Dat v Inner West Council

[2017] NSWCATAD 253

Civil and Administrative Tribunal

New South Wales

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

REASONS FOR DECISION

1. The applicant has sought review of conduct by the respondent which he says is in breach of s 16 of the Privacy and Personal Information Protection Act 1998 (“the PPIP Act’).

2. The conduct concerned the use of personal information to place a direction to Council staff on the Council intranet. The effect of the direction was that Council staff were restricted in the responses they may provide to any further correspondence from the applicant concerning a property at St Peters.

3. The direction stated:

“No responses will be given regarding matters already raised in the regards to the approved use at [address of property]. Future correspondence about this issue will be read and filed without acknowledgement, unless Council staff decide it requires further action.”

4. Section 4(1) of the PPIP Act defines “personal information” as meaning:

“…information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.”

5. Section 16 of the PPIP Act provides:

“16 Agency must check accuracy of personal information before use

A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.’

6. The respondent conceded that information about the applicant contained in a letter from the General Manager to the applicant dated 31 July 2016, was an opinion about the applicant and therefore constituted “personal information”.

7. The letter referred to ongoing correspondence by the applicant in relation to a property. It stated:

“The matters which you have raised have been the subject of extensive investigation by council officers. As you have been previously advised, Marrickville Council has determined that it does not consider it appropriate for Council to intervene and has advised you that it intends to take no further action in relation to this matter.”

8. The letter contained the following opinion:

1. the staff resources required to respond to DAT’s repeated complaints were disproportionate to that provided to other residents;

2. this had had an unreasonable impact on the organisation, staff and service provided to other residents; and

3. the General Manager considered it necessary to impose restrictions on how the Council responded to him in future.

9. The respondent also conceded that by placing the direction on the intranet page it “used” the information within the meaning of s 16 and therefore was required to comply with the section.

10. The question to be determined therefore is whether, under s 16, the Council was required to take any steps to ensure the opinion was accurate, relevant, complete, up to date and not misleading; and if so, what steps were reasonable in the circumstances.

11. The Council submitted that in the circumstances it was not required to take any such steps. In its submission, the opinion was held by the Council’s General Manager and did not require to be checked before being used to issue a direction to staff. It might have been different, it submitted, had the source of the opinion been information from an external source.

12. The applicant submitted that the Council should have advised him of the opinion and requested his response before using the opinion in this way. He submitted that the decision was arbitrary and no attempt was made to ascertain that the information held by the Council was sufficient to “publish and enforce an allegation that I was an unreasonable complainant.”

13. The applicant’s argument could be interpreted as a claim that the Council should have provided him with procedural fairness before determining to issue the direction. However it is important to note that the Tribunal does not have jurisdiction to decide whether the Council followed correct procedure or was fair to the applicant in issuing the direction. The only issue before the Tribunal is whether any steps should have been taken before using the opinion.

14. The applicant submitted that the respondent was obliged to take reasonable steps and it had not established that it had taken any reasonable steps. He referred to the NSW Ombudsman’s manual Managing Unreasonable Complainant Conduct. Chapter 18 of the manual deals with modifying or restricting access to services. The document states:

“Decisions to modify or restrict a complainant’s ability to access services are management responsibilities and should always be approved by a CEO (or senior delegate). They should also be made with the greatest reluctance after careful consideration of factors like the complainant’s personal circumstances and, where relevant, the role a case officer or organisation has played in exacerbating the unreasonable conduct.”

15. The Council submitted that these were guidelines only and not mandatory.

16. The Council’s Complaint Management Policy states:

“In some circumstances it may be appropriate to limit access to or response from Council, or restrict, withhold or withdraw the provision of services to difficult complainants. A decision to do so must only be made by the General Manager on the basis of a written report by another officer.”

17. The Council conceded that no such written report exists.

18. No evidence was tendered by the Council as to any process followed in writing the letter to the applicant. For example it is not clear whether the CEO reviewed the material held by the Council.

Consideration

19. The letter from the General Manager to the applicant which contains the opinion, referred to “ongoing correspondence” between the applicant and the Council with regard to a particular property, and stated in part:

“The matters which you have raised have been the subject of extensive investigation by Council officers… Council has been quite obliging in investigating your concerns as well as responding to representations which you have made to other agencies over the past 4 years. I would like to express my concerns at your repeated attempts to engage in the complaints process with Council and the impact it is having …

The staff resources required to respond to your repeated complaints is disproportionate to that provided other residents in the Marrickville Local Government Area. This has an unreasonable impact on the organisation, staff and on the service provided to other residents, such that I now consider it necessary to impose certain restrictions on Council’s response to you in regards to this matter.

I therefore give you notice that effective immediately, Marrickville Council will send no further response to the matter you have already raised regarding the approved use at [address of property].”

20. In JD v Department of Health (NSW) [2005] NSWADTAP 44 at [70], the Appeal panel held that the following considerations are relevant to determining what reasonable steps should be taken under s 16:

1. the gravity of the information, taking account of the context;

2. impact on the privacy and reputation interests of the subject and other possible impacts the information might have if it is wrong or defective in the ways referred to in s 16;

3. how recently the information was collected;

4. the experience and competence of the author of the information;

5. the significance of the information in the context;

6. the extent to which it was possible to check back the information with the providers of the information, or the subject;

7. whether check back is unnecessary, because for example, of the known reliability of the source system;

8. whether check back is impractical because of operational issues, such as time constraints or needs to do with maintaining the confidentiality of the process;

9. whether particular recording methods might have been used that militate against error (such as a tape recording in an interview setting); and

10. whether there are other steps that may be taken before any final action is taken in relation to the information, and whether they are likely to occur soon.

21. Not all the above factors are relevant in the present case because the information was an opinion. For example it was not collected, it was not provided by someone else, and it was not recorded. In my view in determining whether any reasonable steps were required and if so, the nature of those steps, the relevant matters are:

1. its potential impact on the reputation interests of the subject and other possible impacts the information might have if it is wrong or defective in the ways referred to in s 16;

2. the significance of the information;

3. the experience and competence of the author;

4. whether checking was necessary or practical.

22. As to (a) the potential impact was that DAT’s correspondence on a particular matter would no longer be responded to. It would not deny him service from the Council in other respects. It would not impact upon his reputation as the decision was only available on the Council’s intranet. There was no evidence before the Tribunal that DAT would suffer reputational or other serious consequences as a result.

23. As to (b) the opinion was significant, because it was the basis of the decision.

24. As to (c), the holder of the opinion was the General Manager of the Council and could be expected to have competence and experience forming opinions about how Council resources should be used.

25. As to (d), the General Manager could have informed DAT of his opinion and asked for his input as to whether it was misleading or incomplete. However, in circumstances where the General Manager had better access to the council information referred to in the letter than the applicant, and had formed an opinion which he intended to use for the purpose of limiting the impact upon Council resources, the necessity of doing this is questionable.

26. There was no evidence before the Tribunal that the opinion was not relevant, up to date or complete. When considering if an opinion is accurate within the meaning of s 16, the question will be whether it was "genuinely formed and held at the time [it was] recorded": BN v Hornsby Shire Council [2012] NSWADT 165 at [37]. This is because an opinion is always subjective. There is no evidence that the opinion in this case was not genuinely formed and held and the letter is some evidence that it was genuinely held at the relevant time as it refers to the reasons for reaching the opinion.

27. There was no evidence that the opinion was misleading; as stated above, it was subjective. It was used for the purpose of taking action which DAT claims was unfair, or arbitrary; but there is no evidence anyone was misled by it.

28. Accordingly I find that there has been no breach of s 16 by the respondent. The application is dismissed.

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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: 23 August 2017