NZ v Department of Housing

[2005] NSWADT 58

CITATION:	NZ v Director General, New South Wales Department of Housing [2005] NSWADT 58
DIVISION:	General Division
PARTIES:	APPLICANT NZ RESPONDENT Director General, New South Wales Department of Housing
FILE NUMBER:	043220
HEARING DATES:	3/12/2004
SUBMISSIONS CLOSED:	12/03/2004
DATE OF DECISION:	03/18/2005
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Privacy - information protection principle - accuracy - Privacy - information protection principle - disclosure to third party - Privacy - information protection principle - personal information - use - Privacy - information protection principle - retention and security
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Housing Act 2001 Privacy & Personal Information Protection Act 1998
CASES CITED:	FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 NR and NP v Roads and Traffic Authority [2004] NSWADT 276
REPRESENTATION:	APPLICANT In person RESPONDENT D Loewenstein, counsel
ORDERS:	1.That the respondent contravened s 18 in respect of the contents of the letter of 22 January 2002; 2.Matter to be relisted for determination of appropriate Order

1 The applicant is a public housing tenant. In her application for review lodged 13 July 2004 the applicant has sought relief under the Privacy and Personal Information Protection Act 1998 (the Privacy Act) in relation to conduct of the Department of Housing which she described as: ‘they accused me of rental fraud and real property ownership’. She described the contraventions of the Act as ‘process, store, disclose, use’. She added ‘grant neighbours use [of?] my name, details, forgery and Dept false fraud claims, Ministerial offices Dr Carr, Dr Refshauge – etcetera’.

2 In relation to the question asking the applicant to describe briefly what personal information was disclosed, to whom and in what circumstances it was disclosed by the agency, she said: ‘name details, letters to Ministers, false claims, fraud claims, property ownership, neighbours, fraud, neighbours fraud, my details, letters’.

3 As to what orders were sought the applicant stated ‘(a), (b), (c), (d), (e), (f) all the Orders the Department breached the Privacy Act and the Housing Act see application letter’. The orders open to the Tribunal to make in the event that a contravention of the Privacy Act is established are those set out in s 55(2), i.e.:

‘(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:

(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.’

4 The application has its origins in investigations undertaken by the Department into whether the applicant had undisclosed property assets. The Department undertakes its public housing management functions through a statutory corporation, the New South Wales Land and Housing Corporation (‘the Corporation’). Sections 54-58 of the Housing Act 2001 deal with the power of the Corporation in relation to the grant and withdrawal of rent rebates given to public housing tenants.

5 Section 58 refers to the Corporation’s powers of investigation:

‘58 Investigation of application

(1) The Corporation may make an investigation to determine the weekly income of:

(a) a person who is an applicant for, or a recipient of, a rental rebate under this Part, and

(b) any other resident of the house in which that person resides.

(2) The Corporation may require a person who is an applicant for, or a recipient of, a rental rebate under this Part to produce such evidence as the Corporation thinks fit of the person’s weekly income and of the weekly income of any other resident of the house in which that person resides.’

6 Section 57 provides for cancellation or variation of the rental rebate:

’ 57 Cancellation or variation of rental rebate

(1) The Corporation may, after conducting an investigation under section 58, vary or cancel any rental rebate granted under this Part.

(2) The Corporation is to determine the date (being a date occurring before, on or after the making of the determination) on which the variation or cancellation has effect or is taken to have effect.

(3) The Corporation is to give notice in writing to a tenant of any decision to vary or cancel any rental rebate being received by the tenant and is to include in the notice the date on which the variation or cancellation takes effect or is taken to have effect.

(4) If the Corporation reduces or cancels a tenant’s rental rebate under this Part with effect from a preceding date, the Corporation may, by notice in writing to the tenant, require the tenant to pay to the Corporation:

(a) an amount equal to any rental rebate or part of a rental rebate received by the tenant on or after the date that the variation or cancellation took effect to which, because of the variation or cancellation, the tenant was not entitled, and

(b) interest (at the rate payable on unpaid judgments of the Supreme Court) on any outstanding amount under paragraph (a) from a date specified in the notice, being a date not earlier than the date on which the notice is issued to the tenant.

(5) Any amount (together with interest) referred to in subsection (4) that is unpaid may be recovered by the Corporation as a debt in any court of competent jurisdiction.’

7 In this case Department officers investigated the applicant’s history of property ownership and also whether her son (who lived with her) had earnt undisclosed income. Following its investigation the Department (rejecting her protests of her innocence) increased the applicant’s rent to market rent. She fell into arrears, and ultimately the Department obtained an order of eviction from the relevant tribunal, to take effect 6 November 2002. The applicant made representations to her local Member (Mr Carr) and to the Minister for Housing (then Dr Refshauge). She also engaged solicitors to assist her. Ultimately she was successful in not being evicted. She had her rent rebate restored following appeal to the Housing Appeals Committee. She had also lost her Commonwealth pension, and was successful (after appeal to the Social Security Appeals Tribunal) in having that restored.

8 The applicant suffers from the psychological condition known as agoraphobia (fear of open spaces and the fear of being in a crowd) and from panic attacks. She attributes these health problems to the eviction action taken against her. The applicant’s psychologist has made a report which gives these events, and her anxiety over them, as the cause of her agoraphobia.

9 In light of her condition, the applicant has participated in these proceedings by telephone from her home.

10 As far as the applicant is concerned, the views formed by the Department leading to its action against her were the result of mischievous communications by other members of her wider family (she named a sister frequently in the proceedings, henceforth referred to as ‘X’ in these reasons). The Department’s action also, she asserts, resulted from a misunderstanding of information contained in title records which showed her as a registered proprietor of land.

11 The applicant said that her parents, in particular her mother, had been active during their lifetime in acquiring real estate (her mother died in 1996). To her surprise she said, she had discovered as a result of the claims made against her by the Department that her name appeared on some certificates of title, usually in connection with a minor joint-interest or as one of a group of beneficiaries of a trust. She said that she had never been aware of most of those entitlements.

12 Separately, during 2003 she was the subject of apprehended violence order (AVO) proceedings at the Waverley Local Court. The applicant was her estranged sister, X. The court file includes letters from the Department of Housing which refer to the applicant.

13 The applicant feels strongly that she has been denied natural justice by the Department. She thinks that she was not advised about the allegations against her when they were first made, and was not given an opportunity to respond. The material before the Tribunal would suggest otherwise. She thinks that the Department has also been involved in circulating ‘false allegations’ about her. She is particularly critical of the fact that Departmental letters have found their way to the Local Court file for the AVO matter.

Information Protection Principles

14 The Privacy Act contains a series of Information Protection Principles (IPPs) which agencies are required to observe in their handling of personal information. In her application and submissions the applicant has alleged that the Department has failed to maintain adequate security over her personal information, has used information about her which has been inaccurate and false and has wrongly disclosed that information. The IPPs relevant to these objections are ss 12, 16, 17 and 18 which are set out below.

‘12 Retention and security of personal information

A public sector agency that holds personal information must ensure:

(a) that the information is kept for no longer than is necessary for the purposes for which the information may lawfully be used, and

(b) that the information is disposed of securely and in accordance with any requirements for the retention and disposal of personal information, and

(c) that the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse, and

(d) that, if it is necessary for the information to be given to a person in connection with the provision of a service to the agency, everything reasonably within the power of the agency is done to prevent unauthorised use or disclosure of the information.

16 Agency must check accuracy of personal information before use

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.

17 Limits on use of personal information

A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless:

(a) the individual to whom the information relates has consented to the use of the information for that other purpose, or

(b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or

(c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person.

18 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.’

15 These provisions must be read in conjunction with a number of other provisions so as to ascertain the precise scope of any legal obligation that they impose on agencies. There are provisions which exempt some agencies from the application of certain IPPs; or modify their operation in certain circumstances. The scheme of the Act allows for IPPs to be replaced by approved agency codes of practice; and as well for additional exceptions or modifications to be permitted by the Privacy Commissioner under s 41 by written direction.

16 The Department does not admit that it has contravened the main provisions of the IPPs set out above, but if it is considered that it may have, it relies in its defence on a direction issued by the Privacy Commissioner pursuant to s 41, referred to in further detail below.

Internal Review Determination

17 It is helpful to set out at this point the main parts of the internal review determination dated 7 July 2004:

‘The complaint that you make essentially relates to various AVO proceedings which involved you as a Respondent, and which I understand involve current proceedings in which you are the Applicant. The Department as a general rule does not intervene in those matters, unless the AVO relates to an employee or contractor, or an employee is required to give evidence, or the Department is the subject of a subpoena to produce documents. In the proceedings you were involved in, the Department complied with subpoenas that were served upon it. In complying with a court ordered subpoena, any personal information which might thereby be disclosed becomes a lawfully authorised or required disclosure under s 23(5)(c) of the [Privacy] Act.

…

My enquiries indicate that as a result of the Department complying with a subpoena, two letters under Department letterhead came to your attention. These two letters, on my analysis, form the gist of your complaint and what has triggered your application for internal review.

The first letter is dated 22 January 2002 which issued from Catherine Quinn [Department officer] to [X – name deleted by Tribunal] (your sister). That letter, though not issued to you, contains your christian name, and, by implication, refers to you.

The second letter is dated 7 January 2003 from Kellie Moon [Department officer] to [X]. That letter does not mention your name, but there is a later handwritten notation at the foot of the letter, which you admit is the handwriting of a person known to you who [sic] and that person is not a Departmental employee.

In relation to the letter of 22 January 2002, whilst that letter refers to you, it refers to you in the context of reporting back to [X] her version of the contents of an interview that took place. The letter does not in any way release any of your personal details or ‘personal information’ as defined in Section 4 of the [Privacy] Act.

The 7 January 2003 letter (with the handwritten notation) contains your name but the Department did not endorse it on the letter. Your complaint states clearly that the handwriting is that of another person known to you, and my enquiries indicate that that other person is not a Departmental employee. Accordingly it is not information held or collected by the Department (in that is was [sic] not ‘solicited’ for the purposes of Section 4 of the Act) and is not, therefore, information to which the Act applies.

I am unable to locate a ‘letter’ dated 15 January 2003 referred to in the Complaint Documents. My enquiries into this matter reveal another document dated 15 January 2003 that might possibly be of some relevance, but as I need to balance the privacy interests of other persons, I am unable to identify the documents or disclose the nature of that document or its contents. However, I have also formed the opinion that in relation to that document, there is no breach of privacy, as the requirements under Section 4 of the [Privacy] Act have not been met.

In relation to all three documents referred to above, there is a further exemption. Each of those documents relate to and were created as a result of the Department’s investigative functions. The Privacy Commissioner’s Direction on Processing of Personal Information by Public Sector Agencies in relation to the [sic] Investigative Functions therefore applies, and Direction Number 4 specifically excludes the information obtained from the operation of the [Privacy] Act.

After carefully considering the matter, I am of the view that there has been no breach of privacy.’

18 There were three planning meetings prior to the hearing.

19 In the course of the meetings, the Department agreed to remove three documents (and any copies) from the applicant’s tenancy file, being a document dated 15 January 2003 and the two letters dated 7 January 2003 and 22 January 2002. In that regard, the applicant reserved the right to seek monetary compensation that may be connected with those documents. The agency noted that there was no admission of liability in relation to the documents.

20 The letters of 7 January 2003 and 22 January 2002 are the subject of further consideration later in these reasons.

21 The Tribunal directed the Department to file and serve a statement explaining the nature and purpose of the investigation that occurred in 2002 into the ownership of certain properties linked to members of the applicant’s wider family; and to refer in general terms to what file information was accessed as part of any investigation.

22 The applicant has filed voluminous material in support of her case.

23 At a planning meeting on 14 October 2004 the Tribunal directed that the hearing be confined to the following items of conduct:

(1) Collection of Title-related information in connection with a rental investigation

(2) Use of that information in connection with a rental investigation

(3) Disclosure of that information to [X] in connection with [X’s] application for an Apprehended Violence Order.

24 The hearing took place on 3 December 2004. The Department was represented by Mr Loewenstein of counsel.

25 The applicant has continued to file voluminous material since the hearing was held. In fairness to the Department the Tribunal has not taken that additional material into account.

26 The following material was tendered by the Department and received into evidence:

(i) affidavit of Mr Chris Valacos, Principal Solicitor to the Department sworn 24 September 2004

(ii) affidavit of Catherine Louise Quinn, Service Development Support Officer of the Department sworn 16 September 2004

(iii) affidavit of Robert Stephen Weeks, Advocate/Investigator of the Department sworn 3 November 2004

(iv) affidavit of Kellie Maree Moon, Client Service Officer of the Department sworn 20 September 2004

(v) affidavit of Susan Gail Gardner, Secretary to Mr Valacos, sworn 5 October 2004.

27 The affidavits deal comprehensively, the Tribunal considers, with the conduct of the Department as relevant to this matter.

Circumstances

28 The applicant’s tenancy file comprises ten folders. It discloses a history of property ownership by the applicant connected to an inheritance at Enmore in the early 1980s. That property was subsequently sold and a property acquired at Botany. The Botany property was the subject of a trust and after its sale the proceeds were invested. That was taken into account for rent rebate purposes in the 1980s. In 1986 the applicant was recorded as the owner of the property at Enmore and at Botany.

29 Her mother had invested in various properties over many years but placed them in the names of her children and grandchildren. The Department has through extensive title searches identified five properties purchased in this manner. According to Mr Valacos ‘the chain of sales, purchases and mortgages was quite complex’. He states: ‘The Department’s investigation subsequently revealed that the late [mother] controlled the assets and income with no benefit (subject to the following) being received by the children or grandchildren’. Mr Valacos then referred to a property at Hawkesbury. This property was first acquired in 1977. As at 1995 the title showed the applicant as having a quarter share as tenant in common. Her mother died in 1996, and the title then showed three persons (including the applicant) as joint tenants. According to Mr Valacos: ‘These three proprietors from 1996 and 2000 mortgaged and remortgaged the property and used their share of capital funds for their respective personal benefit. The property was sold on the 26 May 2000 by these parties for $212,000 and it is understood that the parties again received a benefit of approximately $30,000 each’.

30 Mr Valacos states: ‘There is no notation or correspondence on file from [the applicant] informing the Department of her interest in the property or in the receipt of the proceeds from the property. [The applicant] in later correspondence in 2003 stated that she believed she had verbally told an officer of her interest in this property some years previously.’

31 Mr Valacos then refers to the decision to cancel the applicant’s rental subsidy on 6 May 2002 on a different basis – ‘her failure to disclose her son’s income when he was residing with her for a period of time. Her son commenced work in March 2001.’

32 He said also there had been no response to the Department’s query as to why her disability pension had been cancelled by Centrelink nor had there been a response to the allegation of non-disclosure of property ownership. He stated that subsequent appeals to the Housing Appeals Committee led to a reinstatement of her rental subsidy subject to an arrears payment, and her appeal to the Social Security Appeals Tribunal resulted in the reinstatement of her disability benefit.

33 Mr Valacos confirmed that there had been a history of anonymous complaints from fictitiously named complainants against various members of the applicant’s wider family who live in public housing. The complaints have alleged that the people complained against had substantial property assets. He said that the others, including X the sister, believed that the applicant was the source of these letters because of an estrangement within the family.

34 Mr Valacos then referred to a lengthy investigation of the sister’s circumstances undertaken by Ms Quinn, then an advocate within Legal Branch. This is the subject of Ms Quinn’s affidavit. There were fresh allegations against the applicant’s wider family in 2002. The Department concluded that these were not worth pursuing for (persuasive) reasons contained in a report produced by Mr Valacos.

35 Mr Valacos noted that in 2003 various members of the applicant’s wider family applied for and were granted apprehended violence orders against the applicant. The allegations included that the applicant had made false and malicious complaints to the Police, Centrelink and the Department of Housing about them, which they claimed amounted to harassment. Mr Valacos refers to a copy of orders made and a copy of a letter from the applicant’s treating doctor. Mr Valacos notes that it would appear that some of the documents that the applicant alleges were a breach of her privacy were in fact provided by the recipients of those letters to the Court as exhibits as part of the AVO proceedings.

36 A letter that was sent by Ms Quinn to the applicant’s sister in connection with Ms Quinn’s investigation was used by the sister in the AVO application. This is one of the letters of particular concern to the applicant, a letter dated 22 January 2002, in which Ms Quinn states: ‘… I am satisfied that the allegations are false. On balance I am satisfied with your explanation that the information has come from your sister [the applicant]’. I confirm we discussed the possibility that [the applicant] may be a vexatious complainant.’

37 Mr Valacos swears in response to one of the applicant’s claims that the applicant’s file was not ever accessed by Ms Quinn as Ms Quinn’s investigation concerned the applicant’s sister.

38 In her affidavit Ms Quinn describes her role in investigating X’s circumstances. She swears that at no time did she disclose any information to third parties in relation to X’s case. She has no knowledge as to how the letter dated 22 January 2002 came to the knowledge of the applicant.

39 The steps taken by the Department to evict the applicant are the subject of Mr Weeks’ affidavit. The affidavit recounts the commencement of action in the Consumer Trader and Tenancy Tribunal, the issuance of a notice of termination dated 9 July 2002, an application for an order of possession lodged 19 August 2002 and the issuance of a termination order on 25 September 2002 with possession to be given to the Department on or before 6 November 2002. Mr Weeks states that the Department did not obtain possession of the premises for reasons of which he is unaware.

40 Ms Moon’s affidavit refers to the receipt by the Department of complaints against the applicant’s sister in December 2002. This gave rise to Ms Moon writing a letter dated 7 January 2003 to the applicant’s sister requesting that she attend for interview. The letter is unproblematic. The matter of concern to the applicant is a copy of the letter which has a handwritten annotation at its foot:

‘Footnote. My mother [X] and myself [name of X’s daughter] attended a meeting/interview regarding false claims made by [the applicant]. Michael Modder – Investigation/Team Leader Maroubra advised of their knowledge of [the applicant]. We have been investiga’. [sic]

41 The text beyond the above is not shown in the copy letter annexed to the affidavit. Ms Moon swore that she did not have any knowledge as to how this copy of the letter with the above annotation came to be part of the Department file.

42 As to that matter, Mr Valacos’s secretary’s evidence is relevant. She wrote to X’s daughter (the apparent author of note) asking her about the origins of the annotated copy. The daughter acknowledged that she was the author, and said the annotated letter had formed part of the material placed by her mother before the Court in the AVO proceedings. She said that neither she nor her mother had sent it to the Department. Her surmise was that the applicant had obtained it in the course of the proceedings and sent it to the Department.

Agency Submissions

43 Mr Loewenstein submitted that the letter of 22 January 2002 merely referred to the conclusions reached following upon the investigations carried out and the discussion of a possibility. It did not involve any determination by the Department. He noted that the question of disclosure of information relating to the applicant might be raised by the letter.

44 He submitted that otherwise there was nothing in the affidavits filed by the Departmental officers which showed any flow of personal information relating to the applicant which could be said to be a ‘disclosure’ of personal information about her to third parties. In particular, the Department had nothing to do with the AVO proceedings that occurred at the Local Court. As to this matter the Tribunal is satisfied that the Departmental letters found in the Local Court file were most likely to have been placed there by the parties to the proceedings.

45 The Department’s position is that it simply conducted an investigation that it was lawfully obliged to conduct and it did so in a manner that complied with the rules of an investigation.

46 As to the other letter, the letter dated 7 January 2003, he said that it did not contain any personal information, and the Department had no involvement in the disclosure to the Court of the annotated copy.

Applicant’s Submissions

47 The applicant disagreed with this characterisation of the Department’s conduct. The applicant gave an account of the contacts made with her by officers of the Department over the question of the extent of her ownership of real estate, the extent of her income and the state of her pension payments. She referred to the queries relating to her son and his income. She referred to the many bodies to which she has turned complaining about her treatment, including Members of Parliament, Ministers, solicitors, and appeal bodies such as the Housing Appeals Committee. She then gave an account of the extent of her connection with the various properties the subject of inquiries. She stated that she had not known her name was on the title deed of the Hawkesbury property.

48 The applicant is clearly very aggrieved that the Department formed the view, reflected in the eviction proceedings, that she had failed to disclose real estate and other asset information. She resents deeply the criticism of her found in the letter of 22 January 2002 and the annotation (made by her sister X’s daughter) to the letter dated 7 January 2003. It is understandable that she may be anxious about what use the Department might make of this correspondence in future. The Department’s agreement to remove these letters from her tenancy file is, therefore, a significant one in seeking to meet that concern.

49 At the conclusion of the hearing, the Tribunal noted that it had received just before the hearing a large amount of material from the applicant which had not been served on the Department. As a result the Tribunal gave Mr Loewenstein liberty to inspect the material and to make any further submissions by 17 December 2004.

50 On 23 December 2004 the Department advised that it did not wish to make any further submissions.

Assessment

(a) Collection of Title-related information in connection with a rental investigation

51 The Department is clearly entitled to investigate whether it has been provided with all information relevant to the grant or continued occupancy of public housing, or for eligibility for a rental rebate. A tenant may have either deliberately or inadvertently withheld relevant information. Mr Valacos’ affidavit recognises that there may have been a degree of inadvertence on the part of the applicant, given the unusual practices that her mother had adopted in relation to naming transferees on the certificates of title, as to the significance of the fact that she was shown as holding an interest in respect of various properties.

52 The Tribunal is satisfied that information relating to the applicant was collected for a lawful purpose, and complies with the relevant IPP, s 8(1)(a) which provides: ‘A public sector agency must not collect personal information unless: (a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency.’

(b) Use of that information in connection with a rental investigation

53 As noted earlier, two IPPs deal with use of personal information. The first, s 16, requires agencies not to 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. The applicant’s own material, as well as that of the Department, indicates that officers held several meetings with her and engaged in contact of other kinds, in order to establish the extent of her connection with the properties where her name appeared on the titles. They were particularly concerned, as Mr Valacos’ affidavit indicates, with her connection with the monies raised in respect of the Hawkesbury property and the division of the net proceeds of sale.

54 On the basis of the material before the Tribunal, the Tribunal is satisfied the Department took steps that were reasonable in the circumstances in reaching an opinion as to the relevance of the title information to the rental investigation. Section 16 was not contravened.

55 The information was used for a lawful purpose, and on the basis of the material before the Tribunal for no other purpose. Section 17 was not contravened.

(c) Disclosure of information to X in connection with X’s application for an Apprehended Violence Order

56 While there was reference to a document dated 15 January 2003 at the planning meetings, this was not the subject of any evidence from the Department. Accordingly the reasons which follow only refer to the other two letters of concern to the applicant, being the letters which found their way onto the AVO proceedings file at the Waverley Local Court.

(i) Letter of 7 January 2003

57 The Tribunal is satisfied that the Department did not play any part in causing that letter to find its way onto the Court file. Accordingly no disclosure issue is raised.

58 The source of the hand-written notation was X’s daughter. The suggestion made by the Department is plausible, i.e. the letter with the notation was filed by X or her daughter in connection with the AVO proceedings.

59 As to the text authored by the Department (the type-written text), it is, as previously indicated, unproblematic, and is not covered by the Privacy Act. It contains no personal information about the applicant.

(ii) Letter of 22 January 2002

60 This is the letter from Ms Quinn to X, previously mentioned, in which the following words appear:

‘… I am satisfied that the allegations [against you] are false. On balance I am satisfied with your explanation that the information has come from your sister [the applicant]. I confirm we discussed the possibility that [the applicant] may be a vexatious complainant.’

61 For the same reasons as given in relation to letter (i), the Tribunal is satisfied that the Department did not disclose this letter to the Local Court.

62 The information given to the sister X contains a conclusion. Strictly, it was unnecessary for the statements that appear in the second and third sentences to be made. They were made to the person who had been investigated clearly in reply to views put to the investigator.

63 In the internal review determination, it is stated:

‘In relation to the letter of 22 January 2002, whilst that letter refers to you, it refers to you in the context of reporting back to [X] her version of the contents of the interview that took place. The letter does not in any way release any of your personal details or ‘personal information’ as defined in section 4 of the [Privacy] Act.’

64 The Tribunal notes that Mr Loewenstein at hearing did not put any submissions on the basis stated in this determination, i.e. that the statements made by Ms Quinn did not involve the provision of ‘personal information’.

65 Section 4(1) contains a wide definition of ‘personal information’:

‘(1) In this Act, 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.’

66 Clearly Ms Quinn expressed two opinions about the applicant, albeit on balance: that the information against X came from the applicant; and that she may be a vexatious complainant. These were clearly opinions ‘about’ the applicant. It is understandable that the applicant would be upset to see these opinions find their way into the Court papers for the AVO proceeding. None of the exceptions to the definition of ‘personal information’ contained in s 4(3) were relied upon; and none appear to the Tribunal to be relevant.

67 The Tribunal is satisfied that the statements made by Ms Quinn fell within the meaning of ‘personal information’.

68 The scheme of the Privacy Act differentiates between the ‘use’ of information and its ‘disclosure’.

69 ‘Use’ is different to ‘disclosure’. ‘Use’ refers to the handling of personal information within the collecting agency, whereas ‘disclosure’ refers to the giving of the information by the collecting agency to a person or body outside the agency. This understanding is reflected in the contrasting language of s 17 and s 18. Section 17 refers at no point to ‘use’ by an external ‘person or body’ whereas s 18 has that situation as its basis – see the opening words of s 18: ‘A public sector agency that holds personal information must not disclose the information to a person (other than a person to whom the information relates) or other body’. (See also FM v Vice Chancellor, Macquarie University [2003] NSWADT 78.)

70 Agencies are given a little more flexibility in relation to ‘use’ of information, as compared to ‘disclosure’.

71 The limitations contained in s 17 are not as strict in one respect as those that are placed on disclosure of personal information by s 18. Under s 17 an agency may use the information for a purpose other than the one for which it was collected if the purpose is ‘directly related’ to the purpose for which the information was collected. There is no requirement to take account of the individual’s attitude to the use. This gives the agency some freedom to analyse and use the personal information in its possession for broader purposes provided they can be shown to be directly related to the purpose of collection. On the other hand the equivalent provision in relation to disclosure of personal information provides that information may only be disclosed for a directly related purpose if ‘the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure’: see further, NR and NP v Roads and Traffic Authority [2004] NSWADT 276.

72 The Department contends that there was no disclosure of personal information by Ms Quinn to X; all that occurred was a ‘reporting back’ of X’s statements to Ms Quinn. The Tribunal does not agree. Ms Quinn clearly communicated an opinion formed in her capacity as an officer of the agency, after investigation, one that was negative to the applicant. The Tribunal is satisfied that this constituted a disclosure of personal information about the applicant to a third party, X.

73 The internal review determination and Mr Loewenstein’s submissions at hearing addressed the question of whether, if a disclosure is found to have occurred, any of the exceptions from the prohibition on disclosure apply. There is no evidence to support the possibility that the principal exceptions (a), (b) and (c) contained in s 18(1) apply.

74 The Department relied however on the exception contained in the Direction first issued by the Privacy Commissioner on 28 September 2000, entitled Direction On Processing Of Personal Information By Public Sector Agencies In Relation To Their Investigative Functions and applicable to the Department of Housing (as ‘a relevant agency’) at the relevant time. The Direction provides materially:

4. A relevant agency need not comply with [section 18] of the PPIP Act [the Privacy Act] if non-compliance is reasonably necessary for the proper exercise of any of the agency’s investigative functions or its conduct of any lawful investigations.

5. The provisions of paragraph 4 of this Direction are not intended to override and do not override any other legal requirement dealing with the collection, use or disclosure of information by a relevant agency.

6. For the purpose of this Direction:

“investigation” of a matter includes any examination of or any preliminary or other inquiry, including but not limited to a preliminary inquiry within the meaning of the Public Sector Management Act, into the matter. This includes matters where it is decided to take no further action on the information and matters which arise by way of complaint or otherwise;

“investigative functions” of an agency refer to those functions that are directly related to a lawful investigation and that are necessary for the conduct of that lawful investigation;

“lawful investigation” means an investigation carried out by an agency under specific legislative authority or where the power to conduct the investigation is necessarily implied or reasonably contemplated under an Act or other law. It covers only those investigations which may lead to the agency taking or instituting formal action in relation to the behaviour under investigation. Such formal action may include, but is not limited to, prosecution, warning, cautioning, the administration of a penalty or the removal of a benefit or approval;

75 Clearly in this instance Ms Quinn undertook a lawful investigation. But there was no evidence or other material before the Tribunal to show how it might be that her non-compliance with s 18 was ‘reasonably necessary for the proper exercise of any of the agency’s investigative functions or its conduct of any lawful investigations’.

76 The investigation into the allegations against X could have been concluded simply by the finding that the investigator was satisfied that the allegations were false, without conveying to X the views in relation to a possible source of the allegations or the behaviour of that source.

77 A contravention is established.

78 In the course of the planning meetings and at hearing, it was indicated that if there was a finding of contravention, the Tribunal would reconvene to consider submissions and evidence in relation to the appropriate order. In this case there is a claim for monetary compensation by the applicant (order (a)), and there are special requirements in s 55(4) in relation to such claims. Section 55(4) provides:

‘(4) The Tribunal may make an order under subsection (2) (a) only if:
(a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and

(b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.’

Orders

1. That the respondent contravened s 18 in respect of the contents of the letter of 22 January 2002.

2. Matter to be relisted for determination of appropriate Order.