NZ v Randwick City Council

[2006] NSWADT 141

CITATION:	NZ v Randwick City Council [2006] NSWADT 141
DIVISION:	General Division
PARTIES:	APPLICANT NZ RESPONDENT Randwick City Council
FILE NUMBER:	053414
HEARING DATES:	3/05/2006
SUBMISSIONS CLOSED:	05/03/2006
DATE OF DECISION:	05/16/2006
BEFORE:	Handley R - Judicial Member
CATCHWORDS:	Dismissal of application - frivolous vexatious misconceived or lacking in substance
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Privacy & Personal Information Protection Act 1998
CASES CITED:	EG v Commissioner of Police, NSW Police Service [2003] NSWADT 150 NZ v Director General, New South Wales Department of Housing [2005] NSWADT 58
REPRESENTATION:	APPLICANT In person RESPONDENT D Kelly, Randwick City Council
ORDERS:	The proceedings are dismissed pursuant to s 73(5)(h) of the Administrative Decisions Tribunal Act 1997

1 NZ claims that Randwick City Council (‘the Council’) contravened the Privacy and Personal Information Protection Act 1998 (‘the PPIP Act’) by referring to her by name in relation to a complaint in a letter dated 29 April 2003 addressed to a third person, and by writing a letter to her, dated 15 July 2003, about a complaint concerning the storage of flammable liquids.

Background

2 This matter arises from a dispute between NZ and a neighbour over the use of a common area outside NZ’s Department of Housing flat. NZ complains that she has been threatened and harassed by a neighbour with whom she has been involved in Apprehended Violence Order proceedings in Waverley Local Court. NZ suffers from a psychological condition that prevents her leaving her home. She has provided a number of reports from her general practitioner and treating psychologist attesting to this.

3 The letter dated 29 April 2003 referred to above, from the Council Environmental Officer, is addressed to a relative of NZ’s and refers to the person’s complaint concerning NZ’s use of flammable liquids. The officer suggests that the person pursue the matter directly with the Department of Housing. A third person supplied NZ with a copy of the letter.

4 The letter dated 15 July 2003 from the Council Environmental Officer is addressed to NZ and refers to a complaint concerning flammable liquids stored in common areas. The officer states that Council records indicate no complaints were made against NZ by her neighbour, but states, “given flammable liquids concerns your next door neighbour, council suggests you refrain from storing such items in your common area”.

5 NZ wrote to the Council alleging a breach of her privacy and seeking access to information held about her, in particular a complaint alleged to have been made claiming that NZ was storing flammable liquids. On 8 June 2005, David Kelly, the Council’s Manager of Administrative Services, wrote to NZ stating that after an extensive search of Council records, he was unable to locate any information concerning this alleged complaint. He said the complaint was possibly a verbal one to which the Council responded.

6 NZ sought a review of the Council’s handling of her application. By letter to NZ dated 28 June 2005, Mr Kelly reiterated that the Council had no record of a complaint in relation to her premises and that in the Council’s view there had been no breach of the PPIP Act. On 28 November 2005, NZ filed an application with the Tribunal for further review of the Council’s decision.

Submissions

7 NZ provided the Tribunal with copies of her correspondence and medical reports, and has made written submissions dated 22 December 2005, 20 February 2006 and 21 April 2006. By letter dated 28 February 2006, Mr Kelly made an application on behalf of the Council for NZ’s application to the Tribunal to be dismissed. At the hearing on 3 May 2006, I heard oral submissions from both Mr Kelly (in person) and NZ (by conference phone) with regard to this application. I said that I would deal with Mr Kelly’s application as a preliminary matter and, if I rejected this application, I would then proceed to review the handling of NZ’s application under the PPIP Act. NZ asked that I deal with her application ‘on the papers’ and Mr Kelly agreed to this.

8 In his application to dismiss dated 28 February 2006, Mr Kelly submitted there was no breach of the PPIP Act in the letter dated 29 April 2003: “This is a letter responding to a complaint about NZ in which the Council states it has no jurisdiction to act in the matter.” There was also no breach in the letter dated 15 July 2003 since this was “a letter to NZ and concerns no third party at all”. Mr Kelly contended that at no stage in this matter has the “Council divulged personal information about NZ to any other person(s)” – no personal information was contained in either of the two letters. He submitted that NZ’s application was both misconceived and lacking in substance, and asked that it be dismissed pursuant to s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’).

9 NZ responded to Mr Kelly’s application to the Tribunal to dismiss her application in her written submission dated 21 April 2006. She stated Mr Kelly’s application lacked substance and there is no evidence to support his application. NZ submitted the letters from the Council dated 29 April 2003 and 15 July 2003 constitute breaches of her privacy. She stated the Council has “been making false allegations under my privacy and name on these letters and actively using my privacy and respondent [responding?] to the DOH [Department of Housing] clients’ “false complaint” letters and verbal phone calls”. NZ contended that both letters “breach my privacy rights, and I did not give council my permission or any written authority to use, access, disclose my personal privacy for false complaints, which is in the contents of the letters”. NZ stated she has never stored flammable goods in the communal area outside her flat.

Discussion

10 The Council has applied for NZ’s application to the Tribunal to be dismissed pursuant to to s 73(5)(h) of the ADT Act on the ground that it is misconceived. In my view, consideration of this issue requires that I also consider the substance of NZ’s application.

11 NZ complains that the Council has breached her privacy by reason of the letters dated 29 April 2003 and 15 July 2003. The PPIP Act provides for the protection of personal information and the privacy of individuals. The privacy of individuals is protected by regulating the collection, use and disclosure of personal information. The term ‘personal information’ is defined in s 4 of the PPIP Act. Section 4(1) states “‘personal information’ means information or an opinion ... about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion”. Certain information is excluded from the definition by reason of s 4(3). The jurisdiction of the Tribunal to conduct a review under the Act arises by virtue of s 55 on the application of a person who is aggrieved by the conduct of a public sector agency and who is not satisfied with the outcome of their application for an internal review by the agency.

12 In EG v Commissioner of Police, NSW Police Service [2003] NSWADT 150, Hennessy DP noted that since the PPIP Act is beneficial legislation, s 4(1) should be interpreted broadly and the exclusions from the definition of personal information (set out in s 4(3)) should be construed narrowly. In that case, a major newspaper had published a report stating that EG had been suspended from his position as a police officer. The Deputy President accepted (at par 24) a submission from the Privacy Commissioner that meaning is gleaned from both the content and the context in which information or an opinion appears, and held that the information, which had been provided by the NSW Police Service to the Legal Practitioners Admission Board, was not ‘personal information’ because it was “information about an individual that is contained in a publicly available publication” and was thereby excluded from the definition of personal information under s 4(3)(b). Because the information was not, therefore, ‘personal information’, the Tribunal had no jurisdiction to review the agency’s conduct in disclosing the information.

13 In the present case, NZ alleges that the Council has disclosed personal information about her without her permission by referring to her by name in a letter to a third party - in the letter dated 29 April 2003 - and by writing a letter to her concerning a complaint - the letter dated 15 July 2003. In the case of the letter dated 29 April 2003, the Council states it has no record of having received a written complaint and therefore assumes a complaint was made against NZ verbally. The letter was presumably written to the third party complainant in response to the complaint, and refers to NZ’s name in the course of stating that this is not a matter with which the Council can be involved. In my view, use of NZ’s name in this context does not involve the disclosure of ‘personal information’ about NZ.

14 With regard to the letter dated 15 July 2003, this was a letter addressed to NZ. Use of a person’s name in a letter addressed to that person by a public sector agency does not involve a disclosure of ‘personal information’. Moreover, “‘disclosure’ refers to the giving of the information by the collecting agency to a person or body outside the agency”: NZ v Director General, New South Wales Department of Housing [2005] NSWADT 58 at par 69 (O’Connor DCJ, President). In my view, by inference, this does not include the giving of the information to the person to whom it relates.

15 Thus, in the case of both letters, my view is that there was no disclosure of ‘personal information’ and, therefore, the Tribunal has no jurisdiction to hear NZ’s application. This is, of course, sufficient ground for dismissal of NZ’s application.

16 However, the Council has applied for dismissal under section 73(5)(h) of the ADT Act. This provision empowers the Tribunal to dismiss proceedings before it “if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance”. In my view, NZ’s application is undoubtedly misconceived in the sense that she has misunderstood the extent of the Tribunal’s jurisdiction to hear applications under the PPIP Act. Therefore, the proceedings must be dismissed.

Decision

17 The proceedings are dismissed pursuant to s 73(5)(h) of the ADT Act 1997.