DAT v Inner West Council [2017] NSWCATAD 253

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DAT v Inner West Council [2017] NSWCATAD 253 Hearing dates: 7 August 2017 Date of orders: 23 August 2017 Decision date: 23 August 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: Senior Member C Ludlow Decision: The application is dismissed. Catchwords: ADMINISTRATIVE LAW – privacy – use of personal information – opinion Legislation Cited: Privacy and Personal Information Protection Act 1998 Cases Cited: JD v Department of Health (NSW) [2005] NSWADTAP 44 BN v Hornsby Shire Council [2012] NSWADT 165 Category: Principal judgment Parties: DAT (Applicant) Inner West Council (Respondent) File Number(s): 2017/116606

REASONS FOR DECISION 1. The applicant has sought review of conduct by the respondent which he says is in breach of s 16 of the Privacy and Personal Information Protection Act 1998 ("the PPIP Act'). 2. The conduct concerned the use of personal information to place a direction to Council staff on the Council intranet. The effect of the direction was that Council staff were restricted in the responses they may provide to any further correspondence from the applicant concerning a property at St Peters. 3. The direction stated: "No responses will be given regarding matters already raised in the regards to the approved use at [address of property]. Future correspondence about this issue will be read and filed without acknowledgement, unless Council staff decide it requires further action." 1. Section 4(1) of the PPIP Act defines "personal information" as meaning: "…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." 1. Section 16 of the PPIP Act provides: "16 Agency must check accuracy of personal information before use A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.' 1. The respondent conceded that information about the applicant contained in a letter from the General Manager to the applicant dated 31 July 2016, was an opinion about the applicant and therefore constituted "personal information". 2. The letter referred to ongoing correspondence by the applicant in relation to a property. It stated: "The matters which you have raised have been the subject of extensive investigation by council officers. As you have been previously advised, Marrickville Council has determined that it does not consider it appropriate for Council to intervene and has advised you that it intends to take no further action in relation to this matter." 1. The letter contained the following opinion: 1. the staff resources required to respond to DAT's repeated complaints were disproportionate to that provided to other residents; 2. this had had an unreasonable impact on the organisation, staff and service provided to other residents; and 3. the General Manager considered it necessary to impose restrictions on how the Council responded to him in future. 1. The respondent also conceded that by placing the direction on the intranet page it "used" the information within the meaning of s 16 and therefore was required to comply with the section. 2. The question to be determined therefore is whether, under s 16, the Council was required to take any steps to ensure the opinion was accurate, relevant, complete, up to date and not misleading; and if so, what steps were reasonable in the circumstances. 3. The Council submitted that in the circumstances it was not required to take any such steps. In its submission, the opinion was held by the Council's General Manager and did not require to be checked before being used to issue a direction to staff. It might have been different, it submitted, had the source of the opinion been information from an external source. 4. The applicant submitted that the Council should have advised him of the opinion and requested his response before using the opinion in this way. He submitted that the decision was arbitrary and no attempt was made to ascertain that the information held by the Council was sufficient to "publish and enforce an allegation that I was an unreasonable complainant." 5. The applicant's argument could be interpreted as a claim that the Council should have provided him with procedural fairness before determining to issue the direction. However it is important to note that the Tribunal does not have jurisdiction to decide whether the Council followed correct procedure or was fair to the applicant in issuing the direction. The only issue before the Tribunal is whether any steps should have been taken before using the opinion. 6. The applicant submitted that the respondent was obliged to take reasonable steps and it had not established that it had taken any reasonable steps. He referred to the NSW Ombudsman's manual Managing Unreasonable Complainant Conduct. Chapter 18 of the manual deals with modifying or restricting access to services. The document states: "Decisions to modify or restrict a complainant's ability to access services are management responsibilities and should always be approved by a CEO (or senior delegate). They should also be made with the greatest reluctance after careful consideration of factors like the complainant's personal circumstances and, where relevant, the role a case officer or organisation has played in exacerbating the unreasonable conduct." 1. The Council submitted that these were guidelines only and not mandatory. 2. The Council's Complaint Management Policy states: "In some circumstances it may be appropriate to limit access to or response from Council, or restrict, withhold or withdraw the provision of services to difficult complainants. A decision to do so must only be made by the General Manager on the basis of a written report by another officer." 1. The Council conceded that no such written report exists. 2. No evidence was tendered by the Council as to any process followed in writing the letter to the applicant. For example it is not clear whether the CEO reviewed the material held by the Council.