OS v Mudgee Shire Council

[2009] NSWADT 315

CITATION:	OS v Mudgee Shire Council [2009] NSWADT 315
DIVISION:	General Division
PARTIES:	Applicant: OS Respondent: Mudgee Shire Council
FILE NUMBER:	093179
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	22 October 2009
DATE OF DECISION:	17 December 2009
BEFORE:	Molony P - Judicial Member
MATTER FOR DECISION:	Preliminary Matter
LEGISLATION CITED:	Privacy and Personal Information Protection Act 1998 Local Government Act 1993 Environmental Planning and Assessment Act 1979
CASES CITED:	NSW Fire Brigades [2005] NSW ADT 73 WL v Randwick City Council [2007] NSW ADTAP 58 Vice- Chancellor Macquarie University v FM [2005] NSWCA 192
REPRESENTATION:	Applicant Representative: In person Respondent Representative: P Crennan, solicitor
ORDERS:	1. I find that points 1, 2, 3 and 4 contain personal information about OS within the meaning of s 4(1) of the Privacy and Personal Information Protection Act 1998 which information is not excluded from the definition of personal information by s 4(3)(b). 2. I find that point 5 does not contain personal information about OS within the meaning of s 4(1) of the Privacy and Personal Information Protection Act 1998. The Tribunal has no jurisdiction with respect to the OS’ complaints relating to that information. 3. I find that point 6 contains personal information about OS within the meaning of s 4(1) of the Privacy and Personal Information Protection Act 1998. I decline to determine whether that information is excluded from the definition of personal information by s 4(3)(b), without further evidence and submissions. 4. I direct that this matter be listed for a further planning meeting before me at a time and date to be fixed at which the further progress of the matter will be discussed and any necessary directions made.

REASONS FOR DECISION

Background

1 On 30 March 2009 OS applied under the Privacy and Personal Information Protection Act 1998 (the PPIPA) to the General Manager of the Mid-Western Regional Council (the Agency) for an internal review of conduct by the Agency relating to the review of the rating category assigned to a property owned by OS and his wife.

2 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.

3 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.

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

• Point 1 - A statement that, ‘The parcel of land was inspected on 7/12/2007 — a residence and nursery known as "[OS’] Nursery "were noted as activities on the land.’ He claimed that the inspection had been carried out in a clandestine manner. He complained that he had not been allowed to see the information gathered, or correct inaccuracies in it. He alleged breaches of the IPPs in Sections 9, 10(a) (b) (c) (d) (e) (f), 11(a) and 21.
• Point 2 - A statement in the report that the property, ‘Has existing use rights for a Nursery Business as appears to have possibly been approved prior to planning instrument Mudgee LEP 1998.’ OS claimed that the information was not relevant to rating purposes and alleged breaches of the IPPs in sections 11(a) and 16 and 21.
• Point 3 - A statement in the report that ‘D.A. M532/99 (1999) approved for a single story dwelling and change of use from a dwelling, to a nursery office and storeroom.’ OS claimed that this information had been collected and held for purposes other than rating purposes; and alleged breaches of the IPPs in section 9(a) 10(a), 11(a) and 21.
• Point 4 - A statement in the report that there was, "[OS’] Nursery" signage used on the property". He asked to be advised as to how this applied to an assessment of the dominant use of the property. He did not allege a breach of any IPPs or of a privacy code of conduct which applies to the Agency.
• Point 5 - A statement in the report that, ‘"[OS’] Nursery" business advertised in the White and Yellow pages of the 2008 telephone directory and on the internet at www. ourpatch.com.au ’. OS wrote that the web-site advertisement was not authorised and that a request that it be removed had been made. He alleged breaches of the IPPs in sections 9(a) 10(a) (b) (c) (d) (e) 11(a), 16, and 21.
• 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 photographs 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.

5 The internal review was completed on 9 June 2009, outside the 60 day time frame specified by s 53(6) of the PPIPA. It dealt with OS’ request at both a general and specific level. Generally, the internal review said:

‘A decision by Council to categorise land is not a matter regulated by the PPIP Act and would not properly form the subject of an internal review under section 53 of that Act. Any appeal against the exercise of Council's functions under section 523 of the Local Government Act 1993 and the categorization of land would more appropriately the subject of an application under section 525 of the Local Government Act 1993. ’

6 Specifically, with respect to points 2 to 6 inclusive the internal review found that they did not contain personal information within the meaning of the PPIPA. It explained that, ‘the statements do not contain information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or the opinion.’ As a result it found no breaches of the IPPs.

7 With respect to point 1 the internal review found:

‘It is noted that the content of the statement described as Dot Point 1 is not personal information within the meaning of the PPIP Act however it is considered that the notes referred to in this dot point do contain personal information. The notes stored on Council's system dated 7 December 2007 contain the Council officer's observations of the inspection on that day together with the name and address of the complainants. This information is information about an individual whose identity is apparent or can be reasonably ascertained from the information and therefore falls within the definition of "personal information" under section 4(1) of the PPIP Act.
The complainants allege that the information on Council's register was collected "outside of the privacy guidelines".
The conduct of Council staff in relation to the collection, use, storage and disclosure of the personal information stored on Council's system has been reviewed. No evidence has been found to support a finding that Council has acted in breach of section 21 or the information protection principles contained in s 9, 10 (a) — (f), 11(a) of the PPIP Act.’

8 Alternately, the Agency said it was, in the circumstances, exempted from complying with the IPPs in sections 9, 10, 13, 14, 15, 17, 18, 19(1) under the provisions of a Direction issued by the NSW Privacy Commissioner, dated 23 December 2008. That direction is made under section 41 of the PIPPA and exempts the Agency, among others, from compliance with those sections because ‘non-compliance is reasonably necessary to assist another relevant agency exercising investigative functions or conducting a lawful investigation.’ The internal review did not identify what that lawful investigation was.

9 On 9 July 2009 OS applied for external review under s 55 of the PPIPA. At a planning meeting held on 18 August 2009 I determined that the issue of whether the information in question is personal information within the meaning of the PIPPA should be determined as a preliminary issue. It was agreed that the determination could be made on the papers after the parties were given an opportunity to make submissions and provide relevant material.

Applicable Legislation
10 The PIPPA

contains provisions, among other things, dealing with the lawful collection of personal information by Agencies, from whom personal information may be collected, the manner of collection, the relevance and reasonableness of such collection, its retention and security, its accessibility by the person to whom it relates, its alteration, accuracy, use and disclosure. These provisions are embodied in the information protection principles in Part 2 of the PPIPA.

11 Section 4 of the PPIPA contains the definition of personal information. It 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) …

12 Part 5 of the PPIPA contains the provisions which allow a person aggrieved by the conduct of a public sector agency to seek an internal review of that conduct (s 53(1)); the process to be followed in submitting, considering and determining an internal review (s 53(2) to (8)); the role of the Privacy Commissioner in that process (s 54); the right of a party aggrieved by an internal review to seek an external review in this Tribunal, and the powers of the Tribunal on external review (s 55); and, a right to appeal a decision of the Tribunal to an Appeal Panel (s 56).

1993 (the LGA) is relevant in the present circumstances. It provides the legislative context in which the information in issue was collected 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 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.’

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

15 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, while s 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 525, s 526 provides a right of appeal to the Land and Environment Court.

16 In its submissions the Agency argued that none of the information in OS’ six points is personal information within the meaning of the PPIPA, whether taken individually or as a whole. The information, it is said, ‘is information regarding land and not information about an individual.’

‘The information and any opinion (to the extent that an opinion is expressed) is about the land and the land use and not about an individual. Accordingly, the material contained within the subject matter of the Application is not personal information and, therefore, is beyond the jurisdiction of the Tribunal in an Application of this kind.’

17 Alternately, if the Tribunal found that any of the six points contain information or opinion about an individual, the Agency argued that this was not personal information within the PPIPA because it is ‘information about an individual that is contained in a publicly available publication,’ and as a result, is not personal information by virtue of s 4(3)(b). The Agency explained:

‘a. As to dot points 1 and 4. The reference to "OS's Nursery" is provided by signage on the property which is on public display in the nature of an advertisement inviting the public to the use of the land. The publicly available publication is provided by the signage erected upon the land. Its contents "are freely available to any member of the public, without restriction" (see NW v NSW Fire Brigades [2005] NSW ADT 73 at para 26 as applied by WL v Randwick City Council [2007] NSW ADT AP 58 at para 26).
b. As to dot point 2 the zoning of the land is by an instrument made by the Minister for Planning pursuant to the Environmental Planning and Assessment Act and was published in the Government Gazette. Further, the Local Environmental Plan is an Environmental Planning Instrument which is required by s.12(1) LGA to be publicly available, there is no discretion available to restrict access. The Local Environmental Plan is therefore a publicly available publication. ( WL v Randwick City Council )
c. As to the second element of dot point 2 and to dot point 3. Pursuant to s.12(1) Local Government Act 1993, Council is required to make publicly available Development Application (within the meaning of the Environmental Planning and Assessment Act 1979) and associated documents. Council must keep a register of applications for Development Consent and their determinations available for public inspection without charge at the office of the Council during ordinary office hours (s.100 Environmental Planning and Assessment Act 1979). The entitlement for public availability and inspection under respectfully s.12(1) of the Local Government Act and s.100 of the Environmental Planning and Assessment Act meets the requirements of s.4(3)(b) of the PPIP Act. There is no discretion available to restrict access as was the concern of the Tribunal regarding s.12(6) LGA 1993 in WL v Randwick City Council (para 26). Where the publication is in the form of a register it would meet with the "published form consistent with general unfettered availability such as a brochure, pamphlet or report". ( WL v Randwick City Council at paragraph 27).
d. As to dot point 5, the identification of "Annette's Nursery" in the White and Yellow Pages of the 2008 telephone directory and on the internet identifies the information as being contained in a publicly available publication.
e. As to dot point 6 the aerial photograph was a document which was sourced from the Department of Lands. The aerial photograph is freely available and publicly accessible on the Department of Lands website. The information is published electronically on the internet. Accordingly the exception in s.4(3)(b) applies.’

18 OS in response argued that each point he raised was concerned with personal information. He noted that his wife and himself had been identified:

‘…information has been collected about us, opinions formed about that information, and the opinions used to make an assessment. Each of the items of information individually, the staff opinions about that information and the values given to each piece of information in the assessment process, all constitute "personal information". The P&PIP Act does not provide the agency with the right to remove information from the context it was collected and used in order to diminish the protection provided by the Act.’
…
We requested permission to address the Elected Council in closed committee on 4/2/2009 in order to request changes to what we saw as a flawed and unfair process. The staff placed the matter on the business paper for the open section of Council business, identified us as the owners of the land, and advised the council to reject our submission. Again the staff of Mid Western Regional Council made it clear that they had identified us as the owners of the property and that they had collected various pieces of information, formed an opinion about that information, and allocated a value to that information which contributed to the assessment of "Dominant Use ". (attachment 2)
…
The aerial photograph mentioned in the staff submission was used in a briefing session on the matter prior to the council meeting where staff again identified the information as being about us and our use of the land. The staff used the photograph and their interpretation of it to support their verbal address to councillors.’

Consideration

19 The definition of personal information in s 4(1) is a wide one. It is not confined to information about an individual’s personal affairs, but is a ‘broad, unrestricted’ definition: WL v Randwick City Council [2007] NSW ADTAP 58 at [20]. Due to the beneficial nature of the PPIPA, exclusions from the definition are to be construed narrowly, while the definition itself is to be construed widely and beneficially: WL v Randwick City Council at [22].

20 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.

21 Against that understanding of the information as a whole I turn to consider the individual points raised by OS.

22 Point 1 is a written record of the observations of an officer of the Agency about the activities s/he observed on the land. That knowledge was obtained by the officer as a result of observations of the property. Whether those observations were made from outside or inside the property, clandestinely or openly, is a matter about which I have no evidence. When that information was in the mind of that officer alone, as result of those observations, it could not be personal information within the meaning of the PPIPA: Vice- Chancellor Macquarie University v FM [2005] NSWCA 192 at [34]. The recording of that information in the report, however, brought the information outside of the principle stated in that case, with the result that it could fall within the definition of personal information as construed by the Court of Appeal (see Vice- Chancellor Macquarie University v FM at [28].

23 In my opinion the fact that the information in Point 1 relates to the land and the land use (a submission which I accept) does not prevent it being personal information within the wide and broad scope of the definition in s 4 of the PPIPA. It records that a residence and nursery were observed as activities on the property owned by OS and his wife. While this undoubtedly refers to the land use, it also provides information about how OS uses his property and the activities pursued there. That is information or opinion about OS. It therefore satisfies the definition contained in s 4(1).

24 The Agency submits the reference to the name of the nursery in Point 1 is provided ‘by signage on the property which is on public display in the nature of an advertisement inviting the public to the use of the land.’ The Agency submits that, as a result, the name of the nursery falls within the exclusion form personal information in s 4(3)(b), namely, ‘information about an individual that is contained in a publicly available publication.’

25 I do not accept this for two reasons. First, if the sign is a publicly available publication, there is no evidence that it identifies OS as the owner of the property upon which that business operates. That connection was provided by the recording of the information in the report naming OS and his wife as owners of the property. Secondly, I think that the Appeal Panel decision in WL v Randwick City Council requires that I find that the sign is not ‘a publicly available publication.’ There the Appeal Panel said at [27]:

‘We emphasise also that the exception refers to a publicly available ‘publication’. The term ‘publication’ connotes, we think, more than a mere document that can be uplifted from an administrative file and inspected or copied. It has a connotation of greater formality than that. We are inclined to the view that what was in the mind of the Parliament was material in a published form consistent with general, unfettered availability such as a brochure, pamphlet or report. The reference to ‘freely available’ does not mean it has to be free of charge. ‘Freely’, in our view, connotes unrestricted access in this statutory context.’

26 Business signage does not meet these criteria.

27 As a result I conclude that the information in Point 1 is personal information within the meaning of the PPIPA.

28 Point 2 is a statement about the use of the property for a nursery business ‘as appears to have possibly been approved prior to planning instrument Mudgee LEP 1998.’ Two points need to be made about this statement. First, it is uncertain in its terms. Secondly, it refers to the history of the land use of the property. Like point 1, I accept that the information relates to the land and land use, but also, in the context of the report, provided information in relation to the property owned by OS: i.e., OS and his wife own a property used as a nursery which use appears to have possibly been approved prior to planning instrument Mudgee LEP 1998. Given the wide and beneficial interpretation to be given to definition of personal information in s 4(1) I accept that this is information or opinion about OS.

29 The Agency submits that the information regarding the approved use is information that is available in a publicly available publication and is, therefore, excluded from the meaning of personal information by s 4(3)(b): WL v Randwick City Council.

30 Section 12(1) of the LGA provides that everyone is entitled to inspect free of charge a named series of current documents and registers, including the Councils land register. Sub-sections (2) and (5) extend this to previous versions of the same documents, ‘if those other versions are reasonably accessible.’

31 Section 100 of the Environmental Planning and Assessment Act 1979 (the EPAA) also makes provision for certain information in relation to development consents to be publicly available. It provides:

‘(1) A council must, in the prescribed form and manner (if any), keep a register of:
(a) applications for development consent, and
(b) the determination of applications for development consent (including the terms of development consents granted under this Part), and
(c) the determination of applications for complying development certificates (including the terms of complying development certificates issued under this Part), and
(d) decisions on appeal from any determination made under this Part.
(2) The register is to be available for public inspection, without charge, at the office of the council during ordinary office hours.’

32 In this case there is no direct evidence, apart from assertions, that the relevant version of the register is reasonably accessible and available for inspection. The use of the words in the report ‘as appears to have possibly been approved prior to planning instrument Mudgee LEP 1998’ points to there being doubts about this. On the state of the evidence as it presently stands I am not prepared to draw the conclusion that the register is, indeed, freely available for inspection.

33 Further, even if it were, I do not accept that because a record of land use approval or development consent may be inspected in a register, which is publicly available under s 12(1) of the LGA or s 100 of the EPAA, it is therefore a publicly available publication within the meaning of s 4(3)(b) of the PPIPA. Rather, the decision of the Appeal Panel in WL v Randwick City Council at [27] requires the conclusion that, while the information may be publicly available, it is not ‘contained in a publicly available publication’ to which s 4(3)(b) of the PPIPA apples. This is so because publication ‘connotes … more than a mere document that can be uplifted from an administrative file and inspected or copied.’

34 As a result I conclude that the information in Point 2 is personal information within the meaning of the PPIPA.

35 Point 3

is a statement about a previous DA granted with respect to the property. I accept that the information relates to the land and land use but also, in the context of the report, provides information in relation to the property owned by OS: i.e., OS and his wife own a property which has had a previous DA approved for a nursery and residence. Given the wide and beneficial interpretation to be given to definition of personal information in s 4(1) I accept that this is information or opinion about OS.

36 The Agency submits that the information regarding the approved use is information that is available in a publicly available publication and is, therefore, excluded from the meaning of personal information by s 4(3)(b): WL v Randwick City Council.

37 For the same reasons as those given with respect to Point 2 I reject that submission. As a result I conclude that the information in Point 3 is personal information within the meaning of the PPIPA.

38 Point 4 is a statement in the report that there is nursery signage on the property. This is a statement of observed fact (observed by whom is unclear) recorded in the report relating to the land. In the context of the report it provides information in relation to the property owned by OS: i.e. OS and his wife own a property on which there is nursery signage erected. That is personal information relating to OS within the meaning of s 4(1).

39 For the reason given above with respect to the signage in Point 1, I reject the Agency’s submission that information relating to the signage is excluded from the meaning of personal information under s 4(3)(b), as a publicly available publication. I conclude that the information in Point 4 is personal information within the meaning of the PPIPA.

40 I add that in his internal review request did not allege any conduct by the Agency, with respect to this point, to which Part 5 of the PPIPA applies: see s 55. There is therefore an issue as to whether the provisions of Part 5 (including both external and internal reviews) apply to the issues OS raised about that point.

41 Point 5 relates to a statement in the report that the nursery business is advertised in the white and yellow pages and on the internet. The Agency submits that this is information relating to the land or land use. This impresses me as a difficult proposition, involving a somewhat tenuous connection. In my view, it is better categorised as information relating to the business apparently conducted on the property. In the context of the report, however, it provides the information that the business conducted on the property owned by OS and his wife is advertised on the internet and in the white and yellow pages.

42 In my view the information in Point 5 has a much more tenuous connection with OS than that in Point 1 to 4. Here the information relates to the business apparently conducted on the land, but has no direct connection with OS and his wife. The report does not contain a statement that OS and his wife operate that business, which would provide such a connection. I am not persuaded that the information in Point 5 is information or opinion about OS within the meaning of s 4(1) of the PPIPA.

43 I would add that had I been persuaded that this fell within the definition in s 4(1), then I would none the less have found, with respect to the yellow and white pages, that it reported information contained in a publicly available publication. As a result, it is excluded from the meaning of personal information. Information available in a widely circulated and freely available publication such as the yellow and white pages falls within the exception in s 4(3)(b) of the PPIPA.

44 I conclude that Point 5 does not relate to personal information to which the PPIPA applies.

45 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).

46 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.

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

48 I add that, if I accepted the Agency’s contention in this regard, I am in any case reluctant to draw the conclusion urged by the Agency that publication on the internet satisfies the requirements for the exemption in s 4(3)(b) i.e. ‘information about an individual that is contained in a publicly available publication.’ The proposition put by Agency, if accepted, has much wider implications such as, for example, information ‘published’ on social networking sites not being personal information. These factors lead me to approach this question with great caution and to decide not to determine it on the papers alone.

49 If the Agency wishes to pursue these issues I will require further evidence and considered submissions which address the implications of the proposition it puts, in the context of the PPIPA.

Conclusion

50 I find that points 1, 2, 3 and 4 contain personal information about OS within the meaning of s 4(1) of the Privacy and Personal Information Protection Act 1998 which information is not excluded from the definition of personal information by s 4(3)(b).

51 I find that point 5 does not contain personal information about OS within the meaning of s 4(1) of the Privacy and Personal Information Protection Act 1998. The Tribunal has no jurisdiction with respect to the OS’ complaints relating to that information.

52 I find that point 6 contain personal information about OS within the meaning of s 4(1) of the Privacy and Personal Information Protection Act 1998. I decline to determine whether that information is excluded from the definition of personal information by s 4(3)(b), without further evidence and submissions.

53 I direct that this matter be listed for a further planning meeting before me at a time and date to be fixed at which the further progress of the matter will be discussed and any necessary directions made.