KP v Narrandera Shire Council

[2010] NSWADT 60

Set aside by Appeal:

CITATION:	KP v Narrandera Shire Council [2010] NSWADT 60
DIVISION:	General Division
PARTIES:	APPLICANT KP RESPONDENT Narrandera Shire Council
FILE NUMBER:	083362
HEARING DATES:	18 September 2009
DATE OF DECISION:	3 March 2010
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Summary dismissal. Access to personal information held by an agency.
LEGISLATION CITED:	Privacy and Personal Information Protection Act 1998, s.14
REPRESENTATION:	APPLICANT In person RESPONDENT M Robinson, barrister
ORDERS:	1. The proceedings are adjourned for a further planning meeting on 23 March 2010 at 10:15 am.

REASONS FOR DECISION

1 The applicant commenced these proceedings pursuant to the Privacy and Personal Information Protection Act 1998 following an unsuccessful internal review application. The applicant has also commenced other proceedings in this Tribunal, under the same legislation, against the same respondent, being matter number 093011.

2 Prior to substantive hearing, the respondent brought summary dismissal applications, on several grounds, in relation to each of these proceedings, such applications being heard on 18.09.09. At hearing the parties requested determination of the summary dismissal applications on the papers filed, the applicant’s documents being marked as exhibits A1 to A4, and the respondent’s as exhibits R1 to R9. The parties agreed that these exhibits could be admitted in each proceeding, on the understanding that only materials relevant to each matter would be considered. Whilst a decision on the papers is often a convenient course it has the difficulty that the Tribunal is unable to discuss matters of concern, or interest, with the parties that may arise on perusal of the papers.

3 There is a historical matter between the parties that is relevant. In earlier proceedings between the parties the applicant had sought access to a particular document under the Freedom of Information Act 1989. These proceedings were resolved by providing the applicant with a redacted copy of the document, a copy of which is exhibit R1 (page 2), whereupon the proceedings were withdrawn. The respondent held a complete copy of this document which is a report dated 26.02.07.

4 In the proceedings the subject of these reasons (083362) the respondent pressed arguments based on the limited scope of the issue before the Tribunal, the vexatious nature of the proceedings, the Tribunal’s power to take “no action” and the fact that the fate of the report dated 26.02.07 has been determined in earlier proceedings. The respondent’s position is that the applicant is, in the present proceedings, again seeking a copy of precisely the same document. Taking such a course, the respondent argues, exposes the application to summary dismissal on one or more of the several grounds argued.

5 The first question is to determine the scope of the application before the Tribunal. The respondent relied upon two communications from the applicant, being annexures A and B to exhibit R2. By these documents the applicant sought to be advised of personal information held by the respondent and identified relevant documents as being the abovementioned report dated 26.02.07 and 15 witness statements. It is common ground that the 15 statements are not now in issue and therefore may be put to one side. The respondent has read this application as being one for provision of the report just mentioned and equates this application with the application under the Freedom of Information Act 1989 referred to above.

6 There is a further communication from the applicant to the respondent in this regard which must be considered. This document appears at annexure C to exhibit R2 and discloses that the applicant is making an application for internal review under Privacy legislation on much wider grounds than is disclosed in annexures A and B. the respondent submits that this application has not been the subject of internal review, as the legislation requires, as it was not received until after proceedings had been commenced in this Tribunal, namely 08.12.08 (submissions exhibit R5 paragraph 2). In point of fact this is not correct a it bears a date received stamp of 30.10.08, this being the date of receipt verified in exhibit R2 paragraph 4. The correct position is that this application has not been the subject of internal review, as the evidence in exhibit R2 demonstrates. However, this suffices to show that the respondent’s point is correct: the Tribunal’s jurisdiction extends only to the matters raised in annexures A and B (exhibit R2), namely access to personal information contained in the report dated 26.02.07. As annexure C has not been the subject of internal review, and as the necessary effluxion of time had not occurred before proceedings were commenced, the Tribunal cannot entertain proceedings based on this document. The relevant decision on internal review is contained in exhibit A3 at page 11. It is dated 14.11.08 and only refers to the applications annexures A and B just discussed, annexure C not being before the decision maker at the time.

7 The second question is whether, this being the case, the application should be summarily dismissed. The respondent submits that the proceedings are vexatious on several grounds: the document an exempt document and should not be released, access to the document was determined in the earlier proceedings by the provision of a redacted copy and that, in any event, the Tribunal should take no action in the matter.

8 In the final analysis it is not critical to consider these arguments in detail. The respondent has characterised the application for internal review, and therefore the application now before the Tribunal, as being an application for access to a particular document. However, this does not put the application correctly. Pursuant to s.14 of the Act a person may seek to be provided with access to personal information that is held by an agency. There is no provision as to how access may or must be granted. The applicant has already been provided with a redacted copy of the report dated 26.02.07. Therefore the only live issue before the Tribunal is whether the deleted portions of this particular document contain personal information about the applicant to which he has not yet been provided access. If it does, the respondent is obliged to advise the applicant, in one form or another, what that personal information is. Any other issue arising from annexures A and B is clearly vexatious in the circumstances.

9 The live issue that the Tribunal has identified may be determined simply by comparing the complete copy of the report with the redacted version that was supplied to the applicant. This may be done by the respondent itself should it be so advised and, should this not resolve the matter, the Tribunal can make the determination after consideration of the complete document.

10 In these circumstances the appropriate course is to stand the matter over to a further planning meeting so that the parties may decide on what course they should follow at which time further directions may be given or final orders made, as appropriate.

11 The matter is listed for a further planning meeting on 23 March 2010 at 10.15am.