FHH v Port Stephens Council

The Decision at first instance

1. The Tribunal's Decision was that: 1. Having regard to the evidence, there was a minor breach of s 18 of the PPIP Act by the Respondent [100]; 2. With respect to that breach the correct and preferable decision was to take no action on the matter [101].
2. We note that the substantive proceedings were brought in relation to the presentation given by Mr Tony Wickam, an officer of the Respondent, on 17 July 2018.
3. The Tribunal made the following findings in its Decision: 1. The disclosure of matters involving the Appellants via the PowerPoint presentation was not personal information pursuant to s 4(3)(b) of the PPIP Act as it derives mainly from publicly available information [90]; 2. Even if the information was not captured under s 4(3)(b) of the Act it would be open to the Tribunal to find that much of the information was not about the Appellants. Rather, it was information about the Respondent's handling of information matters [91]; 3. The reference to the mediation of an Anti-Discrimination Board matter was found to relate to personal information of the Appellants not in the public domain and accordingly involved a minor breach of s 18 of the PPIP Act [95] - [96].

The grounds of appeal

1. In the Notice of Appeal, the Appellants listed the following three grounds of appeal of the Decision: 1. The Tribunal's Decision does not accurately articulate the real issues in dispute; 2. The Tribunal's Decision neglects to address and deal with the real issues in dispute; and 3. The Tribunal's Decision neglects to address the Appellants' submissions concerning privacy principles 15 and 16 of the PPIP Act.
2. The Appellants represented themselves and filed substantial written submissions which canvas many of their complaints against the Respondent and some of its officers.
3. Most of the matters by way of background canvased in the written submissions are irrelevant to any matter in this appeal.
4. Of some significance, however, is the previous application made by the Respondent to refuse to release documents relating to a fence Development Application process, including objections to that fence Development Application from two neighbours of the Appellants.
5. The refusal of the Respondent to release such documents became the subject of a previous NSW Civil and Administrative Tribunal decision.
6. The Appellants took particular exception to the fact that the Respondent, in determining not to release some documents to the Appellants, relied upon the proposition that to release such documents may expose a person or persons to a risk of harm or of serious harassment or of serious intimidation.
7. As the Appeal Panel understands the Appellants' submissions, the Appellants take strong exception to the suggestion that they would ever harm or seriously harass or seriously intimidate the person or persons concerned. They strongly believe that any such suggestion is unfounded and should not have been made.
8. The Appellants three grounds of appeal can be dealt with together. They involve the central proposition that the Tribunal did not articulate or deal with the real issues in dispute or the Appellants' submissions which concerned an allegation that the Respondent had breached privacy principles 15 and 16 of the PPIP Act.
9. Section 15 of the PPIP Act is as follows: 15 Alteration of personal information (1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information - (a) is accurate, and (b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading. (2) If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought. (3) If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency. (4) This section, and any provision of a privacy code of practice that relates to the requirements set out in this section, apply to public sector agencies despite section 25 of this Act and section 21 of the State Records Act 1998. (5) The Privacy Commissioner's guidelines under section 36 may make provision for or with respect to requests under this section, including the way in which such a request should be made and the time within which such a request should be dealt with. (6) In this section (and in any other provision of this Act in connection with the operation of this section), "public sector agency" includes a Minister and a Minister's personal staff.
10. Section 16 of the PPIP Act is as follows: 16 Agency must check accuracy of personal information before use A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

Appellants' submissions

1. As we understand it, the nub of the grounds of appeal put forward by the Appellants is that they were asserting in the Tribunal that the Respondent in its slide presentation made inaccurate statements about personal information relating to them and that the Respondent should be ordered to correct such personal information. The Appellants assert that the Tribunal failed to deal with these submissions.
2. To support this contention, the Appellants referred to various pages of the transcript of the proceedings below. Paragraph 102 of the Appellants' written submissions is as follows: 102 The first reference and / or use of the term "inaccurate" is on page 68 of the Transcript, where Mr McAteer devotes a whole paragraph to it stating: "Okay, so look, Mr. Zoppo, I'll allow the question to see where it goes on the basis that [name omitted] is ventilating that there is a breach of the accuracy principle in the fact that this information, before we get to the disclosure issue publicly available is information which she says is inaccurate. The question I'm gonna direct her to ask the witness is to point out to the witness how it's inaccurate and what he might want to say in response to that."
3. Paragraph 105 of the Appellants' written submissions is as follows: 105 Further on page 70 of the Transcript Mr McAteer states: "But it's really got nothing to do with privacy unless we establish that the information below is clearly linked, well it clearly is, but that the information's inaccurate or wasn't in the public domain or whatever. That's what this is all about."
4. Paragraphs 107 and 108 of the Appellants' written submissions are as follows: 107 On page 87 of the Transcript FHH states: "But what I'm saying to the Tribunal is he made this presentation to this group of people knowing that that personal information setting out a risk of harm was inaccurate. He knew it at the time." 108 Further on page 87 of the Transcript FHH states: "……….. this is about (this presentation and this is about Mr Wickham informing his audience about, he's talking about me personally and he's asserting that there is a risk of harm from me to his audience which he knows to be false, regardless of what a Tribunal member said ….."
5. Paragraph 110 of the written submissions is as follows: 110 At page 87 of the Transcript Mr McAteer states: "Well, I think her argument is something slightly different. She says that there was no evidence as in Mr Wickham knew that there was no basis to make that submission even if the submission was made and on that basis she argues that the information is inaccurate."
6. The Appellants also referred to paragraph 52 of the Decision as the only place in which the Tribunal deals with their alleged submission as to the release of personal information about the Appellants which they say was inaccurate.
7. Paragraph 52 of the Decision is as follows: 52 In respect of Slide 10 it was suggested to Mr Wickham that some of the content which was personal information was inaccurate. The witness said that the information was not inaccurate but entails merely giving reasons for the refusal of the GIPA applications. In respect of the third party consultation (required under the GIPA Act) and the NCAT reasoning and Council's decision the material all related to the information subject of the applications.
8. As the Appeal Panel understands it, the contention being put forward by the Appellants is that in the relevant slide the statement by the Respondent that it refused to release documents in answer to the Appellants' freedom of information request because it may expose a person to a risk of harm or serious harassment or serious intimidation, was inaccurate and should be corrected.
9. The Appellants contend that this central submission being made by them in the Tribunal below was not dealt with. It should be so dealt with and upheld.

Respondent's submissions

1. The Respondent contends that whilst during the hearing the Appellants sought to take up their complaint about the Respondent's grounds for refusing to release documents in the previous freedom of information request, the Tribunal correctly made it clear during the hearing that this was not something that could relevantly be dealt with in the context of the material and application actually before the Tribunal. In this regard, the Respondent notes the comments of the Tribunal at page 56 of the transcript as follows: Okay. I think Ms XXXX, I'm understanding your argument more clearly as we go on, but I think we've sort of got as far as we can on that because I've upheld Mr Zoppo's objections in the sense that this is not a vehicle to, I suppose, get into the merits of the GIPA decision and what the decision was based on.
2. Further in this regard, paragraphs 47 and 48 of the Respondent's written submissions are as follows: 47 The Respondent also refers to the remarks of Senior Member McAteer at page 75 of the typed transcript contained in the Respondents bundle, where he states: "Privacy legislation doesn't provide for the reviewing of every piece of data and then the testing of every piece of data to determine that it's accurate. The accurate matters go to personal information that is accurate, up to date and not misleading. Now, I think your argument is that by making a submission that you and your husband gave serious consideration to a third party or third parties that your behaviour would expose that third party to a risk of harm or serious harassment or serious intimidation, I think you're saying that that's a consideration that wasn't open to them to make. Speaking for the matter I dealt with, you say there was no evidence before me about that and I made that clear in open session." 48 The Senior Member then goes on to state that, he "can't unravel what happened in other proceedings", further indicating to the Appellants that the purpose of these proceedings is only to address whether Council's presentation constituted a breach under section 18 of the PPIP Act.
3. Essentially the Respondent submits that sections 15 and 16 of the PPIP Act had no relevance to the proceedings.

Appellants' submissions in reply

1. The Appellants reiterated that the inaccuracy in question related to the information published by the Respondent's officer, Mr Wickham in his presentation of 17 July 2018 where reference was made to the Appellants posing a 'risk of harm or serious harassment or intimidation'. The Appellants asserted that this was at all times 'false, misleading and inaccurate'.
2. The Appellants assert that despite numerous opportunities afforded to the Respondent to correct the personal information of the Appellants, inclusive of formally retracting false and misleading records circulated to secondary Government departments, the Respondent continues to refuse to do so.
3. As the Appellants put it, despite numerous opportunities afforded the Respondent to provide evidence of the claim of risk of harm, it has not at any time done so.
4. Again, the Appellants reiterated that the complaint was about the Respondent 'refusing to correct those unauthorised and unfounded inaccuracies'.

Consideration

1. We accept that the contentions as put by the Appellants could amount to the raising of questions of law. The failure to deal with relevant and available contentions of a party in litigation will amount to an error of law.
2. In Yong v Antworks Pty Ltd [2016] NSWCATAP 14 at [31]-[34] the Appeal Panel cited the following authorities in support of the above proposition: In Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority 24 NSWLR 156 at 186 Handley JA stated: The duty of a judicial officer to hear and determine a claim made in judicial proceedings conducted before that officer is also an incident of the judicial process. Since breaches of the duty to give proper reasons and to observe procedural fairness involved errors of law, there seems every reason to hold that a breach of the duty to hear and determine a claim made in judicial proceedings also gives rise to such an error. In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Gaudron J in context of the Migration Act (Cth) discussed a constructive failure to exercise jurisdiction stating: It follows from what has been written above that the failure of the Tribunal to make findings with respect to a particular matter may, at the same time, reveal failure to exercise jurisdiction, whether actual or constructive, and, also, failure to conduct a review as required by the Act. In Fox v Australian Industrial Relations Commission [2007] FCAFC 150 Marshall and Tracey JJ stated at paragraph 38: In the present case the complaint is not that the full bench ignored the evidence but rather that it did not deal with an important ground raised by Mr Fox. This case is more akin to one where there is a failure by a Tribunal to deal with necessary issues. Such a failure constitutes a jurisdictional error. In Khan v Kang (supra) the Appeal Panel found that the Tribunal had made an error of law by failing to consider a claim made by Mr Khan. The Appeal Panel observed at [28] as follows: It is possible to characterise what occurred either as a failure to give reasons for the Tribunal's decision or a failure to exercise the jurisdiction conferred on the Tribunal and invoked by the appellant in relation to this claim in respect of excess timber - see Waterways Authority v Fitzgibbon [2005] HCA 57 at [129] - [130] and Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [42]. Whichever way it should be characterised, the Tribunal's failure to consider such a claim at all in its Reasons for Decision amounted to an error of law by the Tribunal below.
3. The Appeal Panel, however, rejects the proposition that the Tribunal erred in the manner in which the Appellants contend.
4. In our view, sections 15 and 16 of the PPIP Act had no relevance to issues and evidence that were properly before the Tribunal.
5. Section 15 relates to a situation where a Public Sector agency withholds personal information and there is a request to amend this information to ensure that it is accurate and is relevant, up-to-date, complete and not misleading.
6. Of pivotal importance in considering whether or not there was a breach of s 15 or s 16 of the PPIP Act is the definition of Personal Information provided for in section 4 of the PPIP Act.
7. Section 4 of the PPIP Act provides 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. (3) Personal information does not include any of the following - (a) information about an individual who has been dead for more than 30 years, (b) information about an individual that is contained in a publicly available publication, (c) information about a witness who is included in a witness protection program under the Witness Protection Act 1995 or who is subject to other witness protection arrangements made under an Act, (d) information about an individual arising out of a warrant issued under the Telecommunications (Interception) Act 1979 of the Commonwealth, (e) information about an individual that is contained in a public interest disclosure within the meaning of the Public Interest Disclosures Act 1994, or that has been collected in the course of an investigation arising out of a public interest disclosure, (f) information about an individual arising out of, or in connection with, an authorised operation within the meaning of the Law Enforcement (Controlled Operations) Act 1997, (g) information about an individual arising out of a Royal Commission or Special Commission of Inquiry, (h) information about an individual arising out of a complaint made under Part 8A of the Police Act 1990, (i) information about an individual that is contained in Cabinet information or Executive Council information under the Government Information (Public Access) Act 2009, (j) information or an opinion about an individual's suitability for appointment or employment as a public sector official, (ja) information about an individual that is obtained about an individual under Chapter 8 (Adoption information) of the Adoption Act 2000, (k) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subsection. (4) For the purposes of this Act, personal information is "held" by a public sector agency if - (a) the agency is in possession or control of the information, or (b) the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement, or (c) the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998. (5) For the purposes of this Act, personal information is not "collected" by a public sector agency if the receipt of the information by the agency is unsolicited.
8. Accordingly, pursuant to s 4(3)(b), personal information does not include information about an individual that is contained in a publicly available publication. It is plain that the information that the Appellants complain about concerning the grounds for refusal to disclose information to the Appellants, was in a publicly available publication, being the previous Tribunal decision.
9. This was part of the findings of the Tribunal below, including in particular at [88] in respect of the slide in question. The Appellants did not seek to appeal this conclusion.
10. During the hearing the Appeal Panel asked the Appellants whether they disputed the personal information in question being in the public domain. If so, what was their submission if the information was in the public domain and accordingly not within the definition of Personal Information under the PPIP Act. The Appellants' response to us was that there was no challenge to the proposition that the information was in the public domain, and they had no submissions to make about the effect of this.
11. Accordingly, we conclude that the information in the slide in question, being slide 10, did not fall within the definition of Personal Information under s 4 of the PPIP Act by reason of the information being in a publicly available publication. As a result, sections 15 or 16 of the PPIP Act could have no application to such information.
12. Accordingly, the Tribunal did not fall into error in not dealing with the Appellants' contentions that the Respondent had breached sections 15 or 16 of the PPIP Act when it made its presentation on 17 July 2018.
13. Accordingly, we reject grounds 1, 2 and 3 of the Notice of Appeal and dismiss the appeal.

Costs

1. The Respondent has sought its costs. We have provided for a timetable for the parties to make submissions as to costs.
2. The Respondent's submissions as to costs should include whether or not it seeks a lump sum order for costs and, if so, in what amount.
3. The parties' submissions should also include submissions on whether or not the hearing as to costs should be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

Disposition

1. The orders of the Appeal Panel will be as follows:
2. Appeal is dismissed.
3. If the Respondent wishes to apply for costs it is to file submissions and evidence in support within 14 days of the date of this decision and such submissions are to include whether or not a lump sum order should be made for costs, and, if so, in what amount.
4. The Appellants are to file any submissions and evidence in response within 14 thereafter.
5. The Respondent is to file any submissions in reply within seven days thereafter.
6. Such submissions on costs to include whether or not the hearing on costs should be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW)

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: 25 August 2023