SF v Shoalhaven City Council - [2013] NSWADT 94

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: SF v Shoalhaven City Council [2013] NSWADT 94
Hearing dates: 21 May 2012, 20 June 2012 and 9 August 2012
Decision date: 02 May 2013
Jurisdiction: General Division
Before: S Montgomery, Judicial Member
Decision:
1. The Council is to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice;
2. The Council is to render a written apology to the Applicant for the breaches, and advise him of the steps to be taken by the Council to remove the possibility of similar breaches in the future.

Catchwords: Privacy - personal information - information protection principle - Collection - lawful purpose - relevant to purpose - excessive - retention and security - law enforcement purpose
Legislation Cited: Administrative Decisions Tribunal Act 1997
Privacy and Personal Information Protection Act 1998
Cases Cited: AF v Minister for Health; Minister for Health v AF [2012] NSWADTAP
Department of Education and Communities VK [2011] NSWADTAP 61
GA v Department of Education and Training and NSW Police (No 3) [2005] NSWADT 70
HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214
JD v Department of Health [2005] NSWADTAP 44 at [42]
JD v Medical Board (NSW) [2005] NSWADT 247 at [79].
KJ v Wentworth Area Health Service [2004] NSWADT 84
MT v Department of Education & Training [2004] NSWADT 194
SB v Roads & Traffic Authority [2010] NSWADT 255.
SF v Shoalhaven City Council [2011] NSWADT 6
ZR v Department of Education and Training (GD) [2010] NSWADTAP 75
Category: Principal judgment
Parties: SF (Applicant)
Shoalhaven City Council (Respondent)
Representation: SF (Applicant in person)
C Tipene, Sparke Helmore Lawyers (Respondent)
J McAteer, Deputy Privacy Commissioner

File Number(s): 113171

reasons for decision

GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): These proceedings arise from an application for Internal Review under Part 5 of the Privacy and Personal Information Protection Act 1998 ("the PPIP Act") brought by SF ("the Applicant") against the Shoalhaven City Council ("the Council).

The matter relates to conduct which allegedly contravenes various Information Protection Principles ("IPPs") under the PPIP Act. The 'conduct' occurred on 5 March 2011 and 7 March 2011, when CCTV cameras ("the cameras") installed in the Central Business District of Nowra captured the Applicant's image.

It is common ground that under a program operated by the Council ("the Council's CCTV program"), the cameras record images and those images are retained on a computer hard drive located at the Nowra Police Station. The cameras and computer equipment is owned and operated by the Council however Police officers at the Nowra Police Station are able to view live feed footage captured from the cameras. The monitor where the live footage is displayed is located in a position where members of the general public cannot view it.

There are signs indicating the presence of CCTV camera coverage in the area. The signs state that cameras are in operation 24 hours…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWADT 94
Decision Date: 02 May 2013

CaseChat Overview and Summary

SF commenced proceedings against Shoalhaven City Council, claiming breaches of certain information protection principles and privacy codes. The dispute centred around the collection, retention, and security of personal information by the Council, which was deemed excessive and not relevant to the stated lawful purpose. The matter was heard in the Federal Circuit Court of Australia.

The central legal issues were whether the Council had unlawfully collected personal information beyond what was necessary for the stated lawful purpose, whether it had retained the information for longer than required, and whether it had adequately secured the information against unauthorised access. Additionally, the court considered whether the Council's actions were in compliance with the relevant privacy codes of practice.

The court found that the Council had indeed breached several information protection principles. It had collected personal information that was not relevant to the stated lawful purpose, retained it for longer than necessary, and failed to ensure its adequate security. The Council's actions were also found to be in breach of the applicable privacy codes of practice. The court ordered that the Council must refrain from any future conduct that contravenes an information protection principle or a privacy code of practice. It was also required to provide a written apology to the applicant and to inform him of the steps it would take to prevent similar breaches in the future.

Orders

Orders of the court

1. The Council is to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice;

2. The Council is to render a written apology to the Applicant for the breaches, and advise him of the steps to be taken by the Council to remove the possibility of similar breaches in the future.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	SF v Shoalhaven City Council [2013] NSWADT 94
Hearing dates:	21 May 2012, 20 June 2012 and 9 August 2012
Decision date:	02 May 2013
Jurisdiction:	General Division
Before:	S Montgomery, Judicial Member
Decision:	1. The Council is to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice; 2. The Council is to render a written apology to the Applicant for the breaches, and advise him of the steps to be taken by the Council to remove the possibility of similar breaches in the future.
Catchwords:	Privacy - personal information - information protection principle - Collection - lawful purpose - relevant to purpose - excessive - retention and security - law enforcement purpose
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998
Cases Cited:	AF v Minister for Health; Minister for Health v AF [2012] NSWADTAP Department of Education and Communities VK [2011] NSWADTAP 61 GA v Department of Education and Training and NSW Police (No 3) [2005] NSWADT 70 HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214 JD v Department of Health [2005] NSWADTAP 44 at [42] JD v Medical Board (NSW) [2005] NSWADT 247 at [79]. KJ v Wentworth Area Health Service [2004] NSWADT 84 MT v Department of Education & Training [2004] NSWADT 194 SB v Roads & Traffic Authority [2010] NSWADT 255. SF v Shoalhaven City Council [2011] NSWADT 6 ZR v Department of Education and Training (GD) [2010] NSWADTAP 75
Category:	Principal judgment
Parties:	SF (Applicant) Shoalhaven City Council (Respondent)
Representation:	SF (Applicant in person) C Tipene, Sparke Helmore Lawyers (Respondent) J McAteer, Deputy Privacy Commissioner
File Number(s):	113171