FFN v Cumberland City Council - [2023] NSWCATAD 108

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: FFN v Cumberland City Council [2023] NSWCATAD 108
Hearing dates: 9 & 10 February 2022; 10 May 2022; 26 October 2022; 2 March 2023
Date of orders: 09 May 2023
Decision date: 09 May 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: H J Dixon SC, Senior Member
Decision:
Pursuant to section 55(2) of the Privacy and Personal Information Act 1998 the Tribunal takes no action on the matter.

Catchwords:
Privacy – information protection principles – information not recorded or held in agency’s records – information in heads of agency staff – whether information collected – whether information held

Legislation Cited:
Administrative Decisions Review Act 1997; Children and Young Persons (Care and Protection) Act 1998; Government Information (Public Access) Act 2009; Privacy and Personal Information Protection Act 1998

Cases Cited:
CNP v Commission for Fair Trading [2017] NSWCATAD 70; Department of Education and Training v GA (No 3) 2004 NSWADTAP 50; Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44; FFP v Cumberland City Council [2022] NSWCATAD 194; GA & Ors v Department of Education and Training and NSW Police [2004] NSWADTAP 18; HealthShare NSW v CJU [2022] NSWCATAP 316; MG v Department of Education and Training [2004] NSWADT 137; OD v Department of Education and Training (GD) [2005] NSWADTAP 74; Vice-Chancellor Macquarie University v FM [2005] NSWCA 192

Texts Cited:
None

Category: Principal judgment
Parties: FFN (Applicant)
Cumberland City Council (Respondent)
Representation: Self-represented (Applicant)
Mr C McFadzean, General Counsel, Cumberland City Council (Respondent)

File Number(s): 2021/00185000
Publication restriction: The disclosure or publication or broadcast of the name of the Applicant or the names of any of the children referred to in the materials before the Tribunal is prohibited pursuant to section 64(1)(4) of the Civil and Administrative Tribunal Act 2013.

Reasons for decision

The Applicant is a former employee of the Cumberland City Council, the Respondent in this matter (the Council). He was employed and worked within the Council’s children’s services area during 2016. The Applicant’s last day of work was on 16 December 2016 although he resigned in April 2017.
On 8 April 2021 the Applicant made a privacy complaint for internal review pursuant to the Privacy and Personal Information Protection Act 1998 (the PPIP Act) addressed to the Council.
Following the internal review of the Applicant’s privacy complaint the Council by its notice of 17 June 2021 to the Applicant advised him that having completed the review the Council determined to take no further action on the matter.
By application dated 28 June 2021 the Applicant made an application pursuant to the PPIP Act for an order that an external agency be required to conduct a proper fact-finding investigation into his earlier privacy complaint for an internal review to be conducted by the Council made on 8 April 2021 under s 53 of the PPIP Act.

Materials Relied Upon by the Parties

The Applicant relied…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWCATAD 108
Decision Date: 09 May 2023

CaseChat Overview and Summary

FFN brought an action against Cumberland City Council in the Civil and Administrative Tribunal of New South Wales, asserting that the council had violated their privacy by retaining information in the minds of its staff. The plaintiff claimed that this information, which was not formally recorded or held in the council’s records, constituted personal information that the council should have protected under the Privacy and Personal Information Protection Act 1998.

The legal issues before the tribunal included whether the information in question was considered 'collected' and 'held' by the council, thus subject to the privacy protections stipulated in the act. The tribunal needed to determine if the information, being held only in the memories of council employees, constituted a record or held information for the purposes of the act.

The tribunal found that the information in the heads of agency staff did not meet the criteria of being recorded or held in the council’s records. Since the information was not documented or stored in any form, it did not constitute 'held' information within the meaning of the act. Consequently, the tribunal concluded that the council was not obligated to protect this information under the privacy legislation. As such, the tribunal determined there was no breach of the privacy principles, and no action was required under section 55(2) of the Privacy and Personal Information Act 1998.

Orders

Orders of the court

Pursuant to section 55(2) of the Privacy and Personal Information Act 1998 the Tribunal takes no action on the matter.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	FFN v Cumberland City Council [2023] NSWCATAD 108
Hearing dates:	9 & 10 February 2022; 10 May 2022; 26 October 2022; 2 March 2023
Date of orders:	09 May 2023
Decision date:	09 May 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	H J Dixon SC, Senior Member
Decision:	Pursuant to section 55(2) of the Privacy and Personal Information Act 1998 the Tribunal takes no action on the matter.
Catchwords:	Privacy – information protection principles – information not recorded or held in agency’s records – information in heads of agency staff – whether information collected – whether information held
Legislation Cited:	Administrative Decisions Review Act 1997; Children and Young Persons (Care and Protection) Act 1998; Government Information (Public Access) Act 2009; Privacy and Personal Information Protection Act 1998
Cases Cited:	CNP v Commission for Fair Trading [2017] NSWCATAD 70; Department of Education and Training v GA (No 3) 2004 NSWADTAP 50; Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44; FFP v Cumberland City Council [2022] NSWCATAD 194; GA & Ors v Department of Education and Training and NSW Police [2004] NSWADTAP 18; HealthShare NSW v CJU [2022] NSWCATAP 316; MG v Department of Education and Training [2004] NSWADT 137; OD v Department of Education and Training (GD) [2005] NSWADTAP 74; Vice-Chancellor Macquarie University v FM [2005] NSWCA 192
Texts Cited:	None
Category:	Principal judgment
Parties:	FFN (Applicant) Cumberland City Council (Respondent)
Representation:	Self-represented (Applicant) Mr C McFadzean, General Counsel, Cumberland City Council (Respondent)
File Number(s):	2021/00185000
Publication restriction:	The disclosure or publication or broadcast of the name of the Applicant or the names of any of the children referred to in the materials before the Tribunal is prohibited pursuant to section 64(1)(4) of the Civil and Administrative Tribunal Act 2013.