KP v Narrandera Shire Council

[2011] NSWADTAP 15

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15

Hearing dates:

9 December 2010

Decision date:

01 April 2011

Before:

Magistrate N Hennessy, Deputy President
S Montgomery, Judicial Member
E Hayes, Non-Judicial Member

Decision:

1. The Tribunal's decisions to take no action is set aside.

2. The matter is remitted to a differently constituted Tribunal to be heard and decided again with the hearing of further evidence.

Catchwords:

APPEAL - Privacy and Personal Information Protection Act - scope of Tribunal's jurisdiction - whether Tribunal bound to make a finding as to whether there has been a contravention of the Information Protection Principles before deciding to take no further action

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Privacy and Personal Information Protection Act 1998
Government Information (Public Access) Act 2009
Powers of Attorney Act 2003

Cases Cited:

KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56
AW v Vice Chancellor, University of Newcastle [2008] NSWADT 86
NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61
McDonald v Director-General of Social Security (1984) 1 FCR 354
NS v Commissioner, Department of Corrective Services [2004] NSWADT 263

Texts Cited:

Williams CR, Burdens and Standards in Civil Litigation (2003) Sydney Law Review 9

Category:

Principal judgment

Parties:

KP (Appellant)
Narrandera Shire Council (Respondent)

Representation:

Counsel
MA Robinson (Respondent)
KP (Appellant - in person)
Henningham Law (Respondent)

File Number(s):

109022

 Decision under appeal 

Before:

General Division

File Number(s):

093011

reasons for decision

Background

1. KP has appealed against a decision of the Tribunal under the Privacy and Personal Information Protection Act 1998 (PPIP Act) that no action be taken in relation to his application . KP is entitled to appeal on a question of law but must obtain the Appeal Panel's leave before appealing against the merits of the Tribunal's decisions: ADT Act, s 113.

1. KP is a resident of the local government area under the control of Narrandera Shire Council. In 2006 he complained to the NSW Ombudsman about the way certain Council employees had treated him. These proceedings concern a letter written by the then General Manager of the Council to the NSW Ombudsman's Office on 5 December 2006 responding to those complaints. The letter stated that KP had been prohibited from accessing Council's offices. The reasons for that decision were said to be the 'vexatious complaints' made by KP and, more recently, his 'unstable' behaviour. That behaviour was alleged to have included:

(a)   verbal outbursts with staff;

(b)   photographing a Councillor's residence;

(c)   causing problems at the airport including unauthorised access to the airside section of the airport and attempting to seek information on aviation fuel; and

(d)   attempting self harm.

1. On 13 December 2008, KP applied for an internal review of Council's conduct pursuant to the PPIP Act . When asked to identify the specific conduct he was complaining about, KP wrote:

The collection of personal information for unlawful means (PPIP Act 1998 - section 8 paragraph 2) and disclosing this unlawful information to the NSW Ombudsman's Office.

1. In addition, KP ticked various boxes on the application form corresponding with various Information Protection Principles concerning the collection, access, accuracy, use and disclosure of his personal information.

1. On 16 December 2008, the Executive Officer of Council replied to KP saying that the Ombudsman had requested the information that had been conveyed in the letter and that KP's request did not come within the PPIP Act . Council dismissed his application. KP applied to the Tribunal for a review of Council's conduct: PPIP Act , s 55. In that application, he again identified s 8(2) but did not identify any other Information Protection Principle.

1. Council applied for the proceedings to be summarily dismissed on the ground that it was "frivolous or vexatious or otherwise misconceived or lacking in substance": Administrative Decisions Tribunal Act 1997 ( ADT Act ), s 73(5)(g)(ii). The basis for that submission was essentially that Council was exempt from compliance with the PPIP Act when corresponding with the Ombudsman about a complaint. One of the exemptions on which Council relied is contained in the Direction relating to requests made by the Ombudsman under s 13AA of the Ombudsman Act 1974. In the alternative, Council submitted that the Tribunal should take no action in relation to the matter having regard to the material as a whole.

1. In making the application for summary dismissal (and the alternative application that no action be taken) Council relied on the material identified as exhibits R1 to R9. Significantly, several other statements from witnesses which had been filed by Council were not tendered in the interlocutory proceedings. The Tribunal agreed to determine those proceedings 'on the papers' without an oral hearing: ADT Act , s 76.

1. The Tribunal declined to dismiss the complaint summarily but agreed that no further action should be taken in relation to the matter: PPIP Act , s 55(2).

Legislative scheme

1. The Tribunal has jurisdiction to review a decision (or the conduct of an administrator) if an enactment, such as the PPIP Act , provides that applications may be made to it for a review of the decision or the conduct: ADT Act , s 38(1) and s 8. For the purpose of reviewing a decision (or conduct), the Tribunal may exercise all the functions (ie, the powers and discretions) conferred by the enactment on the administrator: ADT Act , s 63(2). The Tribunal conducts what is known as a merits review of the decision (or the conduct): ADT Act , s 63(1). The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit: ADT Act , s 73(1).

1. In this case Council applied for the application to be summarily dismissed. The Tribunal has power to dismiss an application if it considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. Alternatively, Council submitted that the Tribunal should take no further action having regard to the material as a whole.

1. Pursuant to s 52(1) "conduct" in this context means:

(a) the contravention by a public sector agency of an information protection principle that applies to the agency,

(b) the contravention by a public sector agency of a privacy code of practice that applies to the agency,

(c) the disclosure by a public sector agency of personal information kept in a public register.

1. "Conduct" includes a reference to alleged conduct: s 52(2).

1. The Tribunal's powers 'on reviewing the conduct' of the relevant agency, are set out in s 55(2):

On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:

1. Various orders including damages and injunctive style relief are listed in s 55(2).

1. The first question for the Tribunal when considering applications under the PPIP Act is whether the conduct was 'correct or preferable' based on the relevant material currently before it: ADT Act , s 63(1). The second question is what orders, if any, it should make: s 55(2).

Tribunal's decision and errors of law

Application for summary dismissal on basis of exemptions

1. Council submitted that their conduct in providing the information in the letter to the Ombudsman was exempt from the PPIP Act and the application should be summarily dismissed. The Tribunal did not come to a view about that submission saying that issues like that were "difficult to determine given the state of the evidence." Notwithstanding its failure to determine that issue, the Tribunal declined to summarily dismiss the application.

1. Unsurprisingly, KP did not appeal against the Tribunal's decision to refuse to summarily dismiss his application. Nor did Council appeal against that decision.

Decision to take no action

1. The Tribunal then considered whether it should make an order that no action be taken. The Tribunal considered whether the Council had contravened the Information Protection Principles in ss 8(2), 16 or 18. The Tribunal's conclusions can be summarised as follows:

(1)   The letter of 5 December 2006 to the Ombudsman contains personal information about KP within the meaning of that term in s 4 of the PPIP Act ;

(2)   Council has not contravened s 8(2) or s 16 in relation to the personal information in that letter. In those circumstances, no action should be taken in relation to those matters. (This finding did not apply to the allegation that KP had attempted self harm and that he had caused trouble at the airport.)

(3)   There is insufficient evidence to make a finding that Council breached s 8(2) or s 16 in relation to the allegation that KP had attempted self harm and that he had caused trouble at the airport. In those circumstances, no action should be taken.

(4)   Despite the fact that Council has disclosed KP's personal information to the Ombudsman (and impliedly breached s 18), no further action should be taken. The reason for that conclusion is that by complaining to the Ombudsman, KP is taken to have understood that the Ombudsman would seek information from Council about his complaint and that Council would provide information relevant to the complaint.

1. The Tribunal acknowledged at [13], that the evidence presented on the 'summary dismissal' application has been 'fairly minimal'. Council filed statements from Mr McConnell, the Council's executive officer, and Mr Amirtharajah, the then General Manager, and provided written submissions dated 19 August 2009 and 11 September 2009. However, Council did not rely, for the purposes of the summary dismissal application (or the alternative application to take no action) on any of the other evidence it had filed in the proceedings. In particular, in relation to the information that KP had attempted self harm and caused trouble at the airport, Council did not adduce any evidence. In its written submissions, Council said that in relation to the alleged contravention of s 8(2), that "there is no evidence that the relevant information was collected by unlawful means". In relation to the alleged breach of s 16 Council also said that "there is no evidence that the information . . . was used without Council taking reasonable steps to ensure that the information was relevant, accurate, up-to-date, complete and not misleading."

1. The Tribunal made no finding as to whether there had been a contravention of s 8(2) or s 16, in relation to the information that KP had attempted self harm and caused trouble at the airport,. The Tribunal made findings that Council had not contravened s 8(2), s 16 or s 18 in relation to the rest of the information in the letter.

Errors of law

Making final orders when considering an application for summary dismissal

1. In our view, when deciding whether to take no further action, the Tribunal made three errors. The first and most fundamental was to determine that question on the papers in the context of an application for summary dismissal. Evidence which had been filed, but not tendered was not taken into account. These were interlocutory proceedings. It was not the occasion for the Tribunal to determine the substantive application and make final orders. That error alone means that the Tribunal's decision not to take any action should be set aside.

Failure to make a finding as to whether there had been a contravention

1. Secondly, the Tribunal erred by accepting Council's submission that AW v Vice Chancellor, University of Newcastle [2008] NSWADT 86 stands for the proposition that a determination to take no action may be made without first making a determination as to whether a relevant contravention has been established.

1. The Tribunal may decide to take no action 'on reviewing the conduct'. It is uncontroversial that the Tribunal can decide to take no action whether or not it finds that the alleged conduct contravenes an Information Protection Principle (or a privacy code of practice or discloses personal information kept in a public register): AW v Vice Chancellor, University of Newcastle [2008] NSWADT 86; NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61 at [24]. But it must first make a finding. Section 55 does not give the Tribunal a discretion to review or not to review the conduct that is the subject of the application. That situation may be contrasted with s 36(1) of the Powers of Attorney Act 2003, which states that:

A review tribunal may, on the application of an interested person, decide to review the making or the operation and effect of a reviewable power of attorney or not to carry out such a review.

1. Section 55(2) does not give the Tribunal power 'not to carry out . . . a review'. In our view, s 55 requires the Tribunal to review the conduct and make a finding as to whether or not there has been a contravention of an information protection principle (or other contravention or disclosure as defined in s 52(1)) before deciding to take no action.

Failure to make a finding because of uncertain state of the evidence

1. The Tribunal's third error was to fail to make a finding of fact as to whether Council had contravened s 8(2) and/or s 16 in relation to the information that KP had attempted self harm and caused trouble at the airport. The Tribunal said at [10] that:

. . . the evidence is silent on how these two items of evidence were collected and it is equally silent on whether there was any need to undertake steps to verify such information or, if there was such a need, whether such steps, if any, were taken. In these circumstances the Tribunal is unable to determine, on the balance of probabilities, whether there was an unlawful collection or a failure to verify. A determination cannot be made comfortably one way or the other, any such determination being a matter of pure conjecture given the state of the evidence.

1. Ordinarily, if a court or tribunal is left in a state of uncertainty in relation to a matter, then the issue will be decided against the party who bears the legal burden of proof. The terms 'evidential burden' and 'tactical burden' of proof have been the source of some confusion. CR Williams has succeeded in clarifying the various ways in which those terms have been used and we have adopted his preferred terminology: Williams CR, Burdens and Standards in Civil Litigation (2003) Sydney Law Review 9. The evidential burden, sometimes called 'the duty of producing evidence', most commonly arises in the context of trial by jury. The judge may decide not to leave an issue to the jury if the party with the evidential burden of proof has not produced sufficient evidence to raise an issue as to the existence or non existence of a fact in issue. In cases where there is no jury, the evidential burden is merely the burden of producing evidence on any issue. The general rule in civil cases is that the party who has the legal burden also has the evidential burden.

1. Neither the ADT Act nor the PPIP Act attributes a legal burden of proof to any party. That situation may be contrasted with the situation under the Government Information (Public Access) Act 2009 ( GIPA Act ). The burden of establishing that a decision made under that Act is justified lies on the agency. However, in relation to a decision to provide access to government information, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review: s 105. In the absence of any express legislative provision in the PPIP Act , the relevant provisions must be interpreted in context to determine whether there is a legal burden of proof and, if so, where that burden lies.

1. In NS v Commissioner, Department of Corrective Services [2004] NSWADT 263, the following discussion of this issue appears at [32] and [45] to [46]:

32 The Deputy Privacy Commissioner also submitted that there was no rule that the applicant bears an onus of proof in reviews of conduct under the PPIP Act and in this regard relied on the decision of GV v Officer of the Director of Public Prosecutions [2003] NSWADT 177. She went on to submit that if such an onus was to be placed on an applicant then applicants would be greatly disadvantaged as they do not have any knowledge of the way the agency manages the personal information it holds and they are therefore not in the same position as the agency to ascertain the exact nature of the conduct complained about.

....

45 I agree with the submissions of the Deputy Privacy Commissioner in respect of onus of proof. The Appeal Panel recently adopted such an approach in KO v Anor v Commissioner of Police, New South Wales Police (GD) [2004] NSWADT 21 at [40 to 43].

46 In GR (at [35] and [36]), the Appeal Panel adopted observations made by the Australian Law Reform Commission in its report entitled "Managing Justice: A Review of the Federal Civil Justice System" in respect of merit review by the tribunals as applying equally to a review under s.55(1) of the PPIP Act. These observations expressly stated that in a merits review "neither the applicant nor the respondent agency carries a burden of proof to prove or disprove a fact".

1. 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) 1 FCR 354 at 358; 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.

1. 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.

1. 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.

Scope of the application

1. While it is not strictly necessary to do so, we also consider another ground of appeal raised by KP which relates to the scope of his application.

1. KP submitted that the Tribunal erred by confining itself to a consideration of breaches of s 8(2), 16 and 18. KP submitted that the Tribunal should have made a determination about whether the alleged conduct breached the other Information Protection Principles set out in his application for internal review.

1. The Tribunal found that KP was complaining about the unlawful collection, failure to verify and eventual disclosure of his personal information: KP v Narrandera Shire Council [2010] NSWADT 61 at [5]. Those matters correspond with the Information Protection Principles in s 8(2), s 16 and s 18 of the PPIP Act :

Section 8(2)

A public sector agency must not collect personal information by any unlawful means.

Section 16

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.

Section 18

A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:

(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

1. Council's submission to the Tribunal at first instance, dated 17 August 2009, made the point that KP's statement of evidence filed on 3 May 2009 suggested that his only complaint was that there has been a breach of s 16 (failure to verify).

1. The Tribunal concluded at [5] of the 3 March 2010 decision, that it was not clear which Information Protection Principles KP wished to rely on. The Tribunal assumed that he was complaining of unlawful collection (s 8(2)), failure to verify (s16) and the eventual disclosure of his personal information (s18).

1. The Tribunal has power to review conduct that has been the subject of an internal review application to the agency: PPIP Act , s 55(1). The conduct that was 'the subject' of KP internal review application was the collection of personal information by unlawful means and the disclosure of that information. As we have said, KP also ticked boxes in the application for internal review corresponding with other Information Protection Principles, including the accuracy of his personal information. Merely ticking a box does not necessarily mean that the contravention of those principles was the subject of an internal review: KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56. In that case, the Appeal Panel made the following observations in relation to the determination of the scope of the Tribunal's review:

13 ... In our view, it is clear from the scheme of the Act, in particular ss 53 and 55, that the scope of the application for internal review, reasonably construed, provides the scope for the agency's examination of the application. Unless there is some widening of the application within that process which is accepted by the agency, the application for internal review, reasonably construed, sets the scope for the application for review of the conduct by the Tribunal.

14 The question of what is the scope of the application, reasonably construed, is one of fact but, as we have indicated, affecting jurisdiction. Its determination is not driven, in any significant way, in our view by any recitation of Information Protection Principles that may appear in the applicant's application. . . .The key question is what facts and circumstances has the applicant referred to which might give rise to questions of compliance with the Information Protection Principles, and to identify the relevant Principles.'

1. The Tribunal determined, as a question of fact, that it had jurisdiction to review the conduct of the Council in collecting (in breach of s 8(2)) and disclosing (in breach of s 16) KP's personal information. That conduct was clearly the subject of KP internal review application to the Council. The Tribunal was also satisfied, on the basis, among others, that KP had ticked a box in relation to the accuracy of his personal information, that KP was also alleging a breach of s 16 (verifying the accuracy of information).

1. Having made these observations, it will be a matter for the Tribunal reconsidering this matter to determine the scope of the application.

Orders

1.The Tribunal's decisions to take no action is set aside.

2. The matter is remitted to a differently constituted Tribunal to be heard and decided again with the hearing of further evidence.

Costs

1. If the Appeal Panel's decision was to dismiss the appeal, Council foreshadowed that it would apply for costs. We have not dismissed the appeal. In those circumstances, we make no order as to costs.

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Decision last updated: 06 June 2011