OS v Mid-Western Regional Council (No 3)

[2011] NSWADT 230

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	OS v Mid-Western Regional Council (No 3) [2011] NSWADT 230
Hearing dates:	31 August 2011
Decision date:	29 September 2011
Jurisdiction:	General Division
Before:	P Molony, Judicial Member
Decision:	The application is dismissed.
Catchwords:	Privacy and Personal Information Protection Act - personal information
Legislation Cited:	Privacy and Personal Information Protection Act 1998 Administrative Decisions Tribunal Act 1997 Local Government Act 1993
Cases Cited:	OS v Mudgee Shire Council [2009] NSWADT 315 OS v Mudgee Shire Council (No 2) [2011] NSWADT 34 WL v La Trobe University (General) [2005] VCAT 2592 WL v Randwick City Council [2007] NSWADTAP 58 Vice-Chancellor, Macquarie University v FM (GD) [2003] NSWADTAP 43 Vice-Chancellor Macquarie University v FM [2005] NSWCA 192
Category:	Principal judgment
Parties:	OS (Applicant) Mid-Western Regional Council (Respondent)
Representation:	Counsel M Hutchings (Respondent) OS (Applicant in person) McIntosh, McPhillamy & Co (Respondent)
File Number(s):	093179

REasons for decision

Background

1. The background to this decision is discussed in OS v Mudgee Shire Council [2009] NSWADT 315 and in OS v Mudgee Shire Council (No 2 ) [2011] NSWADT 34 .

1. In the first decision I found that that the information contained in points 1, 2, 3 and 4 of OS' application for internal review was personal information within the meaning of the Privacy and Personal Information Protection Act 1998 and was not excluded from the definition of personal information in s 4(3)(b) of the Act. Section 4 relevantly provides -

"(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.

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following:

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual that is contained in a publicly available publication,

(c) ..."

1. I found point 5 did not contain personal information.

1. With respect to point 6, I wrote -

Point 6 refers to an aerial photograph of OS' property. The Agency submits this is information relating to the land photographed and to land use. In the context of the report, with which the photograph was produced, it was also an aerial photograph of the property owned by OS and his wife. This is information about OS and falls within the definition of personal information in s 4(1).

The Agency submits that this photograph was sourced from the Department of Lands and is freely available and publicly accessible on the Department of Lands website. There is no direct evidence of this, or of how such photographs are accessed. Without such evidence I am not prepared to draw the conclusion urged by the Agency.

In those circumstances, it would seem appropriate to give the Agency an opportunity to adduce such evidence as the application proceeds

1. The agency did wish to pursue that issue, asserting that the aerial photograph in issue was taken from the Department of Lands web-site and was therefore a publicly available publication within the meaning of s 4(3)(b) of the PPIP Act. This led to the second decision.

1. There I noted that the agency had not put on any evidence going to the issue. I wrote (at [22-24]) -

In this case the Tribunal made it clear that it required evidence from Council as to how the photograph was accessed and used, I have provided a number of opportunities for that evidence to be adduced. Nothing, aside from assertions of fact, has been forthcoming from Council. While the Tribunal has a duty to ensure that all relevant material is disclosed to it, it does not have the power to compel an agency to prepare and file relevant statements. Aside from alerting Council to the issue about which evidence is required, and providing it with a reasonable opportunity to put that evidence on, the Tribunal is limited in its capacity to ensure that all relevant material is before it. The Tribunal is entitled to expect and receive greater co-operation from agencies such as the Council in the conduct of review under the Act.

The reality, with which I am faced, however, is that Council has not put on any evidence responsive to my request. The information sought reposes in Council and its staff. OS does not have personal knowledge of it, and cannot provide relevant evidence. In those circumstances, given the nature of a review of conduct under the Act, I consider that the Council bears an evidentiary burden in respect of its assertion that the photograph is not personal information to which the Act apples by virtue of s (4)(3)(b). Such a view is consistent with the fact that the sub-section creates an exception, and with the procedures set out for the review of conduct under the Act. As the Appeal Panel observed in GR, the internal review conducted by the agency under s 55 should provide full particulars of the conduct in issue .

As a result I agree with the Privacy Commissioner's submission that, given the beneficial nature of the Act, and in the absence of requested evidence from Council going to the s 4(3)(b) issue, the Tribunal cannot be satisfied that the sub-section applies. As a result I find that s 4(3)(b) does not apply to the photograph in point 6.

1. The agency appealed that interlocutory decision to an Appeal Panel. On 23 May 2011 the Appeal Panel ordered that, among other things -

1. Tribunal to consider fresh evidence on Point 6 and redetermine the issue of whether the information is "personal information".

2. Tribunal to proceed to consider Council's defences (subject to the Council reserving its position in respect of the appeal as to "personal information" rulings and respect of Points 1-4, and, if so found, Point 6.)

1. As a consequence I provided the parties with a further opportunity to put on relevant evidence and submissions, and then conducted an oral hearing on 31 August 2010. The evidence presented at that hearing consisted of:

• An affidavit sworn by Dianne Sawyers, Revenue Supervisor at the agency on 28 June 2011 (Exhibit R1) with attachments.
• A bundle of documents provided by the agency on 10 August 2011 to OS in response to his request for access to information (Exhibit R2).

1. There was no other evidence tendered. The hearing was entirely taken up with submissions.

Accessing

1. At the conclusion of that hearing I discussed with the parties conflicting evidence and submissions concerning how the aerial photograph at the heart of the point 6 issue could be accessed on line. I proposed exercising the Tribunal's power under s 73(2) of the Administrative Decisions Tribunal Act 1997 to inform itself as it thinks fit, by seeking to access an aerial photograph of OS' property myself. No one objected to my doing so.

1. It proved impossible to obtain the necessary equipment to enable me to do so in the Tribunal's hearing room. As a result, when the hearing concluded, I attempted to access the relevant web-site ( and to view an aerial photograph of OS' property. In this I was successful.

1. I gained access to an aerial photograph that I could manipulate in a number of ways (zooming in and out - to the extent that I could clearly make out each structure on the property and see the layout of the garden beds - and varying the angle from which the property was viewed). Tools enabled me to insert street names and property boundaries on the photograph.

1. Eight steps were required for me to access the aerial photograph, including viewing, printing and accepting the conditions of entry. These concerned copyright protection, and an acknowledgement that the Department of Lands would not be liable for loss or damage suffered as a result of reliance on the material accessed. Further steps were involved in manipulating the photograph and inserting property boundaries and street names.

1. I documented each step in that process by taking a screen dump and describing the step. I incorporated those screen dumps and descriptions in a document that was sent to the parties on 2 September 2011, with a request that any submissions as to what conclusions, if any, I should draw from them be filed and served by close of business on 9 September 2011.

1. A response was received from OS.

Issues

1. In accordance with the orders made by the Appeal Panel the issues requiring determination at this time are:

• Whether the information contained in the aerial photograph referred to in point 6 of OS' internal review request is personal information within the meaning of s 4(1) of the PPIP Act;
• Whether, with respect to points of OS' internal review request that contain personal information, the " Direction relating to the Processing of Personal Information by NSW Public Sector Agencies in relation to their Investigative Function " made by the Privacy Commission under s 41 of the PPIP Act applies so as to exempt the agency with relevant information protection principles.
• If not, whether the aerial photograph in Point 6 is " information about an individual that is contained in a publicly available publication" and therefore excluded from the definition of personal information by s 4(3)(b) of the PPIP Act.

Is the aerial photograph personal information?

1. In my first decision in this matter I set out the factual background. Insofar as it is relevant to the present issue I wrote (at [6-8]) -

The conduct identified by OS in his internal review request related to a business paper prepared by the Agency's Revenue Supervisor. This was presented to a meeting of the Council, along with maps and other documents, on 4 February 2009 (the report). OS said that the business paper and attachments contained 'personal information about our land use' which he claimed had been variously improperly collected, held, used and disclosed in breach of the Information Privacy Principles established by the PPIPA.

The report recommended that Council confirm a decision by Agency staff that the property be categorized for rating purpose as Business from 1 July 2008, rather than Residential as it had in the past. The report indicated that OS and his wife 'have concerns ... regarding the Declarations and seek to have the matter resolved without the need to appeal to the Land and Environment Court.' The report identified OS and his wife and the address of their property. It set out a number of specific details taken into account in reaching the rating determination.

OS identified six alleged breaches of Information Privacy Principles (IPPs) in the report. These were:

...

Point 6 - That with the report Council was provided with an 'Aerial photograph of land parcel, residence, Nursery area, and structure associated with nursery activity.' OS claimed that photograph was blurred, not to scale and unsuitable for the purpose. He said it was neither current nor relevant. He alleged breaches of the IPPs in sections 9, 10(a) (b) (c) (d) (e) (f), 11, 14, 16, and 21.

1. Later at [24] and then [41] I wrote -

In this case the report prepared by the Agency's Revenue Supervisor clearly identified the address of the property in issue, and that it was owned by OS and his wife. It advised among other things that the OS was seeking a review of the business categorisation (presumably under s 525 of the LGA) 'on the basis that the residential use of the parcel of land was in fact the dominant use.' There can be no doubt that a person's name and address are personal information. They are primary forms of personal identification: WL v Randwick City Council at [21]. Their use in the report by Revenue Supervisor (about which OS does not complain) resulted in the other information contained in the report being given in the context that it related to the premises owned by OS and his wife, which they claimed was used dominantly for residential purposes.

... In the context of the report, with which the photograph was produced, it was also an aerial photograph of the property owned by OS and his wife. This is information about OS and falls within the definition of personal information in s 4(1).

1. It is only now, at this late stage of the proceedings, that the agency has provided the Tribunal with a copy of the aerial photograph in issue. That copy is annexed to Ms Sawyers' affidavit. The photograph is a very poor copy and vastly inferior from that which I was able to print from the Department of Lands web site. It is barely apparent from the photograph produced that it is an aerial photograph: its scale is hard to establish. As the agency's counsel pointed out to me, by reference to his own, marginally better copy, lot numbers have been inserted in the photograph, including the lot number of OS's property.

1. There is nothing in the photograph per se that connects it to OS and his wife, apart from the lot numbers. These may, with diligent searching and the use of appropriate resources, enable one to establish who is the registered owner of each of the various properties identified by lot number in the photograph. The names of those individuals are personal information. Whether it is personal information that is reasonably ascertainable from the photograph alone is something that it is not necessary to decide, although I note that the weight of authority points toward the conclusion that the difficulty involved in the necessary searches results in that personal information not being reasonably ascertainable: see WL v La Tribe University (General) [2005] VCAT 2592 and WL v Randwick City Council [2007] NSWADTAP 58.

1. It is not necessary to decide that issue because there is no dispute that the aerial photograph was referred to in Ms Sawyer's report to Council, which identified OS and his wife and their property, in support of a recommendation that the property be categorised as business for rating purposes. Ms Sawyer's wrote that the photograph "shows residence, nursery area and structures associated with nursery activity." In her affidavit Ms Sawyer confirmed that a copy of the photograph was shown to Council during the meeting discussing that report.

1. It is in that context that OS argues that the photograph contained his personal information.

1. In WL v Randwick City Council [2007] NSWADTAP 58 the Appeal Panel was considering a case concerning a photograph of building works at WL's property, taken by a Council Officer. The Appeal Panel said, at [15 - 16]

14 The Privacy Act only attaches constraints to those actions of public sector agencies that concern the collection, storage, use and disclosure of 'personal information'. The primary definition of 'personal information' is at s 4(1):

'4(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.'

15 Documents which themselves do not contain any obvious features identifying an individual may take on the quality by virtue of the context to which they belong. We accept that the photographs of building works, without more, might not reasonably be said to contain 'information ... about an individual whose identity is apparent or can reasonably be ascertained from the information'. However, if the photographs were taken in circumstances where the identity of the owner of the property was known to the photographer, it might at least be arguable that the photographer (and the organisation to which he or she belonged) knew that the photographs recorded the condition of a property owned by a specific individual. This combination of factors might produce the conclusion that the information as a whole was information to which s 4(1) applied.

16 Even if Mr Kerr did not know at the time who owned the property, he quickly proceeded to obtain that information from the Council files, in order to take the enforcement steps. It is strongly arguable that by this point the photographs formed part of a body of information which amounted to 'information ... about an individual whose identity is apparent or can reasonably be ascertained from the information'. One of the cases relied on by the Council before the Tribunal deals with the importance of context. We have no criticism of the final conclusions in that case: a Victorian case involving that State's privacy legislation - WL v La Trobe University (General) [2005] VCAT 2592, see esp [17] per Coghlan DP).

1. Once Ms Sawyer used the photograph for the purposes of her report, it was associated with OS' name, as a property owned by his wife and himself. It was then personal information within the meaning of s 4(1). It was, in that context, a picture of their property and their home, albeit from an aerial view. The fact that it was being used for rating purposes, did not deprive it of that character.

1. I remain satisfied, in that context, that the aerial photograph contains OS' personal information within the meaning of s 4(1).

Does the investigations exemption apply?

1. Section 41 of the PPIP Act provides -

(1) The Privacy Commissioner, with the approval of the Minister, may make a written direction that:

(a) a public sector agency is not required to comply with an information protection principle or a privacy code of practice, or

(b) the application of a principle or a code to a public sector agency is to be modified as specified in the direction.

(2) Any such direction has effect despite any other provision of this Act.

(3) The Privacy Commissioner is not to make a direction under this section unless the Privacy Commissioner is satisfied that the public interest in requiring the public sector agency to comply with the principle or code is outweighed by the public interest in the Privacy Commissioner making the direction.

1. Among the directions made by the Privacy Commissioner is a direction first made in 2000 and extended on a yearly basis since then. It is the " Direction relating to the Processing of Personal Information by NSW Public Sector Agencies in relation to their Investigative Function ." It provides, among other things, that -

1. This Direction is to apply to each public sector agency, as defined in section 3 of the Privacy and Personal Information Protection Act (the PPIP Act), which is listed in the schedule to the Direction (relevant agency).

2. This Direction applies to the collection, storage, use and disclosure of personal information for the purpose of the exercise by a relevant agency of its investigative functions.

3. This Direction does not apply to "health information", as defined in section 6 of the Health Records & Information Privacy Act 2002 (HRIP Act).

4. A relevant agency need not comply with sections 9, 10, 13, 14, 15, 17, 18, or 19(1) of the PPIP 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.

...

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;

1. The agency is and was an agency listed in the schedule to the Direction.

1. The agency argued that it collected, stored and used the personal information relating to OS in the course of a lawful investigation. It submitted -

The respondent is required by Chapter 15 of Part 3 of the Local Government Act 1993 to categorise land for the purposes of ordinary rates. This was the sole use to which the subject matter of Dot Points 1 - 4 and Dot Point 6 was used. Accordingly, it is submitted that there is nothing that was done by the respondent (and in respect of which the applicant complains) that falls outside the definitions identified above.

1. Part 3 of Chapter 15 of the Local Government Act 1993 (the LGA) provides the legislative context in which the information in issue was collected, stored and used. It is concerned with ordinary rates. Section 514 requires that Councils categorise parcels of land as farmland, residential, mining or business, before striking a rate. For the purposes of this categorisation, s 515 to s 517 make provision with respect of requirements to be satisfied in order for a parcel of land to be classified as farmland, residential or mining. Each of those requirements is focussed on the dominant use of the land. Section 518, which deals with business categorisation, is the odd man out. It provides:

'Land is to be categorised as business if it cannot be categorised as farmland, residential or mining.'

1. Section 518B provides for the categorisation of mixed development land.

1. Councils are required to give notice of the category declared for each parcel of land to the ratepayer (s 520). A declaration takes effect on the date specified in the declaration (s 521) and remains in effect until a subsequent declaration takes effect (s 522). Section 523 provides for category reviews -

(1) A council need not annually review a declaration that a parcel of land is within a particular category, but may review a declaration:

(a) as part of a general review of the categorisation of all or a number of parcels of land, or

(b) because it has reason to believe that a parcel of land should be differently categorised.

(2) A council must review a declaration if required to do so in accordance with section 525 by a person who is rateable in respect of a parcel of land to which the declaration applies.

1. Section 524 places an obligation on ratepayers to notify council 'after the person's rateable land changes from one category to another.' A ratepayer may apply at any time to the Council for review of a declaration, or to have the land placed in a particular category (s 525). If dissatisfied with a declaration or a decision of the Council under s 521 or s 525, s 526 provides a right of appeal to the Land and Environment Court.

1. Council relied on s 523 as giving specific legislative authority to review rates: in this case, it submitted, as part of a general review of categorisation. As a result Council submitted it was carrying out a lawful investigation, and that in the course of that investigation it was exempt from the application of the collection, use, storage and disclosure principles of the PPIP Act.

1. The Privacy Commissioner in his written submissions noted that the agency was relying Part 3 of Chapter 15 of the Local Government Act 1993.

I am unaware of what legislative authority or power that the Council is relying upon (implied or necessarily contemplated under an Act or other law), in respect of the re-evaluation of the use and rateable value of the Appellant's property. That is not to say that the exemption does not apply, merely that the basis for the enlivening of the exemption has not been fully made out in the submissions received by my Office, when one has regard to the relevant Act. However it may be that section 523 (1) of the Local Government Act 1993 provides authority to re-categorise the land.

1. In Vice-Chancellor, Macquarie University v FM (GD) [2003] NSWADTAP 43 the Appeal Panel considered whether a series of telephone conversations from a member of staff of that University with a member of staff of another University concerning a potential doctoral student fell within the investigations exemption. The Appeal Panel said -

115 Here the submission is that (at least) the investigation was one that is 'necessarily implied or reasonably contemplated' under the University legislation (see "lawful investigation", extract from definition). Enrolment status is a fundamental concern for a University and the wider community. We consider that this case falls into that category. The UNSW was at liberty, we consider, to take reasonable steps to inquire into and investigate the enrolment status of a student by contacting prior Universities that he had attended. It adopted the course of going to senior academics in the relevant Faculty. This, as we see it, is not unreasonable. It may have received partial and coloured information. That can happen during an investigation. It is for the investigator to stand back from the information, and consider what duties it may owe to the individual affected to obtain that individual's version of the matter, and then consider, if it wishes to take detrimental action, what the basis for that should be. In our view there can be no doubt that a University has the power to institute formal action in relation to enrolment. Such a power must logically carry with it the power to investigate compliance with enrolment criteria.

116 In our view, the Tribunal erred at this point of its reasons, though the submissions that it had before it on this point were, we recognise, less developed than those received by the Appeal Panel.

117 In our view the references in cl 4 to 'the agency's investigative functions' covered what occurred here. We are satisfied that Macquarie was engaged in carrying out an investigative function in connection with the UNSW investigation.

1. While that decision was subsequently appealed, the decision of the Court of Appeal ( Vice-Chancellor Macquarie University v FM [2005] NSWCA 192) did not touch on this aspect of the Appeal Panel's decision.

1. Here the agency says that it was carrying out a general review of rates categorisation under s 523 of the Local Government Act 1993. That power to review carries with it a power to make inquiries. In reviewing rates payable with respect to specific properties and generally, the agency is engaged in an important task associated with ascertaining and protecting the rates it can lawfully charge ratepayers. In my judgment in the course of a general categorisation review of rates, the agency was free to make inquiries relating to the use of OS' property.

1. The enquiries it did make were all aimed at ascertaining that information, and were reasonable. The agency was undertaking an investigation relating to the categorisation of OS property for rating purposes, under specific legislative authority, which lead to it taking formal action: changing the zoning of OS' property.

1. In my opinion the Direction relating to the Processing of Personal Information by NSW Public Sector Agencies in relation to their Investigative Function applies to all the conduct of the agency in this case. As a result, the privacy principles which QS alleges have been breached by the agency did not apply to regulate its conduct.

1. OS' complaint, at its heart, goes to the procedures adopted by the agency and the accuracy of the information obtained as a result. That, however, is not a matter for the Tribunal, and is not governed by the PPIP Act.

1. The Tribunal therefore has no jurisdiction to determine OS' application for external review. The agency is not required to comply with the IPPs in sections 9, 10, 13, 14, 15, 17, 18, or 19(1) of the PPIP Act with respect to the personal information in Point 1 to 4 and 6 under Privacy Commissioner's Direction relating to the Processing of Personal Information by NSW Public Sector Agencies in relation to their Investigative Function.

1. As a consequence of that decision it is not necessary determine the s 4(3)(b) issue.

Conclusion

1. The application is dismissed.

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Decision last updated: 29 September 2011