EEC has made an application for administrative review of conduct under the Privacy and Personal Information Protection Act 1998 (NSW)(the PPIPA). The alleged conduct is that of the Federation Council in disclosing, to at least one known individual, that EEC, a resident of the Council area, had:
Told someone I [wrote] 9 letters about Familys Tip in town.
As is the usual practice with reviews under the PPIPA I will make an order under s 64 (1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) prohibiting the disclosure of the applicant's name or of material that identifies him or is likely to lead to his identification.
In these reasons the applicant is referred to as EEC.
EEC made the application for administrative review on 16 January 2020 after the Federation Council had failed to provide a review decision with respect to a privacy complaint he made on 19 September 2019, concerning the disclosures. In that complaint he said that he first became aware of the conduct on 17 September 2019 when a named individual asked, "what my problem was".
Federation Council had 60 days from receipt of the application to complete a review, failing which EEC was entitled to make an application for review to the Tribunal: see s 53(6) PPIPA. On 1 October 2019, Federation Council wrote to EEC, seeking information about his complaint. He supplied information on 24 October 2019. This included a statement that he had not sent any letters about the tip. He also supplied information to help identify the tip:
Sadly the family tip is a piece of land like other with mystical and know with a documented history. Questions and timing of land usage and or ownership origins. And reflected unfavourable discussion and gossip, towards local government administrative processes and families control and image.
He said that on 17 September 2019 he was approached by a named individual who asked him what his problem was, "with their hole in the ground," and, "why write 9 letters about it?" EEC replied that he had spoken with the Federation Council dogcatcher about the tip but told the individual that he denied writing letters about it. He later sent the individual a copy of the letter he had sent to Councillors, "to validate my dialogue." EEC told Council that he had no idea how the individual had come by his knowledge of the letters.
Having supplied this added material to Federation Council, EEC then heard nothing from the Council for some time.
As a result, on 6 December 2019 he wrote to the Information and Privacy Commission seeking an investigation into the conduct of the review by Federation Council. They told him of his review rights. On 16 January 2020, EEC lodged the current application for review with the Tribunal.
The application was lodged outside the time prescribed by rule 24 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules), which required that the application be lodged within 28 days of the expiration of the 60 days which the Council had in which to complete its review under s 53(6) of PPIPA.
PPIPA does not have a provision fixing the time in which applications for administrative review of decisions made under it, are to be made. However, rule 24(3)(b) provides that where there is no such provision an application for review is to be made within the default application period. This is defined in rule 24(4) which relevantly says -
(4) The default application period for the purposes of subrule (3)(b) is -
(a) …
(a1) in the case of an administrative review application under section 55 of the Privacy and Personal Information Protection Act 1998 - the period of 28 days after -
(i) if an internal review under section 53 of that Act is completed within 60 days from the day on which the application for the internal review was received by the public sector agency concerned - the day on which the applicant was notified of the result of the internal review, or
(ii) if an internal review under section 53 of that Act is not completed within that 60-day period - the day on which the 60-day period expires or the day on which the applicant was notified of the result of the internal review (whichever is the later), …
Because, when EEC filed his administrative review application, the review had not been completed within the 60-day period (which ended on 20 November 2019) he had until 18 December 2019 in which to seek administrative review. He made his administrative review application some 4 weeks late, on 16 January 2020.
For his application to go ahead EEC will therefore require an extension of time under s 41 of the NCAT Act. I will consider this shortly. Before doing do however, I will finish outlining the history of the administrative review application in the Tribunal.
On 18 February 2020, the application came before Senior Member Montgomery for directions. He ordered that Federation Council produce "reasons for its determination" by 21 February 2020. He also made orders for the filing of evidence and submissions by the parties. He listed a case conference on 7 April 2020.
On 19 February 2020, Federation Council filed and served a review decision. It was inconclusive with respect to whether the conduct complained of by EEC occurred.
Under rule 24(4)(a1)(ii), the time for lodging an administrative review application delivered after 60 days has expired, is 28 days after the date of delivery of the review. In this case, EEC had made his application for administrative review before the review was delivered.
On 7 April 2020 Senior Member McAteer ordered, with the agreement of the parties, that the matter be determined on the papers without a hearing. He also made directions for the filing of further material by EEC.
The review application has now been given to me to determine on the papers.
[2]
Material before the Tribunal
In considering this application I have had regard to the following material:
1. application for administrative review received on 16 January 2020 and attachments (11 pages in all);
2. review decisions of Federation Council dated 19 February 2020 (1 page);
3. letter from Federation Council dated 3 April 2020 with attachments including Detailed Incident Investigation Report (2 pages); and
4. response from EEC filed 29 April 2020 with attachments and annexures, including 5 separate affidavits from EEC.
[3]
Should the application be determined without a hearing?
Section 50 (2) to (4) of the NCAT Act provide:
(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.
(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:
(a) afforded the parties an opportunity to make submissions about the proposed order, and
(b) taken any such submissions into account.
(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
In this case both parties have agreed to the application being determined on the papers. Having reviewed all the materials I am satisfied that the extension of time issue can be determined in the absence of the parties by considering the materials lodged by the parties. I therefore dispense with a hearing in that regard.
As discussed in more detail below I am not satisfied that the review decision and materials provided by Federation Council are sufficient to enable me to adequately determine the administrative review application without a hearing.
[4]
Should time be extended to allow the application for administrative review to be made?
Section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) provides:
(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
(2) Such an application may be made even though the relevant period of time has expired.
When considering whether to grant an extension of time under s 41, the Tribunal is contemplating exercising a discretion which can be used where the strict application of the rules will result in an injustice when the history of, and other relevant circumstances relating to the case, are considered: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22; Gallo v Dawson [1990] HCA 30, 93 ALR 479. This will generally involve a consideration of the following circumstances:
1. the length of the delay;
2. the reason for the delay;
3. the applicant's prospects of success, that is usually whether the applicant has a fairly arguable case; and
4. the extent of any prejudice suffered by the respondent.
In the present case, in his application for review, EEC explained the 4-week delay in making the application as being the result of difficulty finding out what his rights and options were. It is clear from an examination of the materials that he was advised of his right to seek administrative review in the circumstances by the Information Commissioner. If Federation Council had complied with its obligation under PPIPA and produced a review report in time, the problem with timing would not have arisen.
Paradoxically, the first order EEC obtained from the Tribunal was one requiring Federation Council to produce a decision in response to his complaint. If EEC had not already filed his application for administrative review, he would then have had 28 days from the decision to file an application under rule 24(4)(a1)(ii) of the NCAT Rules.
With respect to the merits of EEC's application for administrative review, he has some prospect on review of achieving findings of fact beyond the entirely inconclusive conclusions reached by the review. As, when the application for administrative review was made, Federation Council had not reached a decision on EEC's conduct complaint, I think that it will not suffer prejudice if an extension of time is granted.
In all the circumstances, it would be unfair and unjust to not extend time to enable EEC's application to go ahead. This is a proper case in which to extend time to enable EEC to seek administrative review. An extension of time is granted.
[5]
Concerning the review
The substantive portions of the review decision said:
From your application your complaint relates to you having been named by a member of the public as a person who "wrote letters about a family's tip in town" to Council nine times.
Your complaint has been investigated. I have consulted with relevant Council officers regarding the allegation and did not receive evidence or admission that a Council officer had disclosed this information. As discussed yesterday, I determined that it was not appropriate for me to speak to … the member of the public, as he is not an officer of Council.
From the information I obtained I was unable to determine whether a Council officer had breached the privacy requirements. Whilst this was inconclusive, I do note that there is opportunity to improve our organisation's understanding of privacy requirements. To this end I have recommended that a new training program on privacy requirements be rolled out for Council officers in early 2020.
In my view, given the material provided to Federation Council by EEC, the review decision is grossly inadequate and does not comply with the statutory requirements for such a decision. Without these faults being remedied the materials before the Tribunal are so deficient that the application cannot be adequately determined on the papers.
In WL v Randwick City Council (GD) [2007] NSWADTAP 58 the Appeal Panel considered what is required of an review with respect to a privacy complaint, in the context of a complaint about a breach of privacy involving a council officer (Mr Kerr) entering and taking photographs of premises:
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.
Reviews of conduct should therefore be thorough, with a "full statement as to what occurred from any officer with direct knowledge": XW v Department of Education and Training [2009] NSWADT 7. Inquiries should not only be made of officers with direct knowledge, but of others, who are not officers of the agency. See for example VA v Premier's Department [2006] NSWADT 249 where Senior Member Handley was satisfied that adequate endeavours had been made to obtain the evidence of a journalist.
In EEC's case the review decision says that an investigation has been undertaken and that relevant council officers have been consulted without admission about a disclosure. The investigator does not say who those relevant officers are, or why they were considered relevant. Whether the Councillors to whom the letters were addressed were consulted or interviewed as part of the investigation in unknown. There is no indication of what information (if any) was provided by those who were consulted, or if the information in issue (concerning the letters and the "Family tip") was made known to, received, recorded, secured, disclosed or accessed by any of them.
The named individual who approached EEC was not consulted on the basis that he is not a council officer. That is not a proper basis for not seeking to interview him, and to obtain a statement, as part of the investigation.
The review contains no analysis of the information provided to the reviewer, to enable me to understand basic matters concerning how the information in issue was processed within Federation Council. There is no analysis of whether EEC provided information to council to by writing the nine letters and/or by providing verbal information about the family tip, and whether such information was recorded, secured, or stored by Council officers, and, if so, whom. The review simply says that it did not receive evidence or admissions about the information being disclosed. Am I to assume that this means that Federation Council held information relating to the discussion about the family tip within the meaning of PPIPA (i.e. that it was recorded in some way)? There is also no critical analysis of whether any other information before the internal reviewer pointed to a disclosure or a failure to secure.
In my view it is not possible to adequately determine the substantive issues raised in this application without a hearing at which they can be considered. One of the issues to be addressed is whether I should remit the review for reconsideration by Council under s 65 of the Administrative Decisions Review Act 1997 (NSW). The parties should attend that hearing ready to proceed.
[6]
Conclusion
The Tribunal makes the following orders:
1. Under s 64 (1) of the Civil and Administrative Tribunal Act 2013 the Tribunal prohibits the disclosure of the applicant's name or of material that identifies him or is likely to lead to his identification.
2. The Tribunal dispenses with a hearing with respect to the extension of time issue.
3. Time is extended under s 41 of the Civil and Administrative Tribunal Act 2013 to enable the applicant to make this application for administrative review.
4. The Tribunal is not satisfied that the substantive application can be adequately determined on the papers at this time.
5. This matter is to be listed for a telephone hearing before me at a time and date to be fixed by the Registrar.
[7]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 02 July 2020