KP v Narrandera Shire Council (GD) [2011] NSWADTAP 14

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: KP v Narrandera Shire Council (GD) [2011] NSWADTAP 14 Hearing dates: 9 December 2010 Decision date: 01 April 2011 Before: Magistrate N Hennessy, Deputy President S Montgomery, Judicial Member E Hayes, Non- Judicial Member Decision: The Tribunal's decision to set aside the Respondent's decision and to substitute a decision that the Appellant be given access to the personal information concerning himself that is contained in the redacted version of the memorandum dated 26 February 2007 (Exhibit AA1) is affirmed. Catchwords: APPEAL - Privacy and Personal Information Protection Act - scope of Tribunal's jurisdiction Legislation Cited: Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998 Freedom of Information Act 1989 Category: Principal judgment Parties: KP (Appellant) Narrandera Shire Council (Respondent) Representation: Counsel M A Robinson (Respondent) KP (Appellant - in person) Henningham Law (Respondent) File Number(s): 109050 Decision under appeal Before: General Division

reasons for decision

Background 1These proceedings relate to an appeal by KP against a decision of the Tribunal under the Privacy and Personal Information Protection Act 1998 (PPIP Act). KP is a resident of the local government area under the control of Narrandera Shire Council. On 26 February 2007 an unidentified employee of Council wrote a confidential internal memorandum to the General Manager of the Council. The subject of the memorandum was observations the author had made about KP's behaviour and her concerns about that behaviour. 2In response to an application under the (now repealed) Freedom of Information Act 1989 ( FOI Act ) Council gave KP access to a copy of the memorandum but deleted information that it regarded as exempt. KP applied to the Tribunal for a review of the Council's decision but withdrew his application on 29 October 2008, before it had been determined. The previous day, 28 October 2008, KP applied to the Council under the PPIP Act for an internal review of the following conduct in relation to the memorandum: The collection of personal information without advising me of this collection, denying me access to this personal information and the inaccuracy of the information collected. 3Under the heading " please tick which of the following describes your complaint: (you can tick more than one)", KP ticked the following items: collection of my personal information, refusal to let me access or find out about my own personal information, accuracy of my personal information, use of my personal information and disclosure of my personal information. 4Although this formal internal review application was received by the Council on 30 October 2008, as evidenced by the date stamp on the document, it did not come to the attention of the Council's General Manager. However, two other letters KP wrote to the Council at about the same time did come to his attention. The first letter, dated 17 October 2008, is no longer relevant. In the second letter, dated 7 November 2008, KP wrote: Dear Sir Access to personal information held by Narrandera Shire Council. I make this application in pursuant to (sic) the Privacy and Personal Information Protection Act 1998 (PPIP Act 1998) section 14. 5On 14 November 2008 the General Manager responded to the two letters treating them as an application for internal review of conduct under the PPIP Act . The General Manager did not realise, at that stage, that KP had also lodged a formal application for internal review which identified a wider range of conduct than that identified in the 7 November 2008 letter. The General Manager pointed out in his response to KP that Council had previously provided KP with a redacted copy of the memorandum pursuant to a previous application under the FOI Act . The General Manager noted that KP appeared to be seeking under the PPIP Act material that he could not obtain under the FOI Act . His application for access to the complete version of the memorandum, including the identity of the author, was refused. Council also advised KP that it had not 'collected' any information in relation to KP's mental health within the meaning of that term in the PPIP Act .