BN v Hornsby Shire Council

[2012] NSWADT 165

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

BN v Hornsby Shire Council [2012] NSWADT 165

Decision date:

13 August 2012

Jurisdiction:

General Division

Before:

S. Higgins, Deputy President

Decision:

1.Within 28 days of the date of this decision, the respondent is to provide the applicant with a written apology for having engaged in conduct that contravened the disclosure information protection principle set out in subsection 18(2) of the PPIP Act when it published, on its website, the 10 December 2010 letter of the Deputy Ombudsman to him and the report of Mr Ball, GM5/11, to the extent it contained BN's personal information.

2.The respondent to the respondent take all necessary steps to ensure that it does not in future disclose or publish personal information about BN that it holds, unless that disclosure or publication is in accordance with information protection principles of the PPIP Act.

3.There will be no order for costs unless BN files and serves an application for costs, together with supporting submissions and evidence of any legal costs incurred in the prosecution of these proceedings, within 21 days of the date of this decision.

4.In the event BN files and serves an application for cost in compliance with order 2, the respondent to file and serve submissions in response within a further 21 days.

5. Any question of costs so raised will be determined on the papers under section 76 of the Administrative Decisions Tribunal Act 1997.

Catchwords:

Privacy - personal information - external review of conduct of a public sector agency - alleged contravention of an information protection principal in regard to use and disclosure of personal information - whether information is personal information

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Local Government Act 1993
Ombudsman Act 1974
Privacy and Personal Information Protection Act 1998

Cases Cited:

Crewdson v Central Sydney AHS [2002] NSWCA 345
GA v The University of Sydney (GD) [2010] NSWADTAP 31
WL v Randwick City Council [2007] NSWADTAP 26

Category:

Principal judgment

Parties:

BN (Applicant)
Hornsby Shire Council (Respondent)

Representation:

BN (Applicant in person)
Storey and Gough Lawyers (Respondent)

File Number(s):

113158

REasons for decision

Introduction

1. This is an application by BN seeking review of conduct of the respondent, Hornsby Shire Council, which he alleges to have been a breach of an information protection principle, under the Privacy and Personal Information Protection Act 1989, in regard to his personal information held by the respondent.

1. Under the provisions of the PPIP Act, public sector agencies (which includes the respondent) are required to comply with the information protection principles that are set out in sections 8 to 19 of that Act: see sections 20 and 21 of the PPIP Act. These information protection principles relate to the collection, storing and retention, access, alteration, use and disclosure of personal information a public sector agency collects, uses, holds and discloses. Part 5 of the PPIP Act makes provision for a person to seek review of conduct by a public sector agency which the person alleges to be a breach by the agency of an information protection principle in regard to his/her personal information: see sections 52 to 55 of the PPIP Act. The first step of any review is for the person to seek an internal review, by the relevant agency, of the conduct of that agency the person asserts to a breach/contravention of an information protection principle in regard to his/her personal information: see section 53 of the PPIP Act.

1. On 16 March 2010, BN made an internal review application to the respondent in which he described the alleged contravening conduct of the respondent as follows:

"Publication of a letter from the Ombudsman about me, and a report about that letter, both of which I believe contain errors.

The Ombudsman's letter also contains the names of other people who would not be aware of the existence of the Ombudsman's letter, or issues raised."

1. The letter to which BN referred was a 10-page letter addressed to him, from Mr Chris Wheeler, Deputy Ombudsman, and dated 17 December 2010. The letter was a response to numerous letters of complaint BN had written to the Ombudsman about the respondent, its Council members and officers of the respondent, including Mr Robert Ball, the General Manager. In his letter to BN, the Deputy Ombudsman made a number of comments about the various complaints made by BN and concluded by saying that no further action would be taken by that Office on the issues he had raised.

1. The Deputy Ombudsman provided a copy of this letter to Mr Ball, under the cover of a letter dated 25 February 2011. In his letter to Mr Ball, the Deputy Ombudsman explained that as the Council and/or its staff had been the subject of BN's complaints he decided it was appropriate to provide Mr Ball and the respondent with a copy of his response to BN. He explained that his letter was being provided in accordance with section 31AC of the Ombudsman Act 1974.

1. After receiving the letter from the Deputy Ombudsman, Mr Ball prepared a 4-page report (GM5/11) for the ordinary meeting of the respondent Council scheduled for 16 March 2011. The report was headed 'Complaint about Hornsby Shire Council - Mr [BN]'. The report made reference to earlier reports that had been provided to the Council in regard to Code of Conduct complaints and information requests BN had made since 2008 and the cost of dealing with these complaints and requests. The report also contained extracts from the letter the Deputy Ombudsman had written to BN. A copy of the Deputy Ombudsman's letter to BN was also attached to the report. Other than noting the contents of the letter, the report did not recommend any action be taken in regard to it.

1. It would appear that Mr Ball's report and the attached letter from the Deputy Ombudsman were placed on the respondent website prior to the scheduled ordinary meeting as it was an item that was to be discussed and considered in open session of the Council's meeting. While it is not clear from the material before the tribunal, I understand the report of Mr Ball and the attached letter were tabled at that meeting.

1. In his internal review application, BN identified his complaint as involving the following issues:

accuracy of personal information created.

use of my personal information for an inappropriate purpose.

disclosure of my personal information for an inappropriate purpose.

other Part of the matter is currently before the Administrative Decisions Tribunal.

1. Those matters identified in bold type were matters BN added to the pro-forma internal review application form.

1. In reviewing its conduct, the respondent found that its use and disclosure of the information as contained in the correspondence from the Deputy Ombudsman did not amount to a breach/contravention of the use or disclosure information protection principles in the PPIP Act.

1. BN being dissatisfied with the determination of the respondent sought external review of the respondent's conduct by the tribunal which he is entitled to do: see section 55(1) of the PPIP Act.

Proceedings before the Tribunal

1. BN's application was before me at a planning meeting on 3 occasions (16 August 2011, 8 November 2011 and 2 February 2012. Orders were made for the filing of evidence, including evidence of loss and damage BN alleged he suffered as a result of the alleged breaches by the respondent.

1. On 21 February 2012, with the consent of the parties I made an order that on or before 19 March 2012, BN was to inform, in writing, the tribunal and the respondent if he wished to proceed with his application or whether he wished to withdraw it. BN indicted at this planning meeting that he wanted to continue to explore a settlement of the proceedings with the respondent. The respondent agreed to this course. However, so as not to further delay these proceedings, I also made orders for the filing and serving of evidence and written submissions by the parties in the event BN wished to proceed with his application. By consent, I also made an order that BN's application would be determined on the papers pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

1. On 28 February 2012, BN wrote to the Tribunal and the respondent advising that he wished to proceed with his application. In accordance with my directions made on 21 February 2012, the parties subsequently filed and served their evidence and written submissions.

Issues

1. The issues in this application are as follows:

(a) whether the information in the Deputy Ombudsman's letter to BN is 'personal information' about BN. That is, whether the information in the letter fell within the terms of section 4(1) of the PPIP Act and was not excluded by reason of the exceptions contained in subsections 4(2) of that Act;

(b) in the event the information is personal information about BN, whether the respondent's conduct in the use and publication of that letter constituted a breach of the use and disclosure information protection principles contained in sections 16, 17 and 18 of the PPIP Act; and

(c) in the event (a) and (b) above are satisfied, what orders should be made under section 55(2) of the PPIP Act in the event the tribunal found that the respondent's conduct in using and disclosing his personal information was a contravention of one or more of the information protection principles as set out in the PPIP Act. In this regard BN sought a number of orders, including an order for compensation, an apology, and an order bringing to the attention of the responsible Minister for the respondent Council that Mr Ball failed to exercise in good faith a function conferred on him.

1. In his internal review application, BN did not seek amendment of his personal information. He did however, assert that numerous matters in the Deputy Ombudsman's letter were incorrect by marking up a number of the paragraphs in that letter and numbering these sequentially. Again it is difficult to understand in what respect he asserts them to be incorrect other than his disagreement with the opinions expressed or conclusions reached by the Deputy Ombudsman.

1. For the reasons set out below, I have found that the information about BN contained in the letter of the Deputy Ombudsman is personal information about him. I have also found that the disclosure of this information on the respondent's website was conduct that breached the disclosure information protection principle contained in section 18 of the PPIP Act. In the in the absence of BN providing evidence relevant to loss and damage, I make no orders as to compensation. However, an order requiring the respondent to make a written apology to BN, I have found to be appropriate.

The evidence

1. The respondent filed and served an affidavit of Mr Ball, sworn on 29 September 2011. In his affidavit, Mr Ball explained that BN had been making detailed submissions to and complaints against the respondent Council, and its staff for at least fifteen years. He said that BN had referred the same complaints and questions about the respondent to the Department of Local Government and the Ombudsman. He went on to say that the elected members of the respondent Council were at all times kept informed about the many submissions and complaints made by BN. Mr Ball also noted that in the vast majority of cases, BN had sent copies of his submissions and complaints to the General Manager, the Mayor, the individual Councillors, the press, resident groups and other review bodies and State parliamentarians. Mr Ball also referred to reports submitted to the respondent Council at its ordinary meeting on 30 June 2010 and 15 September 2010 in regard to Code of Conduct Complaints, which included those made by BN. Copies of these reports were also attached to his affidavit.

1. The first report, GM 11/10, is a report by Mr Ball to the respondent Council reporting on the number of code of conduct complaints that had been made during the previous 2-years. The report made reference to 19 complaints that had been received by the respondent during this period. The complainants were not identified, but the report noted that of the 19 complaints received, 13 complaints were from the same person.

1. Mr Ball explained that following this meeting, on 28 June 2010, BN wrote to the Mayor identifying himself as the person who had made the 13 complaints. A copy of the letter was attached to Mr Ball's affidavit. The letter is headed 'PUBLIC LETTER' and it refers to the GM11/10 report. In the letter BN said 'Yourself and councillors know I am the "single complainant"'.

1. Mr Ball said that the respondent Council deferred consideration of this report at its meeting of 30 June 2010 to its meeting of 21 July 2010. Mr Ball explained that the report was renumbered as GM16/10 for the 21 July meeting. At that meeting the respondent Council requested a further report detailing the costs incurred by the Council in regard to processing complaints and whether the Council could recover those costs. The Council also requested a further report in respect to the person who had made the 13 complaints as identified in Mr Ball's report. In this regard the Council requested that 'the name of the complainant (if allowed by the relevant legislation)' be included in the further report.

1. The Executive Manager of the respondent prepared the requested report that was tabled at the Council meeting, on 15 September 2010 (i.e. Report No. CC55/10). This report, which is not the subject of these proceedings, I note, was tabled in open session at the meeting of the Council and is published and publicly available on the respondent's website. The report is headed 'Costs of Processing Code of Conduct Complaints and Access to Information Requests'. That report names BN and contains the contents of BN's 'Public Letter' to the Mayor.

1. In regard to the letter he received from the Deputy Ombudsman, Mr Ball said the Deputy Ombudsman had carried out substantial investigations into BN's complaints to that office. These complaints he said overlapped with many of the complaints BN had made to the respondent and in his view, the conclusions reached by the Deputy Ombudsman on the complaints made to that office supported the conclusions the respondent had reached on the complaints made to it. That is, the conclusions of the Deputy Ombudsman provided further support for the position the Council had taken in regard to its implementation of its complaints handling policy, especially in regard to BN's complaints. He went on to say that in his view it was appropriate to inform the respondent Council members of the Deputy Ombudsman's letter to BN and it was appropriate to do so openly. As I understand Mr Ball's evidence he formed this view as; (a) the Deputy Ombudsman had advised that he was providing a copy of his letter to BN, in the public interest, under s.43 of the Ombudsman Act 1974, (b) because the Council had previously considered, in open session, the complaints made to it by BN and (c) he did not consider the open disclosure of the Deputy Ombudsman's letter to BN fell within the terms of section 10A of the Local Government Act 1993 and thereby unlawful.

1. Attached to Mr Ball's affidavit was a copy of the Deputy Ombudsman's letter to Mr Ball and also the letter to BN. I have dealt with the content of these letters, in so far as they are relevant to these proceedings, in more detail below.

1. BN also filed and served a number of documents. The content of these is not easy to understand as to their relevance to the issues arising from his internal review application, which forms the basis of the tribunal's review jurisdiction. I have however, considered that material and taken into account that which is relevant to the issues identified above.

Is the information personal information about BN?

1. As I have already indicated the term 'personal information' is defined in section 4. It relevantly provides as follows:

4 Definition of "personal information"

(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) ...,

(b) information about an individual that is contained in a publicly available publication,

(c) ...

1. In determining whether information in a document is 'personal information' about a person, the starting point is the content of the information in question and the context in which the information came into existence. In this case, the letter of the Deputy Ombudsman to BN is about numerous letters of complaint that BN, in his capacity as a private citizen and a resident within the jurisdiction of the respondent Council, had submitted to the Ombudsman's office for investigation. That is, the matters raised in these letters of complaint were matters of personal concern to him and the Deputy Ombudsman's letter is a response to these concerns. For the purpose of this application it is not necessary to repeat what the Deputy Ombudsman said in his letter in regard to the various complaints that had been made by BN. While BN's concerns may have had a broader application, they were nevertheless concerns he had and he expressed these concerns to the Ombudsman's Office as part of its functions to investigate allegations of improper conduct by government officials of agencies. Such complaints are as a general rule considered to be personal information about the person who has complained and any response to that person is regarded in the same way. In my view, the Deputy Ombudsman's letter to BN is such a letter and contains personal information about BN. That is, information in the letter is personal information about BN falling within the terms of subsection 4(1) of the PPIP Act. In my view, it was also information that fell within the terms of paragraph 10A(2)(a) of the Local Government Act 1993.

1. Accordingly, the question is whether the information falls within one of the exceptions contained in subsection 4(3) of the PPIP Act. As I understand the submissions of the respondent, the information, other than the address of BN, is publicly available, and/or is information, which the Deputy Ombudsman has made available in the public interest.

1. In my view neither of these contentions are established on the material before the tribunal. The fact that BN had identified himself as the complainant in 13 of the complaints listed in Mr Ball's report, GM11/10 and that he was named subsequent report of the Executive Manager, CC55/10, does not mean that the personal information as contained in the Deputy Ombudsman's letter to BN is publicly available in the relevant sense as prescribed in paragraph 4(3)(b) of the PPIP Act. What must be shown is that the information contained in the Deputy Ombudsman's letter to BN was contained in a 'publicly available publication', prior to its disclosure on the respondent's website: see WL v Randwick City Council [2007] NSWADTAP 26 at [27]. The fact that BN had made complaints to the Ombudsman about the respondent and Mr Ball appears to have been within the public arena. However, there is no evidence of the content of those complaints and the detailed response to those complaints as contained in the Deputy Ombudsman's letter were contained in 'publicly available publication' prior to its publication by the respondent on its website.

1. In regard to the issue of 'public interest' this must be considered in its relevant context. In his letter to BN, the Deputy Ombudsman concluded by saying:

'[As] my letter raises significant issues in respect of your complaints, I should advise you that on my return to the office in February 2011, I intend to consider whether it is in the public interest to provide a copy of this letter to the Council pursuant to s.31AC(1) of the Ombudsman Act 1974, and to the Local Government Division of the Department of Premier and Cabinet pursuant to s.43 of the Ombudsman Act. '

1. In his letter to Mr Ball, the Deputy Ombudsman said:

"This office has recently conducted an examination of a number of complaints made by Mr [BN] about the Council. ...

We have now finalised this matter, and taken the opportunity to substantially review all of Mr [BN] complaints made to this office.

Given that Council and/or Council staff are the subject of each of these complaints I have decided that provision of a copy of my response to Mr [BN's] complaint is appropriate.

Accordingly I provide a copy to you, enclosed herewith, in accordance with s.31AC of the Ombudsman Act 1974."

1. Section 31AC of the Ombudsman Act 1974 is in the following terms:

31AC Ombudsman may furnish information to public authority

(1) The Ombudsman may, at any time:

(a) furnish to a public authority information obtained by the Ombudsman in discharging functions under this Act with respect to a complaint against or relating to the public authority, and

(b) make such comments to the authority with respect to the complaint as he or she thinks fit.

(2) The Ombudsman may also furnish any or all of the information referred to in subsection (1) to any other public authority, and may make such comments (if any) to that public authority as the Ombudsman considers appropriate, if:

(a) the Ombudsman is satisfied that the information concerned is relevant to the functions, policies, procedures or practices of that other public authority, and

(b) the information does not disclose any personal information (within the meaning of the Privacy and Personal Information Protection Act 1998 or the Health Records and Information Privacy Act 2002).

1. Section 34 of the Ombudsman Act contains a general prohibition on the Ombudsman and an officer of the Ombudsman from disclosing any information he or she obtains in the course of his or her office, unless the disclosure is made in accordance with that section, including for the purpose of discharging his or her functions under the Act. Section 31AC is a provision under which the Ombudsman, or an officer of the Ombudsman can make such a disclosure. However, in my opinion, a disclosure under this provision does not amount to a public disclosure, or an authority to the government agency to whom the information is given, to publish that information publicly. It is a provision that enables the Ombudsman or his/her officer to make a disclosure where it is relevant to the functions of the agency against whom the complaint was made, or another agency where the information is not also personal information. In this case the disclosure was expressly made under subsection 31AC(1). However, as I have indicated, in my view it cannot be described as a disclosure falling within paragraph 4(3)(b) of the PPIP Act.

1. Accordingly, I find that the letter from the Deputy Ombudsman to BN does contain personal information about BN. I make a similar finding in regard to the information contained in Mr Ball's report, GM 5/11, to the extent it recites the personal information about BN that was contained in the Deputy Ombudsman's letter.

Did the respondent breach the use information protection principle?

1. There are two information protection principles in relation to the use of personal information about a person. These are contained in sections 16 and 17 of the PPIP Act which relevantly provide as follows:

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.

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. In my view the conduct of the respondent does not evidence a breach of these provisions. Section 17 relates to the use of personal information for the purpose it was collected. In this case, the personal information about BN as contained in the letter of the Deputy Ombudsman was not information that the respondent had collected (see sections 8 to 11 of the PPIP Act). It was 'unsolicited' personal information about BN and by reason of subsection 4(5) of the PPIP Act it is not 'collected' by the respondent for the purpose of that Act.

1. It is the contention of BN that information about him in the letter of the Deputy Ombudsman is inaccurate and he should have been given the opportunity to correct this information before it was published. As I have indicated above, it is difficult to understand in what respect BN contends the information to be inaccurate, other than his disagreement with the opinions expressed and conclusions reached. Nor is this an application for amendment under section 15 of the PPIP Act. In any event, as BN's primary concerns appear to relate to the stated findings and opinions of the Deputy Ombudsman in regard to his complaints and the review thereof, I note the tribunal has made clear on a number of occasions that such expression of opinion and findings are generally not 'inaccurate' in the relative sense under provisions such as section 16 of the PPIP Act, where they were genuinely formed and held at the time they were recorded: see Crewdson v Central Sydney AHS [2002] NSWCA 345 at [24] and GA v The University of Sydney (GD) [2010] NSWADTAP 31 at [52]. That is, sections such as section 16 and 15 of the PPIP Act cannot be used for a collateral purpose to agitate issues relating to disputes with an agency.

1. Accordingly, on the information before the tribunal, I do not find that the conduct of the respondent amounted to a breach of section 16 or 17 of the PPIP Act.

Did the respondent breach the disclosure information protection principle?

1. For the purposes of this application the relevant disclosure information protection principle is set out in section 18 of the PPIP Act which relevantly provides as follows:

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. There is no dispute that the Deputy Ombudsman's disclosure of his letter to BN to the respondent was in accordance with the provisions of the PPIP Act.

1. The question is whether the information (i.e. that contained in the Deputy Ombudsman's letter to BN) has been used or disclosed for a purpose other than the purpose for which the information was provided to the respondent. Having regard to the contents of the letter of the Deputy Ombudsman to Mr Ball, there is nothing in that letter to indicate that it had been provided to the respondent for the purpose of it publicly disclosing BN's personal information as contained in that letter. On the contrary, the inference arising from the Deputy Ombudsman's letter to Mr Ball is that it was provided for information only as the respondent and its officers had been the subject of the complaints BN made and which the Deputy Ombudsman had reviewed. That is, a publication of the letter was not a purpose for which the Deputy Ombudsman had disclosed BN's personal information to the respondent.

1. Accordingly, I find that the respondent's conduct in publishing the Deputy Ombudsman's letter to BN and that portion of Mr Ball's report, GM5/11, containing BN's personal information, was a contravention of the disclosure information protection principle in subsection 18(2) of the PPIP Act.

Should the Tribunal decide not to take any action on the matter or should it make orders sought by the applicant?

1. Section 55(2) of the PPIP Act sets out the powers of the tribunal on external review of conduct of an agency. It relevantly provides as follows:

55 Review of conduct by Tribunal

...

(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.

(3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997.

(4) The Tribunal may make an order under subsection (2) (a) only if:

(a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and

(b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.

(4A) ...

(5) If, in the course of a review under this section, the Tribunal is of the opinion that the chief executive officer or an employee of the public sector agency concerned has failed to exercise in good faith a function conferred or imposed on the officer or employee by or under this Act (including by or under a privacy code of practice), the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister (if any) for the public sector agency.

(6) ...

1. In my view the respondent's contravening conduct in disclosing BN's personal information warrants an order that the respondent make a written apology to BN. In regard to a public apology by the respondent I am conscious that this may amount to a further disclosure of that information. I understand the respondent removed the letter and Mr Ball's report, GM 5/11, from its website following receipt of BN's letter of 20 March 2011, a copy of which was attached to BN's submissions of 28 February 2012. At the same time, the publication of these reasons for decision will satisfy, to some extent, BN's concerns in so far as they relate to the respondent's contravening conduct, under the PPIP Act, in regard to his personal information. The identity of BN is undoubtedly well known to many within the respondent Shire and these reasons for decision will be accessible to all through the relevant websites. Accordingly, I do not propose to make an order in regard to a public apology.

1. In my view it is also appropriate to make an order that the respondent take all necessary steps to ensure that it does not in future disclose or publish personal information about BN that it holds, unless that disclosure or publication is in accordance with information protection principles of the PPIP Act.

1. In regard to BN's application for compensation, the amount sought is set out in BN's submissions of 28 February and 18 April 2012. The amounts sought are well above the amount prescribed in paragraph 55(2)(a) of the PPIP Act and appear to include alleged damages from causes of action other than a contravention of the PPIP Act. More importantly, BN has not provided any material to support the amounts (in whole or part) that he has claimed. Subsection 55(4) of the PPIP Act clearly places the onus on BN to prove his alleged loss arising from the contravention. BN has failed to do so. While he has appeared unrepresented at planning meetings, BN has indicated in his submissions that he has sought legal assistance in regard to this application as he has done with other applications before the tribunal. Furthermore, specific orders were made, by consent, in regard to the filing and serving of such evidence on two occasions. Accordingly, in the absence of such evidence I make no orders in this regard.

1. Finally, in regard to the tribunal referring Mr Ball's conduct to the relevant Minister - in my view, there is no basis to do so. A referral can only be made where the tribunal forms an opinion that the relevant officer of the agency has 'failed to exercise in good faith' a function conferred on him. In order to make such a finding the tribunal would be required to give that officer an opportunity to be heard. In my view, in the absence of Mr Ball being cross-examined on his affidavit evidence there is no material before the tribunal on which to form the requisite opinion, even on a prima facie basis. This does not mean that his conduct, on behalf of the respondent was in accordance with the principles of the PPIP Act. As I have found they were not.

1. The only remaining matter is one of costs, to which BN refers in his written submissions. While he has not expressly made an application of his legal costs, if any, his written submissions indicate he has incurred legal costs in regard to this application. Accordingly, it is appropriate to make orders enabling the BN to make an application for costs and if he does make such an application, an order giving the respondent an opportunity to file and serve submissions in reply should also be made. A determination on any cost application can then be made on the papers.

Conclusions and Orders

1. For the reasons set out above, I find that the respondent contravened the disclosure information protection principle set out in subsection 18(2) of the PPIP Act when it published, on its website, the 10 December 2010 letter of the Deputy Ombudsman to BN and that part of Mr Ball's report, GM5/11.

The tribunal orders:

1. Within 28 days of the date of this decision, the respondent is to provide the applicant with a written apology for having engaged in conduct that contravened the disclosure information protection principle set out in subsection 18(2) of the PPIP Act when it published, on its website, the 10 December 2010 letter of the Deputy Ombudsman to him and the report of Mr Ball, GM5/11, to the extent it contained BN's personal information.

2. The respondent to the respondent take all necessary steps to ensure that it does not in future disclose or publish personal information about BN that it holds, unless that disclosure or publication is in accordance with information protection principles of the PPIP Act.

3. There will be no order for costs unless BN files and serves an application for costs, together with supporting submissions and evidence of any legal costs incurred in the prosecution of these proceedings, within 21 days of the date of this decision.

4. In the event BN files and serves an application for cost in compliance with order 2, the respondent to file and serve submissions in response within a further 21 days.

5. Any question of costs so raised will be determined on the papers under section 76 of the Administrative Decisions Tribunal Act 1997.

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Decision last updated: 13 August 2012