 1998 APPLICANT In person REPRESENTATION: RESPONDENT M Robinson, barrister PRIVACY COMMISSIONER J McAteer ORDERS: 1.The decision under review is set aside in so far as it relates to the subject report dated 26.02.07 and in substitution therefore the Tribunal determines that the applicant is to be given access to the personal information concerning himself that is contained therein by way of provision to the applicant of a copy of the report redacted as shown in exhibit AA1. REASONS FOR DECISION 1 The applicant commenced these proceedings pursuant to the Privacy and Personal Information Protection Act 1998 following an unsuccessful internal review application. The applicant has also commenced other proceedings in this Tribunal, under the same legislation, against the same respondent, being matter number 093011. 2 Prior to substantive hearing, the respondent brought summary dismissal applications, on several grounds, in relation to each of these proceedings, such applications being heard on 18.09.09. At hearing the parties requested determination of the summary dismissal applications on the papers filed, the applicant's documents being marked as exhibits A1 to A4, and the respondent's as exhibits R1 to R9. The parties agreed that these exhibits could be admitted in each proceeding, on the understanding that only materials relevant to each matter would be considered. Whilst a decision on the papers is often a convenient course it has the difficulty that the Tribunal is unable to discuss matters of concern, or interest, with the parties that may arise on perusal of the papers. 3 There is a historical matter between the parties that is relevant. In earlier proceedings between the parties the applicant had sought access to a particular document under the Freedom of Information Act 1989. These proceedings were resolved by providing the applicant with a redacted copy of the document, a copy of which is exhibit R1 (page 2), whereupon the proceedings were withdrawn. The respondent held a complete copy of this document, which is a report dated 26.02.07. 4 In the summary dismissal proceedings in the proceedings now under consideration, the respondent pressed arguments based on the limited scope of the issue before the Tribunal, the vexatious nature of the proceedings, the Tribunal's power to take "no action" and the fact that the fate of the report dated 26.02.07 has been determined in earlier proceedings. The respondent's position was that the applicant was again seeking a copy of precisely the same document. Taking such a course, the respondent argued, exposed the application to summary dismissal on one or more of the several grounds argued. 5 When determining the summary dismissal application, the Tribunal first identified the scope of the application brought by the applicant. In this regard, the respondent relied upon two communications from the applicant, being annexures A and B to exhibit R2. By these documents the applicant sought to be advised of personal information held by the respondent and identified relevant documents as being the abovementioned report dated 26.02.07 and 15 witness statements. However, at hearing, it was common ground that the 15 statements were no longer in issue and therefore they were put to one side. The respondent then argued that this application was one for provision of the report just mentioned and thereby equated this application with the application under the Freedom of Information Act 1989 referred to above. 6 In this way the respondent characterised the application for internal review as being an application for access to a particular document. However, the Tribunal determined that this did not put the application in these proceedings correctly. Pursuant to s.14 of the Act a person may seek to be provided with access to personal information that is held by an agency. There is no provision as to how access may or must be granted. The applicant had already been provided with a redacted copy of the report dated 26.02.07. Therefore the only live issue before the Tribunal was whether the deleted portions of this particular document contain personal information about the applicant to which he has not yet been provided access. If it does, the respondent is obliged to advise the applicant, in one form or another, what that personal information is. The Tribunal so held and declined to dismiss the proceedings summarily. 7 The live issue that the Tribunal identified came before the Tribunal on 23.03.10. The parties requested the Tribunal to, by consent, decide this issue on the papers and without further hearing. Provision was made for the filing of further documents and submissions, and a complete copy of the subject report, in due course. This has now been done. This issue may be determined simply by comparing the complete copy of the report with the redacted version that was supplied to the applicant. 8 A comparison of the original un-redacted report dated 26.02.07 with the redacted copy, which was earlier supplied to the applicant as a result of the earlier proceedings, shows that all of the personal information about the applicant contained in the original report has been advised to the applicant by reason of the redacted version that he was given. Consequently the respondent has discharged its duty under s. 14 of the Act. The appropriate order to make is to set aside the decision under review in relation to this report and to substitute a new determination that has application to the applicant's personal information that is contained in this document. This disposes of the substantive matter in these proceedings. 9 The respondent also seeks an order that the applicant pay its legal costs and disbursement costs occasioned by the proceedings. This application is put on the basis that the present proceedings are in truth vexatious, given that at the time they were commenced the applicant already had been given a redacted copy of the report which adequately informed the applicant of the personal information about himself that was contained therein. The Tribunal's enabling legislation makes provision for orders relating to costs (s.88) to the effect that costs may be ordered against a party if it is fair to do so. In addition, specified relevant considerations must be taken into account together with any other considerations that the Tribunal considers relevant. One mandatory consideration is whether or not a party has conducted the proceedings vexatiously so as to disadvantage the other party (s.88(a)(vi)). The respondent's allegation is concerned more with the bringing of the proceedings, rather than the way in which the applicant has conducted them. However, the way in which the respondent puts this material fact is still clearly a relevant matter. 10 When an applicant is seeking to find out what personal information, other than health information, is held by an agency there are two statutory pathways that he or she may follow: one is under the Freedom of Information Act 1989 for access to documents and the other is under the Privacy and Personal Information Protection Act 1998 seeking advice as to the information held. The entitlements provided for by these statutes differ significantly. One the one hand, an applicant is entitled to be given access to documents, or part thereof; on the other the applicant is entitled to be informed of the personal information that is held. Therefore it would be an unwise exercise of discretion to regard the bringing of one these applications, after the other application had proved unsuccessful, as being vexatious, given that the statutes provide for both pathways. This circumstance alone would not suffice to establish that it was fair to award costs in the second application, should it be unsuccessful as well. This is so particularly in the circumstances of these proceedings where the applicant has always been unaware of the parts of the subject report to which he has not been given access. The redacted copy of the report he was given, and which he accepted in resolution of his application under the Freedom of Information Act 1989, and the circumstances in which it was given, could not be regarded as having demonstrated to him whether his entitlements under the Privacy and Personal Information Protection Act 1998 had been satisfied. Consequently, the Tribunal is not satisfied that it would be a fair exercise of discretion to award costs against the applicant in favour of the respondent in these proceedings. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.