Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DMW and DMX v NSW Local Land Services [2019] NSWCATAD 128 Hearing dates: 17 December 2018 Date of orders: 02 July 2019 Decision date: 02 July 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The Tribunal determines to take no further action on the matter Catchwords: Administrative Law – privacy and personal information – disclosure of personal information - whether agency exempt from compliance with information protection principle Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Privacy and Personal Information Protection Act 1998 Local Land Services Act 2013 Cases Cited: SB v Roads and Traffic Authority [2010] NSWADT 255 ZR v Department of Education and Training (GD) [2010] NSWADTAP 75 Texts Cited: Nil Category: Principal judgment Parties: DMW (First Applicant) DMX (Second Applicant) NSW Local Land Services (Respondent) Representation: DMW and DMX (Applicants in person) Solicitors: Crown Solicitor (Respondent) File Number(s): 2018/00213209 Publication restriction: The names of the applicants are not to be disclosed in relation to these proceedings Reasons for Decision Introduction 1. In these reasons the names of some private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicants are referred to as DMW and DMX. I have also limited my discussion of the evidence in order to avoid the possibility that the identities of individuals might be revealed. 2. These proceedings concern the question of whether the NSW Local Land Services ("the Respondent" or "the LLS") breached the Applicants' privacy under the Privacy and Personal Information Protection Act 1998 ("the PPIP Act") following an inquiry from DMW. Background to the complaint 1. Each party provided an outline of the background leading to the Applicants' complaint. I do not understand the chronology of events to be in dispute in any material way. 2. In September 2017 DMW telephoned the LLS' Penrith office and asked whether it was necessary to obtain permission to clear along the Applicants' fence line. The Applicants had assumed that they could just go ahead and clear a strip of regrowth scrub along their boundary. However, DMW made the inquiry to be certain they were doing things correctly. DMW was advised to contact the LLS' Wagga Wagga office. He did as suggested and left voicemail messages. 3. DMW followed up with an email to the LLS' Penrith office when he had not received a response to the voicemail messages that he had left. His email, dated 11 September 2017, contained all the relevant details of his request as follows: "I wish to replace the original boundary fences on the above 25 acre property ... The existing fences are collapsing and will not constrain cattle. They are overgrown with native scrub and trees. Can you please tell me if I need permission to carry out this clearing in order to rebuild the fence or am I able to just go ahead and do it? I did phone your Penrith office (4724 2100) on 4 September 2017 to make this enquiry and the lady I spoke to said they did not handle this and that I would have to ring Julie, a team leader, on 6923 6354. I phoned Julie and left a message the same day detailing my enquiry and asked for a return call. I phoned again on 6 September 2017 and left a further message. I have not been contacted back despite Julie's own recorded message undertaking to return calls. I also rang your Penrith office again on 6 September 2017 and left a message asking to be contacted back. After 4 phone calls I have not obtained any information or guidance. Hoping for your early response and assistance." 1. Two days later he contacted the Respondent via an online feedback form located on its website, seeking a response to his earlier inquiry. DMW's request was in similar terms to the email that he sent to the LLS' Penrith office. He received a response the following day. 2. DMW's online inquiry was referred to the Respondent's Greater Sydney local office for a response. The Greater Sydney local office subsequently referred DMW's inquiry directly to the Respondent's Sustainable Land Management branch ("the SLM branch"), which it considered was the most appropriate branch to assist with the issues raised by DMW. 3. Ms Julie-Ann Busuttil, the Manager of Operational Performance in the SLM branch, advised DMW that the Hawkesbury City Council ("the Council") was the consent authority that could consider and grant approval to clear native vegetation on the property. 4. She considered that as the Applicants' property was zoned RU2 (Rural Landscape), the provisions relating to the clearing of native vegetation under the Local Land Services Act 2013 ("the LLS Act") were not applicable. However the property was subject to the Hawkesbury Local Environmental Plan 2012 ("the Plan"). Clause 1.6 of the Plan specifies that the Council is the consent authority for the purposes of the Plan. 5. Ms Busuttil offered to contact the Council on his behalf to ask about the steps he would need to take to obtain approval to clear native vegetation on his property. Ms Busuttil then contacted Ms Colleen Haron from the Council about DMW's inquiry. Ms Haron provided Ms Busuttil with further information about the process that DMW would have to follow to get Council approval. 6. Ms Busuttil and DMW exchanged emails in regard to the discussions. DMW was apparently frustrated by the requirements that he was advised to follow and he expressed dissatisfaction with the process required by the Council. Ms Busuttil forwarded DMW's email to Ms Haron at the Council and informed DMW that she had done so. 7. On 20 September 2017 Ms Krissy Long, the Respondent's Ministerial Liaison and Senior Projects A/Senior Policy Officer Corporate Operations, State Operations LLS, sent an email to three LLS officers. She confirmed that Ms Busuttil had left a message for DMW on 14 September. The email also confirmed that on 20 September Ms Long had phoned both the Council and the Office of Environment and Heritage ("the OEH") Land Management Biosecurity Conservation ("the LMBC") Helpdesk and had disclosed DMW's details. Ms Long advised that Ms Busuttil was also contacting the LMBC, to ensure that its advice was consistent with the Respondent's advice, and Ms Busuttil was also contacting the Council to inform it that it may need to assist DMW. 8. On 25 September 2017 DMW indicated to Ms Busuttil that he felt that she had referred him on and indicated that he wanted the LLS to deal with the matter entirely. 9. DMW made further contact with the Respondent by email in early October 2017. In late October 2017 DMW emailed the Greater Sydney Local Land Services' Manager Business and Finance, expressing his frustration at the advice he had been given. He expressed the view that it was illogical that the Applicants were told to make a Development Application ("DA"). He insisted that they did not want to develop. They wanted to repair/rebuild/replace/maintain an existing fence and sought permission to clear regrowth on a previously cleared boundary in order to be able to make the changes to the fence. He wrote: "To subject us to the DA process where we have to count the trees and other vegetation, calculate the cost, number the trees, as well as specify the species and their height is absurd. Then to have to number and specify the species and mature height of replacement tree/vegetation species and provide an arborist's report and a map of the site is equally ridiculous. Then we have to complete a Biodiversity Offset Scheme (BOS) Test Report which is a nightmare in itself. We may then have to replant trees as well." 1. DMW requested that the Respondent have another look at the issue and give the Applicants the help that they expected and that they had been promised. 2. DMW did not receive a reply to that email. 3. DMW was clearly frustrated by his interactions with the various agencies and ultimately lodged the complaint which led to these proceedings. The complaint 1. In March 2018 the Applicants requested an internal review by the Respondent regarding the collection, storage, use and release of their personal information. In their application for internal review they stated: "Under the PPIP Act we request an internal review by the NSW Local Land Services regarding the collection, storage, use and release of our personal information. We believe that the NSW Local Land Services may have breached privacy laws and misused our personal information following our inquiry seeking permission to clear regrowth along our property fence line. We respectfully request that your review include any contact with the NSW Office of Environment and Heritage, Hawkesbury City Council and the NSW Rural Fire Service and discussion and provision of our personal information without our express permission and in particular having regard to the admissions in emails from Julie-Ann Busuttil on 14 and 20 September 2017 to us." The internal review 1. The Respondent undertook the requested internal review. The internal review found that the Applicants' personal information was collected, retained and used in the attempted resolution of the original inquiry i.e. 'seeking permission to clear regrowth along our property fence line'. It also found that implied consent was given for the Respondent's staff to act of the Applicants' behalf in seeking an outcome for them in relation to DMW's inquiry. 2. The reviewer did not find any breach of the privacy laws and found that there was no intended misuse of the Applicants' personal information. The reviewer determined to take no further action on the matter, pursuant to section 53(7) of the PPIP Act. 3. The Applicants were not satisfied with the outcome of the internal review and sought external review in the Tribunal. Applicable legislation 1. Section 53 of the PPIP Act provides that a person who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct. This provision relates to alleged breaches of the PPIP Act. Section 53 provides that: (7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following: (a) take no further action on the matter, (b) make a formal apology to the applicant, (c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant), (d) provide undertakings that the conduct will not occur again, (e) implement administrative measures to ensure that the conduct will not occur again. 1. Section 55 of the PPIP Act provides: 55 Administrative Review of Conduct By Tribunal (1) If a person who has made an application for internal review under section 53 is not satisfied with: (a) the findings of the review, or (b) the action taken by the public sector agency in relation to the application, the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53. ... (2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders: (a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct, (b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice, (c) an order requiring the performance of an information protection principle or a privacy code of practice, (d) an order requiring personal information that has been disclosed to be corrected by the public sector agency, (e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant, (f) an order requiring the public sector agency not to disclose personal information contained in a public register, (g) such ancillary orders as the Tribunal thinks appropriate. 1. The Applicants' complaint was in regard to the "collection, storage, use and release" of their personal information. However it appears from the application to the Tribunal that the Applicants' complaint concerns the disclosure of their information to other agencies. 2. Section 4 of the PPIP Act provides that: "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. 1. In these proceedings the relevant personal information is the Applicants' identities, property details and personal contact information. 2. It does not appear to be in dispute that the Respondent collected, retained and used the Applicants' personal information in attempting to address their original inquiry. 3. A public sector agency is generally prohibited from using personal information that it holds for a purpose other than that for which it was collected. Section 17 of the PPIP Act provides: 17 Limits on use of personal information A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless: (a) the individual to whom the information relates has consented to the use of the information for that other purpose, or (b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or (c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person. 1. Cases that have considered the issue suggest that section 17 is concerned with an agency's internal use of personal information, rather than the disclosure of the information. 2. A public sector agency is generally prohibited from disclosing personal information that it holds. Section 18 of the PPIP Act provides: 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it. 1. Section 27A of the PPIP Act provides that in certain circumstances public sector agencies may exchange personal information. Section 27A provides: 27A Exemptions relating to information exchanges between public sector agencies A public sector agency is not required to comply with the information protection principles with respect to the collection, use or disclosure of personal information if: (a) the agency is providing the information to another public sector agency or the agency is being provided with the information by another public sector agency, and (b) the collection, use or disclosure of the information is reasonably necessary: (i) to allow any of the agencies concerned to deal with, or respond to, correspondence from a Minister or member of Parliament, or (ii) to enable inquiries to be referred between the agencies concerned, or (iii) to enable the auditing of the accounts or performance of a public sector agency or group of public sector agencies (or a program administered by an agency or group of agencies). 1. The Respondent contends that it used and disclosed the Applicants' personal information in an attempt to resolve DMW's original inquiry in regard to the permission needed to clear regrowth along the Applicants' property fence line. In regard to the issue of disclosure of the Applicants' personal information, the Respondent relies on sections 18(1)(a) and section 27A(b)(ii) of the PPIP Act. 2. The Respondent also relies on comments made by DMW in a 20 September 2017 email to Ms Busuttil as supporting its view that DMW had given implied consent for its staff to act on the Applicants' behalf in seeking an outcome in relation to clearing of re-growth along fence lines. In his 20 September 2017 email DMW wrote: "Whilst I appreciate the effort you have gone in to phoning Hawkesbury Council I now feel deserted and frustrated and I would hope you understand my confusion and distress. … Will you please consider providing me as a "customer" with the simple legal approval to clear regrowth and rebuild my broken fence lines." The issue for determination 1. The issue for determination by the Tribunal in these proceedings is whether the disclosure of the Applicants' personal information was in breach of the PPIP Act. The Respondent identified the specific conduct as follows: 1. Ms Busuttil disclosed the Applicants' personal information to the Council when she called Ms Haron on 14 September 2017 and when she forwarded DMW's email to the Council on 20 September 2017; 2. Ms Long disclosed the Applicants' personal information to the LMBC when she referred his inquiry to the LMBC and arranged for a subject matter expert to contact him. The Applicants' case 1. The Applicants attended the hearing. DMW gave evidence however they rely primarily on a bundle of material filed in support of their case and their written submissions. They point to the chain of correspondence between the parties as evidencing the approach that the Respondent adopted to responding to their initial inquiry and the disclosure of their personal information to other agencies. 2. In a letter dated 25 June 2018 sent to the Respondent for the attention of Shannon Morrison, DMW set out the basis of his complaint. He wrote: We have now had time to consider your decisions regarding our allegations that the LLS breached our privacy as provided for under the PPIP Act. Whilst we have no reason to believe that there was any malice in the actions of LLS officers and they may have believed that they were simply doing their job it is clear that they disclosed our personal information without our knowledge or permission. LLS also had no permission or authority, implied or expressed, to forward one of our emails on, including to [an officer at dpi.nsw.gov. au], or contact the Office of Environment and Heritage and provide "[DMW's] details". You refer to our email dated 20 September 2017 to Julie-Ann Busuttil as a justification for determining that "an implied consent was given for agency staff to act on your behalf...". You seem to have not recognized that whilst our email may have acknowledged that your staff was seeking further information it in no way implied, or expressed, or gave any sort of permission to release or reveal any of our personal details. We were of the opinion that any inquiries made by Julie, or any other LLS officer, would not identify us or reveal personal information, without our specific permission and knowledge, as is the normal practice of Government agencies. You also seem to have overlooked that our email was sent after LLS had already contacted Hawkesbury Council and after our matter was "discussed at length" and our details had been released and disclosed. If it could possibly be interpreted that there was an "implied consent" then how do you explain that this was after the fact. In effect after 'the cat was out of the bag' or 'after the horse had already bolted'. Any implied consent, if it existed, would need to be conveyed before the fact to have any credibility. It is clear that any, and many, inquiries can be made about all sorts of issues from Government agencies without any need or requirement that personal details be released. If this is thought necessary then there is clear onus on agencies to obtain the prior permission of the individuals involved. The very purpose of the PPIP Act is "An Act to provide for the protection of personal information, and for the protection of the privacy of individuals generally;" We are quite capable of making our own inquiries to Council and can do so without revealing personal details. It is incomprehensible to us that you can form the opinion that these actions have articulated "good practice in the management of personal information." and then make the contradictory claim that you "think that it is appropriate that the use of such personal information for the conduction of our agency's business is supported by the consent of the person who is involved." We are unhappy with your findings and in keeping with your offer to "discuss this matter further" we would appreciate your early response to the content of this letter. 1. The reply that the Applicants received to this letter provided more detail but essentially repeated the position that the Respondent had set out in its internal review decision. The Applicants were not satisfied with the response they received. They contend that there were never circumstances where it was "necessary" or "reasonably necessary" for the LLS to disclose their personal information to others. They summarised their position in the following way: 1. It was not necessary for the LLS to contact the Council over this matter. They did not request, or have prior knowledge that inquiries, were to be made of the Council using their personal information. The LLS made this decision, and took this action, prior to any discussion or correspondence with the Applicants. 2. It was not necessary for the LLS to disclose any personal information to anyone at any time. 3. It was certainly not necessary or reasonably necessary to discuss the issue, at length, with the Council's Senior Town Planner. 4. The information obtained by the LLS from the Council is available via a general inquiry. Anyone, including the Applicants or any anonymous party, can make this inquiry without revealing their identity or specific property details or personal information. 5. Any inquiry needed only to be related to a rural property in the Council area. If more detail was requested it could have been narrowed to the locality of the Applicants' property without any personal information being disclosed. 6. The information obtained by the LLS is publicly available on the Council's website. By googling "Clearing along a fence line, Hawkesbury City Council" you can bring up the relevant information without any personal contact with the Council. 7. It was totally unnecessary and unacceptable for the LLS to forward the Applicants' email, without their consent or knowledge, to the Council and for the LLS to further advise the Council, via covering email, that DMW "is very confused and frustrated by the process" and that DMW "will most likely contact Hawkesbury LG in the near future for resolution." It was also inappropriate for the LLS to promise the Council copies of a further response to DMW. 8. It was never necessary for the Ms Long to provide DMW's details to the Office of Environment and Heritage's Land Management Biosecurity Conservation helpdesk. 9. The Applicants submit that it was never necessary that personal information be disclosed to the Council staff or any other agency and that the information obtained by the LLS could have been obtained anonymously. However, they also submit that if it is accepted that it was necessary or reasonably necessary for the Respondent to disclose their personal information then it ought to follow that it was necessary for the Respondent to advise the Applicants of the proposed actions. The Respondents' case 1. The Respondent relies on the evidence of Ms Busuttil who provided an affidavit and also gave evidence at the hearing and was cross-examined. Ms Sanders, the solicitor for the Respondent, also provided both written and oral submissions. Julie-Ann Busuttil 1. As noted, Ms Busuttil is the Manager of Operations and Performance in the Respondent's SLM team. She has held that role since May 2017. In that role she oversees the implementation of the Land Management Framework across New South Wales by providing guidance and support to five regional team leaders across New South Wales, monitoring performance and reporting to the SLM executive. She is responsible for all related operational activities including training and mentoring SLM on-ground staff working to respond to inquiries received from landholders and complaints from customers. 2. She stated that the SLM team was established in 2017 to assist with the implementation of the NSW Government's Land Management and Biodiversity Conservation reforms ("the reform"). The reform is a multi-agency reform. This means that consent to authorise native vegetation clearing may fall to one of several organisations: LLS, the OEH, Local Government and Biodiversity Conservation Trust ("BCT"). When the SLM was formed, it was a key priority of the team that quality customer service be provided. Each SLM team member had to attend a full day's customer service training with follow up team meetings to ensure quality customer service is provided. 3. The SLM team frequently receives requests for assistance from landholders trying to understand how the various pieces of legislation may or may not apply to their respective interests. A significant component of the work performed by the SLM team involves responding to inquiries from landholders about the regulatory reforms relating to managing native vegetation which often includes clearing. 4. The LLS established a telephone hotline to help landowners navigate their way through the various processes. The LLS provides specific advice on the Land Management Framework. Landholders are provided with a range of advice including identifying the relevant authority which can provide consent to clear native vegetation, identifying native vegetation, and conservation programs that may be able to assist a landholder. Customers can provide feedback using a widget on the LLS website. 5. Ms Busuttil became aware of the Applicants' issue when DMW's online complaint was forwarded to her on 14 September 2017. The matter was referred to her for assistance and advice. When she spoke with DMW she explained that the Applicants' property was mapped "excluded" and that the LLS Act did not apply. She informed DMW that the Council was the consent authority that could consider and grant an approval to clear native vegetation on the property. 6. She said that she offered to contact the Council on DMW's behalf to ask about the steps he would need to take to obtain approval. She said that she does not recall DMW objecting to this offer either during the telephone conversation or subsequently. She then spoke to Ms Haron from the Council about DMW's inquiry. Ms Haron provided her with further information about the process that the Applicants would need to follow in order to get the approval. On that same day she sent DMW an email summarising her earlier telephone discussion with him and confirming that she had spoken to the Council. 7. On 20 September 2017 Ms Busuttil received an email in response from DMW. DMW did not raise any objection or concerns in that email about the inquiries that she had made with the Council; although he expressed dissatisfaction with the process he was required to go through to obtain the approval. 8. As the LLS were not able to provide DMW with the approval that he sought, Ms Busuttil forwarded his email to Ms Haron at the Council. She explained that DMW was frustrated and that he would likely contact the Council about the matter. She emailed DMW and explained that she had referred his inquiry to the Council. She subsequently received further information from Ms Long which made it clear that DMW was not satisfied with the advice he had received regarding the necessary process to obtain the approval that he was seeking. 9. Ms Busuttil did not change her evidence under cross-examination. She denied DMW's contention that she spoke to Ms Haron from the Council about DMW's inquiry prior to speaking with DMW. Her recollection is that she spoke to DMW first, and then contacted Ms Haron. After speaking with Ms Haron she emailed DMW to report on both conversations. Submissions 1. Ms Sanders submitted that consent is not relevant to either section 18 or section 27A of the PPIP Act. 2. She submitted that the purpose for which the Applicants' information was collected was to respond to DMW's original question. She says that Ms Busuttil communicated with DMW and she offered to contact the Council on his behalf. He did not object to her doing so. His objection was to the process that was required by the Council and not to the fact that Ms Busuttil had communicated with the Council on his behalf. 3. Ms Sanders, the Respondent's solicitor, submitted that section 27A was inserted into the PPIP Act specifically to enable one agency to refer an inquiry to another without being in breach of the PPIP Act. It provides a distinct and additional ground for doing so. Section 27A allows an agency to provide to a different agency such personal information as is reasonably necessary for the recipient agency to be able to deal with the inquiry itself. 4. She says that section 27A does not contemplate that consent be obtained from the individual to whom the information relates. If consent had been given, the disclosure would comply with the PPIP Act privacy requirements irrespective of section 27A. 5. The requirement that a disclosure be "reasonably necessary" to enable inquiries to be referred limits the exemption to the disclosure of that information which is reasonably necessary for the recipient agency to deal with the inquiry. Ms Sanders submitted, for example, that section 27A would not authorise the disclosure of excessive amounts of personal information, or the disclosure of personal information that is clearly not relevant to the recipient agency's handling of the inquiry. Ms Sanders submitted that the question of whether or not the disclosure was "reasonably necessary" is determined by reference to the context. 6. The Respondent submits that the relevant context in the present matter is the fact that DMW's original question involved consideration of complex legislation. The administration of that legislation was shared between the Respondent and other agencies. Ms Sanders submitted that the administrative arrangement in regard to the legislation anticipated that referrals would be necessary. She says that Ms Busuttil communicated with the Council to obtain information regarding the approval process relevant to DMW's original question and she advised DMW about that process. 7. Ms Sanders also noted that DMW subsequently wrote to Ms Busuttil and said "I do not want to appear ungrateful for the fact that you have made enquiries on my behalf and provided me with some information …". Discussion 1. With the exception of the issue of whether or not Ms Busuttil spoke to DMW before she contacted the Council, the chronology of events in this matter is not in dispute. There is no doubt that the Applicants' personal information has been disclosed outside the LLS. LLS communicated with both the Council and the OEH in regard to his request for information. 2. The initial consideration of the inquiry was within the LLS. However, Ms Busuttil concluded that the LLS Act did not apply to the Applicants' issue and also concluded that consent to clear native vegetation would need to be obtained from the Council. I am satisfied that she spoke to DMW and then she contacted Ms Haron from the Council on DMW's behalf. She subsequently forwarded an email that she had received from DMW to the Council. Through that process, Ms Busuttil disclosed the Applicants' personal information to the Council. 3. Ms Long telephoned both the Council and the LMBC Helpdesk and she referred DMW's inquiry to the LMBC and arranged for a subject matter expert to contact him. Through that process, Ms Long disclosed the Applicants' personal information to the LMBC. 4. Nevertheless the Respondent submits that its conduct did not constitute a breach of the PPIP Act. 5. It is apparent that the disclosure occurred in circumstances where the Respondent's officers were attempting to assist DMW. Ms Busuttil explained that this was in the context of the agency's key priority of providing quality customer service. 6. While DMW was clearly dissatisfied with the processes that he was advised to follow, he acknowledged the assistance that Ms Busuttil had given him. His complaint appears to be founded on the view that it was not necessary for the Respondent to disclose the amount of information that was disclosed. He contends that the advice that he was ultimately given could have been obtained without releasing the Applicants' personal information. 7. In this matter, the Respondent did not solicit the Applicants' personal information. DMW provided it without request. Nevertheless, information that was unsolicited at origin, once taken under the control of the agency for one of its administrative purposes should be treated as 'collected' and no longer retaining the character of 'unsolicited' information: ZR v Department of Education and Training (GD) [2010] NSWADTAP 75 at paragraph [71]. 8. Pursuant to section 18(1)(a) of the PPIP Act, no breach occurs if the disclosure was directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure. 9. In this matter the purpose for which the information was provided was to ascertain the answer to DMW's original query i.e. "Can you please tell me if I need permission to carry out this clearing in order to rebuild the fence or am I able to just go ahead and do it?" DMW provided the information to assist the Respondent in addressing the inquiry that he had submitted. 10. The Respondent's officers disclosed the personal information while attempting to assist DMW in obtaining the answer to his query. Rather than simply giving him a 'yes' or 'no' answer, they were attempting to give him specific information regarding the process he would need to follow to obtain consent to clear land so as to be able to carry out his fence repair as proposed. The purpose for which the information was disclosed was related to answering DMW's original query. In my view, this disclosure of the information was for a purpose directly related to the purpose for which the information had been collected. 11. DMW was frustrated that the LLS could not provide him with the approval he wanted. In that context Ms Busuttil offered to contact the Council on DMW's behalf. When she made that offer, DMW did not object. In my view she had no reason to believe that either DMW or DMX would object to the provision of their personal information to the Council. In these circumstances, it is my view that the exception in section 18(1)(a) of the PPIP Act applies. Ms Busuttil's disclosure of the Applicants' personal information to the Council does not amount to a breach of section 18 of the PPIP Act. 12. In my view, the exception in section 18(1)(a) of the PPIP Act also applies to the disclosure of the Applicants' personal information to the LMBC. In my view, this disclosure of the Applicants' information was for a purpose directly related to the purpose for which the information had been collected. 13. I note the Respondent's contention that DMW had given implied consent for its staff to act on the Applicants' behalf in seeking an outcome in relation to the original inquiry. I do not agree with the Respondent's contention that comments that DMW made in his 20 September 2017 email can be seen as giving implied consent to disclosures that had been made. However, as I have noted above, it is my view that the Respondent had no reason to believe that either DMW or DMX would object to the disclosure of the Applicants' personal information to in their efforts to address the original inquiry. 14. For completeness I will briefly address the question of whether section 27A of the PPIP Act also applies to the circumstances of this matter. As noted, section 27A was inserted to enable public sector agencies to exchange personal information. The section 18 limits on disclosure do not apply if (a) the agency is providing the information to another public sector agency and (b) the disclosure is "reasonably necessary" to enable inquiries to be referred between the agencies concerned. 15. The question arises as to whether the disclosure of the Applicants' personal information was "reasonably necessary" in the circumstances of this matter. 16. In SB v Roads and Traffic Authority [2010] NSWADT 255 I considered the issue of whether the collection of health information was 'reasonably necessary' for the purpose of assessing the medical fitness of persons who hold drivers licences for the purpose of road safety. I stated at paragraphs [31] - [35]: 31 The expression "reasonably necessary" must take on its natural meaning. The legislature has used this expression rather than other potential expressions such as "necessary" or "desirable" or "absolutely necessary" or "essential" for the specified purpose. 32 The meaning of the expression does not appear to have been considered for the purposes of this legislation. The online Macquarie dictionary defines "reasonably" as: reasonable adjective 1. endowed with reason. 2. agreeable to reason or sound judgement: a reasonable choice. 3. not exceeding the limit prescribed by reason; not excessive: reasonable terms. 4. moderate, or moderate in price: the coat was reasonable but not cheap. –reasonableness, reasonability, noun – reasonably , adverb 33 The online Macquarie Dictionary defines the expression `necessary' as meaning, inter alia, 'that cannot be dispensed with' 'indispensable, or requisite'. 34 By contrast in the same Dictionary the expression 'essential' is defined, inter alia, as 'absolutely necessary'. 35 It follows that the expression "reasonably necessary" as a qualification of "necessary", is meant to be something less than "essential". 1. Section 27A does not require that the provision of the Applicants' information to the Council or the LMBC was 'absolutely necessary' or 'indispensable'. Something less is required. 2. In this matter, DMW lodged an inquiry regarding land clearing with the LLS. The Respondent's evidence is that land clearing is regulated by a complex statutory scheme involving multiple agencies and multiple pieces of legislation. DMW's inquiry was lodged shortly after that scheme had taken effect. 3. The LLS was not able to provide DMW with approval to undertake land clearing. However, Ms Busuttil took steps to assist DMW. She offered to contact the Council on his behalf to ask what DMW would need to do to obtain approval to clear vegetation as he proposed. She then contacted the Council, obtained information and reported this to DMW. She subsequently followed up with the Council and Ms Long also followed up with the Council and the LMBC. The Respondent submits that the disclosure of the Applicants' personal information was "reasonably necessary" to enable DMW's inquiry to be referred between the agencies concerned. 4. In my view, the location of the Applicants property was important information that would allow the Council and the LMBC to accurately determine what advice to give to the Applicants. If the Respondent had not provided the locality of the Applicants' property, accurate information could not have been given. However, as it provided the locality of the Applicants' property, accurate information could be given. This also would have allowed the Applicants' personal information to be ascertained. 5. In my view, the provision of that information was not absolutely necessary or indispensable. However, I am satisfied that it was reasonably necessary for the agencies to have that information so as to be able to provide the information that DMW had requested. 6. That being the case, it is my view that in the circumstances of this matter the LLS was not required to comply with the information protection principles with respect to the disclosure of the Applicants' personal information. 7. It follows that I agree with the Respondent that there was no breach of the breach of the PPIP Act. The appropriate determination pursuant to section 55(2) of the PPIP Act is to take no further action on the matter. Order The Tribunal determines to take no further action on the matter. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 02 July 2019