GFX v Secretary, Department of Communities and Justice

[2024] NSWCATAD 322

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GFX v Secretary, Department of Communities and Justice [2024] NSWCATAD 322

Hearing dates:

20 August 2024

Date of orders:

31 October 2024

Decision date:

31 October 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Redfern PSM, Senior Member

Decision:

(1) The time for making the application is extended to 7 February 2024 pursuant to section 41 of the Civil and Administrative Tribunal Act 2013.

(2) Pursuant to section 55(2) of the Privacy and Personal Information Protection Act 1998, the Tribunal determines not to take any action on the matter.

Catchwords:

ADMINISTRATIVE LAW — Privacy and Personal information — whether personal information — whether disclosure to third parties by agency

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

BYW v Commissioner of Police, NSW Police Force [2014] NSWCATAD 53

BYW v Commissioner of Police, NSW Police Force [2015] NSWCATAP 270

Choi v Department of Communities and Justice [2022] NSWCA 170

KP v Narrandera Shire Council [2011] NSWADTAP 15

NS v Commissioner, Department of Corrective Services [2004] NSWADT 263

Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4

Telstra Corporation Limited and Privacy Commissioner [2015] AATA 991

Texts Cited:

Nil

Category:

Principal judgment

Parties:

GFX, Applicant
Secretary, Department of Communities and Justice, Respondent

Representation:

Applicant, self-represented
Respondent
Solicitor: S Chew, Senior Solicitor, Legal Department of Communities and Justice

File Number(s):

2024/00047675

Publication restriction:

The disclosure of the name of the applicant is prohibited pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. The applicant is to be known by the pseudonym GFX.

REASONS FOR DECISION

Introduction

1. The applicant, GFX, is a social housing tenant who alleges that officers of Department of Communities and Justice (DCJ) breached his privacy under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). On 17 March 2023, he made an application for an internal review of the conduct of DCJ, and its officers, in relation to personal information alleged to have been wrongfully disclosed to third parties in August 2022 and in March and August 2023 about him and in relation to complaints that he had made. The applicant made allegations in respect of four separate incidents.

2. An officer of DCJ conducted the internal review and investigated the allegations made. During the course of the investigation, the officer conducted interviews with four departmental officers of NSW Housing Services and DCJ and reviewed various documents, including correspondence from the applicant for the period 31 May to 29 August 2023. There is an extensive history leading to the allegations made by the applicant about his breach of privacy which have their origin in disputes between the applicant other tenants dating as far back as 2013 and 2014. Prior to finalising the decision, the delegate submitted a draft decision to the Privacy Commissioner for consideration. On 1 December 2023, the Privacy Commissioner advised DCJ that it was not proposed to make any submissions in relation to the draft decision. The Commissioner did not appear or make any submissions in these proceedings.

3. The officer made a decision dated 6 December 2023, which was notified to the applicant on or about that date. In summary, the officer did not find that there had been wrongful disclosure in breach of s 18 of the PPIP Act, or otherwise. She noted that there were four allegations of breach (referred to in these reasons as Allegations One to Four). She accepted that the information the subject of Allegations One, Two and Four related to the applicant's personal information and therefore was information that would attract the protections in s 18 of the PPIP Act. She nonetheless found that there was no unlawful disclosure of the applicant’s personal information by departmental officers. The officer was not satisfied that the information which was the subject of Allegation Three was personal information because it related to information about property maintenance and water that was leaking into the applicant's unit and was not about the applicant.

4. This is not a review in the nature of an “appeal” in relation to the decision of the review officer and the Tribunal must conduct its own review of the conduct which is the subject of the application having regard to the available evidence. Having undertaken that review, I have determined to not to take any action on the matter. My reasons follow. In essence, I am not satisfied that there have been breaches as alleged by the applicant in his application.

Procedural background

5. The applicant lodged his application for administrative review of this decision with the Tribunal on 7 February 2024. This application was lodged outside the time allowed for the making of an application, which was on or before 3 January 2024 (refer rule 24(3)(b) of the Civil and Administrative Tribunal Rules 2014).

6. The proceedings were listed for directions on 27 February 2024 and directions made by the Tribunal about submissions and evidence. On 18 March 2024, there were directions made about submissions in relation to whether the application had been lodged within time, whether time for making the application should be extended, whether a confidentiality order should be made in respect of the applicant’s name and whether his partner and co-tenant should be joined as a party to the proceedings. The respondent filed submissions opposing the extension of time and joinder, contending, amongst other things, that the Tribunal should not extend time for the applicant to lodge the application for review his application was lodged 35 days late, he did not provide sufficient explanation for his delay, he was raising issues about matters that were over 8 years old unrelated to the privacy breach, his claim had no prospects of success and the respondent would be prejudiced by the delay. It was further submitted that the applicant’s partner should not be joined, primarily because the alleged breaches were in respect of the applicant’s personal information, not his partner. The respondent did not oppose the anonymisation of the applicant’s name.

7. The Tribunal refused the application for the non-publication order, refused the application for joinder and adjourned the application for the extension of time to be heard together with the substantive application. The Tribunal made further directions about the proceedings, including directions that the applicant provide a one page document summarising the conduct he alleged breached the PPIP Act and the remedy he was seeking and any evidence including witnesses statements, documents and a summary of legal arguments. The respondent was directed to file any documents in reply and the matter was listed for a case conference on 1 July 2024. On 27 June 2024, the Tribunal made orders that the applicant’s further application for orders anonymizing the proceedings to be dealt with at the hearing of the substantive application.

8. The proceedings were listed for hearing on 20 August 2024. Just prior to the hearing, the applicant requested an adjournment on the basis that he was unwell. He provided a medical certificate from a general practitioner to the effect that he was receiving medical treatment for the period 15 to 23 August 2024 and would be unfit to continue his usual occupation. The request for the adjournment was refused on the basis medical certificate provided did not specify the illness or the reasons the applicant could not attend the hearing.

9. At the hearing, the applicant appeared in person and was supported by a witness, JC, who is his partner and a co-tenant in the residence in which they both live. He advised that he was well enough to proceed with the hearing and was given the opportunity to take additional breaks if required. The applicant actively participated in the hearing and did not request a break or further adjournment.

10. I extended the time for making the application to 7 February 2024 pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and made confidentiality orders pursuant to section 64(1)(a) of the CAT Act relating to the applicant’s identity. I made the orders extending time, having regard to the principles as recently endorsed by the Court of Appeal in Choi v Department of Communities and Justice [2022] NSWCA 170 at [85]. I was satisfied that the applicant provided an explanation for his delay, relevantly, that he was confused about the time limits given the correspondence he had received, the delay was only 35 days, I was not satisfied the respondent would be prejudiced by the delay, nor was I satisfied that the applicant had no prospects of success on the basis of the complaints made. There were factual matters to determine, namely whether the applicant’s personal information had been wrongfully disclosed. While I accept that it is apparent from the applicant’s submissions, he is seeking to raise certain issues that arise from his ongoing disputes with neighbours and NSW Housing, he also raises genuine concerns about breaches of his privacy and the impact this has had. Refusing to exercise the discretion to extend time would deprive him of the opportunity to have this issue determined and resolved. According, on balance I determined that the discretion under s 41 of the CAT Act should be exercised in the applicant’s favour.

11. At the hearing, the applicant requested that confidentiality orders be made on the grounds that both he and his partner had been subjected to harassment by neighbours in the housing development and he was concerned that if information about his claims and the proceedings became publicly available these tenants would continue to harass him. He had suffered significant anxiety and mental health issues as a result of the ongoing tensions between the tenants at the property it was on this basis that he sought orders that confidentiality orders be made. Having regard to the long history of acrimony and dispute between the various residents in the social housing development, I am satisfied that it is desirable to make a confidentiality order in relation to the applicant and his partner.

12. I also note that after the applicant made submissions in relation to these matters at the hearing, the respondent did not oppose either application.

13. The applicant gave oral evidence at the hearing and made oral submissions. He was supported in this application by his partner whose brief submissions was to similar effect to the evidence and submissions of the applicant. After the hearing, the applicant provided an email to the registry stating that if the Tribunal found that there were any privacy breaches in his favour, he wanted an apology from the respondent and compensation for the stress that this caused to him.

Statutory framework

14. The PPIP Act provides for the protection of personal information and for the protection of the privacy of individuals generally.

15. 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.

16. Personal information is not confined to private information or information about the personal affairs of a person and is not limited to information contained in records. It may include such things as photographs, images, video or audio footage. As observed by the Appel Panel in WL v Randwick City Council [2007] NSWADTAP 58 at [20] that a “broad, unrestricted primary definition of ‘personal information’ or ‘personal data’ is a standard feature of privacy protection statutes”, further explaining at [15] as follows:

Documents which themselves do not contain any obvious features identifying an individual may take on the quality by virtue of the context to which they belong. We accept that the photographs of building works, without more, might not reasonably be said to contain ‘information ... about an individual whose identity is apparent or can reasonably be ascertained from the information’. However, if the photographs were taken in circumstances where the identity of the owner of the property was known to the photographer, it might at least be arguable that the photographer (and the organisation to which he or she belonged) knew that the photographs recorded the condition of a property owned by a specific individual. This combination of factors might produce the conclusion that the information as a whole was information to which s 4(1) applied.

17. The critical question is whether the information in issue is “about an individual”. In Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4 the Full Court (Kenny and Edelman JJ, with who Dowsett J agreed) held at [63] and [64]:

63.   The words “about an individual” direct attention to the need for the individual to be a subject matter of the information or opinion. This requirement might not be difficult to satisfy. Information and opinions can have multiple subject matters. Further, on the assumption that the information refers to the totality of the information requested, then even if a single piece of information is not “about an individual” it might be about the individual when combined with other information. However, in every case it is necessary to consider whether each item of personal information requested, individually or in combination with other items, is about an individual. This will require an evaluative conclusion, depending upon the facts of any individual case, just as a determination of whether the identity can reasonably be ascertained will require an evaluative conclusion.

64.   In some instances the evaluative conclusion will not be difficult. For example, although information was provided to Mr Grubb about the colour of his mobile phone and his network type (3G), we do not consider that that information, by itself or together with other information, was about him. In other instances, the conclusion might be more difficult. Further, whether information is “about an individual” might depend upon the breadth that is given to the expression “from the information or opinion”. In other words, the more loose the causal connection required by the word “from”, the greater the amount of information which could potentially be “personal information” and the more likely it will be that the words “about an individual” will exclude some of that information from National Privacy Principle 6.1.

18. In other words, the Full Court accepted the reasoning of the Administrative Appeals Tribunal that there was a two-stage process, first, to determine whether the information or opinion is about an individual and then, if so, whether the information can be married with other information to identify a particular individual. As Deputy President Forgie stated in Telstra Corporation Limited and Privacy Commissioner [2015] AATA 991 at [95], the “starting point must be whether the information or opinion is about an individual” and “if it is not, that is an end of the matter”. Relevantly, the Full Court rejected submissions made by the Privacy Commissioner that if there is information from which an individual’s identity could reasonably be ascertained, then it will always be the case that the information is about the individual.

19. The PPIP Act establishes information protection principles (Information Protection Principles, IPP 1 to 12) that apply to public sector agencies pursuant to s 20. Those principles relate to the collection, retention and security of personal information and access to, alteration and accuracy of personal information. There are limits on the use of personal information under s 17 of the PPIP Act (IPP 11) and s 18, relevantly IPP 12, provides as follows:

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.

20. Section 53(1) provides that a person who is aggrieved by conduct of a public sector agency is entitled to a review of that conduct. The review is to be undertaken by the public agency concerned (s 53(2)) and the application must be dealt with by an individual who is directed by the agency to deal with the application. The individual must be, as far as practicable, a person who was not substantially involved in any matter relating to the conduct of the subject applications (s 53(4)(a)). The individual dealing with the review must consider all material submitted by the applicant and the Privacy Commissioner. The review must be completed as soon as reasonably practicable in the circumstances and, if the review is not completed within 60 days from the day the application was received, the applicant is entitled to make an application to the Tribunal under s 55 for an administrative review of the conduct concerned (refer s 53(6)).

21. Following completion of the review the public sector agency may take no further action, make a formal apology to the applicant, take such remedial action as it thinks appropriate, including paying compensation to the applicant, provide undertakings that the conduct will not occur again and implement administrative measures to ensure the conduct will not occur again (s 53(7)).

22. Section 55 of the PPIP Act provides that if a person who has made an application for internal review under s 53 is not satisfied with the findings of the review or the action taken by the public sector agency, the person may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) of the conduct that was the subject of the application under s 53 of the PPIP Act.

23. On reviewing the conduct of public sector agency concerned, s 55(2) provides that the Tribunal may decide not to take any action on the matter, or it may make 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.

24. The Tribunal may only make an order under subs (2)(a) if it is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency (s 55(4A)).

25. The Tribunal has jurisdiction to conduct the review of the application pursuant to s 9 of the ADR Act and under s 30 of the CAT Act. Regulation 24 of the Civil and Administrative Tribunal Rules 2014 provides that an application for review must be made with the Tribunal within the period specified in the enabling legislation or, where no period is specified, by the end of the default period, which is 28 days after the internal review is completed.

26. It is not the role of the Tribunal to conduct a review of the internal review decision but to review the conduct the subject of an application under s 53 to determine whether there has been a breach of the PPIP Act (NS v Commissioner, Department of Corrective Services [2004] NSWADT 263 at [34] and [38] to [44]). The term “conduct” is defined in s 52 of the PPIP Act and “refers to acts and omissions that amount to a contravention of an information protection principle or a privacy code of practice or a disclosure of personal information held on a public register” (NS at [36]).

27. The Tribunal is not bound by the rules of evidence in undertaking this review (s 38(2) of the CAT Act) and there is no legal burden of proof in these proceedings. This issue was considered in NS v Commissioner, Department of Corrective Services, where it was observed at [46] that neither the applicant nor the respondent agency carries a burden of proof to prove or disprove a fact in merits review and that these principles apply equally to a review under the PPIP Act.

28. The onus of proof issue was also considered by the Appeal Panel in KP v Narrandera Shire Council [2011] NSWADTAP 15. The Appeal Panel accepted that there was no rule that the applicant bears an onus of proof in reviews conducted under the PPIP Act but observed at [29] to [31], when referring to the principle that neither the applicant nor agency carries a burden of proof, as follows:

29.   This analysis does not resolve the question of what the Tribunal should do if left in a state of uncertainty in relation to a fact in issue after reviewing all the available evidence. It was said by the Federal Court in a landmark decision in 1984 that the notion of onus of proof is not directly relevant to administrative proceedings where a Tribunal, such as the Administrative Appeals Tribunal, is not bound by the rules of evidence and may inform itself as it thinks fit: McDonald v Director-General of Social Security [1984] FCA 57;(1984) 1 FCR 354 at 358;[1984] FCA 57; 6 ALD 6 at 11 per Woodward J. In particular it was held "there can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it, and in the present case the Social Security Act 1947 does not." Nevertheless, Woodward J acknowledged that if the AAT, "finds itself in a state of uncertainty after considering all the available material . . . it will be necessary for it to analyse carefully the decision it is reviewing." Depending on the terms of the legislation, the issue must be resolved one way or the other.

30.   The nature of the Tribunal's role under the PPIP Act is, so far as we are aware, unique. The Tribunal is not merely an executive decision maker as the AAT was in McDonald. While the Tribunal is exercising its review jurisdiction when determining whether certain conduct amounts to a contravention of an Information Protection Principle, it is exercising judicial power when determining whether to take no action or grant the relief available under s 55(2) including damages and mandatory and prohibitory injunctive relief: PPIP Act, s 55(2)(a)(b) and (c). Those functions are analogous to functions exercised by judges and other decision makers in civil proceedings before courts and Tribunals, where an applicant is seeking to assert his or her rights.

31.   Given the nature of the review under the PPIP Act, and the absence of any provisions attributing onus to either party, if left in a state of uncertainty in relation to a fact in issue, that fact should be decided against the applicant.

29. In BYW v Commissioner of Police, NSW Police Force [2014] NSWCATAD 53, the Tribunal considered the submission that a negative inference should be drawn that personal information was disclosed by the agency because there was evidence that third party became aware of the information. The Tribunal accepted that it was possible the personal information was disclosed, noting that this was only one of several possibilities and that the evidence did not support the finding that it was more likely than not that the personal information was disclosed by the agency. It was further noted that if the Tribunal is left in a state of uncertainty in relation to a fact in issue, the fact should be decided against the applicant. On appeal, the Appeal Panel in BYW v Commissioner of Police, NSW Police Force [2015] NSWCATAP 270, dismissed the appeal and found at [12] that the Tribunal correctly held that where there was uncertainty the issue should be resolved against the applicant. The Appeal Panel further found there being no other evidence before it, the Tribunal’s finding was available to it and not in error.

30. In this case, the material before the Tribunal comprises the documents provided by the respondent, the internal review decision dated 6 December 2023, submissions and material provided by the applicant and his oral evidence, supported by the brief oral evidence of his partner, at the hearing.

Internal review

31. As noted, I am not bound by any findings made by the internal reviewer in the decision dated 6 December 2023, nor am I reviewing the decision to ascertain whether there is factual or legal error. It is the role of the Tribunal to review this application afresh and undertake a review in relation to the conduct alleged that was the subject of the application under s 53 of the PPIP Act. Despite this, it is useful to outline the matters raised as part of the internal review because it provides a convenient summary of the conduct alleged to breach the applicant’s privacy as set out in his application made under s 53 of the PPIP Act, the available evidence and the matters considered as part of the review.

32. The applicant made his allegations in relation to his breach of privacy by application dated 20 February 2023 but apparently received on or about 17 March 2023. This complaint relates to the conduct of officers of DCJ Housing, Parramatta office and a legal officer from DCJ. The complaint was made in the context of proceedings filed by the applicant against the NSW Land and Housing Corporation in the Consumer and Commercial Division of the Tribunal. These proceedings were heard and determined by the Tribunal in August 2022.

33. The Tribunal decision, which outlines the dispute between the applicant and the NSW Land and Housing Corporation, also includes details of complaints about a neighbouring tenant, alleged breaches of the applicant’s quiet enjoyment of the unit and the alleged failure of NSW Housing to follow its anti-social behaviour management policy. The decision has been published but because I have made confidentiality orders in relation to the applicant's identity, I have not cited the published version of the decision in these reasons as this would necessarily disclose his identity. The reasons themselves are not relevant to the issues in dispute in this current application but provide important background as to how the allegations of privacy breaches are alleged to have arisen. The applicant’s claim against the NSW Land and Housing Corporation was dismissed.

34. The first complaint made by the applicant is to the effect that John Dauth, legal officer for DCJ, appeared at the Tribunal hearing in August 2022 and submitted that the applicant had no proof that the tenants were threatening them, whereas he had recordings and letters from DCJ telling them that the other residents had admitted to doing things to them. This does not disclose a privacy complaint pursuant to the PPIP Act. However, there are further allegations made alleging that Mr Dauth was instrumental in having staff breach the applicant’s privacy. It is further stated that Mr Dauth, who was part of the legal team, tried to “deceive” the Tribunal and was alleged that Wendy Morton, team leader, breached he and his co-tenant’s privacy. The applicant stated that he “knew” housing staff had spoken to other tenants because he and his co-tenant had been threatened by the other tenants. It is contended that this allegation is supported by the fact that the tenant threatened the applicant and his co-tenant to “stop complaining”. The conduct is alleged to have occurred from August 2022 until January 2023. The applicant further complained that when he went to the Tribunal over DCJ not doing anything about other tenants threatening them and the tenants’ anti-social behaviour, they witnessed staff talking to tenants about them in the stairwell of the unit block.

35. It is alleged that both tenants in the housing complex threatened them in the common areas and this is caused mental health concerns. the applicant stated that he wanted an apology and a change in policies and practices and training for the staff. He also wanted possible damages paid for the impact of the harassment by the residents.

36. The second allegation of breach outlined in the application is the allegation that on 8 March 2023 at around 2:45pm he and his partner overheard Mr Bertrum Stephen (an officer of NSW Housing) breaching their privacy by talking to one of the neighbours about them and their complaints.

37. The applicant made two further allegations about breach of his privacy.

38. By email dated 23 March 2023, the applicant advised that he wanted to add another breach of privacy to his complaints to the effect that another tenant in the housing block, being the resident from unit 17, had been told by local staff from the Parramatta office when maintenance contractors came out to try and do work on their premises that the job was cancelled. It is alleged that staff (or contractors) had no right to tell this tenant their business in relation to the maintenance issues and this was a breach of privacy. This allegation was further explained by email dated 20 April 2023, where the applicant stated that there was a breach of privacy in telling a resident of the unit directly next-door details about the maintenance works proposed. The applicant stated that he wanted to know what could be done about this tenant telling other tenants their business and discussing them in the common areas of the unit block.

39. The review officer sought to clarify the conduct alleged to be in breach of the applicant’s privacy by email dated 19 July 2023. In her email she summarised the three privacy complaints that she identified as having been made at that stage. It was noted that the applicant sought the following outcomes:

1. the relocation of the tenant residing in unit 19;

2. privacy training of NSW housing staff;

3. change in policies;

4. repairs to damage caused to the property by the other tenants; And

5. payment of damages.

40. The applicant was asked to confirm whether the particulars of the conduct summarised, and the outcome sought, was correct. It was also indicated that the review officer was aiming to finalise the review and provide an outcome by 31 August 2023. The complaints summarised were in similar terms to three of the allegations subsequently summarised in the review officer’s investigation report dated 6 December 2023.

41. By email dated 16 August 2023, the applicant advised the review officer of an additional breach of privacy which was stated to have been evidenced by an email sent to him from Elissa Erzikov, team leader at NSW Housing. In his email he noted that “we have positive proof today” that DCJ was going to breach his privacy in relation to a complaint he made about the resident of unit 19. The applicant takes issue with the email from Elissa Erzikov, noting that she had “admitted” in the email that she was going to show the photographs to unit 19. The applicant states that if Elissa Erzikov did this, she would put his and his partner’s lives at risk. He therefore requests that DCJ relocate this resident.

42. The email from Elissa Erzikov dated 15 August 2023 is to the following effect:

Good afternoon Mr [GFX]

I refer to your correspondence below specifically around the allegation of illegal substances being grown on the balcony

Do you have any photo evidence of this so we can investigate this in line with NSW police? If so, please email to [details of email address] so I can use this to support our investigation. Your details will not be shared with [A] on how DCJ obtained a photo.

I acknowledge you have sent numerous correspondances recently regarding [A]. I can assure you DCJ have reviewed your correspondence and are investigating under the Anti-Social Behaviour Policy.

Due to privacy reasons however, I am unable to disclose the nature of these investigations and any action taken or not taken against [A]. The same goes for relocating him out of the unit complex.

DCJ will continue to investigate any new allegations made against your neighbours however will [be] (sic) unable to investigate any matters that are historical. I am sure you can understand as our Anti-Social Behaviour Policy only allows us to investigate current matters however your concerns of previous behaviour has been noted

If you would like to arrange a meeting with myself, please give me some dates and times over the next two weeks that you could attend the local office

regards Elissa

43. This email was in response to an email from the applicant to Elissa Erzikov dated 14 August 2023 in relation to the applicant’s concerns about the resident of unit 19. In the email, the applicant makes allegations about criminal behaviour by the resident, including “positive proof” with photos of drug plants growing on his balcony. The applicant asks that NSW Housing to do something about this.

44. By email dated 25 August 2023, the review officer noted that the applicant wished to include an additional alleged privacy breach and that she would include this allegation in her investigation. She indicated that she would require an extension until 29 September 2023 to finalise his complaint. The applicant was advised on 27 September 2023 that there would be a delay in the internal view to 13 October 2023.

45. A draft of the internal review report was sent to the Privacy Commissioner for consideration on 17 October 2023 and the report was finalised on 6 December 2023. The applicant complains that there was undue delay in completing the internal review, which was not completed within 60 days from the date of the application, as contemplated by s 53(6) of the PPIP Act. The obligation in s 53(6) is to complete the review as soon practicable. Taking into account the new allegations made, the 60 days contemplated would be on or before 25 October 2023. A draft of the report was sent to the Privacy Commissioner for consideration on 17 October 2023 and the Privacy Commissioner did not respond until 1 December 2023. The report was finalised 5 days later and, as such, it is apparent that there was delay but the delay was not undue in the circumstances.

46. The review officer identified four allegations of conduct in respect of which the applicant claims that his privacy has been breached. Those allegations are particularised in the report as follows:

1. Allegation One: Sometime in August 2022, two departmental officers of NSW Housing Services Parramatta office, Ms Wendy Morton and Mr Bertrum Stephen, and a tenancy advocate of the department, Mr. John Dauth, informed one of the applicant's neighbours, being the resident of unit 24, about the applicant’s proceedings before the Tribunal. These proceedings were proceedings initiated by the applicant against the NSW Land and Housing Corporation.

2. Allegation Two: On or around date March 2023, Mr Stephen informed the residents of unit 24 about additional complaints made by the applicant about the resident of unit 19. The applicant alleges that these complaints were made in confidence to departmental officers and the information should not have been disclosed to the residents of unit 24.

3. Allegation Three: On or around 22 March 2023, the applicant was informed by the resident of unit 17 that departmental officers of the Parramatta housing office disclosed to unit 17 information about property maintenance issues in relation to a water leak in the applicant’s unit. The applicant alleges that this was his personal information which the staff should not have shared with another resident.

4. Allegation Four: On or about 15 August 2023, a departmental officer of the Parramatta Housing Office, Ms Elissa Erzikov, shared photographs with the residents of unit 19 being photographs that had been provided by the applicant to her as evidence in relation to a complaint the applicant made about unit 19.

47. It is noted that the applicant further alleges that as a result of these breaches of privacy, he has been harassed, bullied and threatened by other residents, specifically the residents of units 19 and 24, which has affected his mental and physical health.

48. The review officer was satisfied that the information alleged to have been disclosed in respect of three of the allegations was personal information for the purposes of the PPIP Act but was not satisfied that the information which was the subject of Allegation Three was personal information. Relevantly, the review officer found that the information about the water leak and the required maintenance and repair was not information about the applicant but rather about the unit in which the applicant resided, which is owned and maintained by the NSW Land and Housing Corporation. As such, the review officer was not satisfied that there had been any breach of privacy as alleged by the applicant in respect of this allegation.

49. In relation to the other three allegations, the review officer considered whether there had been disclosure of personal information contrary to s 18 of the PPIP Act.

50. The review officer stated that, in conducting her investigations in relation to Allegation One, she conducted interviews with Ms Morton, Mr Stephen and Mr Dauth. Mr Dauth said that he attended the unit block on one occasion in August 2022 for the purpose of serving and providing the applicant and his partner with the department's tender bundle for the proceedings. He told her that he did not interact with any other residents in the unit block. Mr Stephen also said that he did not attend the unit block during the alleged period of August 2022. Ms Morton denied disclosing any information to other tenants. Based on her interviews, the review officer was not satisfied that there had been a disclosure of personal information by the departmental officers as alleged.

51. In relation to Allegation Two, the applicant alleges that sometime in March 2023, he witnessed Mr Stephen exit the residence of unit 24 and during the visit, the applicant overheard his name and his co-tenant’s name being mentioned by the resident of unit 24 to Mr Stephen. The applicant stated that he also witnessed the resident of unit 24 call out to Mr Stephen to return to her unit because he had left behind a piece of paper. The applicant alleges that because his name was mentioned by the resident of unit 24 in her conversation with Mr Stephen, it can be inferred that Mr Stephen disclosed the complaints that the applicant made about unit 19. He also notes that this was raised directly with Mr Stephen in an email sometime in July 2023, to which Mr Stephen did not respond. This showed Mr Stephen was guilty about what he said and done because he had not denied this. The review officer interviewed Mr Stephen and asked him about this allegation. Mr Stephen said that in March 2023 he conducted a client service visit with some residents of the unit block, including unit 24. He did not provide any information to the resident of unit 24 in relation to the applicant, although he confirmed that he did return to her residence after she called him back in relation to an unrelated matter. He left her unit and then proceeded with remaining client service visits. Having regard to her investigations, the review officer was not satisfied that Mr Stephen had disclosed personal information to the resident of unit 24.

47. In relation to Allegation Four, the applicant provided a copy of an email sent by Ms Erzikov dated 15 August 2023 as evidence of the alleged privacy breach.

48. After investigation, the review officer concluded that no photographs had been provided to any other party. The review officer also spoke to Ms Erzikov about the matter, and she stated that she was seeking the photographs to investigate the complaint. She did not provide the photographs to the resident of unit 19 or any other residents of the unit block. She also stated that she did not disclose to the resident of unit 19 that the applicant had made a complaint against him. Accordingly, the review officer was not satisfied that there had been an unlawful disclosure of information of this information to unit 19 or any other party. She also noted, as relevant information that may explain why the residents of units 19 and 24 became aware of complaints made, that ongoing issues between the applicant and other residents, including previous proceedings before the Tribunal which were the subject of published decisions, may have resulted in the other residents inferring complaints had been made by the applicant.

49. In summary, the review officer did not find that there had been any breaches of s 18 of the PPIP Act.

Issues

55. Having regard to the evidence and submissions before the Tribunal, the issues are as follows:

1. Is the information the subject of the allegations “personal information” for the purposes of the PPIP Act?

2. If so, has there been disclosure of this personal information in breach of s 18 of the PPIP Act?

3. If so, do any of the exemptions in s 18 or in Division 3 apply?

4. If there has been a breach or breaches, what orders should be made by the Tribunal?

Consideration

Documents filed before the hearing and submissions

56. The applicant was directed to provide further evidence and submissions in relation to his claims. The applicant had previously provided to the review officer emails from 31 May 2023 to August 2023, which included correspondence and documents relating to complaints made by the applicant in respect of other residents of units 19 and 24 going back to 2015. The review officer summarises the complaints made by the applicant in these emails at page 4 of the report. I note that much of this correspondence relates issues the applicant has with the resident of unit 19 and his frustration that NSW Housing has not taken action against the resident to evict or relocate him. While there are some allegations of breach of privacy by the departmental officers in 2013 and 2014, the review officer states that she has confined her investigation to the privacy breaches alleged in the period August 2022 to March 2023 and the allegation made in respect of conduct in August 2023.

57. In response to the Tribunal directions, the applicant provided submissions in response to the submissions filed by the respondent and the orders made by the Tribunal at previous directions hearings. In brief, the applicant disagrees with the submissions made by the respondent and the previous orders made by the Tribunal and complains about how the review officer managed and investigation the application. He submits that the review officer should have interviewed one of the members of the Consumer and Commercial Division who conducted a directions hearing in relation to the previous Tribunal proceedings. The applicant did not provide a witness statement about the conduct that he contends breached his privacy but gave evidence at the hearing about instances where says he overheard, or infers from the surrounding circumstances, that departmental officers disclosed his personal information.

58. The respondent submits that the application should be dismissed as it is frivolous, vexatious or otherwise misconceived or lacking in substance because the applicant has not complied with previous directions made by the Tribunal to identify the conduct that is alleged to have constituted a breach of the PPIP Act and the applicant seeks to relitigate matters relating to his social housing tenancy, which have already been determined by the Tribunal. This is a collateral purpose. In other words, the applicant seeks to have the Tribunal determine issues over which it has no jurisdiction in these proceedings. The respondent submits that the Tribunal should decide not to take any action on the matter as there is no evidence to support his assertion about the conduct. The review officer conducted extensive investigation into Allegations One, Two and Four and there is no evidence to support his claims.

Is the information the subject of the complaints “personal information”?

59. The review officer found that the information in Allegations One, Two and Four was personal information because the complaints relate to the applicant’s personal information about his application before the Consumer and Commercial Division of the Tribunal, complaints he had made against other residents and photographs he had taken and provided to a departmental officer. The review officer was not satisfied that the information which was the subject of Allegation Three was “personal information” because the information was about property maintenance issues for the block, including relating to a water leak in the applicant’s unit, and NSW Housing’s arrangements as to how the maintenance work would be undertaken.

60. I agree that the information the subject of Allegations One, Two and Four is “personal information” for the purposes of the PPIP Act because the information was about the applicant’s complaints and about claims made by him in the Tribunal. It does not matter that the information may be in the public domain once his claims were agitated at a hearing in the Tribunal. The information that the applicant made certain claims and the nature of those claims, being the information alleged to have been disclosed, is in my view broad enough to fall within the definition of personal information. I therefore find that the information the subject of Allegations One, Two and Four is personal information for the purposes of the PPIP Act.

61. The information alleged to have been disclosed about the water leak, being Allegation Three, was that there was a water leak in the applicant’s unit and NSW Housing had put in place arrangements to carry out maintenance to fix this leak. The information was about the leak, the maintenance issues in the block and information about arrangements to fix the leak. Consistent with the principles outlined in the Privacy Commissioner and Telstra, as endorsed by the Full Court in Privacy Commissioner v Telstra, I am not satisfied that this is information about the applicant, even though it relates to the unit that he occupies, but rather about the unit owned by NSW Housing and the maintenance that was proposed to fix the leak. As such, I am of the view that the information in relation to Allegation Three is not “personal information” for the purposes of the PPIP Act.

Was there disclosure of the applicant’s personal information in breach of s 18?

62. I set out the evidence and my findings in relation to Allegations One, Two and Four below. Because I have found that the information the subject of Allegation Three is not personal information, it is unnecessary to make findings about whether this information was disclosed.

63. The question is whether there has been disclosure of the personal information as alleged.

Investigation of the alleged breaches

64. The review officer conducted interviews of each of the officers identified in the allegations. The notes of her interviews are in the respondent’s tender bundle. Below is a summary of the record of the interviews.

65. It is recorded that the review officer spoke to John Dauth on 1 August 2023. According to the notes of the interview, he said that there was no discussion with neighbours about the Tribunal proceedings, although he did attend the units on one occasion to hand deliver a bundle of documents to the applicant, being the documents that DCJ intended to rely on in the proceedings. It is stated that the reason why he attended the premises to deliver the documents in person was that the applicant alleged he did not receive the bundle. The notes state that Mr Dauth had interactions with the applicant but not the neighbours. The notes record that neighbours were interviewed where there were complaints made and he followed the anti-social behaviour management procedure to identify whether there had been any tenancy breaches. The only other discussions recorded in the notes were where the applicant was making specific complaints about other tenants. It is recorded that Mr Dauth questioned those tenants about the complaints as part of his investigations in relation to the allegations made in the proceedings. However, the file note suggests that Mr Dauth did not actually disclose who made the complaint as part of these investigations.

66. According to the file note of a telephone conversation with Wendy Morton on 15 September 2023, she told the review officer that she was aware that there were complaints being made in relation to the resident of unit 19 and he was interviewed on a few occasions about the allegations made but the source of the complaint was not disclosed to the resident.

67. There is also a file note of a telephone conversation with Bertram Stephen on 25 September 2023. The notes of the conversation records that the practice is when a tenant complains about another client, the team would investigate the complaint but would not identify where the complaint comes from. Mr Stephen is also recorded as telling the review officer that he would visit the units in the context of undertaking client service visits. He noted that there were a lot of repair issues that needed to be discussed in relation to the units and, in particular, in relation to unit 24. He notes that the reference to the resident of unit 24 calling out to him and asking him to return and giving him a piece of paper had nothing to do with the applicant or the co-tenant. He also noted that the conflict between the applicant and the tenant of unit 19 had been going on since 2004. The file note of the interview records that Mr Stephen said he did not disclose complaints made by the applicant to any other tenant. He is recorded as stating that there had been ongoing issues between the applicant and the tenant of unit 19 for many years. The source of the complaints was not disclosed to the tenant unit 19 but he believes that this tenant would know would infer or source that the complaints were made by the applicant.

68. There is a file note of a MS Teams meeting with Elissa Erzikov on 22 September 2023. The review officer discussed Allegation Four with her. Elissa Erzikov stated that she had received photographs from the applicant, but they were “definitely not” shared with any other party because she first needed to obtain consent. It is recorded that Ms Erzikov told the applicant she would investigate the anti-social behaviour complaint. She did not disclose the complainant although she believes it would have been obvious to the resident of unit 9 that the applicant was complaining. She sent him a natural justice letter outlining the complaint. It is recorded that Ms Erzikov stated that when a natural justice letter was sent the letter “points out to who it is”. It is also noted that Ms Erzikov explained, by way of general observations, that when a tenant calls and has an issue, staff will explain the process and will advise it whatever they put in writing is completely confidential however there is a risk that the complainant will be able to be identified.

69. There were no documents included in the respondent’s tender bundle evidencing that the information the subject of the allegations had been disclosed to the other residents. The applicant provided oral evidence and written submissions about why he believed the information had been disclosed, which is outlined below.

Allegation One

70. The first allegation is that two departmental officers (Stephen and Morton) and an advocate for the department (Dauth) breached the applicant’s privacy by informing the resident of unit 24 about his proceedings in the Consumer and Commercial Division.

71. In his written submissions, the applicant states that Mr Dauth’s evidence about how he served the tender bundle is incorrect. The tender bundle was mailed and not hand delivered, and it was contended that this was evidenced by an express post package received by him from NSW Housing. He also states, and this is unsubstantiated and a mere assertion by the applicant, that Mr Dauth “lied under affirmation” at the Tribunal hearing in August 2022.

72. The applicant disputes the comment made by Wendy Morton that she did not disclose details of his complaints and he seems to suggest that she may have instructed somebody else to do this. In relation to the statement of Mr Stephen, the applicant disputes Mr Stephen’s denials and claims that Mr Stephen is “insincere and indiscreet”.

73. In his oral evidence to the Tribunal, the applicant denies that Mr Dauth handed the tender bundle documents to him and relies on his written submissions. He calls into question the credibility of Mr Dauth and Mr Stephen. One of the issues he raises in relation to Mr Dauth is that he stated that he served the documents personally because it was alleged they had not been received. The applicant provided a copy of an express post envelope which he says is evidence that documents were mailed.

74. In my view, evidence that the documents were posted is not inconsistent with Mr Dauth’s statement that he personally served them, and it is possible that the documents were both mailed and served personally at the address of the applicant.

75. Mr Dauth, Mr Stephen and Ms Morton deny disclosing personal information about the applicant. The applicant does not point any other evidence that supports his contention. There is no evidence that he actually heard the information being disclosed. According to the file notes of the review officer, the departmental officers state that they did not disclose the information and Mr Dauth states that, while he was investigating the claims for the purposes of preparing the hearing, he did not disclose the source of the complaints. I give weight to the evidence contained in these file notes as a record of the matters discussed with each of the relevant officers. There is no evidence to contradict this and there is no evidence, for instance, from the applicant that he was present and witnessed or overheard these matters being disclosed. He infers this because he says that he has been harassed by the residents. Given the longstanding complaints and tensions between the applicant and at least two of the other residents, it is possible that they may have inferred the applicant was the source of the complaints. Accordingly, the fact that they have raised issues with the applicant about his complaints does not compel a conclusion that his personal information about these complaints has been disclosed by departmental officers.

Allegation Two

76. The allegation is that on or around 8 March 2023, Mr Stephen informed unit 24 about additional complaints made by the applicant about the resident of unit 19 which the applicant alleges should not have been disclosed to unit 24. Mr Stephen denies this and states that he was speaking to the resident of unit 24 in relation to other matters. The applicant gave evidence at the hearing that he saw Mr Stephen at the front door speaking with the resident of unit 24 and overheard his name being mentioned. This does not compel a conclusion that Mr Stephen was discussing his complaints with the resident of unit 24. It is possible that the resident of unit 24 may have been raising unrelated issues with Mr Stephen about other complaints, including possibly, about the applicant. I accept that the applicant may have heard his name mentioned but given the longstanding disputes and tension between the various residents, it is possible that Mr Stephen was the recipient of a complaint about the applicant as part of his client services visit. Mr Stephen states in his interview with the internal reviewer this was part of a routine client service visit and that he did not disclose any information to resident unit 24 about the applicant or about any complaints that the applicant had made in relation to unit 19. In the absence of cogent evidence to the contrary, I am not satisfied that there was such disclosure as alleged.

Allegation Four

77. This relates to the allegation made that Elissa Erzikov provided copies of his photographs to unit 19 and that she told the resident of unit 19 about his complaints of growing illegal substances on the balcony. Elissa Erzikov denies that she disclosed to the resident of unit 19 the source of the complaint or the photos. Her email asks for any evidence so she could investigation the applicant’s claims about anti-social behaviour and specifically states that the resident of unit 19 will not be advised of the source of the photographs, although the inference is he will be advised that there are photos. Elissa Erzikov is recorded as telling the internal reviewer that she did not disclose the photos because the applicant did not consent.

78. The applicant says that the resident of unit 19 said to him “stop taking photos” a few days after the applicant made his complaint. He believes that the only way that the resident of unit 19 would have known this was if this had been communicated to him by Elissa Erzikov. In my view, this is not the only explanation for why the resident of unit 19 may have said this. He may have actually seen the applicant take the photos from his balcony above. Alternatively, the complaint may have been raised with him and he may have inferred that the applicant had made the complaint and taken photos. The statement provided by Elissa Erzikov to the internal reviewer is unequivocal, I am not satisfied, in the absence of evidence to the contrary, that the applicant’s personal information was disclosed.

Conclusions

79. I am not satisfied on the evidence before me that the information the subject of Allegations One, Two and Four was disclosed to third parties by officers of NSW Housing or DCJ. The allegations are denied by each of the named officers who are alleged to have disclosed the information and there is no evidence, other than the applicant’s fears and inferences based on comments made by other residents, to dispute the denials. There may be other reasons why residents could have come to the conclusion that complaints had been made by the applicant. As noted by the Tribunal in BYW v Commissioner of Police, NSW Police Force, evidence that a third party became aware of the information does not lead to an incontrovertible inference that the information was disclosed by the agency. This was only one of several possibilities. I accept the evidence of denials and note that there is no cogent evidence to the contrary. If there is any uncertainty in relation to this matter, the fact should be decided against the applicant.

80. Because I am not satisfied on the evidence before me that the information the subject of Allegations One, Two and Four was disclosed, it is unnecessary to consider whether there are any exemptions. In additional, I am not satisfied that the information the subject of Allegation Three is personal information.

81. I am therefore not satisfied that the conduct of the officers of DCJ is in breach of s 18 of the PPIP Act as alleged in the application. As such, I have decided not to take any action on the matter.

Orders

82. The time for making the application is extended to 7 February 2024 pursuant to section 41 of the Civil and Administrative Tribunal Act 2013.

83. Pursuant to section 55(2) of the Privacy and Personal Information Protection Act 1998, the Tribunal determines 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: 31 October 2024