Os v Mudgee Shire Council (No 2)

[2011] NSWADT 34

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

OS v Mudgee Shire Council (No 2) [2011] NSWADT 34

Hearing dates:

On the papers

Decision date:

23 February 2011

Jurisdiction:

General Division

Before:

P Molony, Judicial Member

Decision:

1. The Tribunal find that s 4(3)(b) of the Privacy and Personal Information Protection Act 1998 does not apply to the photograph in point 6.

2. OS shall file and serve any statements or other documentary evidence on which he wishes to rely by 11 March 2011.

3. This matter is listed further planning meeting at 2pm on 18 March 2011.

Catchwords:

Privacy and Personal Information - publicly available publication

Legislation Cited:

Privacy and Personal Information Protection Act 1998
Administrative Decisions Tribunal Act 1997

Cases Cited:

Department of Education and Training v VK [2010] NSWADTAP 52
GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 26
NS v Commissioner, Department of Corrective Services [2004] NSWADT 263
OS v Mudgee Shire Council [2009] NSWADT 315
PC v University of New south Wales [2007] NSWADT 286
WL v Randwick City Council [2007] NSWADTAP 58

Category:

Principal judgment

Parties:

OS (Applicant)
Mudgee Shire Council (Respondent)

Representation:

M Hutchins (Respondent)
OS (Applicant - in person)
McIntosh, McPhillamy & Co (Respondent)
J McAteer (Privacy Commissioner)

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. There the Tribunal considered whether information which was the subject of OS' application to review conduct under the Privacy and personal Information Protection Act 1998 (the Act) was personal information within the meaning of the Act.

1. I found that that the information contained in points 1, 2, 3 and 4 was personal information within the meaning of the Act that 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 -

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.

1. On 23 February 2010 a planning meeting was held at which it was agreed that the issues I had raised with respect to point 6 should also be determined on the papers. I made directions putting in place a timetable for the filing of further evidence and submissions. That timetable was subsequently vacated on 15 July 2009 and a new timetable was put into place.

1. The parties have since filed submissions. Despite my clear request (in paragraph 46 and 49 of the previous reasons) for evidence to be adduced with respect to how the photograph was accessed, and as to it being freely available and publicly accessible on the Department of Land's website, no such ev idence has been filed .

1. The Privacy Commissioner, who has a right to appear and be heard in any review proceeding under the Act (s 55(7)), had made submissions.

1. The material before me with respect to the issue is therefore:

• OS' submissions
• The Council's submissions
• The Privacy Commissioner's submissions.

The Submissions

1. In its submissions Council again sought to agitate the issue of whether the photograph contained personal information relating to OS. This is a matter that I have already determined. The issue for determination, at this stage of the proceedings, is whether the exemption in s 4(3)(b) applies.

1. With respect to that issue Council asserted that -

"The photograph was taken by the Department of Lands and available from their website."

1. Council then relied on the decision in Department of Education and Training v VK [2010] NSWADTAP 52 where the Appeal Panel said -

42 As to what is a 'publicly available publication', the Tribunal has held that information about an individual found in a newspaper falls within the exception, but not information located in an administrative diary held in an official location but left open for inspection by members of the public: EG v NSW Police [2003] NSWADT 150; NW v New South Wales Fire Brigades [2005] NSWADT 73. The Tribunal has tended to the view that 'publication' has a connotation of permanency and continuous availability. There must be some doubt, we think, over whether it is appropriate to construe ad hoc, and possibly ephemeral, creations of web authors that have been placed on unrestricted websites as giving rise to a 'publicly available publication'.

1. Council submits that the photograph does not contain information that is personal information about OS. It places considerable reliance on the assertion that the photograph in issue was taken by the Department of Lands and is available from their website.

1. Council proceeded to make a series of submissions that are outside of the scope of the issues I agreed to determine on the papers. In summary, Council submitted that there were no braches of the IPP's and sought further particulars of the alleged breaches.

1. In his submissions OS submitted that Council had not put on sufficient evidence to enable the events in issue to be properly understood. He did not accept that the photograph placed before Council, was a photograph held in the Department of Lands database, and suggested Council officers had manipulated it. He submitted it was not a publication to which s 4(3)(b) of the Act applied.

1. OS also made submissions responding to the wider submissions made by Council, which are beyond the scope of this preliminary decision. He also provided further particulars in response to Council's request.

1. The Privacy Commissioner's submissions noted that I have already found that the photograph contained personal information relating to OS. I add that that finding was in the context of the photograph being among the information contained in a report relating to the premises owned by OS and his wife, which identified the photograph as being of tier premises. I am yet to make any finding as to whether or not there has been a breach of any of the IPP's as claimed by OS.

1. The Privacy Commissioner identified two decisions dealing with the question of what is a publication: PC v University of New South Wales [2007] NSWADT 286 and WL v Randwick City Council [2007] NSWADTAP 58. The Privacy Commissioner continued -

"Once council obtained the document, they put it to use during 2008 and 2009 in respect of their review of the land use and the rateable assessment of the property. On the analysis of 'WL' it would appear that the photograph (due to the use employed of it by Council) is not a publicly available publication."

1. The submissions then noted that the Respondent had not addressed the issue of whether the photograph constitutes something that is a publicly available publication. The Privacy Commissioner then proceeded to deal with the additional submissions made by Council, which are outside the scope of this preliminary determination. The Commissioner concluded -

"The Privacy Commissioner submits that based on the available case law, commentary, and apparent deficiencies, it does not appear possible to determine that the photograph in establishing the provenance of the photograph is personal information held within a publicly available publication. In the absence of being able to determine that aspect in an unequivocal manner, the beneficial aspect of the legislation would ordinarily apply.

Having decreed in the interlocutory decision that the photograph constitutes personal information, and applying the principles in NW v Fire Brigades [2005] NSWADT 73, it would appear that the broad exemption offer[ed] by section 4 (3) (b) does not apply."

Discussion

1. In both my earlier decision in this matter, and in directions I subsequently made at planning meeting, I made it abundantly clear that I required further evidence as to the provenance of the photograph, in order to determine whether the exemption in s 4(3)(b) of the Act applied, so as to exclude it from the definition of personal information.

1. In the event, the Council, in whose hands knowledge of how the photograph was obtained, and what then occurred with it, reposes, has not placed any evidence going to those issues before the Tribunal. As a result I am no better informed about these issues than I was when I made my previous decision.

1. In GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 26 the Appeal Panel considered the nature of the Tribunal's review of conduct under the Act, at [37]

"In Privacy Act cases both the agency, and the Tribunal pursuant to s 73, must ensure insofar as it is reasonably possible that all relevant material is placed before it in relation to the conduct in issue. The agency in its internal review report will, hopefully, have provided full particulars of the conduct in issue. If there is contention, then the Tribunal must 'ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings' (s 73(5)(b)). This would normally be achieved by the agency producing all relevant evidence. Then the questions that fall to be addressed are the lawfulness or otherwise of the conduct, and, if unlawful, the appropriate remedy. As to remedies, most of the remedies provided by the Privacy Act seek to deal with the errant conduct by way of administrative measures (and might generically be described as 'conduct orders'). Paragraphs (b) to (f) of s 55(2) of the Privacy Act allow for: order to refrain from unlawful conduct, order to perform a Privacy Act requirement, order to correct information that has been disclosed, order requiring specified steps to be taken (a typical step would be order to render a written apology or to include notations or deletions on affected files), and order not to disclose information contained in a public register. In all these instances the successful applicant might raise possibilities but it is really for the Tribunal having regard to submissions from the agency to decide what an appropriate 'conduct' order might be.

38 The position is different in relation to the first type of order listed - an order for monetary compensation (para (a)) - a 'damages' or 'money' order. In this instance it is for the applicant to put material before the Tribunal in support of such an order. The agency must have the opportunity to test that material. As applied to this case, s 73(4) required the Tribunal to tell GR in clear terms that the material supplied lacked the degree of detail sufficient to raise for consideration a claim for compensation under s 55. Ideally GR should, once concerns of this kind were present in the mind of the Tribunal, have been placed on notice and given an opportunity to repair the perceived omission. He is not in the same position as a legally represented person; and can not be expected to see the points of detail as they apply to applications for monetary compensation, applications which will ordinarily be strongly resisted by agencies.

See also, NS v Commissioner, Department of Corrective Services [2004] NSWADT 263, at [46].

1. 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.

1. 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 .

1. 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.

Further conduct of the proceedings.

1. The preliminary issues having been determined in favour of OS, this matter should proceed to determination.

1. I propose to -

• Direct OS to file and serve any statements or other documentary evidence on which he wishes to rely by 11 March 2011.
• List the matter for a further planning meeting at 2pm on 18 March 2011 at which time I will fix a timetable for the filing of further evidence and make directions as to a hearing.

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Decision last updated: 28 February 2011