OA v New South Wales Department of Housing (No 2)

[2006] NSWADT 94

CITATION:	OA -v- New South Wales Department of Housing (No 2) [2006] NSWADT 94
DIVISION:	General Division
PARTIES:	APPLICANT OA RESPONDENT New South Wales Department of Housing
FILE NUMBER:	043242
HEARING DATES:	20/12/2005
SUBMISSIONS CLOSED:	12/20/2005
DATE OF DECISION:	03/31/2006
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Privacy - information protection principle - accuracy
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Housing Act 2001 Privacy and Personal Information Protection Act 1998
CASES CITED:	OA v New South Wales Department of Housing [2005] NSWADT 233
REPRESENTATION:	APPLICANT In person RESPONDENT J Eccleston, solicitor
ORDERS:	1. Application dismissed; 2. Department to file any submissions on costs within 21 days. Applicant to respond within a further 14 days. Application to be decided on the papers, if there is no objection from either party.

1 This decision is supplementary to the decision of the Tribunal published as OA v New South Wales Department of Housing [2005] NSWADT 233 (the first decision). In that decision the Tribunal dealt to the extent that it felt able with an application for review of the conduct of the Department, lodged pursuant to s 55 of the Privacy and Personal Information Protection Act 1998 (the Privacy Act).

2 The applicant is a tenant of the Department. The applicant asserts that the Department contravened various Information Protection Principles (IPPs) contained in the Privacy Act in the way it dealt with allegations made against him which, if had they been proven, could have involved quite serious findings of dishonesty and fraud, eviction action and possibly criminal charges. The details are set out in the first decision of the Tribunal.

3 His concerns related to two sets of circumstances: the Department’s investigation of these matters as they related to him; and reference made to his situation which appears in the findings of a Housing Appeals Committee proceeding involving another tenant, his former wife, Ms DML. For reasons explained in the first decision, the Tribunal held that it was not competent to deal with his concerns in relation to the second set of circumstances.

4 As to the applicant’s claims in relation to the investigation against him, the Tribunal said at paras [29] to [34]:

‘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 [the senior client officer at Burwood]; 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. …’

5 The Tribunal went on to hold that the Department had not contravened several of the IPPs put in issue by the applicant; but considered that, as to three of the IPPs put in issue, there was not sufficient material before it to enable it to reach a conclusion. There was no direct evidence as to the circumstances of receipt of the allegations, and whether any investigative action had been taken. The Tribunal directed the Department to provide evidence from an officer who is able to provide direct evidence as to any investigation that occurred in relation to allegations that the applicant had sub-let the premises at Enfield to his former brother-in-law; and/or had not resided there.

6 Ms Hughes, the senior client officer at Burwood, who gave evidence to the first proceedings, had become involved in the matter when OA called her on 3 and 4 February 2004 expressing concern over rumours that he was under investigation for sub-letting his present accommodation. He had moved to that accommodation some years before after breaking up with his wife (they subsequently divorced), Ms DML. Ms Hughes reviewed his file, and noted that it did record allegations that he had been regularly living at Ms DML’s (where the children of their marriage had continued to reside with their mother) on a regular basis. On or about 12 February 2004 she telephoned the applicant and said words to the effect that there may be a case to answer and that she would be responsible for the investigation. It was agreed that he could come into the office on 17 February 2004 to discuss the allegations. She asked him to bring any evidence he wished to rebut the allegations. In this instance, Ms Hughes explained in her affidavit, there was no opportunity to issue the usual ‘natural justice’ letter ahead of the interview, as the applicant had initiated contact, and demanded an interview. At that interview she provided him with the ‘natural justice’ letter, text set out in first decision.

7 The additional evidence was supplied by Ms Lynelda Rowe, who was a client service officer at Burwood from around September 2002 to May 2005. She said that between approximately November 2003 and early January 2004 (when Ms Hughes was on leave) she acted in Ms Hughes’ position. She said that she was allocated specific responsibility for the investigation into the ‘alleged breach of tenancy obligations relating to the subsidy fraud of Ms DML’. As explained in the first decision this was the matter that eventually found its way to the Housing Appeals Committee, and led to the applicant being mentioned in ways that he regarded as unfair.

8 Ms Rowe refers to an interview conducted with Ms DML on 30 December 2003, and two declarations furnished to her by two persons dated 28 and 29 December 2003. Ms Rowe deposes that comments in Ms Hughes’ affidavit as to the note of a telephone conservation dated 8 January 2004 were accurate. Ms Rowe states that she made the note. It was a record of an in confidence discussion between her and the person named. The person requested a copy of the interview notations and these were posted direct to that person only.

9 It is now clear that the applicant came into possession of those notes, and that was a trigger for his contact with Ms Hughes early in February 2004. Ms Rowe states that she does not know how the applicant came into possession of the notes.

10 She said that the person had told her that the applicant – the words are those of Ms Rowe – ‘would stay at Ms DML’s residence for around two weeks at a time every three months for a period of around a year, but the person was unsure.’

11 The Department tendered into evidence two confidential statements from Ms Rowe. They were received by the Tribunal on the basis that their contents would not be made known to the applicant.

12 The following paragraphs [13]-[14] are confidential to the Tribunal and the Department. They are not disclosed in the reasons released to OA and for general publication.

13 [Confidential]

14 [Confidential]

15 The position, therefore, on the basis of this evidence, is that the Department simply received communications from one, or possibly, two informants, placed them on file, and had not prior to the phone call by OA to the Department taken any action on the material. It had not commenced any investigation.

16 At planning meetings and in statements at hearing OA asserted that there had been enquiries made of neighbours of Ms DML and his children about his activities. There is no evidence to suggest any active field investigation that comments of this kind tend to suggest, involving for example officers visiting neighbours. There is no evidence that the Department had circulated the allegations to anyone.

Assessment

17 In the first decision, the IPPs at ss 8 and 9, dealing respectively with the requirement that information be collected lawfully and the requirement that it be collected directly from the individual, were set out. The Tribunal has some doubt as to whether it could be said that the allegations had been ‘collected’ prior to the date of the phone call to Ms Hughes (3 or 4 February 2004). In the first decision the Tribunal expressed the view that the August 2001 allegation, and now it would seem, the December 2003 and January 2004 allegations were not ‘collected’ in the way that term is defined in the Privacy Act. They were all unsolicited pieces of information.

18 When the Department decided to make use of the information, it could, the Tribunal feels, be said to have ‘collected’ the information. The point of collection, on this view, is sometime around 12 February 2004, when Ms Hughes made her decision that there was a case to answer.

19 Until that time the allegations had simply been dormant on the file. They were brought to life, it appears, by OA’s phone call to Ms Hughes. She looked at the file, and decided to take action, first agreeing to OA’s request for an interview, and then supplying him with a ‘natural justice’ letter on 17 February at their further meeting. This led to him engaging solicitors to defend himself against the allegations, having to write a letter in reply, and otherwise suffering anguish and strain.

20 In these circumstances the Tribunal only sees ss 8 and 9 (details set out in first decision) as possible becoming applicable as from when Ms Hughes took action. Section 8 was clearly met – the lawful purpose is to be found in ss 57 and 58 of the Housing Act 2001, giving the Department (acting as the NSW Housing and Land Corporation) wide powers to investigate the weekly income of individuals for the purpose of ascertaining the rental rebate if any. The collection of information from third parties, not in conformity with s 9, is permitted by a code of practice. See further first decision, para [42]. Clearly this type of collection falls within the terms of the code.

21 Section 16 is the most significant provision relevant to this matter. 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.’

22 Ms Hughes ‘used’ the information to respond to the applicant’s phone enquiry, subsequently for the purposes of the telephone discussion on or about 12 February 2004 and in the letter given to him on 17 February 2004.

23 The Department could, it may be contended, have gone further and did more checking with other parties before issuing the letter to OA. There is no evidence that it interviewed Ms DML over this allegation; nor did it obtain a particularised statement from the informant or informants to flesh out what were broad, sweeping statements with no detail. The evidence is that the only step it took was to confront OA with the allegations and ask him for a reply.

24 The Tribunal’s view, on balance, is that in the circumstances of this case, this was sufficient to meet the requirement that before using the information the agency should take such steps as ‘are reasonable in the circumstances to ensure that, having regard for the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading’.

25 The Department might have chosen to undertake a field investigation, with the difficulties that entails and the risk to the reputation of the tenant under suspicion. It is normally to be preferred, from the viewpoint of the individual whose privacy is at risk, for the agency to confront that person directly with the allegation without retailing to others, if that can be done without compromising the investigation. This approach appears also to be consistent with the Department’s ‘Good Neighbour Policy’, mentioned in these proceedings. Also a factor in this case is the expressed attitude of OA, as reported by Ms Hughes – that he wanted something official from the Department at the earliest opportunity so that he could put his side of the matter. In the end OA was successful in having the case dropped.

26 The Tribunal accepts that OA was put to a deal of expense and personal anguish by having to respond to the allegations against him. It is not, however, satisfied that any contravention of ss 8, 9 or 16 (the Information Protection Principles remaining to be addressed) is disclosed.

27 The Department has reserved the right to apply for costs.

Order
1. Application dismissed.

2. Department to file any submissions on costs within 21 days. Applicant to respond within a further 14 days. Application to be decided on the papers, if there is no objection from either party.