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had made about KP's behaviour and her concerns about that behaviour. 2In response to an application under the (now repealed) Freedom of Information Act 1989 ( FOI Act ) Council gave KP access to a copy of the memorandum but deleted information that it regarded as exempt.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 . Application to the Tribunal 6On 9 December 2008 KP lodged an application with the Tribunal for a review of the Council's conduct. In that application he indicated that Council had conducted an internal review of the alleged conduct. KP appears not to have appreciated at that stage that Council had not responded to his formal application for internal review. The application to the Tribunal alleged that Council had contravened seven separate Information Protection Principles. KP did not confine himself to seeking a review of Council's conduct which allegedly breached s 14 (access to personal information held by agencies) even though that was the subject of his 7 November 2008 letter to which the Council had replied on 14 November. Application for summary dismissal 7Council applied for the proceedings to be summarily dismissed on the ground that it was "frivolous or vexatious or otherwise misconceived or lacking in substance": Administrative Decisions Tribunal Act 1997 ( ADT Act ), s 73(5)(g)(ii). The Tribunal declined to dismiss the application: KP v Narrandera Shire Council [2010] NSWADT 206 at [6]. The Tribunal stood the matter over for a further planning meeting. The Tribunal identified the only 'live' issue as whether the deleted portions of the memorandum contain 'personal information' about KP to which he had not yet been given access. Determination of application 8Following the planning meeting, the Tribunal determined the substantive application: KP v Narrandera Shire Council [2010] NSWADT 206. The issue that the Tribunal identified was whether the Council had contravened s 14 of the PPIP Act . That provision states that: A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information. 9The Tribunal found that all the personal information about KP contained in the memorandum had been conveyed to him by giving him a copy of the redacted version of the memorandum under the FOI Act . Nevertheless, the Tribunal ordered that Council give KP another copy of the redacted version of the memorandum in order to fulfil its obligations under s 14 of the PPIP Act . Grounds of Appeal Introduction 10KP is entitled to appeal on a question of law but must obtain the Appeal Panel's leave before appealing against the merits of the Tribunal's decisions: ADT Act, s 113. After some discussion at the hearing the only ground of appeal which KP pressed was that the Tribunal had erred in law by not determining whether the alleged conduct of the Council breached various provisions of the PPIP Act other than s 14. 11KP submitted that the Tribunal should have made a determination about whether the alleged conduct breached the Information Protection Principles set out in his formal application for internal review and/or in his original or amended applications for review to the Tribunal. Those Information Protection Principles included s 8 (collection of personal information), ss 10 and 11 (requirements when collecting personal information), s 12 (retention and security of personal information), s 13 (information about personal information), s 16 (checking accuracy of personal information), s 17 (limits on use of personal information), s 18 (limits on disclosure of personal information) and s 19 (special restrictions on disclosure of personal information). 12The Tribunal did not accept that submission. The Tribunal concluded that because KP's formal application for internal review had not been the subject of internal review by the Council and KP had not waited the necessary 60 days from the day the application was received before applying to the Tribunal, the Tribunal had no jurisdiction to review the conduct identified in the formal application: KP v Narrandera Shire Council [2010] NSWADT 60 at [6]. For the reasons set out below, we agree with that conclusion. The Tribunal did not make an error of law in reaching it. Appeal Panel's reasoning 13The Tribunal has jurisdiction to review a decision (or the conduct of an administrator) if an enactment, such as the PPIP Act , provides that applications may be made to it for a review of the decision or the conduct: ADT Act , s 38(1) and s 8. There are two circumstances in which an applicant can apply to the Tribunal for a review of conduct under the PPIP Act . The first is where the person has applied to the agency for an internal review and the internal review has been conducted, but the person is not satisfied with the findings of the review or the action taken by the administrator: PPIP Act , s 55. In that circumstance, the person may apply to the Tribunal for a review of the conduct that was the subject of the application to the agency. 14The second circumstance in which a person may apply to the Tribunal for a review of conduct under the PPIP Act is where the person has applied to the agency for internal review but the agency has not completed the review within 60 days from the date on which the application was received: PPIP Act , s 53(6). 15KP purported to apply to the Tribunal for a review of conduct that was the subject of his formal application to the Council and which the Council received on 30 October 2008. The Tribunal correctly decided that it did not have jurisdiction to review that conduct because neither of the circumstances set out above applied. The first circumstance did not apply because, except in relation to an alleged breach of s 14 of the PPIP Act (which was also the subject of a separate application by KP) Council had not conducted an internal review of that conduct. The second circumstance did not apply because 60 days had not elapsed between the receipt of the formal application on 30 October 2008 and KP's application to the Tribunal on 8 December 2008. It follows that the Tribunal's decision should be affirmed and the appeal should be dismissed. Costs 16If the Appeal Panel's decision was to dismiss the appeal, Council foreshadowed that it would apply for costs. The general rule is that each party to proceedings before the Tribunal is to bear his or her own costs: ADT Act , s 88(1). The Tribunal may award costs but only if it is satisfied that it is fair to do so having regard to the matters listed in s 88(1A). 17The following directions are made in relation to Council's application: 1) Council to file and serve any application for costs within 21 days of the date of publication of these reasons, with submissions in support. Submissions to attach a precise statement as to the amount of costs sought, and the components. 2) Appellant to file and serve submissions in reply within a further 21 days. 3) The Tribunal will determine any application 'on the papers' as permitted by section 76 of the Administrative Decisions Tribunal Act 1997. Order 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. ********** 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. Decision last updated: 01 April 2011