SW v Forests NSW

[2006] NSWADT 74

CITATION:	SW v Forests NSW [2006] NSWADT 74 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT SW RESPONDENT Forests NSW
FILE NUMBER:	053322
HEARING DATES:	28/02/2006
SUBMISSIONS CLOSED:	02/28/2006
DATE OF DECISION:	03/13/2006
BEFORE:	Handley R - Judicial Member
CATCHWORDS:	Privacy - information protection principle - collection - unnecessary - Privacy - information protection principle - disclosure to third party
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Privacy & Personal Information Protection Act 1998
CASES CITED:	Macquarie University v FM [2005] NSWCA 192 NS v Commissioner, Department of Corrective Services [2004] NSWADT 263 NX v Office of the Director of Public Prosecutions [2005] NSWADT 74
REPRESENTATION:	APPLICANT In person RESPONDENT G Mitchell, agent
ORDERS:	(1) I find that Forests NSW contravened sections 8, 10, 11, 16 and 18 of the Privacy and Personal Information Protection Act 1998; (2) Forests NSW will provide SW with an unreserved public apology in respect of these contraventions and provide SW with the following undertakings: (a) to delete or destroy the relevant photographic images currently stored electronically on the officer’s computer; (b) to check whether any further copy of these images exists as a result of the ‘backing up’ of electronic data, and if a copy or copies does exist, to undertake further that these images will be deleted or destroyed; (3) Forests NSW will review its privacy policy and make such changes as are necessary to ensure that personal information in the form of photographic images is included, the implementation of such changes to include appropriate staff training; (4) SW’s claim for an award of damages is refused; (5) SW’s application for costs is refused

1 SW claims that Forests NSW contravened the Privacy and Personal Information Protection Act 1998 (‘the PPIP Act’) by taking inappropriate photographs of her and storing and publishing these. On an internal review, Forests NSW acknowledged that it may have breached some provisions of the PPIP Act, offered an unreserved apology and undertook to take other remedial action. SW applied to the Tribunal for a further review.

Background

2 SW, who is an expert in rainforest vegetation, is a member of a community organisation whose objectives include increasing community understanding of and participation in forest issues on the Central Coast of NSW. In early 2004, Forests NSW invited SW, at its expense, to accompany one of its officers and two other representatives of community organisations to a public meeting in Victoria on an experimental community forest management project (‘the Wombat project’), and to make a presentation at the meeting. SW agreed and claims there was discussion between the Hunter Regional Manager of Forests NSW and SW about Forests NSW taking photographs of SW at the meeting for publicity purposes. Shortly before leaving for the meeting, the Regional Manager, who was to attend the meeting with the three community organisation members and who had made the arrangements, was unable to attend and was replaced by another officer who took with him the office digital camera.

3 Because there was little available accommodation in the town where the meeting took place, Forests NSW arranged to rent a house for the three community organisation members and the Forests NSW officer during their attendance at the meeting. There were four bedrooms in the house, one of which had a private bathroom. There was a shared bathroom for the other three bedrooms. Because the Forests NSW officer was male and the three community organisation members were female, the Forests NSW officer took the bedroom with private bathroom and the community members took the other three bedrooms.

4 On the morning of 1 May 2004, after their arrival at the house on the previous day, while waiting her turn to use the shared bathroom, SW went out to the veranda at the back of the house in her pyjamas and smoked a cigarette. While she was doing so, without specifically asking her permission, the Forests NSW officer took four photographs of her. SW claims that because he used a digital camera, she was unaware that he had taken photographs of her. He also took photographs of the whole group standing in front of the house.

5 About a month after attending the “Wombat” meeting in Victoria, SW attended a meeting with Forests NSW in the Hunter region. She states that at the meeting 10 or 12 copies of a compact disc (‘CD’) with photographs of the “Wombat” meeting trip, including the photographs of her smoking on the veranda, were distributed. SW claims that the taking of the photographs, their storing, and the distribution of the CDs including those photographs, was a breach of her privacy, as a result of which she has suffered stress and anxiety through the photographs being used to discredit and vilify her.

6 When SW was not satisfied with the Forests NSW’s response to her complaint, Forests NSW conducted an internal review. By letter dated 19 August 2005, Forests NSW acknowledged that breaches of the PPIP Act might have occurred because the relevant information – the photographs - was in the possession or control of a person employed by it, and offered its “unreserved apology” as well as giving a number of other undertakings. Forests NSW subsequently maintained that the officer in question had only made three CDs containing the photographs which he given to the three community organisation members who had stayed at the house: ie SW and the two others. The CDs given to the other two community organisation members were retrieved by Forests NSW and destroyed.

7 On 20 September 2005, SW filed an application with the Tribunal for further review of the conduct of Forests NSW.

SW’s Evidence and Submissions

8 SW states she did not give permission for the photographs to be taken. Her prior discussions with the Hunter Regional Manager of Forests NSW were in relation to taking photographs of her in her professional capacity, for example, addressing the “Wombat” meeting. She told the Regional Manager that she would need to approve the publication of any material about her or about the work she was doing.

9 SW states the photographs taken did not present an accurate picture of her professional role and were not relevant to her attending the meeting. She was not aware that her photograph was being taken at the time, when she was in a private space not visible from the street, and there was no reason for Forests NSW to have taken such photographs of her. SW said that, at the time, she made it clear she did not want any social interaction and probably told the officer to go away.

10 SW expressed her concern at whether the storage of the photographs on the Forests NSW officer’s computer was secure. Although Forests NSW have said the storage is secure and password protected, SW is concerned that the data may have been backed up along with other Forests NSW electronically stored data.

11 SW asserts that 10 or 12 copies of the CD in question, which had a gold coloured label bearing the words “State Forests Tour”, were distributed at the meeting, which she thought took place on 1 June 2004. This CD could easily be distinguished from the other CD distributed at the meeting about the Wombat project, which was contained in a hard black plastic cover. Forests NSW have stated that at least 20 people were at the meeting but she is not sure of the number who attended. SW complained that Forests NSW have not bothered to contact others at the meeting to ask whether they were given copies of two CDs. As a result, there may be other copies of the CD still unaccounted for.

12 SW submitted that Forests NSW have breached a number of Information Protection Principles relating to the collection, storage and disclosure of personal information, including by failing to properly train their staff. Moreover, Forests NSW’s Privacy Policy says nothing about the taking, storage and distribution of photographs. This is notwithstanding that cameras are used extensively by Forests NSW in the course of their work.

13 SW said she has suffered stress and anxiety as a result of what happened. The details of this are subject to a confidentiality order made pursuant to s 75(2) of the Administrative Tribunal Decisions Act 1997, and paragraphs 13 to 15 inclusive of the full decision are excluded from the publicly available decision.

14 Subject to suppression order

15 Subject to suppression order

16 SW said she has also been distressed by the way Forests NSW have handled her complaint and she was insulted by Forests NSW’s offer, in the internal review decision letter, of an unreserved apology on behalf of the officer who took the photographs. She is seeking both an unreserved public apology with an acknowledgement that the photographs were taken in contravention of her privacy, and damages to compensate for the harm she has suffered.

Forests NSW’s Evidence and Submissions

17 The case for Forests NSW was presented by Greg Mitchell, the Privacy Contact Officer and Human Resources Manager for Forests NSW. Mr Mitchell noted the complaint from SW had been received more than 12 months after the incident in question had taken place. Notwithstanding that her complaint was, as a result, out of time, Forests NSW had agreed to an internal review. Mr Mitchell submitted that Forests NSW have taken SW’s complaint seriously and have investigated it appropriately.

18 The review found that there had been no clear breach of s 8 of the PPIP Act in relation to the collection of personal information, since Forests NSW did not collect the information in its capacity as a public sector agency. However, Forests NSW have acknowledged that there may have been breaches of ss 12, 16, 17 and 18 of the PPIP Act in relation to retention and security, accuracy, use and disclosure of personal information, because the information was in the possession or control of a person employed by Forests NSW.

19 Forests NSW offered SW an unreserved apology, and made a commitment to recover the CDs and to seek assurances from the two participants on the trip to Victoria who had received the CDs that they had not copied or distributed them. The two CDs have now been recovered and destroyed and the two recipients have confirmed they have not retained copies of or distributed them. Forests NSW also undertook to review its privacy policy, and implement necessary improvements including relevant training. Mr Mitchell acknowledged that the current policy does not make any specific reference to photographs. Forests NSW are awaiting the outcome of these proceedings before undertaking that review.

20 Mr Mitchell said that Forests NSW have extensive security protocols relating to its information technology platforms, and the photographs stored on the officer in question’s computer were only accessible to that officer.

21 Forests NSW provided a statement dated 25 October 2005 from the officer who took the photographs. He stated that he took the office digital camera on the trip to Victoria at the suggestion of one of the attendees, to record the trip as a gesture of goodwill. He informed the attendees of this on at least two occasions before taking any photographs, and further informed them that he would provide each of them with a copy of all images taken on the trip. He did not recall SW asking to see the images before they were used and did not assure her that he would ask her to approve the images before using them. He acknowledged that the photographs he took were not necessarily associated with the meetings attended as part of the official functions.

22 The officer said SW did not at any stage indicate she was not consenting to images being taken. Had she done so, he would have immediately deleted such images. Nor did SW complain that his taking photographs of her was an intrusion into her personal space.

23 The officer said the images were stored on his personal Forests NSW computer on his own exclusive directory, which is password protected. He did not distribute the images via networks and denied having used them unethically or indiscriminately. He made only three CDs bearing the images, one for each of the community organisation members who participated in the trip.

24 More specifically with regard to the photographs of SW the officer took on the morning of 1 May 2004, he said SW was seated in her “morning attire” in a space that was open to all occupants of the house. She did not object to the photos being taken and looked at the camera and smiled “as we had shared a joke”. The officer said that although in the months after the trip to Victoria he and SW were in regular correspondence by email relating to a community protocol, at no stage did she tell him that she was upset over the photographs on the CDs or ask him to retrieve them.

25 The officer also gave oral evidence at the hearing. He acknowledged that he is a “camera buff” and confirmed that he downloaded the images from the digital camera on to his computer at work and later copied the images on to the three CDs that he distributed to the three community organisation members who participated in the trip.

26 Mr Mitchell said it is obvious from the officer’s evidence that there are some areas of disagreement with SW’s assertions. For example, Forests NSW contends that the officer discussed taking photographs with the participants on the trip as a memento for distribution to the participants, that the photographs were taken in an area of the house open to all occupants, and that SW did not complain about the photographs to Forests NSW officers at meetings she attended after the distribution of the CDs or in correspondence with the officer who took them. In any event, the photographs were not distributed to anyone outside the three participants on the trip with whom there had been prior discussion.

27 Mr Mitchell submitted that SW’s motivation in making the complaint is broader than her concern with the photographs alone. Forests NSW takes exception to her allegation that it has been involved in a campaign of vilification, of which there is absolutely no evidence. Mr Mitchell submitted there might be a whole range of things that have contributed to SW’s anxiety. Indeed, her own submission indicates that a series of incidents have contributed to her present state of mind. The letters from her doctor and counsellor are akin to the reports of conversations, there being no proper diagnosis. Essentially, there is no evidence to support a claim for damages as a result of the incident relating to then photographs.

28 Mr Mitchell noted that Forests NSW had already invited SW to provide it with the draft text of a public apology acceptable to her but she had not responded.

Discussion and Findings

29 The issue for the Tribunal in these proceedings is whether the conduct of Forests NSW is in breach of the Information Protection Principles in the PPIP Act. The Tribunal’s role, pursuant to s 55(1) of the PPIP Act, is to undertake a review of the conduct that was the subject of SW’s application to Forests NSW. Pursuant to s 55(2), the Tribunal may then decide not to take any action on the matter or to make any one or more of a series of orders.

30 The PPIP Act provides for the protection of personal information and the privacy of individuals. ‘Personal information’ is broadly defined in s4 as meaning information or an opinion about an individual, including that forming part of a database. Section 4(4) provides that personal information is held by a public sector agency if, relevantly, the agency, or an employee of the agency in the course of their employment, is “in possession or control of the information”. In Macquarie University v FM [2005] NSWCA 192, at paragraph 34, the NSW Court of Appeal held that:

“[t]he natural and ordinary meaning of the words ‘possession or control’ does not ... extend to material held only in the mind of a person. Both words connote some form of physical object upon which or within which an information or opinion is recorded. A person is neither in ‘possession’, nor in control’, of the contents of her or his mind.”

31 There is no dispute that the four digital photographs of SW taken by an officer of Forests NSW, stored electronically in his office computer, copied (downloaded) on to a number of compact discs and distributed to a number of people, are personal information about SW, as defined in s 4 of the PPIP Act.

32 The PPIP Act contains a series of Information Protection Principles (‘IPPs’) which agencies are required to observe in their handling of personal information. In her application and submissions, SW has alleged that Forests NSW breached a number of Information Privacy Principles by collecting, storing and disclosing her personal information unlawfully. The relevant IPPs are those set out in ss 8, 10, 11, 12, 16, 17 and 18, set out below.

Collection of the Information

33 Firstly, in relation to the collection of the information, ss 8, 10 and 11 state:

8 Collection of personal information for lawful purposes

(1) A public sector agency must not collect personal information unless:

(a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and

(b) the collection of the information is reasonably necessary for that purpose.

(2) A public sector agency must not collect personal information by any unlawful means.

10 Requirements when collecting personal information

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following:

(a) the fact that the information is being collected,

(b) the purposes for which the information is being collected,

(c) the intended recipients of the information,

(d) whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided,

(e) the existence of any right of access to, and correction of, the information,

(f) the name and address of the agency that is collecting the information and the agency that is to hold the information.

11 Other requirements relating to the collection of personal information

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that:

(a) the information collected is relevant to that purpose, is not excessive, and is up to date and complete, and

(b) the collection of the information does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates.

34 Forests NSW submits that it did not breach s 8(1) because it did not collect the personal information in its capacity as a public sector agency.

35 With regard to s 8, as was noted by the Tribunal in NS v Commissioner, Department of Corrective Services [2004] NSWADT 263, at paragraph 50, an agency “can only act through its officials”. Thus:

“an agency is prima facie responsible for acts and omissions of its officials in respect of personal information of another person that an official obtains in the course of his employment.”

36 In my view, there is no doubt that in SW’s case, the Forests NSW officer was acting in the course of his employment when he used an office digital camera to take photographs of SW in the course of attending the “Wombat” meeting in Victoria. The taking of photographs of SW early in the morning before she had showered and dressed was not for a purpose directly related to the function or activity of Forests NSW (ie it was not for an ‘authorised’ purpose – see discussion of the meaning of “lawful purpose” in s 8(1) in, for example, NX v Office of the Director of Public Prosecutions [2005] NSWADT 74, at paragraphs 19 to 22). However, it should be noted that the circumstances in which the photographs were taken appear to have arisen in large part because of a breakdown in communications between SW and the officer, and possibly between the officer and his Regional Manager.

37 The officer acknowledged to being a “camera buff” and said that, on at least two occasions, he had informed the three community organisation members on the trip that he would be taking photos and would give them all copies. I accept his evidence that his intention was to record the trip as a gesture of goodwill. Unfortunately, the officer acted insensitively by taking photographs of SW before she had showered and dressed for the day. The officer said SW did not indicate she was not consenting to the photographs being taken and that, had she done so, he would have immediately deleted the images recorded. Nevertheless, I accept SW’s evidence that she was not aware that the officer was taking photographs at the time.

38 The Forests NSW officer was a substitute for the Hunter Regional Manager who had been intending to attend the meeting but was unable to go at the last minute. SW said she had had some discussions with him over the taking of photographs of her in her professional capacity for public relations purposes, but on the basis that she would need to approve any material about her or about the work she was doing. It is not clear whether the Forests NSW officer who ultimately went on the trip was aware of these discussions.

39 With regard to s 10, in my view, the onus was on Forests NSW to show that its officer took reasonable steps to ensure SW was aware that he was taking photographs of her and of the purpose for which they were being taken. I am not satisfied that it has discharged that onus, although I accept the officer’s evidence that he made some attempts to do so. Again, it seems there was a breakdown of communication. Thus, Forests NSW was also in breach of s 10.

40 Similarly, in relation to s11, the taking of photographs of SW before she had showered and breakfasted was not relevant for the purpose of Forests NSW collecting photographs for public relations purposes, and, given SW was unaware of the photographs being taken, it was an unreasonable intrusion on her personal affairs. Thus, Forests NSW was also in breach of s 11.

Retention and Storage

41 Secondly, in relation to the retention and storage of information, s 12 states:

12 Retention and security of personal information

A public sector agency that holds personal information must ensure:

(a) that the information is kept for no longer than is necessary for the purposes for which the information may lawfully be used, and

(b) that the information is disposed of securely and in accordance with any requirements for the retention and disposal of personal information, and

(c) that the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse, and

(d) that, if it is necessary for the information to be given to a person in connection with the provision of a service to the agency, everything reasonably within the power of the agency is done to prevent unauthorised use or disclosure of the information.

42 Forests NSW acknowledges that it may have breached s 12. The Forests NSW officer gave evidence that the digital photographs are stored in electronic form in his exclusive, password protected, personal directory in his computer, pending the resolution of these proceedings. SW has, however, raised the question of the ‘backing up’ of such data, and he was not able to state whether or not this had occurred. Two of the three CDs have now been destroyed. Only the third CD, that given to SW, a copy of which she provided to Forests NSW, still exists, again awaiting the resolution of these proceedings. On the basis of this information, I am not satisfied there has been any breach of s 12 and, in particular, of s 12(3), given what appear to be reasonable security safeguards, although this is a matter in respect of which it is reasonable to expect Forests NSW to give relevant undertakings, as stated below.

Use and Disclosure

43 Thirdly, in relation to the use and disclosure of information, ss 16 to 18 state:

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.

17 Limits on use of personal information

A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless:

(a) the individual to whom the information relates has consented to the use of the information for that other purpose, or

(b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or

(c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person.

18 Limits on disclosure of personal information

(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:

(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

44 Forests NSW acknowledges that it may have breached ss 16, 17 and 18. I accept SW’s submission that, in so far as the information was “used”, the information collected was misleading since the photographs did not represent her in her professional capacity. Thus, there was a breach of s 16. With regard to s 17, I have already found that the information was not collected for a “purpose directly related to a function or activity of the agency” (s 8), so that s 17 is not relevant or applicable. With regard to s 18, I am not satisfied that the disclosure of the photographs to the two other participants in the trip to Victoria was for an authorised purpose or that SW was aware of the intended disclosure. However, I am also not satisfied on the evidence that the information was disclosed to anyone else than these other two participants.

Outcome of the Tribunal’s Review

45 In its decision on the internal review outlined in the letter to SW dated 19 August 2005, Forests NSW, having acknowledged that there may have been breaches of ss 12, 16, 17 and 18, stated:

“FNSW offers its unreserved apology on behalf on ... [the officer] and will take the following actions:
* Give an undertaking that no further photographs of you will be taken by ... [the officer] in similar circumstances.

* Seek confirmation from ... [the two other attendees] that they have not kept a copy or forwarded any copies of the images relating to the complaint to any other person. FNSW will also keep you informed of the outcome.

* Make every endeavour to recall and destroy the CDs with images that are not directly relevant to the public meeting in Victoria issued to ... [the two other attendees].

* Undertake to destroy all copies of such images upon the conclusion of the matter.

* Undertake to review privacy policies and implement any necessary improvements, including relevant training.

At the conclusion of the proceedings FNSW will return the CD that you copied and forwarded to us in July 2005.”

46 Forests NSW noted that it had invited SW to provide it with the draft text of a public apology acceptable to her but she had not responded.

47 I accept Forests NSW’s evidence that it has now retrieved and destroyed the other two CDs provided to SW’s fellow attendees at the Victorian “Wombat” meeting and, excepting SW’s copy of the CD, no other copies were made or distributed. I accept the evidence of the officer that he made only three CDs bearing the relevant photographic images, and I am not satisfied by SW’s evidence that additional copies were made and distributed to other attendees at a Forests NSW meeting SW attended approximately one month after the Victorian trip.

48 SW said she is seeking both an unreserved apology with an acknowledgement that the photographs were taken in contravention of her privacy, and damages to compensate for the harm she has suffered.

49 In the light of Forests NSW having breached the Information Privacy Principles relating to the collection, use and disclosure of the photographs, and there being reasonable concerns in relation to the security of the stored images in the officer’s computer, it is appropriate to exercise the powers entrusted to the Tribunal by s 55(2) of the PPIP Act to make the following orders:

1. That Forests NSW give SW an unreserved public apology recognising that it was responsible for breaches of her privacy as a result of the actions of one of its officers. This undertaking is not to be limited to an apology on behalf on the officer concerned only.

2. That Forests NSW will undertake: (a) to delete or destroy the relevant photographic images currently stored electronically on the officer’s computer; (b) to check whether any further copy of these images exists as a result of the ‘backing up’ of electronic data, and if a copy or copies does exist, Forests NSW undertakes further that these images will be deleted or destroyed.

3. That Forests NSW will review its privacy policy and make such changes as are necessary to ensure that personal information in the form of photographic images is included, the implementation of such changes to include appropriate staff training.

50 I note, however, that in my view, Forests NSW have responded appropriately to SW’s complaint and sought to resolve this matter without recourse to a hearing.

51 With regard to SW's claim for compensation, SW provided both written and oral evidence to substantiate this, which is the subject of the confidentiality order referred to in paragraph 13 above. Paragraph 51 of the full decision is also subject to that order and takes a different form in the full decision.

52 Both the documentary and oral evidence provided by SW indicates that the episode involving the photographs was one of a number of events that SW attributes to a campaign of vilification against her. SW does not allege the other events involve conduct that can be the subject of a review by the Tribunal under the PPIP Act, and the Tribunal has no jurisdiction with respect to those events. However, it is clear that it is a combination of the totality of these events that has given rise to SW’s stress and anxiety. This, of course, dilutes the causal connection between the relevant conduct of Forests NSW and the alleged harm arising from the episode involving the photographs.

53 There is no evidence of financial loss and, in my view, insufficient evidence for me to be satisfied that SW has suffered psychological or physical harm because of the conduct of Forests NSW in relation to the photographs (see s 55(2)(b)). For example, there is no specific diagnosis or prognosis in respect of any psychological harm. In these circumstances, I am not satisfied that SW has suffered harm of the kind contemplated by s 55(4)(b), and I am thus not empowered to make an order for payment of damages. I therefore refuse SW’s claim for compensation.

54 In her application to the Tribunal, SW also sought costs. The Tribunal may only order costs pursuant to s 88 of the Administrative Decisions Tribunal Act 1997 if “satisfied that there are special circumstances warranting an award of costs”. The Tribunal has provided guidance to parties on the relevant law and practice in relation to costs in Practice Note No 12. Normally, parties to proceedings before the Tribunal should bear their own costs, and the discretion to award costs is not exercised lightly. In SW’s case, I am not satisfied that there are special circumstances that would warrant an award of costs.

Decision

(1) I find that Forests NSW contravened sections 8, 10, 11, 16 and 18 of the Privacy and Personal Information Protection Act 1998.

(2) Forests NSW will provide SW with an unreserved public apology in respect of these contraventions and provide SW with the following undertakings: (a) to delete or destroy the relevant photographic images currently stored electronically on the officer’s computer; (b) to check whether any further copy of these images exists as a result of the ‘backing up’ of electronic data, and if a copy or copies does exist, to undertake further that these images will be deleted or destroyed.

(3) Forests NSW will review its privacy policy and make such changes as are necessary to ensure that personal information in the form of photographic images is included, the implementation of such changes to include appropriate staff training.

(4) SW’s claim for an award of damages is refused.

(5) SW’s application for costs is refused.

15/03/2006 - To replace paragraphs now subject to suppression order - Paragraph(s) 13-15, 51