KP v Narrandera Shire Council

[2010] NSWADT 61

Set aside by Appeal:

CITATION:	KP v Narrandera Shire Council [2010] NSWADT 61
DIVISION:	General Division
PARTIES:	APPLICANT KP RESPONDENT Narrandera Shire Council
FILE NUMBER:	093011
HEARING DATES:	18 September 2009
SUBMISSIONS CLOSED:	1 March 2010
DATE OF DECISION:	3 March 2010
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Summary dismissal of proceedings. Exercise of the statutory power to determine proceedings by taking no action.
LEGISLATION CITED:	Privacy and Personal Information Protection Act 1998; s.55(2)
CASES CITED:	AW v Vice Chancellor, University of Newcastle [2008] NSWADT 86
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 083362.

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 proceeding 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 has been a substantial history of continued dispute between the parties, as the evidence clearly shows. However much of the relevant factual material is common ground. Briefly, the disputations eventually culminated in the respondent taking action to bar the applicant from the respondent’s offices and formal chambers. A particular report was submitted to the respondent concerning the applicant in relation to which the applicant sought access. This matter came before the Tribunal in earlier proceedings between the parties 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 For the purposes of the proceedings the subject of these reasons (093011) the relevant facts may be shortly stated. On 23 and 30 October 2006 the applicant made complaint to the NSW Ombudsman concerning the way in which he had been treated by the respondent’s officers. Following this there were communications between the respondent and the Ombudsman in relation to these complaints. In particular the respondent sent a letter to the Ombudsman dated 05.12.06 (exhibit R3 annexure B). It is common ground that this letter contained, and disclosed, personal information about the applicant. Consequently, it is clear from this alone that the respondent, in one way or another, had collected information about the applicant and, by reason of the statute, was under an obligation to take reasonable steps ensure its accuracy.

5 As the respondent’s submissions point out, there is substantial uncertainty as to the grounds that the applicant wishes to press in the Tribunal. Accordingly, for present purposes it is assumed that he complains of unlawful collection (s.8(2)), failure to verify (s.16) and eventual disclosure of his personal information (s.18).

6 The evidence presented on the summary dismissal application has been fairly minimal. However, the parties have requested the Tribunal to determine the respondent’s application on this evidence and the Tribunal should do so if at all possible.

7 The respondent has presented a number of arguments in its submissions which are quite technical and which concern exemptions which may apply by reason of the intervention of the Ombudsman and the existence of other complaints made by the applicant to the respondent which have the effect, it is argued, of giving the respondent the status of an investigative agency so as to invoke various provisions of the Act and public determinations made thereunder. Issues like this are difficult to determine given the state of the evidence.

8 In relation to the collection and verification issues, the respondent submits that there is no evidence to establish that there was neither any unlawful collection nor any failure to reasonably verify such information. No evidence points are notoriously difficult to decide where the evidence is either lacking or minimal.

9 The personal information involved here is that which appears from the letter dated 05.12.06 from the respondent to the Ombudsman. It is apparent from this document that the bulk of the personal information was, more likely than not, collected by the respondent by reason of the observation of the applicant’s conduct by the respondent’s own officers, and the reporting of those observations to senior officers. To this extent there is clearly no evidence that information was collected unlawfully and equally there is no evidence to show that reasonable verification was absent. Allegations that information collected in this way were either unlawful, or were not verified, cannot be sustained.

10 However the letter shows that two items of personal information were possibly collected from other sources. The first is the reporting that the applicant has attempted self harm, and the second is that he has caused trouble at the airport. However, 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. This leaves the Tribunal with two options concerning the two items of information under consideration. The Tribunal may either uphold the respondent’s application in this regard or it may send the matter to hearing to enable the applicant to adduce any further evidence that may be available. For the reasons given below, in relation to the disclosure grievance, the Tribunal is of the view that the appropriate course to take is to invoke the powers contained in s.55(2) of the Act and take no action in the matter in relation to these two items of information.

11 The disclosure of the applicant’s personal information by the letter dated 05.12.06 is common ground. The respondent has made a number of submissions in relation to the dealings between the Ombudsman and the Respondent and the exemptions contained in the Act. However, the submission that has the greatest merit is that, in the circumstances, it is appropriate that the Tribunal take no action in the matter, following AW v Vice Chancellor, University of Newcastle [2008] NSWADT 86. The applicant made two complaints to the Ombudsman concerning the respondent’s conduct towards him and following discussions between the respondent and the Ombudsman the respondent provided the letter dated 05.12.06 so as to disclose its reasons for taking the steps that it did. Any person in the applicant’s position would anticipate that the Ombudsman would undertake enquiries following the lodging of a complaint. It is an inescapable inference that the applicant intended that this should happen. Any reasonable person would understand that the respondent would have offered an explanation of why it acted in the way that it did and in doing this, more likely than not, would need to disclose information it had to hand concerning the applicant. In such circumstances the appropriate course is to take no action in relation to this aspect of the applicant’s claims.

12 The Tribunal notes that the Act contains specific provisions in relation to disclosures required by law (ss. 23, 24 and 25), but the respondent did not rely on any of these provisions.

13 For these reasons the respondent’s submission that the Tribunal should take no action in the matter prevails. As the respondent has reserved its position in relation to costs it is not appropriate to make final orders at this stage. Accordingly the matter will be stood over to a further planning meeting so that the parties may assess their position.

14 The proceedings are adjourned for a further planning meeting on 23 March 2010 at 10:15 am.

I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.

REGISTRAR