CWQ v Department of Family and Community Services

[2017] NSWCATAD 252

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CWQ v Department of Family and Community Services [2017] NSWCATAD 252
Hearing dates:	14 July 2017
Date of orders:	16 August 2017
Decision date:	16 August 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	K Ransome, Senior Member
Decision:	1. The decision under review is affirmed. 2. The Tribunal has decided not to take any action on the matter.
Catchwords:	PRIVACY – personal information – handling of complaint – response to complainant – whether information disclosed accurate – whether disclosure permitted by Act - whether respondent an investigative agency
Legislation Cited:	Housing Act 2001 Privacy and Personal Information Protection Act 1998 Residential Tenancies Act 2010
Category:	Principal judgment
Parties:	CWQ (Applicant) Department of Family and Community Services (Respondent)
Representation:	Solicitors: In Person (Applicant) Department of Family and Community Services (Respondent)
File Number(s):	2016/00378547, 1610800

REASONS FOR DECISION

1. The Department of Family and Community Services (FaCS), through the agency Housing NSW, provides social housing to tenants in NSW. CWQ is a social housing tenant. CWQ alleges that his privacy has been breached in the way a complaint about him was dealt with by FaCS. He seeks review by the Tribunal of a decision of FaCS that it was permitted to disclose the relevant information in accordance with the provisions of the Privacy and Personal Information Protection Act 1998 (“the Act”).

Background

2. On 14 June 2016 CWQ’s female neighbour complained to FaCS about CWQ’s behaviour and provided FaCS with evidence that an Interim Apprehended Personal Violence Order had been issued against CWQ. The application for the Order by CWQ’s male neighbour detailed two incidents involving CWQ: the first occurring on 25 May 2016 in which CWQ was alleged to have told the male neighbour that he would “get” him down town sometime and the second on 11 May 2016 in which it was alleged CWQ threatened to “belt” the male neighbour.

3. On 29 June 2016 CWQ was sent a letter asking him to attend an interview with FaCS on 6 July 2016 to discuss a complaint about antisocial behaviour occurring on 23 May 2016 and which involved “threats towards neighbour on a number of occasions”. A text message was also sent to CWQ about the interview. According to the FaCS representative who appeared at the hearing, the text message did not contain information about the complaint against CWQ.

4. On 29 June 2016, after receiving the text message, CWQ telephoned FaCS. An officer returned his call later in the day and informed him of the complaint. A record of the conversation between CWQ and the officer was entered into the Housing NSW database known as “HOMES” on 4 July 2016. The officer recorded that CWQ initially denied the complaint and then said it was true that he had said he would “belt” a male neighbour. The officer also recorded that CWQ said words to the effect that he had told the neighbour he would “bash [his] head in”.

5. On 6 July 2016 FaCS sent a letter to CWQ headed “Antisocial Behaviour Warning Notice”. This letter referred to the conversation that had taken place on 29 June 2016 between CWQ and a FaCS officer and stated that:

“You made admissions that you threatened a male neighbour …This incident occurred around the 11 May 2016.”

6. The letter went on to state that the incident was a breach of section 13 of CWQ’s residential tenancy agreement with regard to use of the premises and issued a warning that any further breaches may result in an antisocial behaviour strike being recorded against CWQ or action taken to terminate the tenancy.

7. On 7 July 2016 FaCS sent a letter to the female neighbour of CWQ headed “Complaint Outcome”. The letter referred to the complaint lodged by the female neighbour, set out CWQ’s address and stated that the complaint had been investigated “by speaking with neighbours and gathering information from other sources”. The letter also told the neighbour that the complaint was justified, that “the tenant” had been given a warning and he had been “counselled and reminded” of his responsibilities. The letter went on to say that FaCS would continue to monitor the tenancy and would take action on all substantiated incidences of antisocial behaviour.

8. On 12 July 2016 CWQ made a privacy application to FaCS complaining that FaCS had released his name to the “local community, in my street, stating I have admitted to a threat, which I did not, and making false statements”. CWQ was asked by FaCS to supply details of the members of the local community whom he stated had been provided with his personal information. In response CWQ referred to the letter to his neighbour of 7 July 2016 in which he said FaCS had admitted talking to neighbours.

9. At a subsequent interview with FaCS on 25 July 2016, CWQ denied telling the FaCS officer that he had made a threat to his neighbour on 11 May 2016.

FaCS internal review decision

10. Upon receipt of CWQ’s privacy application, FaCS conducted an investigation. FaCS concluded that it had disclosed CWQ’s personal information to his neighbour in its letter of 7 July 2016. However, FaCS also concluded that it was permitted to disclose the information for the purposes of providing advice to CWQ’s neighbour of the outcome of her complaint. FaCS also concluded that it did not use inaccurate information about CWQ in its investigation of the complaint or disclosure of the outcome.

Applicant’s submissions

11. CWQ provided written submissions to the Tribunal in advance of the hearing. He stated that FaCS was not permitted to disclose his personal information because it could not take advantage of the exemptions in the Act. He argued that this was because his landlord, the NSW Land and Housing Corporation, is not a public sector agency for the purposes of the Act. He also argued that FaCS could not rely on an exemption under the Act because it is not an investigative agency.

12. At the hearing, CWQ said he no longer relied on those submissions. He agreed that the NSW Land and Housing Corporation is a public sector agency. He argued, however, that the respondent was required to act in accordance with the provisions of the Residential Tenancies Act 2010 and, if it did not, was in breach of the Privacy Act.

13. CWQ’s argument appeared to be that the respondent could not act on hearsay. He characterised the complaint made by his female neighbour as hearsay as she was not present at the time he was alleged to have made the statement to the male neighbour. He stated that, in addition, there was no power given to the respondent in the Residential Tenancies Act to issue a warning in relation to antisocial behaviour by a tenant.

14. As I understand it, the import of this submission is that FaCS cannot rely on the exemptions in the Privacy Act because it did not act in accordance with the functions given to it under the Residential Tenancies Act.

15. CWQ also referred to the fact that the letter to him of 29 June 2016 referred to an incident on 23 May 2016 while the warning he was given on 6 July 2016 referred to an incident on 11 May 2016. He also denied making the statements alleged against him.

Who is the respondent?

16. CWQ’s submissions and other documents lodged in these proceedings refer variously, to FaCS, the NSW land and Housing Corporation and Housing NSW. Both the NSW Land and Housing Corporation and Housing NSW sit within the FaCS portfolio. The Land and Housing Corporation which is established under the Housing Act 2001, among other things, owns and leases properties in NSW which are used as social housing. Housing NSW, an agency within FaCS, manages tenancies in those properties and acts as agent for the landlord.

17. The management of CWQ’s tenancy is carried out by Housing NSW within FaCS. The management of the tenancy includes the management of anti-social behaviour and, by logical extension, dealing with complaints about the tenant. I am satisfied that FaCS is the correct respondent in these proceedings. I am also satisfied that FaCS is a “public sector agency” and is subject to the provisions of the Privacy Act.

Respondent’s submissions

18. FaCS relies on its decision on internal review as setting out the correct legal principles to be applied.

The issues

19. CWQ’s submissions that FaCS can’t rely on provisions in the Privacy Act as it has not complied with the requirements of the Residential Tenancies Act is difficult to understand.

20. What is under consideration in this application is not what action, if any, FaCS might take in relation to CWQ’s tenancy but what actions it took in dealing with a complaint made against CWQ by a neighbour and whether there was a breach of CWQ’s privacy in the way the complaint was dealt with.

21. It is not contested that the information FaCS disclosed about CWQ in the letter to his female neighbour on 7 July 2016 is “personal information” within the meaning of the Privacy Act.

22. As I see it, the issues that therefore fall for consideration are:

1. whether the personal information about CWQ used and disclosed by FaCS was accurate; and

2. whether disclosure of that information was permitted by the Privacy Act.

Consideration

Was the information accurate?

23. Information Privacy Principle 9 contained in section 16 of the Privacy Act provides:

“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.”

24. The information used by FaCS was that contained in the copy of the application for an Apprehended Personal Violence Order provided to FaCS by CWQ’s neighbour on 14 June 2016. CWQ impliedly states that the information used by FaCS was not accurate because he did not say the words attributed to him in that document. CWQ referred to statements made by his male neighbour and his neighbour’s son which were provided in support of the application for an Apprehended Personal Violence Order. The male neighbour states that CWQ said he would “belt” him, while his son uses the word “hit”. CWQ states that the difference points to him not using the words alleged.

25. It is apparent that FaCS took some steps to test the accuracy of the information provided. Unfortunately, the letter sent to CWQ on 6 July 2016 referred to “threats” in general terms and gave a wrong date (23 May 2016) upon which it was said these threats had been made. Nevertheless, CWQ responded to a text message sent the same day and had a discussion with a FaCS officer about the information.

26. The original notes made by the officer of that conversation were not provided to the Tribunal. A record of the conversation entered into the HOMES database some days later and an affidavit by the officer were provided to the Tribunal. The officer records that CWQ initially denied the subject of the complaint but agreed, when asked, if he had said to his male neighbour while the neighbour was taking his bins out that he would “belt” him.

27. While CWQ insisted before the Tribunal that he did not agree that he said he would “belt” his neighbour, I accept the accuracy of the officer’s record of his conversation with CWQ on 29 June 2016.

28. In my view, in discussing the content of the complaint with CWQ on 29 June 2016, FaCS took reasonable steps to test the accuracy of the information provided. FaCS was entitled, when CWQ agreed that he had made the statement concerned, not to take further steps to test the accuracy of the information.

29. It is unfortunate that the letter sent to the complainant on 7 July 2016 referred to “speaking with neighbours” when, as became apparent at the hearing that had not occurred. That error does not, however, affect my conclusion in the preceding paragraph.

Was disclosure of the information permitted by the Privacy Act?

30. Information Privacy Principle 11 contained in section 18 of the Privacy Act provides that personal information must not be disclosed except in limited circumstances set out in subsections 18(1)(a), (b) and (c). FaCS quite rightly concedes that those exceptions do not apply in this case.

31. It therefore falls to consider whether the disclosure is covered by any of the specific exemptions set out in Division 3 of Part 2 of the Privacy Act.

32. FaCS relies on the exemption set out in s 24 of the Privacy Act, being those exemptions relating to “investigative agencies”. Relevantly s 24(5) provides:

(5) An investigative agency is not required to comply with section 18 if:

(a) the information concerned is disclosed to a complainant, and

(b) the disclosure is reasonably necessary for the purpose of:

(i) reporting the progress of an investigation into the complaint made by the complainant, or

(ii) providing the complainant with advice as to the outcome of the complaint or any action taken as a result of the complaint.

33. A question arises as to whether FaCS is an “investigative agency”. An investigative agency is defined in s 3 of the Privacy Act to mean any of a list of named agencies, or:

(b) any other public sector agency with investigative functions if:

(i) those functions are exercisable under the authority of an Act or statutory rule (or where that authority is necessarily implied or reasonably contemplated under an Act or statutory rule), and

(ii) the exercise of those functions may result in the agency taking or instituting disciplinary, criminal or other formal action or proceedings against a person or body under investigation

34. As set out above, FaCS, through Housing NSW, manages tenancies in NSW on behalf of the landlord, the NSW Land and Housing Corporation. There is no dispute that CWQ has entered into a residential tenancy agreement with the landlord and that his tenancy is governed by the terms of that agreement and the Residential Tenancies Act.

35. Part 7 of the Residential Tenancies Act applies to a “social housing tenancy agreement”. The definitions set out in s 136 of that Act make clear that the tenancy agreement between CWQ and the NSW Land and Housing Corporation is a residential tenancy agreement that is a social housing tenancy agreement.

36. Clause 13 of CWQ’s tenancy agreement concerns the use of the residential premises by him. Among other things, that clause requires the tenant not to interfere with the reasonable peace, comfort or privacy of any neighbour.

37. Under s 87 of the Residential Tenancies Act a landlord may give a notice of termination of a residential tenancy agreement on the ground that the tenant has breached a term of the agreement. In respect of a social housing tenancy agreement, Subdivision 4 of Division 5 of Part 7 of the Residential Tenancies Act sets out particular provisions in relation to a social housing tenancy agreement in relation to a breach of the agreement.

38. In particular, s 154C sets out a scheme for recording strikes against a tenant “where a landlord under a social housing tenancy agreement is satisfied that a tenant has breached the agreement but is not satisfied that the circumstances of the breach alone justify termination”. In considering whether to terminate the tenancy for breach, this Tribunal is required by s 154E to consider, among other things, the effect the tenancy has had on neighbouring residents. Under s 154F, in considering whether to terminate the tenancy where a breach has been found, the Tribunal is to give the landlord the opportunity to provide a neighbourhood impact statement.

39. In order to be satisfied, in accordance with the provisions of the Residential Tenancies Act referred to above, that a social housing tenant has or has not breached the term of the agreement it is incumbent upon a social housing provider to investigate allegations forming the substance of an alleged breach. In fact it is difficult to see how a landlord could fulfil its obligations under these provisions if it did not investigate matters which are alleged to amount to a breach of the residential tenancy agreement.

40. I am therefore satisfied that FaCS has investigative functions and those functions are implied or reasonably contemplated under the Residential Tenancies Act. I am also satisfied that that the exercise of these investigatory functions may result in disciplinary or other formal action being taken against a tenant. That is evident through the provisions concerning the recording of strikes against a social housing tenant, issuing of a termination notice and taking proceedings in this Tribunal to terminate a tenancy. It is irrelevant that, in the current case, the investigation did not result in one of those steps being taken and that CWQ was issued with a warning letter which is administrative in character rather than in accordance with the statutory provisions.

41. In my view, FaCS is an investigative agency within the meaning of s 24 of the Privacy Act. I am also satisfied that the requirements in s 24(5) have been met:

1. the letter of 7 July 2016 was written to a complainant; and

2. the letter disclosed only that information which was reasonably necessary to provide the complainant with advice about the outcome of her complaint and the action taken by FaCS in relation to CWQ as a result of her complaint.

Conclusion

42. It therefore follows that there has been no breach of the Privacy Act in respect of the use by FaCS of the CWQ’s personal information.

43. It also follows that the correct and preferable decision is to affirm the decision under review and to take no further action on the matter.

Orders

1. The decision under review is affirmed.

2. The Tribunal has decided not to take any action on the matter.

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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

Decision last updated: 16 August 2017