WL v Randwick City Council

[2007] NSWADTAP 58

Appeal Panel - Internal

CITATION:	WL v Randwick City Council (GD) [2007] NSWADTAP 58
PARTIES:	APPELLANT WL RESPONDENT Randwick City Council
FILE NUMBER:	On the papers
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	28 May 2007
DATE OF DECISION:	5 October 2007
BEFORE:	O'Connor K - DCJ (President); Higgins S - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	Privacy and Personal Information - Agency Evidence - Adequacy - 'Personal Information' - 'Publicly Available Publication' Exclusion - Statutory Interpretation - Disclosure - Section 41 Direction - Collection - Privacy and Personal Information Protection Act 1998, ss 4, 8, 18, 41
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	063139
DATE OF DECISION UNDER APPEAL:	01/10/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Environmental Planning and Assessment Act 1979 Freedom of Information Act 1982 (Cth) Freedom of Information Act 1989 Local Government Act 1993 Privacy and Personal Information Protection Act 1998
CASES CITED:	WL v Randwick City Council [2007] NSWADT 12 Lloyd v Veterinary Surgeons Investigating Committee (2005) 64 NSWLR 245 WL v La Trobe University (General) [2005] VCAT 2592 Re Colakovski and Australian Telecommunications Commission (1991) 29 FCR 429 Commissioner of Police v District Court of NSW (Perrin’s case) (1993) 31 NSWLR 606 EG v NSW Police [2003] NSWADT 150 Department of Education and Training v PN [2006] NSWADTAP 66 NW v NSW Fire Brigades [2005] NSWADT 73 NX v Office of the Director of Public Prosecutions [2005] NSWADT 74 GV v Office of the Director of Public Prosecutions [2003] NSWADT 177
REPRESENTATION:	APPELLANT In person RESPONDENT A Seton, solicitor, Marsdens Law Group
ORDERS:	1. The decision of the Tribunal is set aside.; 2. Leave to extend to the merits refused. ; 3. The application is remitted to the Tribunal for re-determination having regard to these reasons.

1 This appeal raises issues relating to the application of the Privacy and Personal Information Protection Act 1998 (the Privacy Act or the Act) to enforcement activity by local councils.

2 The respondent (the Council) took enforcement action in June 2005 against the appellant after receiving a complaint that unauthorised works were being undertaken at an investment flat owned by the appellant. The appellant made a complaint to the Council in December 2005 that various aspects of the Council’s conduct had contravened the Privacy Act. There is no dispute that the Council is a public sector agency bound by the Act. As required, the Council undertook an internal review of conduct put in issue. By letter dated 17 January 2006 the Council advised the appellant that it had not breached the Act. The principal reason it gave was that the various items of conduct put in issue had not involved the collection, use or disclosure of ‘personal information’, and therefore the Act was inapplicable.

3 By application dated 31 March 2006 the appellant applied to the Tribunal for review of the conduct. The Tribunal dismissed the application for review, principally on the same ground as the Council: WL v Randwick City Council [2007] NSWADT 12.

The Conduct in Issue

4 The Tribunal’s account adequately summarises the appellant’s complaint.

‘ The Alleged Contraventions

6. The conduct which WL alleges was in contravention of the IPPs is:

i. that a Council Officer entered the Premises without consent and prior notification;

ii. that a Council Officer took the photographs without consent and prior notification;

iii. that a Council Officer forwarded copies of the photographs to an employee of the Strata Managers without WL’s knowledge, consent and prior notification, and without taking any reasonable precautions to protect the forwarded information against further dissemination; and

iv. that a Council Officer forwarded a copy of the Notice to the proprietors of the Strata Plan in which the Premises are situated without WL’s knowledge, consent and prior notification, and without taking any reasonable precautions to protect the forwarded information against further distribution, and that the Notice contained incomplete and misleading information, including WL’s name and investment property address.

The Orders Sought

7 The orders that WL is seeking in these proceedings are:

i. that the Council request the Infringement Processing Bureau to withdraw the penalty infringement notice that has been issued by the Council to WL under the EPA Act;

ii. that the Tribunal investigate the Privacy Act breaches related to Council's dissemination of private information to third parties;

iii. that the Tribunal brings the matter to the attention of the Minister for Local Government;

iv. that the Council be ordered to take specified steps to remedy any loss or damage suffered by WL as a result of the Council's conduct;

v. that the Council pay to WL damages of $40,000.00 as compensation for any loss or damage suffered because of the Council's conduct.’

5 For completeness, the Appeal Panel notes that the Notice asserted that the work was being undertaken without a prior development consent and a prior construction certificate. The Notice gave the appellant 10 days in which to make representations as to why penalty proceedings should not be instituted against him for not having a development consent and as to why the Council should not serve an order under s 121B of the Environmental Planning and Assessment Act 1979 (the EPA Act) requiring him to restore the premises to their previous condition and engaging in other restorative works. The appellant’s defence essentially was that he was engaged in emergency repairs to which the usual consent requirements do not apply. The Council rejected the defence. It issued a Penalty Infringement Notice for $600. The Council issued a formal Order under s 121B on 24 August 2005. Following consideration of further submissions, the Council withdrew this Order on 29 November 2005.

6 The Appeal Panel’s understanding, derived from the material filed with the Tribunal, is that the appellant’s concern is twofold: first the lawfulness of the method of collection of the photographs; and secondly, the making of communications with the strata manager that included the provision to the strata manager of the enforcement notices, and the disclosure of information that involved. As to the latter, our understanding is the renovations were being undertaken with a view to possible sale. We also understand that strata managers place any enforcement notices on the strata management file. This file may be inspected by potential purchasers. The appellant was concerned that the notices might have a negative effect on the potential sale price.

Tribunal’s Decision

7 We set out below the Tribunal’s summary of the salient facts juxtaposed with the Tribunal’s legal conclusion:

Salient Facts

‘3 With the exception of some minor details, the background to this application is generally agreed. WL was at all relevant times the owner and lessor of the residential premises in a block of units (“the block”) in Coogee (“the Premises”). In June 2005 the Council received a complaint that renovations had been carried out on the Premises for which the complainant believed no development application had been lodged. On 7 June 2006 a Council Officer (Mr Kerr) attended the block and was allowed entry to the Premises by a person who was apparently in occupation and carrying out work there at the time. Mr Kerr took photographs of various internal and external aspects of the Premises (“the photographs”).’

Tribunal Response

‘35 I agree with the Council that the photographs do not identify any individual or contain information about an individual whose identity was apparent or could reasonably be ascertained from them. Accordingly, I agree that they do not fall within the definition of ‘personal information’ in section 4 of the Privacy Act. Provision of the photographs to the Strata Managers cannot therefore be in breach of any IPPs [i.e. Information Protection Principles].’

Salient Facts

‘4 The following day, Mr Kerr had a telephone conversation with a solicitor in the employ of Bright & Duggan Pty Ltd, the Manager of the Owners Corporation for the Strata Plan within which the Premises is situated (“the Strata Managers”). He later forwarded a copy of the photographs to the solicitor.

5 On the same day the Council issued a Notice of Intention to give an Order under Section 121B of the Environmental Planning and Assessment Act 1979 (“the EPA Act”) in terms of Order No. 12. That Notice of Intention (“the Notice”) was issued by the Council and signed by Mr Kerr in his capacity as a Planning and Environment Compliance Officer. Mr Kerr subsequently forwarded a copy of the Notice to the Strata Managers.’

Tribunal Response

‘36 The Notice is a document that identifies WL and the Premises. It makes certain allegations and requires WL to do certain things. The possible ‘personal information’ is WL’s name and address. I agree that the authorities to which the Council has referred me are relevant to this matter. It is a question of fact in every case as to whether or not the name or address of a person amounts to ‘personal information’. I am satisfied that the information that could be readily ascertained from the Notice or from a combination of the Notice and the photographs is information that is readily accessible pursuant to section 12(6) of the Local Government Act 1993 and is within the scope of subsection 4(3)(b) of the Privacy Act. In the circumstances of this matter I do not consider that the information is within the definition of ‘personal information’ in section 4 of the Privacy Act.

37 It is apparent from the face of the 'Notice of intention to give an Order' dated 22 June 2005 that it is addressed to the Proprietors of premises in the strata plan. It clearly identifies the Premises but does not identify WL. I accept that it is probable that individuals with knowledge of the activities of the Owners Corporation may be able to identify this as a document that relates to WL, because of the knowledge of WL’s ownership of the Premises. However I do not agree that this brings the information within the definition of ‘personal information’ in section 4 of the Privacy Act. Again, this is information that is readily accessible pursuant to section 12(6) of the Local Government Act 1993. ‘

8 Section 55 of the Privacy Act provides that an order or decision made by the Tribunal may be appealed to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 (ADT Act) by a party to the proceedings in which the order or decision is made. Under Part 1 of Chapter 7 an appeal may be made in relation to a ‘question of law’, and, with the leave of the Appeal Panel, may extend to the merits: ADT Act, ss 112, 113. It is not necessary that an error of law be demonstrated before consideration can be given to extending the appeal to the merits: Lloyd v Veterinary Surgeons Investigating Committee (2005) 64 NSWLR 245.

9 The Tribunal’s form of notice of appeal is divided into a section which asks the appellant to identify questions of law, and another section for use if the appellant seeks leave to extend to the merits to give reasons in that regard. The appellant seeks leave for the appeal to be extended to the merits.

10 The parties have filed detailed submissions and requested that the matter be dealt with on the papers. The Appeal Panel is satisfied ‘that the issues for determination can be adequately determined in the absence of the parties’ on the basis of the material before the Tribunal: see ADT Act, s 76. All of the Tribunal’s conclusions have been put in issue.

The State of the Evidence

11 A complainant to a public sector agency of breach of privacy standards by an officer employed by the agency is in a difficult position in getting precise evidence of what might have occurred. It is therefore important that the internal review undertaken by the agency in response to the complaint be thorough. This includes obtaining a full statement as to what occurred from any officer with direct knowledge.

12 In this case, in our opinion, more was required before findings could be made as to what occurred. There should have been a direct statement or affidavit from Mr Kerr, which explained what he did and why he did it. The Council has simply presented its own summary of what it understands to have happened. In particular, we do not know precisely what Mr Kerr reported to the officer who put together the internal review report.

13 As a consequence, we consider that the evidence furnished to the Tribunal by the Council was insufficient to reach any confident conclusion as to a number of matters. It is not clear what information Mr Kerr had about the property when he went out to make the inspection. We find it difficult to accept without clearer evidence from the Council that Mr Kerr went to the property oblivious to the details of who owned the property. Evidence as to these matters is critical to determining whether at the point the photographs were being taken ‘personal information’ was being collected.

‘Personal Information’

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).

17 The evidence before the Tribunal was that there was a telephone communication and a follow-up email between Mr Kerr and the solicitor to the strata owners corporation on 8 June 2005. It is not clear what was said in the telephone conversation. It is clear that the photographs were not transmitted to the solicitor in a vacuum.

18 The Tribunal, we surmise, accepted the submission of the Council as referred to in para [25] of its decision:

‘[The Notice] is not a document that discloses anything about the Applicant. The only information about WL contained in the Notice is WL’s name and address. …’

19 The Council and the Tribunal would appear to have accepted that something more than a mere name and address is required before the associated information can be said to be ‘personal information’ regulated by the Act. The Council relied in its submissions on cases under the Freedom of Information Act 1989 (the FOI Act) interpreting the scope of the exemption protecting from disclosure information held by agencies about the ‘personal affairs’ of individuals.

20 The definition of ‘personal information’ in the Act is not confined to information that concerns the ‘personal affairs’ of a person. A broad, unrestricted primary definition of ‘personal information’ or ‘personal data’ is a standard feature of privacy protection statutes. The cases relied upon by the Council and cited without criticism by the Tribunal are not relevant to the interpretation of ‘personal information’ under the Act. The Commonwealth FOI case of Re Colakovski and Australian Telecommunications Commission (1991) 29 FCR 429 at [27] and the leading New South Wales FOI case, Commissioner of Police v District Court of NSW(Perrin’s case) (1993) 31 NSWLR 606 at 624-5 are cited at [23]-[24] of the Tribunal’s reasons. Neither are relevant. The key point of Perrin’s case for present purposes is that the identity of a public official in connection with their public responsibilities does not fall within the scope of the ‘personal affairs’ of that person. On the other hand, it is clear that it would be ‘personal information’. Interestingly the Commonwealth FOI law was amended in 1991 to replace ‘personal affairs’ with ‘personal information’, reflecting this understanding: see now, Commonwealth Freedom of Information Act 1982, s 41, as amended).

21 The Tribunal stated, where conduct involved ‘personal information’ it is difficult to accept that transmission of a name, as here, would not involve the transmission of personal information. Here there was the transmission of name and an address associated with that name. It would be rare, we think, where the supply of a name raised an arguable question of fact as to whether personal information had been supplied. A person’s name is, we think, generally regarded as the primary form of identification of a person.

22 There is also a suggestion in the passage quoted that the Council and the Tribunal were of the view that it may require more than the presence of a mere name in a document for that document to be held to constitute personal information about an individual. If that is so, the scope of the Act is being read down in a way not consistent with s 4(1). Since the Act ‘is beneficial legislation, s 4(1) should be interpreted broadly, and the exclusions from the definition of personal information should be construed narrowly’: EG v NSW Police [2003] NSWADT 150 at [24]; Department of Education and Training v PN [2006] NSWADTAP 66 at [78].

Publicly Available Publication Exclusion

23 The Tribunal upheld an alternative submission of the Council that the information was excluded from the meaning of ‘personal information’ as it was information contained in ‘publicly available’ information, relying on s 4(3)(b) of the Privacy Act and s 12(6) of the Local Government Act 1993.

24 There are exclusions from the meaning of ‘personal information’, which include s 4(3)(b)

‘4(3) Personal information does not include any of the following:
(b) information about an individual that is contained in a publicly available publication.’

25 Section 12 of the Local Government Act 1993 is headed ‘What Information is Publicly Available?’ Section 12(6) provides:

‘12(6) The council must allow inspection of its other documents free of charge unless, in the case of a particular document, it is satisfied that allowing inspection of the document would, on balance, be contrary to the public interest.’

26 In our view s 12(6) does not amount to a provision that makes enforcement notices ‘publicly available’. It is apparent that the Council may refuse access to any of ‘its other documents’ on a discretionary basis. The term ‘publicly available’ signifies, in our view, a state of affairs where any person can come to the agency, and have provided to them a document with no questions asked. We note, consistently with these observations, that the Tribunal has previously found that in relation to accessing a publication, it will not be a ‘publicly available publication’ unless ‘its contents are freely available to any member of the public, without restriction’ (see NW v NSW Fire Brigades [2005] NSWADT 73 at [26]).

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.

Disclosure Issues: Section 41

28 If information held by an agency is determined to be ‘personal information’ then the disclosure of that information would, in general, amount to a disclosure of ‘personal information’. However, this is ultimately a question of fact to be determined in the circumstances of each particular case.

29 The way the Act regulates the disclosure of personal information by public sector agencies is complex. The Act starts with the proposition that the disclosure of personal information is prohibited: s 18. It then proceeds to set out as exceptions, the circumstances in which disclosure of personal information is permitted. The first of these exceptions appear s 18. The whole of s 18 follows:

‘ 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.’

30 It is not apparent from this provision that there are many other exceptions elsewhere in the Act. Some take the form of ‘exemptions from the principles’, see for example s 23(5) referring to various activities in connection with law enforcement and the protection of the public revenue; and s 24(3) dealing with the activities of certain investigative agencies, as defined (see s 3). In this case the Council relied on an exemption given under s 41 of the Act.

31 Section 41 provides:

‘ 41 Exempting agencies from complying with principles and codes

(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.’

32 The Tribunal summarised the Council’s case on this point as follows:

‘28 In the alternative, the Council submits that if the Notice did contain personal information it was disclosed in the exercise of the Council's ‘investigative functions’ under the EPA Act as defined in the section 41 Direction and that it is therefore exempt from compliance with section 18 of the Privacy Act.’

33 The Tribunal’s Response was:

‘39 In any event, I am satisfied that the section 41 Direction applies to the Council’s action in disclosing the information to the Strata Managers and the Proprietors of premises in the strata plan. The Council is therefore exempt from compliance with section 18 of the Privacy Act.’

34 The Tribunal did not provide the steps in its reasoning that gave rise to the conclusion in para [39] of its decision that the Direction applied.

35 The Council had claimed that its conduct falls within the terms of an exemption provided in the written direction first issued on 30 June 2000 (subsequently reissued on a number of occasions and now extended to 31 December 2007) by the Acting Privacy Commissioner: Direction on Processing of Personal Information by Public Sector Agencies in relation to their Investigative Functions (‘the section 41 Direction’). The conduct complained of by the appellant is covered by the Direction which was reissued on 31 December 2004 for a period of one year. The Council is a scheduled agency. The direction provides materially:

‘3. 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.

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.

5. The provisions of paragraph 4 of this Direction are not intended to override and do not override any other legal requirement dealing with the collection, use or disclosure of information by a relevant agency. …

7. 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;’

36 Clause 4 contains two limbs:

– the first limb provides that a ‘relevant agency’ need not comply with a listed IPP if non-compliance ‘is reasonably necessary for the proper exercise of any of the agency’s investigative functions…’

– the second limb of cl 4 provides that a ‘relevant agency’ need not comply with a listed IPP if non-compliance ‘is reasonably necessary for ... its conduct of any lawful investigation’.

37 The position is clearly that a relevant agency may only decline to comply with the strict requirements of the listed IPPs in two areas – the performance of ‘investigative functions’ and the conduct of a ‘lawful investigation’.

38 The definition of ‘investigative functions’ makes it clear there are two requirements to be satisfied: one, the functions must be ‘directly related’ to a lawful investigation, and two, the disclosure which occurred was reasonably necessary to the lawful investigation undertaken by the Council. Accordingly, in this case it is necessary to ascertain whether the circumstances in which the ‘personal information’ was disclosed formed part of Mr Kerr’s lawful investigative functions or whether it was directly related thereto.

39 As the position of the Council is that the photographs were collected by Mr Kerr in the lawful exercise of his investigative functions pursuant to the EPA Act it is necessary also to consider the investigative provisions of that Act and s 8 of the Privacy Act.

40 We note also that before a determination can be made in regard to a breach of this provision, consideration must be given to the question as to whether the information as held by the agency was ‘personal information’. Section 3(4) of the Act sets out the circumstances in which personal information is held by an agency. This includes personal information that is in the possession or control of the agency (see s 3(4)(a)). An agency may have possession or control of the information because, as in this case, it ‘collected’ the information (see s 8 of the Act, which is set out below), but where the information received by the agency was unsolicited it is not ‘collected’ for the purpose of the Act (see s 3(5)).

Collection Issues: Section 8

41 Section 8 of the Act provides:

‘ 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.’

42 We note that the Direction made pursuant to s 41 of the Act does not relate to this particular provision of the Act.

43 In determining whether this provision is applicable, there needs at least to be a finding as to what Mr Kerr knew about the identity of the owner of the property when he went out to inspect the works and take photographs. If the situation was one where Mr Kerr was engaged in the collection of evidence in connection with a property owned by a named person, that may be sufficient to bring into play s 8. On the face of it, he is engaged in the collection of information about the conduct of a known person.

44 The Council did, in its internal review, address the possible applicability of s 8. We make the following brief comments on this point.

45 The words ‘lawful purpose’ within s 8 mean ‘a purpose that is authorised, as opposed to not forbidden, by law’: NX v Office of the Director of Public Prosecutions [2005] NSWADT 74 at [21]-[22]. The Council, in its internal review of the privacy determination, stated that access to the property was obtained under the authority of the EPA Act.

46 Absent reference to a specific statutory provision, the Council would appear to be referring to s 118A of the EPA Act, which gives the Council the power to enter any premises, for the purpose of enabling a council to exercise its functions. Relevantly, s 118C of the EPA Act provides for written notice to be given, before entering the premises, to the owner or occupier of the premises. The notice must specify the day on which the person intends to enter the premises and must be given before that day: s 118C(2). Notice is not required if entry is made with the consent of the owner or occupier: s 118C(3). The power to enter premises provided under s 118A may not be exercised unless the person proposing to exercise the power is in possession of an authority issued by the Council: s 118I.

47 While the Council may have had a legitimate purpose for taking the photographs, i.e. in the exercise of its functions (that is, an investigation into a complaint about alleged unauthorised building works), it does not follow that the means by which the Council Officer gained access to the appellant’s flat to take the photographs was lawful. The word ‘unlawful’ in s 8(2) refers to a positive legal prohibition: NX v Office of the Director of Public Prosecutions [2005] NSWADT 74 at [25]; GV v Office of the Director of Public Prosecutions [2003] NSWADT 177 at [47]. The EPA Act sets out the requirements to be satisfied when exercising local enforcement powers, including the notice requirement.

48 There is no evidence to indicate that the Council complied with the notice requirement in s 118C(1). The only material before the Tribunal were the assertions of the Council in its submissions that Mr Kerr; (a) was ‘allowed entry’ by a person ‘who was apparently in occupation and carrying out work in the flat at the time’, (b) the photographs and Notice were provided to the ‘Strata Managers’ as the Notice related to ‘part of the building which included external aspects for which the Manager was possibly responsible’, and (c) that even if the entry was unlawful (which it denied) it was not related to nor did it concern the collection of any ‘personal information’. For the reasons stated above, the Appeal Panel has found that s 4(1) is applicable and the information did arguably concern the collection of personal information.

49 Once again, with no statement from Mr Kerr explaining what he did in regard to investigating the complaint received by Council from a neighbour in the building where the premises were located and on what basis he did what he did, the material filed by the Council was lacking in a material respect for making any finding in regard to the question of whether the Direction made pursuant to s 41 of the Act was applicable to the disclosure of the photographs and Notice in this application.

CONCLUSIONS

50 It will be seen that the Appeal Panel has a number of concerns over the analysis adopted by the Tribunal and the Council. In our view the evidence does not provide a safe basis for reaching the conclusion that the Act was not applicable, because ‘personal information’ was not collected, used or disclosed. Further, the Tribunal and the Council have given an interpretation to the meaning of ‘personal information’ which draws wrongly on the learning surrounding the ‘personal affairs’ exemption in the FOI Act. What evidence there is firmly points, in our view, to the conclusion that, at least by the time Mr Kerr began communicating with the strata manager, he was communicating ‘personal information’ held in a recorded form. We are not satisfied on the basis of the evidence as it stands that the terms of the protection given in respect of disclosure of personal information by the section 41 Direction have been satisfied.

51 The appellant seeks leave to have the matter extended to the merits. It is not desirable, we consider, for the Appeal Panel to take that step in the present case. There needs, we think, to be much clearer evidence placed before the Tribunal by the Council, and there needs to be a number of findings made, and various questions of interpretation reconsidered. There still remains much to be done. Extensions to the merits are best suited to situations where little is left to be done by way of evidence or analysis.

ORDERS

1. The decision of the Tribunal is set aside.

2. Leave to extend to the merits refused.

3. The application is remitted to the Tribunal for re-determination having regard to these reasons.