OS v Mid-Western Regional Council (No 3) [2011] NSWADT 230

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: OS v Mid-Western Regional Council (No 3) [2011] NSWADT 230 Hearing dates: 31 August 2011 Decision date: 29 September 2011 Jurisdiction: General Division Before: P Molony, Judicial Member Decision: The application is dismissed. Catchwords: Privacy and Personal Information Protection Act - personal information Legislation Cited: Privacy and Personal Information Protection Act 1998 Administrative Decisions Tribunal Act 1997 Local Government Act 1993 Cases Cited: OS v Mudgee Shire Council [2009] NSWADT 315 OS v Mudgee Shire Council (No 2) [2011] NSWADT 34 WL v La Trobe University (General) [2005] VCAT 2592 WL v Randwick City Council [2007] NSWADTAP 58 Vice-Chancellor, Macquarie University v FM (GD) [2003] NSWADTAP 43 Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 Category: Principal judgment Parties: OS (Applicant) Mid-Western Regional Council (Respondent) Representation: Counsel M Hutchings (Respondent) OS (Applicant in person) McIntosh, McPhillamy & Co (Respondent) File Number(s): 093179

REasons for decision

Background 1The background to this decision is discussed in OS v Mudgee Shire Council [2009] NSWADT 315 and in OS v Mudgee Shire Council (No 2 ) [2011] NSWADT 34 . 2In the first decision I found that that the information contained in points 1, 2, 3 and 4 of OS' application for internal review was personal information within the meaning of the Privacy and Personal Information Protection Act 1998 and was not excluded from the definition of personal information in s 4(3)(b) of the Act. Section 4 relevantly provides - "(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. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual that is contained in a publicly available publication, (c) ..." 3I found point 5 did not contain personal information. 4With respect to point 6, I wrote - Point 6 refers to an aerial photograph of OS' property. The Agency submits this is information relating to the land photographed and to land use. In the context of the report, with which the photograph was produced, it was also an aerial photograph of the property owned by OS and his wife. This is information about OS and falls within the definition of personal information in s 4(1). The Agency submits that this photograph was sourced from the Department of Lands and is freely available and publicly accessible on the Department of Lands website. There is no direct evidence of this, or of how such photographs are accessed. Without such evidence I am not prepared to draw the conclusion urged by the Agency. In those circumstances, it would seem appropriate to give the Agency an opportunity to adduce such evidence as the application proceeds 5The agency did wish to pursue that issue, asserting that the aerial photograph in issue was taken from the Department of Lands web-site and was therefore a publicly available publication within the meaning of s 4(3)(b) of the PPIP Act. This led to the second decision. 6There I noted that the agency had not put on any evidence going to the issue. I wrote (at [22-24]) - In this case the Tribunal made it clear that it required evidence from Council as to how the photograph was accessed and used, I have provided a number of opportunities for that evidence to be adduced. Nothing, aside from assertions of fact, has been forthcoming from Council. While the Tribunal has a duty to ensure that all relevant material is disclosed to it, it does not have the power to compel an agency to prepare and file relevant statements. Aside from alerting Council to the issue about which evidence is required, and providing it with a reasonable opportunity to put that evidence on, the Tribunal is limited in its capacity to ensure that all relevant material is before it. The Tribunal is entitled to expect and receive greater co-operation from agencies such as the Council in the conduct of review under the Act. The reality, with which I am faced, however, is that Council has not put on any evidence responsive to my request. The information sought reposes in Council and its staff. OS does not have personal knowledge of it, and cannot provide relevant evidence. In those circumstances, given the nature of a review of conduct under the Act, I consider that the Council bears an evidentiary burden in respect of its assertion that the photograph is not personal information to which the Act apples by virtue of s (4)(3)(b). Such a view is consistent with the fact that the sub-section creates an exception, and with the procedures set out for the review of conduct under the Act. As the Appeal Panel observed in GR, the internal review conducted by the agency under s 55 should provide full particulars of the conduct in issue . As a result I agree with the Privacy Commissioner's submission that, given the beneficial nature of the Act, and in the absence of requested evidence from Council going to the s 4(3)(b) issue, the Tribunal cannot be satisfied that the sub-section applies. As a result I find that s 4(3)(b) does not apply to the photograph in point 6. 7The agency appealed that interlocutory decision to an Appeal Panel. On 23 May 2011 the Appeal Panel ordered that, among other things - 1. Tribunal to consider fresh evidence on Point 6 and redetermine the issue of whether the information is "personal information". 2. Tribunal to proceed to consider Council's defences (subject to the Council reserving its position in respect of the appeal as to "personal information" rulings and respect of Points 1-4, and, if so found, Point 6.) 8As a consequence I provided the parties with a further opportunity to put on relevant evidence and submissions, and then conducted an oral hearing on 31 August 2010. The evidence presented at that hearing consisted of: * An affidavit sworn by Dianne Sawyers, Revenue Supervisor at the agency on 28 June 2011 (Exhibit R1) with attachments. * A bundle of documents provided by the agency on 10 August 2011 to OS in response to his request for access to information (Exhibit R2). 9There was no other evidence tendered. The hearing was entirely taken up with submissions.