WL v Randwick City Council (No 2)

[2010] NSWADT 84

CITATION:	WL v Randwick City Council (No 2) [2010] NSWADT 84
DIVISION:	General Division
PARTIES:	APPLICANT WL RESPONDENT Randwick City Council
FILE NUMBER:	073294
HEARING DATES:	1 May 2009
SUBMISSIONS CLOSED:	2 November 2009
DATE OF DECISION:	6 April 2010
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Privacy – information protection principle – contravention of collection and disclosure principles – direction of Privacy Commissioner exempting agency from complying with the principles
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Environmental Planning and Assessment Act 1979 Information Privacy Act 2000 (Vic) Local Government Act 1973 Privacy and Personal Information Protection Act 1998
CASES CITED:	WL v La Trobe University (General) [2005] VCAT 2592 WL v Randwick City Council (No 2)(GD) [2008] NSWADTAP 52 WL v Randwick City Council [2007] NSWADTAP 58 WL v Randwick City Council [2007] NSWADT 12
REPRESENTATION:	APPLICANT In person RESPONDENT A J Seton, solicitor
ORDERS:	Pursuant to subsection 55(2) of the Privacy and Personal Information Protection Act 1998 the Tribunal determines to take no action on this matter.

REASONS FOR DECISION

Introduction

1 The applicant, WL, has sought review of conduct of an officer of the respondent, Randwick City Council (‘the Council’), that he asserts contravened a number of the information protection principles, which apply to the Council under the Privacy and Personal Information Protection Act 1998 (‘PPIP Act’). WL has at all times represented himself in these proceedings. He has also been assisted by his wife.

2 These have been very protracted proceedings, primarily because of the circumstances in which the conduct the subject of these proceedings arose and the events that occurred thereafter. These circumstances and events, WL and his wife contend has caused them considerable anguish. However, as I have explained throughout these proceedings, the role of the Tribunal is limited to reviewing the specific conduct of the Council, through one of its officers, that WL alleged to be a contravention of the PPIP Act: see sub-section 55(1) of the PPIP Act and section 38 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). The conduct in issue is that of Mr Kerr, who was employed as a compliance officer with the Council at that time. In an email, sent to the Mayor of the Council on 24 August 2005, WL described the conduct of Mr Kerr which he alleged to be in contravention of the PPIP Act as follows:

‘[Mr Kerr] …[chose] to intrude the private property unannounced, without written notice of the intention to enter the premises, without a letter of authority, without asking permission, he entered the private property and took photographs of it without the owner’s, or occupier’s knowledge or consent, and subsequently disseminated the photographs and other privileged information to other parties, again without the owner’s consent or knowledge. …’

3 This is the conduct that is the subject of this application, however it is necessary to also provide a brief description of the circumstances in which it arose.

Background

4 On 6 June 2005, the Council received a complaint about alleged unauthorised building work being undertaken at the residential investment unit owned by WL (‘the unit or WL’s unit’). On 7 June 2005, Mr Kerr, in his capacity as a compliance officer for the Council, went to the block in which the unit was located. There is no dispute that the unit was vacant and that building work was being carried out in the unit at this time. Mr Kerr on seeing the building work took some photographs of the inside and outside of the unit. On the following day, he sent, by email, a copy of the photographs and a Notice, under the Environmental Planning and Assessment Act 1979 (‘the EPA Act’), of an Intention to give an Order to restore the premises (‘the Notice’) to an employee of Bright & Duggan, the Strata Managing agent for the block of units.

5 WL was also served with the Notice of 8 June 2005. He responded to that Notice on 16 June 2005: see ExA3 at Attachment 4, and 5a to 5g. In that response, WL explained that the building works were remedial in nature and did not require Council development approval. He also contended that the owners’ corporation (of which WL was secretary at the time) had given its approval for the building work. The building work involved replacing the existing windows and doors to the balcony of the unit with new double sliding doors and also removing, or reducing some of the internal walls. WL also provided the Council with an engineer’s report and other documents to support his contention that the building work was remedial in nature.

6 At the end of his response, WL requested, pursuant to the Freedom of Information Act 1989, a copy of the complaint on which ‘the Council inspection was based’, advice as to whom copies of the photographs had been made available to, the originals of the photographs and any copies thereof, and ‘all relevant Council’s operational policies on procedures related to handling inquiries/allegations’.

7 Notwithstanding WL’s representations, on 22 June 2005, Mr Kerr issued, pursuant to the EPA Act, a Penalty Infringement Notice for $600 for the unauthorised work. On this day, Mr Kerr also issued a Notice of Intention to Give an Order to restore the external wall of the premises to the Proprietors of the Strata Plan for the block of units.

8 On 24 August 2005, Mr Kerr issued the intended Order, under the EPA Act, addressed to WL, and ordering him to restore the premises to the condition they were in prior to the work having been carried out. As I have mentioned above, WL sent an email to the Mayor on this day. That email was in response to the Order. It was a lengthy response asking the Mayor to intervene on the basis of contraventions not only of the PPIP Act but also on the basis of contraventions of or failure to adhere to a number of different provisions under different legislation, procedures etc. These additional allegations, as I have repeatedly said, are of no relevance to this application.

9 Accordingly, it is Mr Kerr’s conduct of 7 and 8 June 2005, which is the subject of this application.

10 In his response of 24 August 2005, WL did not formally seek an internal review of Mr Kerr’s conduct under section 53 of the PPIP Act. However, after further correspondence between WL and the Council, in early 2006 the Council did conduct such a review. It determined that there had been no breach of the PPIP Act because (a) Mr Kerr had accessed WL’s unit pursuant to the enforcement provisions of the EPA Act and (b) the photographs taken by Mr Kerr were not considered to be ‘personal information’ as defined in the PPIP Act.

Proceedings before the Tribunal

11 Shortly after the Council made its determination, WL made an application to the Tribunal for external review of the alleged contravening conduct of Mr Kerr.

12 On 10 January 2007, the Tribunal determined, on the papers, that it had no jurisdiction to hear and determine WL’s application for review: see WL v Randwick City Council [2007] NSWADT 12 at [38]. The Tribunal found that the photographs taken by Mr Kerr was not information falling within the definition of ‘personal information’ in sub-section 4(1) of the PPIP Act: see at [35]. The Tribunal also found that the information about WL in the Notices was information that was readily accessible under sub-section 12(6) of the Local Government Act 1973 (‘LG Act’) and excluded from the definition of ‘personal information’ in subsection 4(1) of the PPIP Act: see paragraph 4(3)(b) of the FOI Act.

13 WL successfully appealed this decision to the Appeal Panel, of which I was a member: see WL v Randwick City Council [2007] NSWADTAP 58. The Appeal Panel made orders setting aside the decision of the Tribunal and remitted the application for re-determination, having regard to the Appeal Panel’s reasons for decision. The application was initially remitted to the Tribunal as originally constituted, however following an appeal by WL on an interlocutory matter, the President remitted the application to a differently constituted Tribunal: see WL v Randwick City Council (No 2)(GD) [2008] NSWADTAP 52.

14 The matter first came before me at directions hearing on 18 September 2008. After several interlocutory matters were dealt with, the issue of liability of the Council for the alleged contravening conduct of Mr Kerr, of 7 and 8 June 2005, was heard on 1 May 2009. WL had initially sought to have the matter determined on the papers pursuant to section 76 of the ADT Act. However, I formed the view that the issue of liability could not be adequately determined in the absence of the parties. Critical to the finding of liability were the acts and omissions of Mr Kerr and as WL strongly disputed the Council’s and Mr Kerr’s account of events I formed the view that a hearing should be convened so that the credibility of Mr Kerr’s evidence could be tested.

15 At the conclusion of the hearing, by consent, I made directions for the filing and serving of written submissions. The last submissions were to be filed on 28 August 2009. However, further submissions were filed and served by WL on 7 September and 2 November 2009. In the absence of objection by the Council, I have examined these submissions and to the extent they are relevant to the matters in issue in this application, I have taken them into account. Matters such, the veracity of the complaint that had been made to the Council, a review of the Council’s conduct generally in regard to the investigation and the issue of the Notices and Orders, whether the conduct falls within the offence provision of section 62 of the PPIP Act are all matters that are of no relevance to this application.

Issues

16 The matters that are in issues in this application are as follows:

(a) were the photographs taken by Mr Kerr of WL’s unit ‘personal information’ about WL (see section 4)?

(b) did Mr Kerr’s ‘collection’ of the photographs about WL contravene section 8 of the PPIP Act?

(c) in collecting ‘personal information’ about WL, was Mr Kerr’s conduct exempt from complying with the information protection principles in the PPIP Act (see section 41 of the PPIP Act)? and

(d) if Mr Kerr was not exempt from complying with the information protection principles in the PPIP Act, did he through his conduct breach an information protection principle in regard to the ‘personal information’ he collected about WL (see sections 9, 10, 11, 12, 17 and 18 of the PPIP Act)?

The evidence

17 Both parties tendered into evidence a large number of documents. This included the documents tendered in the initial determination of the Tribunal: see WL [2007] 12. Many of the documents tendered into evidence by WL, were either not relevant to the matters in issue or were in the form of submissions. However, in light of WL not being legally qualified, I accepted all the material filed and gave it the appropriate weight, subject to relevance.

18 As I have indicated, the only oral evidence that was called at the hearing, on 1 May 2009, was evidence from Mr Kerr. Mr Kerr gave part of his evidence pursuant to a certificate under section 128 of the Evidence Act 1995. Also in evidence was Mr Kerr’s affidavit sworn on 30 September 2008. Mr Kerr was cross-examined, at the request of WL, by his wife.

19 To assist WL in preparing written submissions, I requested a copy of the transcript of the hearing to be prepared and provided to the parties.

Were the photographs taken of WL’s unit ‘personal information’ about WL?

20 The term ‘personal information’ is defined in section 4 of the PPIP Act. Sub-sections 4(1) and (2) sets out the meaning of ‘personal information’ and sub-section 4(3) prescribes circumstances where information about an individual is not ‘personal information’ for the purpose of the PPIP Act. Sub-sections 4(1) and (2) provide as follows:

4 Definition of “personal information”

(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.

21 In my opinion, the construction of sub-section 4(1) is uncontroversial in that ‘personal information’ is information about an individual whose identity:

(a) is apparent from the information itself; or

(b) can reasonably be ascertained from the information.

22 There is no dispute that the images on the photographs, taken by Mr Kerr of WL’s unit, when examined in isolation, do not contain any information from which WL’s identity is readily apparent. It is also arguable that WL’s identity is not ascertainable from the images on the photographs. However, in my view, having regard to the overall purpose of the Act, and the inclusion of sub-section 4(2), Parliament did not intend for this meaning to be applied in a restrictive way.

23 The overall purpose of the PPIP Act is to provide for the protection of personal information and for the privacy of individuals. This is achieved through the information protection principles set out in Part 2 of the PPIP Act, which all public sector agencies must apply, unless otherwise exempted. The information protection principles govern the circumstances in which a public sector agency is to collect personal information about an individual and how it is to store that information and other personal information it holds and also the circumstances in which the agency can use or disclose personal information it has collected or holds.

24 The PPIP Act only applies to personal information that is in a material form such as a paper record, a diagram or photograph or in electronic storage of some character: see Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 at [40]. This is not an issue in this application. What is in issue is whether, in determining whether the images on the photographs taken by Mr Kerr contain ‘personal information’ about WL as defined in the Act.

25 In my opinion, having regard to the extended meaning of ‘personal information’ in sub-section 4(2) of the PPIP Act and the Acts overall purpose, its meaning must be applied in the context in which a particular item of information has been collected, is held, used or disclosed. This is the approach suggested by the Appeal Panel in WL [2007] NSWADTAP 58 at [15] when it said: ‘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.’

26 The real issue in this application is the extent of that context. This question was considered by Deputy President Coghlan of the Victorian Civil and Administrative Tribunal in WL v La Trobe University (General) [2005] VCAT 2592. Section 3 of the Victorian Information Privacy Act 2000 is in similar terms to sub-section 4(1) of the PPIP Act. However, the Victorian provision does not include the extended meaning as contained in sub-section 4(2) of the PPIP Act.

27 In La Trobe University, Deputy President Coghlan considered the construction of the words ‘can reasonably be ascertained from the information or opinion’. In particular, whether on its proper construction the word ‘ascertained’ meant solely from the information itself without regard to any other material.

28 At issue in La Trobe University was whether the information about the applicant, given by the applicant’s partner to a survey interviewer of a research agency (contracted by the University) was ‘personal information’ about the applicant’. In providing the information the applicant’s partner did not identify the applicant by name. Nor was the identity of the applicant otherwise apparent from the information that was recorded by the survey interviewer. However, it was the contention of the applicant (in that case), with modern information systems used by the University and its research agency, her identity could be ascertained through the cross-matching of answers and telephone numbers, which were held by the University and the research agency: see at [24].

29 Accordingly, the applicant’s case in La Trobe University was dependent on the extent, if any, resort could be had to extraneous material and information held or collected by the University or the research agency. While not forming any concluded view, at [44], [45] and [47], Deputy President Coghlan made the following remarks in regard the proper construction of the phrase ‘reasonably be ascertained from’:

‘44 Just what is meant by “reasonably be ascertained from the information” is not so clear. Does it mean ascertained solely from the information without reference to anything else? One would think it might not because, as I said earlier, there will be cases where there is a string of information which must inevitably lead to the identity of a particular person, depending on the context, without the information revealing a person’s name or photograph.

45 If such information can all be put together from what is actually contained in the information and from no other source and identifies the person, it would seem that the identity of the person would be “apparent” from the document. The use of the word “ascertained” must allow for some resort to extraneous material unless it is to be regarded as mere surplusage.

46 …

47 It may well be that “reasonably ascertainable” from the information recognises the use of some extraneous material or related information. Support for this view can be found in a decision of the Supreme Court of Victoria in Bailey v Hinch [1989] V.R.78. A similar, but not identical, provision was considered. …’

30 Deputy President Coghlan pointed out that whether information was ‘personal information’ was nevertheless a question of fact. In the application before him the Deputy President concluded as follows:

‘52 Even allowing for the use of external information, the legislation requires an element of reasonableness about whether a person’s identity can be ascertained from the information and this will depend upon all the circumstances in each particular case. Here, the alleged process of ascertainment would require inquiries from different databases, cross-matching and then cross-matching with an external database and even then the making of any possible connections would not identify with certainty. Even on the most favourable view to the applicant, this is beyond what is reasonable.’

31 The reasoning of Deputy President Coghlan was accepted by the Tribunal in the initial determination and the Appeal Panel accepted the reasoning of Deputy President Coghlan: see WL [2007] NSWADTAP at [16] and [2007] NSWADT at [21]. However, the factual circumstances in this application differ considerably.

32 The evidence in this application is that on 6 June 2005, after Mr Kerr received the email of the complainant, he examined the electronic records of the Council’s computer data base and ascertained that the owner of the unit complained about was WL: see Exhibit R4 at [5]. He also ascertained the home address of WL and that the records of the Council did not show any development application having been lodged in respect to WL’s investment unit. Accordingly, when Mr Kerr went to the block of units the following day he knew the identity of the owner of the unit that was the subject of the complaint. That is, at the time he took the photographs he knew he was taking photographs of a unit that belonged to WL.

33 When taken the photographs were digitally recorded in the camera Mr Kerr used. These photographic images on the camera did not identify the street location of the unit. However, in my opinion it would be incorrect to find that this was the moment in time when this information was ‘collected’ by the Council and this is the relevant point in time to determine if the information is ‘personal information’.

34 As I have said, at the time Mr Kerr took the photographs he knew that he was taking photographs of WL’s unit. This knowledge was later transcribed when the photographs were downloaded onto the Council’s computer system. This is evidenced in the email Mr Kerr sent to WL on 15 August 2005: see Exhibit A3 at 10. That email attached 9 photographs and they were each labelled with the unit number and street address. That the photographs had been downloaded prior to this is also evidenced in the email Mr Kerr sent to Bright and Duggan on 8 June 2005. This email contained, as an attachment, 5 photographs: see Exhibit A1 document 3. Although, the attached photographs were not labelled, the content of the email identified photographs as being of a unit at the address. In my opinion, in this context, the photographs contained sufficient `information from which WL’s identity as the owner of the unit could reasonably be ascertained.

35 In his oral evidence, Mr Kerr also said that there would have been a Council file for WL’s Unit and that he would have recommended that a file be created in regard to the complaint that had been received (T at 51-50). While he did not recollect exactly what he did, he said he might have made some notes on whatever was at hand at the time of his inspection, but when he returned he would have made up a file (T at 52-7). This file undoubtedly contained a copy of the photographs and once again the title of the file undoubtedly included the address of the unit and perhaps even WL’s name. Once again, within this context, the photographs contained information from which WL’s identity as the owner of the unit could have been reasonably ascertained. Had the photographic images only remained on the camera, or in a data form, or in the form of a photograph without any surrounding identity as to location, or ownership, it would be difficult to make such a finding.

36 Accordingly, I find that the context in which the photographs were ‘collected’ by the Council that the photographs did contain ‘personal information’ about WL in that WL’s identity as the owner of the unit could reasonably be ascertained from the photographs. I make the same finding in regard to the photographs attached to the email Mr Kerr sent to Bright & Duggan on 8 June 2005.

37 As I have mentioned, the only photographs with which WL took issue were those that were taken by Mr Kerr from the inside of the unit. Accordingly, I have not considered whether the remaining photographs contain personal information about WL.

Did Mr Kerr collect the photographs in contravention of s.8 of the PPIP Act?

38 Section 8 of the PPIP Act is the first information protection principle under the Act and it relates to the collection of personal information. It provides as follows:

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.

39 It is my understanding from the lengthy written submissions of WL that he contends that the photographs of the inside of his unit were not collected by Mr Kerr for a lawful purpose, that even if found to be collected for a lawful purpose – their collection was not reasonably necessary, and that the photographs were collected by an unlawful means.

40 In my opinion, for the reasons set out below, the evidence does not support these contentions.

41 In its reasons for decision, at [45] to [47] the Appeal Panel said the following in regard to the application of this section:

‘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.

42 The uncontested evidence is that, at the relevant time, Mr Kerr was a duly appointed planning and environment compliance officer of the Council and he was authorised to carry out the functions of such officers as prescribed under the EPA Act and numerous other Acts set out in his written authorisation: see Exhibit R4 at Attachment A. This included the enforcement powers under Division 1A of Part 6 of the EPA Act: see sub-section 118A. That section relevantly provides as follows:

‘ 118A Power of entry

(1) For the purpose of enabling a council to exercise the council’s functions, the council may authorise a person, in writing, to enter any premises.
(2B) ...
(2C) ...
(3) Entry may only be made at any reasonable hour in the daytime or at any hour during which business is in progress or is usually carried on at the premises.’

43 The word ‘premises’ is broadly defined to include ‘a building of any description’: see sub-section 4(1) of the EPA Act. One of the functions of councils under the EPA Act is to approve all building developments within its jurisdiction: see EPA Act: see Part 4. It is not disputed that any structural changes or alterations to WL’s unit required development approval of the Council pursuant to that Act. As I have indicated, the position of WL was that approval was not required because the building work was remedial and not structural. Whether the building work was, or was not remedial is not a matter for determination by the Tribunal. What is relevant is that having received a complaint of unauthorised building work, Mr Kerr examined the Council files and establishing that no development application had been made to the Council for the alleged building work. Having established this and given the nature of the allegations, Mr Kerr appropriately investigated the matter further as undertaking building work without Council approval was prohibited. It is prohibited for many reasons including public safety reasons. Mr Kerr, as part of his duties, was authorised to undertake an investigation of this nature without taking any further formal steps. Mr Kerr attending the block of units and speaking to the complainant was an ongoing part of his investigation. That building work was being carried out and that the doors and windows were altered was apparent from the road. WL’s contention that the complaint was fabricated is not supported by the evidence.

44 Accordingly, I find that at the time Mr Kerr took the photographs he was doing so for a lawful purpose that was directly related to a function of the Council and that taking the photographs was reasonably necessary for that purpose. That WL believes Mr Kerr could have investigated the matter in a different way is of no relevance to the Tribunal’s enquiry. What is relevant is what Mr Kerr did when collecting the information and whether he did it in contravention of section 8 of the PPIP Act.

45 The next question is whether Mr Kerr obtained the photographs by an unlawful means.

46 A duly authorised officer’s power of entry to premises under section 118A of the EPA Act, must be read with the other provisions in Division 1A. For the purposes of this application the relevant provisions are sections 118B and 118C of the EPA Act. These relevantly provide as follows:

‘118B Inspections and investigations

For the purpose of enabling a council to exercise the council’s functions, a person authorised to enter premises under this Division may:

(a) inspect the premises and any article, matter or thing on the premises, and
(b) for the purpose of an inspection:
(i) …, and
(ii) …, and
(c) …, and
(d) require any at those premises to answer questions or otherwise furnish information in relation to the matter the subject of the inspection or investigation, and
(e) take samples or photographs in connection with any inspection

118C Notice of entry

(1) Before a person authorised to enter premises under this Division does so, the council or the person must give the owner or occupier of the premises written notice of the intention to enter the premises.

(2) The notice must specify the day on which the person intends to enter the premise and must be given before that day.

(3) This section does not require notice to be given:
(a) if entry to the premises is made with the consent of the owner or occupier of the premises, or
(b) if entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, or
(c) if entry is required urgently and the case is one in which the general manager of the council has authorised in writing (either generally or in the particular case) entry without notice.

47 WL also relied on section 118J, which prescribes the circumstances in which an authorised officer can enter the premises that are ‘being used’ for residential purposes. In my opinion this section has no application in the circumstances of this case as the unit was not being used for residential purposes at the time Mr Kerr was in the premises.

48 In regard to accessing WL’s unit, the evidence of Mr Kerr was that after he had taken the photographs he had walked into the block of units and walked to the level where WL’s unit was situated. He said on reaching that level he saw that the door was open and could see that building work was being carried on, he called out to see if anyone was there. When he did not receive an answer he proceeded back down the stairs and saw a man coming up the stairs. He asked that person if he was the owner and he said ‘no’ that he was the builder. Mr Kerr said that he explained to this person who he was, showed him his authorisation and asked if he could ‘have a look around the unit and at the building works being carried out.’ Mr Kerr said that the builder said he could enter, which he did. He also said that while he was taking photographs the builder handed him his mobile phone and asked Mr Kerr to speak to WL who was on the other end of the phone. Mr Kerr said he spoke to WL and explained that he was inspecting the building works that were being carried out and that he would send him some correspondence in regard thereto.

49 It was the contention of WL that Mr Kerr had let himself into the unit without the permission of the builder and in support of this they tendered a statutory declaration of that builder dated 28 March 2006 (see EXA3 at 9). The account of events given in this statutory declaration by the builder is as follows:

‘During the remedial works at the premises … where I worked as carpenter.

On the 7th of June 2005 the Randwick City Council officer entered the unit in my absence (while I was fetching materials from the garage) and without my consent.
There were no other workers present in the premises – the unit was unattended at the time of the officer’s entry.
When I returned from the garage, the officer was already inside the unit, taking photographs.
He did not ask my permission.
He asked me to contact the owner, then he conversed on the telephone with the owner himself, asking about a DA and some other details.
After finishing the conversation the officer left.’

50 WL deleted the name of the deponent of the statutory declaration. He expressed concern about the identity being made available to the Council before the hearing. He was reluctant to provide the declaration prior to the hearing. However, when I explained to him that the Council had a right to be able to respond to any evidence he filed, WL provided a copy of the declaration with the name of the declarant deleted. The Council objected to the tender of the declaration, unless the declarant was made available for cross-examination. WL explained he no longer knew of the whereabouts of the deponent and continued to press for the tender of the document. I allowed the tender subject to the weight that could be given to it in the circumstances where the identity of the deponent was unknown and his evidence could not be tested.

51 In my opinion, in the circumstances very little weight could be given to the assertions in this declaration in so far as it departs from the evidence given by Mr Kerr. I was able to assess Mr Kerr’s credibility when he gave his evidence and I found him to give truthful evidence to the extent of his recollection. I accept his evidence as to how he came to be in WL’s unit.

52 I note that Mr Kerr and the declarant both made reference to WL speaking to Mr Kerr while he was in the unit. However, neither made mentioned of WL, or the deponent saying, that Mr Kerr did not have permission to be there, or remain there. In my opinion, from the evidence the contrary can be inferred as WL appears to have also explained to Mr Kerr the nature of the building works. Any objections he had to Mr Kerr’s inspection seem to have risen when Mr Kerr did not accept that the building works were not remedial in nature and issued the restoration Order on 24 August 2005.

53 Accordingly, I find that the conduct of Mr Kerr in taking the photographs while inside WL’s unit were not taken by an unlawful means.

Was Mr Kerr’s conduct in using and disclosing the photographs to a third party exempt from complying with the information protection principles in the PPIP Act?

54 The Council contends it was exempt from complying with the PPIP Act by reason of a Direction made, by the Acting Privacy Commissioner, on 31 December 2004. for ‘Public Sector Agencies in relation to their Investigative Functions’. Section 41 of the PPIP Act provides that the Privacy Commissioner may, with the approval of the Minister, make a written direction that a public sector agency is not required to comply with an information privacy principle under the Act. The Direction on which the Council relies is such a direction.

55 That Direction relevantly provides as follows:

‘1. This Direction is to apply to each public sector agency, as defined in section 3 of the Privacy and Personal Information Protection Act (the PPIP Act), which is listed in the schedule to the Direction (relevant agency).

2. 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.

3. ...

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.

4A. ...

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.

6. ...’

56 The Council is listed in the Schedule to the Direction. Accordingly, if the collection, use, and disclosure of the photographs taken by Mr Kerr were done for the purpose of the Council exercising its ‘investigative functions’ and that collection, use and disclosure (a) was reasonably necessary for the proper exercise of that function, or (b) was conduct of any ‘lawful investigation’, the information privacy principles in sections 9, 10, 13, 15, 17, 18 or 19(1) of the PPIP Act did not apply.

57 The term ‘investigative function’ is defined in the Direction to mean those functions of an agency that ‘are directly related to a lawful investigation and that are necessary for the conduct of that lawful investigation’. (underlining added)

58 The term ‘lawful investigation’ is defined in the Direction to mean the following:

‘ 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.’ (underlining added)

59 And finally the word ‘investigation’ is defined in the Direction as follows:

‘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.’

60 I have already made a finding that when Mr Kerr took the photographs of WL’s unit, on 7 June 2005, he was undertaking an investigation of allegations that had been made, that it was a lawful investigation and that the taking of the photographs was reasonably necessary for that investigation and that he had obtained them lawfully. Accordingly, by reason of the abovementioned Direction, the Council was not bound by the collection principles contained in sections 9 and 10 of the PPIP Act. By not being bound by these provisions it was not bound by section 11 of the PPIP Act, which also relates to the collection of personal information from the individual.

61 This leaves the disclosure of the photographs and Notice to Bright & Duggan. Mr Kerr’s conduct in this regard was also directly related to his investigation of the alleged unauthorised building work, in that the alleged unauthorised building work involved common property over which the Proprietors’ of the Strata Plan had responsibility. Bright & Duggan were the managing agents acting on behalf of the Proprietors of the Strata Plan and in the course of his investigation and Mr Kerr was given their contact details by the complainant. Him sending the photographs and the Notice, were in my opinion also done for the purposes of his investigation and were reasonably necessary for that purpose.

62 Accordingly, I find that the conduct of Mr Kerr in disclosing the photographs and the Notice to Bright & Duggan was not done in contravention of sections 17, 18 or 19 of the PPIP Act.

63 In his written submission WL has also made reference to a number of other alleged contraventions of the PPIP Act. In my opinion it is unnecessary to address these as they are either inapplicable or do not fall within the conduct that he originally described as being in contravention of the PPIP Act.

Conclusions

64 For the reasons set out above I find that the conduct the subject of this application was not conduct that contravened the collection and disclosure information protection principles under the PPIP Act. I understand that this conclusion does not address all the concerns raised by WL in his various submissions. However, I once again stress that these are not matters over which the Tribunal has jurisdiction.

65 In light of my findings the appropriate order is an order under subsection 55(2) of the PPIP Act to take no action on this matter.