OA v New South Wales Department of Housing

[2005] NSWADT 233

CITATION:	OA v New South Wales Department of Housing [2005] NSWADT 233
DIVISION:	General Division
PARTIES:	APPLICANT OA RESPONDENT New South Wales Department of Housing
FILE NUMBER:	043242
HEARING DATES:	27/04/2005
SUBMISSIONS CLOSED:	04/27/2005
DATE OF DECISION:	10/17/2005
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Review of conduct of public sector agency
MATTER FOR DECISION:	Principal Application
LEGISLATION CITED:	Privacy and Personal Information Protection Act 1998 Housing Act 2001
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT A Jungwirth of counsel
ORDERS:	1. Application for review adjourned. Further planning meeting to be convened; 2. Respondent’s application for costs adjourned.

REASONS FOR DECISION

1 This is an application for review of the conduct of a public sector agency, made under the Privacy and Personal Information Protection Act 1998 (the Privacy Act). The respondent is the Department of Housing (the Department). The applicant is a public housing tenant at premises managed by the Department.

2 Mr Jungwirth of counsel appeared for the Department at the hearing. The applicant appeared without representation. The hearing was preceded by a number of planning meetings. Both parties filed several documents in the course of the planning meetings and for the hearing.

3 The Privacy Act regulates the collection, retention, use and disclosure of personal information held in a permanent form by public sector agencies. It also confers on individuals rights of access and amendment in relation to this information. In this case there has been no dispute that the information held by the Department relating to the applicant falls within the meaning of ‘personal information’ for the purposes of the Act.

4 An individual may apply for review of the conduct of a public sector agency: ss 53, 55. ‘Conduct’ means, as relevant to this case, ‘the contravention by a public sector agency of an information protection principle that applies to the agency’: s 52(a). The information protection principles (IPPs) are set out at ss 8-19. They are subject to numerous exceptions and qualifications. Some of these exceptions and qualifications appear within the IPPs themselves, while others are found elsewhere in the Act or in subordinate instruments such as directions made by the Privacy Commissioner or codes of practices prepared by agencies and approved by the Commissioner.

5 The making of an application for internal review to the agency is a pre-condition to bringing an application for review to the Tribunal: s 55(1). The agency is given 60 days within which to deal with the application for internal review. If it does not make a decision on the application within that time, the applicant can apply to the Tribunal: s 53(6). The applicant can raise (s 55(1)):

‘(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application’.

It follows, therefore, that the parameters of the application for internal review, reasonably construed, set the parameters for the Tribunal’s inquiry.
6 This point is made because in this case it is apparent that the applicant only put in issue with the Department the circumstances surrounding the issuance to him of a ‘natural justice’ letter on 17 February 2004. Before the Tribunal the applicant raised a second set of concerns, to do with the contents of a Housing Appeals Committee decision issued 18 May 2004. The agency has sought to respond to those concerns as part of these proceedings. It has not taken any objection to the Tribunal dealing with the issues raised by the HAC decision. The Tribunal has decided that it cannot deal with these issues, at this point.

7 On the other hand, it will be seen that there is some lack of symmetry as between the matters put in issue by the applicant by way of his application for internal review and the extent of the evidence furnished to the Tribunal by the Department as to the conduct put in issue by the applicant. As a result it will be necessary for the Tribunal to reconvene to deal with that aspect of the matter.

Circumstances
8 From 1992 to 1999 the applicant was the tenant of a home at Croydon, with his then wife (‘Ms DML’) and their two children. The couple separated in 1998. Both made rehousing applications to the Department. Ms DML was permitted to continue to live with the children at Croydon. The applicant was relocated, in September 1999, to Enfield. They divorced in 2000. The applicant remarried in May 2002. He continues to live at Enfield with his new wife (‘Ms MF’).

9 In his evidence at hearing the applicant said that he had been told that officers of the Department had been making enquiries of neighbours and his former wife about whether he had continued to occupy the home at Croydon after relocating to Enfield. Early in February 2004 he contacted Ms Hughes, Senior Client Officer of the Department, at the Burwood office telling her what he had heard, and seeking clarification.

10 Ms Hughes gave affidavit and oral evidence at the hearing.

11 Ms Hughes stated that she had not known of any concerns over the applicant’s tenancy. But after receiving a phone call from the applicant on 3 or 4 February 2004 that he had heard ‘rumours’ that he was being investigated, she examined the applicant’s file.

12 Ms Hughes stated that the file contained a confidential report made by an officer of the Department that referred to allegations made to the officer that the applicant had for periods been sub-letting his unit at Enfield to his former wife’s brother and that the applicant had been living with his former wife at Croydon. She said that this information had been given in confidence to the officer by another party. In addition, there was on the file an unsolicited and confidential statement dated 13 August, 2001 made by another party concerning the same allegations.

13 She decided that the allegations warranted further investigation. She called the applicant on or about 12 February, 2004 and told him that there may be a case to answer, and that she would be conducting the investigation. He agreed to come into the office on 17 February and she asked him to bring with him any evidence he wished to bring to rebut the allegations.

14 She said she considered that the investigation was required because there was enough evidence to suggest that there may have been a breach of the Tenancy Agreement regarding the rental rebate requirements under the Residential Tenancies Act.

15 She said that at the interview on 17 February 2004 she read out the allegations from the confidential document dated 13 August 2001 word for word but the source was required to be kept confidential. At the interview the applicant requested that the allegations be put in writing and she did this in the letter of the same date. She explained to the Tribunal that under normal circumstances when the Department receives information that needs investigating, a “natural justice” letter is issued to the tenant stating what the allegations are and giving the tenant fourteen days to respond in writing to rebut those allegations. She said that in this instance there was no opportunity to issue the letter since the applicant had contacted her and demanded an interview as soon as possible.

16 She sent him the following letter later that day:

‘I am writing in regard to your tenancy at [Enfield] . As discussed on 17 February 2004, during an interview held at the Burwood Officer [sic], an allegation has made against you. I hereby specify those allegations in writing as promised.

The Department of Housing has received information that indicates that you may be in breach of your Residential Tenancy Agreement and may have received a rental subsidy that you may not have been entitled too [sic].

Allegations made against you:

• That during the years 2001 and 2002 you were living at [Croydon].
• That during the years 201 [sic] and 2002 you were sub-letting the premises at [Enfield] to Mrs [DML]’s brother without the department’s written permission.

You may be in breach of terms 20, 29 and 32 of your residential tenancy agreement, which states the following:

Section 20 Right to assign or sub-let.

A tenant may with the landlord's prior permission assign the whole or part of the tenant's interest under this agreement or sub-let the residential premises.

Section 29 Notify the Landlord of additional occupant.

29.1 “The tenant agrees to give the landlord written notice within twenty eight (28) days of any change in the household membership or the number of persons residing in the premises for longer than twenty eight (28) days.”

29.2 “The tenant acknowledges that failing to give the landlord notice when required to do so under sub-clause 29.1 is a breach of this agreement enabling the landlord to give Notice of Termination on ground of breach of this agreement.”

Section 32 Rental Rebate Provisions.

32.1 “The tenant agrees to give written notice to the landlord of all income and any subsequent changes to the income of the tenant and of all other persons residing in the premises within twenty eight (28) days of entering into this agreement and within twenty eight (28) days of any subsequent changes.”

32.2 “The tenant acknowledges that failing to notify the landlord in writing within twenty eight (28) days shall constitute a breach of this agreement enabling the landlord to give Notice of Termination on ground of breach of this agreement.”

You are therefore given fourteen (14) days from the date of this letter to provide any additional evidence which you feel may be relevant to contradict this information and/or make written representations or submissions to the Department as to why:

• The Department should not issue a Notice of Termination and seek vacant possession at the Consumer, Trader & Tenancy Tribunal for the property at [Enfield].
• The Department should not cancel your rental subsidy and charge full market rent of $210.00 per week incurring a large debt being placed on your account.

If for any reason you fail to reply to this letter, it will be assumed that you have no other evidence or material to rebut the allegations, which have been made against you.

In this event the Department will have no alternative but to make application to the Consumer, Trader & Tenancy Tribunal for vacant possession of the premises at [Enfield].

Any goods left at the premises will be considered as uncollected goods. These good [sic] will be removed and sold. Any proceeds of the sale will be retained by the Department for the reasonable costs of removal, storage and sale.

I acknowledge that you have agreed to provide a Centrelink Income Statement for yourself and your wife [MT], [MT]'s pass port and complete the enclosed forms (Permission to Live in Department of Housing & Rental Subsidy Application).’

17 As can be seen, the allegations are quite serious at different levels. They might be interpreted as suggesting that the applicant had not genuinely separated from his former wife, that he was involved in fraudulent arrangements that involved assistance to her family, and that he had earnt undisclosed income from the Enfield premises. The applicant explained to the Tribunal that he was particularly concerned about these allegations as it might lead to the loss of his tenancy, and cause his new wife to have suspicions about him. He felt it was wrong of the Department to have taken any steps of the kind he believed had occurred, i.e. an investigation involving contact with people who knew him, without first contacting him.

18 The applicant vigorously denied the allegations, and has pressed for information as to the identity of the sources and the actual record of what they said. On 23 March 2004 he lodged a Freedom of Information application for ‘copies of all allegations or complaints made against me since the beginning of my original lease including present lease’ and stated ‘I don’t require names or addresses of said articles’. The Department advised that these folios were contained on his tenancy file, and refused to release any of the documents, citing the personal privacy and confidentiality exemptions of the FOI Act.

19 Separately on 25 March 2004 he lodged an application for review of the conduct of the Department alleging various infringements of the Privacy Act. He wrote:

‘ Formal complaint to Department of Housing – File No. TO661869

Breaches of procedures and infringement of rights to privacy

I am writing to bring to your attention some serious breaches of conduct in the way Department staff have treated me and handled my file.

Without going into too much of the history, allegations were made concerning my tenancy which were untrue and could easily have been rejected if correct procedures were followed.

Instead, Department staff –

sought information from others to try to substantiate a false claim

did not try to clarify these matters directly with me, in the first instance.

have therefore breached procedure and privacy protocols

The claim made – which I heard second-hand – was that I had sub-leased my home at [Enfield] (where I have lived permanently since September 1999) to my brother. Later this rumour was revised to be my (former) brother-in-law.

It is important to note I do not have a brother and my (former) brother-in-law was at that time working in Wagga Wagga; this can be corroborated by group certificates. On 17 February 2004, Department staff took copies of both my parents’ Death Certificates confirming that I do not have a brother. However the letter from the Senior Client Officer of 17 February (PRN785405897) choses to ignore this and instead repeats the allegation!

While my ex-wife and I separated in 1998, I moved to this address in 1999 and we divorced in 2000, it seems that Department staff have not been able to separate our files in their minds or in reality. They approached my ex-wife and her neighbours which is where this allegation seems to have stemmed about my ‘brother’. This rumour seems to have started, I believe, in 2001 – a time when I was living here and had little to do with my ex-wife except seeing our children.

I remarried in 2002, in May to be precise, and have continuously lived at this address with my current wife and her child since then.

I am extremely hurt by all this – more so because my children have suffered from comments and gossip. Public housing estates are full of rumours and the slightest remark can create suspicion and unpleasant living circumstances.

I do not want my wife or children, as a result of the Department’s misconduct, to be subjected to such behaviour.

Nor, for my own health, do I want to be subjected to innuendo and behind-my-back enquiries about me. I am due for medical treatment for my heart and most definitely do not want unnecessary stress or anxiety.

All this information is not as important as the main problem I have with the Department. At no time did any staff approach me – instead they breached my rights to privacy and asked others for information about me. I understand that it is accepted procedure in matters relating to public departments that if anyone wants information, they should ask the person involved and only if not satisfied, then make other enquiries.

I believe from the Privacy Tribunal that I should ask you for an internal inquiry to be conducted by the Department of Housing, giving it the first opportunity of reply.

When this matter is resolved and the allegations refuted I would seek to have all these false records withdrawn from my file to prevent any future client services officer from being prejudiced by these false claims.

I look forward to your reply in addressing this serious issue and withdrawing any slanderous accusation from the records.’

20 It will be seen that the applicant’s letter deals with the following (alleged) administrative actions of the Department: receipt of allegations from third parties relating to the applicant; investigation of those allegations; and the creation by the Department of records of its activity.

21 The Department replied by letter dated 25 June 2004 in these terms:

‘ RE: COMPLAINT TO DEPARTMENT OF HOUSING

BREACHES OF PROCEDURE AND INFRINGEMENT OF

RIGHTS TO PRIVACY

I refer to the above matter and your letter dated 25 March, 2004 concerning same. This response is given to you pursuant to Section 53 of the Privacy and Personal Information Protection Act 1998 in that I have been authorised to conduct an internal review in relation to the allegation of infringement of your privacy.

Offices [sic] of the Department of Housing conducted an investigation into allegations of occupation of the premises at [address], Croydon and rental subsidy issues concerning the occupation of those premises.

The Department of Housing has pursuant to Sections 54-58 of the Housing Act 2001 power to investigate any allegations in relation to eligibility for receipt of rental subsidy.

The Department of Housing pursuant to an order made on 30 October, 2000 under Section 31 of the Privacy and Personal Information Protection Act 1998 has a privacy code of practice. The code of practice states in part “The Department of Housing may, where it appears appropriate, ascertain information directly from any third party where it appears that a fraud on the Department of Housing has, may be or is being committed. Such enquiries will be appropriate where fraud is reasonably suspected and the collection is necessary to assist the Department to assess whether fraud has or is taking place or to investigate the extent of such fraud.” The code further states “The Department, as landlord, receives complaints from complainants from time to time about the conduct of tenants. The Department of Housing is required to investigate the truth or otherwise of allegations concerning a particular tenant. In order to do this it must investigate complaints and in this process may collect information indirectly concerning a tenant about whom a complaint has been made.”

The Department of Housing upon receipt of information made appropriate enquiries and pursuant to those enquires issued a natural justice letter to you on 17 February, 2004 to which you responded.

Accordingly it is the finding of this review that the investigation to date by the Department has been in accordance with the Privacy code. The Department does not intend to take any further action in relation to the Privacy complaint.

You as a complainant have a right of appeal under the Privacy and Personal Information Protection Act 1998 to the Administrative Decisions Tribunal and may appropriately apply to the Tribunal for the conduct the subject of the complaint.’

22 It will be seen that the letter in reply gives no detail of the actual conduct engaged in. This is understandable in that the Department may not have seen it as appropriate to reveal to the applicant the details of its investigation. It is not possible, however, for the Tribunal to reach a conclusion as to the lawfulness of the conduct of the investigation, in terms of the Privacy Act, unless that conduct is identified.

23 As to the allegations made against the applicant giving rise to the investigation, that he might have continued to have been seen at the Croydon dwelling in 2001 and 2002 was not in itself surprising. There was an access agreement between the applicant and Ms DML under which the applicant cared for the children for the whole weekend starting Friday evening. At planning meetings, the applicant said that he sometimes stayed there on access weekends. This is the kind of explanation that the applicant feels, had he been interviewed ahead of any contact with third parties, could have been taken into account, and may have brought the investigation to an end without having his reputation placed at risk.

24 The applicant engaged a firm of solicitors in connection with the investigation. Eventually on 26 July 2004 the Department advised: ‘The Department has completed its investigations and enquiries concerning allegations against [OA] and the Department has determined that no further action is warranted.’

Attempts at Resolution before the Tribunal
25 At the planning meeting held on 16 November 2004, the applicant said he was unhappy over the way the Department expressed itself in the letter closing its investigation – ‘no further action’. He felt that this statement did not go far enough. Strictly, this was a matter outside the parameters of his internal review application. Nonetheless in the hope that some response to this concern might assist in resolution of the matter, the Tribunal asked the Department to consider revising its conclusion to say ‘not founded’ or some alternative words that show that the applicant is exonerated from suspicion.

26 The other two steps requested by the applicant were relevant to the matters raised by him in the original application: one, removal of the investigation records from the tenancy file and placing them in secure secondary storage with controls as to when those records might be accessed in the future; and two, his claim for financial compensation in respect of what he saw as the transgressions of the Privacy Act which had occurred. He itemised the financial compensation claim as: out-of-pocket expenses in connection with the investigation and the filing of the present application, which he totalled at $3701, comprising solicitors’ costs in connection with responding to the investigation into his alleged breaches of his tenancy obligations ($2821), the application fee paid to Tribunal ($50) and typing costs associated with his submissions to the Tribunal ($880).

27 At the next planning meeting held on 14 December 2004, the applicant confirmed that proposals had been put to him by the Department along the lines of in relation to the description of the outcome of its investigation and in relation to access controls over his tenancy file. The Department advised that on 7 December 2004 the applicant had rejected an offer put to him as to the description of the outcome of the investigation. He continued to press for payment of his ‘out-of-pocket’ expenses. He indicated that he was most concerned that information to the effect that he had been married before not be disseminated to third parties. He was worried that the letter sent out on 17 February 2004 had not been marked ‘personal’. He was concerned about the inclusion on page 2 of the letter of reference to his wife and her Centrelink status.

28 It was at this meeting that he raised for the first time issues relating to the Housing Appeals Committee decision of 17 May 2004 relating to his former wife. This is the issue that lies outside the parameters of the internal review application.

Applicability of Privacy Act
29 As noted earlier, the matters raised by the applicant in the application for internal review were: receipt of allegations from third parties relating to the applicant; the investigation of those allegations; and the creation by the Department of records of its activity.

30 In relation to the investigation the applicant claims that there were contraventions of the principles found in s 8, s 10(b), s 11, s 12(c), s 15, s 16, and s 17. These IPPs deal with the following matters: the scope of the collection of personal information by agencies, and the means by which it is done (s 8), the requirement that individuals from whom information is collected is made aware of the purposes for which the information is being collected (s 10(b)), the need to take reasonable steps to ensure that the information collected is relevant to that purpose, is not excessive, and is accurate, up to date and complete, and is not unreasonably intrusive (s 11), the need to ensure that appropriate security safeguards apply to the information (s 12(c)), rights of alteration and correction of information to which access is granted (s 15), the requirement that agencies not use the information without taking such steps as are reasonable in the circumstances to ensure, having regard to the purpose for which it is to be used, that it is relevant, accurate, up to date, complete and not misleading (s 16), and limitations on the use to which information can be put by the agency (s 17).

31 The Department’s answer to these assertions is that the provisions are inapplicable to this case for various reasons – for example, some provisions do not relate to the present circumstances; or, for example, the provisions are applicable on their face, but the Department enjoys an immunity or exception from them in the present circumstances by virtue of a Code of Practice then in force, The Department of Housing’s Privacy Code of Practice, gazetted on 3 November 2000 (the Code).

32 The Code varies or disapplies conditionally or unconditionally the following IPPs: ss 8, 9, 10, 13, 15, 17, 18 and 19. The Code does not seek to vary s 11, 12, 14, 15 and 16.

33 The difficulty that confronts the Tribunal in disposing of this case is that the evidence so far received does not make clear what the extent was of any investigation prior to the point at which the applicant first expressed concern to the Department, i.e. prior to 3 or 4 February 2004. The material before the Tribunal at the moment all relates to what passed between the applicant and Ms Hughes; and to the contents of the Housing Appeals Committee decision.

34 Consequently it is not possible to dispose finally of the matter at this point. However, the Tribunal will deal in these reasons with some of the matters raised by the applicant.

(i) Collection
35 Ms Hughes was stimulated to conduct her investigation by the phone call from the applicant. He was the first to bring to her attention the possibility that there might be adverse information about him in circulation. She checked the file and found two documents, one a record of a communication from a member of the public, the other an officer file note to similar effect.

36 The mere receipt of a communication from the member of the public does not constitute a ‘collection’ of personal information, as it does not involve an act on the part of the agency of ‘assembling’ or ‘gathering’ the information (see definitions of ‘collect’ and ‘collection’ in Macquarie Dictionary, (1st ed, 1980). Any doubt as to this matter is resolved by the Act, which provides in s 4(5) that:

‘For the purposes of this Act, personal information is not collected by a public sector agency if the receipt of the information by the agency is unsolicited’.
37 It is a fact of life for government bodies providing benefits that they regularly receive communications from people who believe that other people are wrongly receiving benefits or are in breach of the conditions for the grant of the benefit. The exception in s 4(5) simply seeks, as the Tribunal sees it, to protect agencies from any suggestion that the fact of receipt of such information is in any way governed by provisions in the Act to do with the standards that agency must observe where it goes out and collects information.

38 The applicant did raise the question of whether the Department’s officers had spoken to third parties about his situation in contravention of the relevant IPPs. There is non-specific confirmation in the Department’s internal review reply that this did occur. As to the practice of making contact with third parties and obtaining personal information from them about the subject of the enquiries, clearly the collection IPPs come into play.

39 The following provisions are relevant. IPP s 8 provides:

‘ 8 Collection of personal information for lawful purposes

(1) 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, and

(b) the collection of the information is reasonably necessary for that purpose.

(2) A public sector agency must not collect personal information by any unlawful means.’

40 The Code states that it is not intended that the Department will depart from this Principle. It is clear that the conduct of an investigation pursuant to s 58 of the Housing Act 2001 in connection with s 57(1) (the situation here) is lawful. However there is not at this stage sufficient evidence as to what precisely occurred in the investigation to enable the Tribunal to reach a conclusion. The Department will need to provide evidence on this matter.

41 IPP s 9 provides:

‘ 9 Collection of personal information directly from individual

A public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates unless:

(a) the individual has authorised collection of the information from someone else, or

(b) in the case of information relating to a person who is under the age of 16 years—the information has been provided by a parent or guardian of the person.’

42 The Code states that the Department does not intend to depart from this Principle except in certain circumstances. Two of the circumstances set out in the Code are, the Department submits, relevant to this case:
‘ Tenancy Management and the Good Neighbour Policy

The Department of Housing receives complaints from complainants from time to time about the conduct of Department of Housing tenants. The Department of Housing is required to investigate the truth or otherwise of the allegations concerning a particular tenant. In order to do this, it must investigate complaints and in this process it may collect information indirectly concerning a tenant about whom a complaint has been made. This Code authorises indirect collection from complainants.

Fraud

The Department of Housing may, where it appears appropriate, ascertain information directly from any third party where it appears that a fraud on the Department of Housing has, may be or is being committed.

Such inquiries will be appropriate where fraud is reasonably suspected and the collection is necessary to assist the Department to assess whether fraud has or is taking place or to investigate the extent of such fraud.’

43 There is, again, only limited information before the Tribunal on what occurred in the investigation. Often investigations into suspected fraud will be prompted by third-party reports to the agency. The investigator must then make a considered choice as to the next steps. A judgment is required as to when the subject of the allegations should be interviewed.

44 There is too little material before the Tribunal as to what occurred in this case to form any firm view as to whether the exception under the ‘Fraud’ heading in the Code (which seems to be the more relevant) was satisfied. In making this comment the Tribunal has in mind the words – ‘Such inquiries will be appropriate where fraud is reasonably suspected’. The Department will need to provide submissions on its evidence in relation to this matter.

(ii) Use
45 If the agency, as it will often do, decides to ‘hold’ information that was originally received as an unsolicited communication, then the principles in the Act that have to do with the ‘holding’ of information come into play; as do the principles in relation to ‘use’ and ‘disclosure’ if action of that kind occurs. In this case that means that ss 16 and 17 apply to the ‘use’ made of the information by the Department. The Code does not disapply s 16 in any way. There is a limited variation of s 17 not relevant to this part of the applicant’s case.

46 The Department ‘used’ the information it had received, and now held, as the basis for conducting an investigation. Section 16 provides:

‘ 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.’

47 So far as Ms Hughes is concerned, she acted appropriately. The applicant having brought the allegations to her attention, she interviewed him. She dealt with the tenant directly. This is clearly a reasonable step for the purposes of s 16.

48 There is no evidence before the Tribunal as to what might have passed between the Department and third parties prior to that time, other than the statements from two sources recorded by the Department. The Department will need to provide evidence.

49 Section 17 is relevant. It provides:

‘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.’

50 As noted earlier, ‘collection’ occurred, the Tribunal considers, when the Department decided to retain the unsolicited information and keep it essentially as intelligence information. It was ‘collected’ for investigative purposes. Ms Hughes ‘used’ the information. This is consistent with the purpose for which it was collected and held. There was no breach of s 17.

51 There was no evidence that the agency had in any way contravened s 12(c) (the security safeguards principle), and the Tribunal will not consider this issue any further.

52 IPP ss 14 and 15 give rights of access to records of personal information. The applicant has, as noted, made a Freedom of Information application for access. The issues relating to access and correction can be dealt with satisfactorily in that context. There is no evidence that the agency has wrongly refused to make appropriate alterations.

53 Ms Hughes’ explanation for including the references to the applicant’s new wife and requesting information is accepted. Clearly it was necessary for the Department to have information about any additional occupant, and in particular her income situation. The Department is entitled to request information relating to the overall household income in circumstances where it is required to assess the ability to pay.

54 This is as far as this case can be taken at this stage.

(2) Contents of Housing Appeals Committee Decision relating to Applicant
55 At the planning meeting in December 2004, the applicant raised the subject of the references to him and his personal affairs (as he saw it) in the reasons for decision of the Housing Appeals Committee issued 18 May 2004 following a hearing conducted on 29 April 2004. This matter was not raised by the internal review application, and lies outside the scope of these proceedings. The Department did not object to it being dealt with. The question of whether this issue should be remitted for internal review in order to found jurisdiction will be the subject of a further planning meeting.
Costs of Proceedings
56 The Department made a costs application. The Tribunal did not hear submissions, pending this decision. The future of the application will be dealt with at the next planning meeting.
Order

1. Application for review adjourned. Further planning meeting to be convened.

2. Respondent’s application for costs adjourned.