NZ v NSW Department of Housing (No. 2) [2008] NSWADT 5 (7 January 2008)

Last Updated: 12 February 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
NZ v NSW Department of Housing (No. 2) [2008] NSWADT 5
This decision has been amended. Please see the end of the judgment for a list of the amendments.

DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
NZ
RESPONDENT
NSW Department of Housing



FILE NUMBERS:
063415

HEARING DATES:
12/09/2007, 27/11/2007

SUBMISSIONS CLOSED:
27 November 2007



DATE OF DECISION:
7 January 2008

BEFORE:
Handley R - Acting Deputy President





LEGISLATION CITED:
Privacy and Personal Information Protection Act 1998
Administrative Decisions Tribunal Act 1997

CASES CITED:
NZ v NSW Department of Housing [2007] NSWADT 62

TEXTS CITED:


APPLICATION:
Privacy - information protection principle - disclosure to third party

MATTER FOR DECISION:
Principal matter


REPRESENTATION:
L Goodchild, barrister (In part)
Applicant in person (In part)
A Jungwirth, barrister


ORDERS:
1. In accordance with s 55(2) of the Privacy and Personal Information Protection Act 1998, the Tribunal determines to take no further action on this matter
2. The Tribunal invites further submissions on the issue of costs. Unless either of the parties applies for submissions on this issue to be made orally, such application to be made within seven days of the date of this decision, the Tribunal proposes to invite written submissions in accordance with the following timetable and to make a decision ‘on the papers’:
(a) The Respondent to file and serve written submissions on the issue of costs within two weeks of the date of this decision
(b) The Applicant to file and serve written submissions in reply within two weeks of the filing and serving of the Respondent’s submissions


Reasons for Decision:

1 NZ claims the NSW Department of Housing (‘the Department’) contravened the Privacy and Personal Information Protection Act 1998 (‘the PPIP Act’) by keeping false letters and statements about her and ignoring her request to remove them from its file. The Department contends that it does not hold copies of the documents referred to by NZ and, in any event, the documents do not establish any breach of her privacy.

Background

2 On 23 November 2006, the Tribunal received an application from NZ under the PPIP Act for the review of conduct which was the subject of her application to the Department. In the application, NZ stated:

"Dept keeps taking in fraud & forgery false letters and statements. They receive my letters & refuse to do the internal review & remove all false letters and 2 false statements 2/2/06 & 20/4/06 ... No replies from Department they ignored me."

3 Attached to the application are a large number of documents, comprising photocopies of the whole or part of documents in relation to other proceedings, with highlighting and additional comments handwritten on some of the documents by NZ. This matter is apparently related to a dispute between NZ and family members and a neighbour with whom NZ was involved in Apprehended Violence Order (‘AVO’) proceedings in Waverley Local Court between 2002 and 2004.

4 The application is handwritten and very difficult to understand. In an accompanying letter dated 17 November 2006, NZ said the false statements contain "forged AVO documents ... [including] the Privacy (Estella Yuen letter 3 May 02) Breach letters ex 14 ex 11 (letter 26/1/03) & ex 25 ..." Exhibits 14 and 25 are copies of statutory declarations by NZ dated 4 March 2002 and 29 March 2002, respectively. Exhibit 14 contains handwritten annotations by NZ’s neighbour to say that she did not witness NZ’s signature on this statutory declaration. Exhibit 25 contains handwritten annotations by NZ saying that her signature was forged on this document.

5 As a preliminary issue, the Department contended that it never received any application from NZ under the PPIP Act in relation to these documents, or any request for an internal review of a decision made or purported to be made in relation to this application. Thus, the Department submitted that, no internal review decision having been made, the Tribunal had no jurisdiction in relation to this matter pursuant to s 55(1) of the PPIP Act.

6 In a decision dated 21 March 2007, on the preliminary issue of whether the Tribunal has jurisdiction in this matter, I found that NZ had complained of a breach of her privacy and subsequently sought an internal review: NZ v NSW Department of Housing [2007] NSWADT 62. Thus, the Tribunal does have jurisdiction to hear NZ’s application for review pursuant to s 55(1) of the PPIP Act.

7 However, I also accepted evidence that the Department has no record of NZ’s letters complaining of a breach of her privacy and seeking an internal review, and I exercised the Tribunal’s power under s 65(1) of the Administrative Decisions Tribunal Act 1997 (‘ADT Act’) to remit the matter to the Department to make a formal decision in response to NZ’s complaint.

8 Pursuant to this remittal, on 7 June 2007, the Department determined that as far as was discernable, the documents to which NZ referred provided no basis for a complaint of a breach of privacy. Moreover, in relation to statements, with attached documents, made by NZ’s neighbour (the statements dated 2 February 2006 and 20 April 2006), and filed by the Department in other proceedings in the Tribunal, the Department said that non-compliance with the non-disclosure and collection provisions of the PPIP Act is permitted pursuant to s 25 and s 23(2), respectively, of the PPIP Act.

9 At a Directions Hearing on 8 June 2007, NZ said she wished to pursue her application to the Tribunal, but asked for an adjournment to permit Legal Aid to decide whether or not to represent her in these proceedings. At the hearing on 12 September 2007, by which time Legal Aid had agreed to represent NZ, I made directions with a view to clarifying the exact nature of NZ’s complaint against the Department and identifying relevant documents, and for the exchange of written submissions between the parties. NZ’s representative did not comply with these directions.

10 At the hearing on 27 November 2007, Ms Goodchild, for NZ, said she only had instructions in relation to one alleged breach of privacy, concerning the disclosure of a letter dated 26 January 2003, and that NZ wished to make her own submissions in relation to other matters. Ms Goodchild offered to assist the Tribunal in relation to other documents where appropriate.

11 Mr Jungwirth, for the Department, submitted that the Department was significantly prejudiced by reason of the Applicant’s failure to comply with the Tribunal’s directions, and requested that the Tribunal dismiss NZ’s application pursuant to s 73(5)(h) of the ADT Act on the ground that it is frivolous or vexatious or otherwise misconceived or lacking in substance.

The Law

12 The PPIP Act provides for the protection of personal information and the privacy of individuals by reference to a series of information protection principles (‘IPPs’), set out in Part 2, which public sector agencies, defined in s 3(1) to include government departments, are required to observe in the handling of personal information. ‘Personal information’ is defined in s 4(1) to include "information or an opinion ... about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion".

Letter dated 26 January 2003

13 The relevant letter dated 26 January 2003 is addressed to the Liverpool office of the Department and is stated to be from "‘JJ’ Community Resident". Two copies of the first page of this five page letter are included in the bundle of documents provided to the Tribunal by NZ. The first page of the letter is date stamped as having been received by the Department’s Central Sydney Region on 12 February 2003 and the Department’s Maroubra office on 17 February 2003. The second copy of this first page is also stamped as being Exhibit 11 in proceedings in Waverley Local Court on 5 August 2003.

14 Ms Goodchild acknowledged that only the first page of the letter appeared to have been provided to the Tribunal and the Department, and said she therefore only sought to rely on this first page. The first page, which includes a number of spelling and grammatical errors, states:

"Re: Housing Recycling Policy Reform

Dear Director,

There are many tenants ripping off the Department owing properties like the tenants ... [naming four persons related to NZ]

Those tenants own four expensive house and did not declare it on their rebates for years should have been full market rent each.

We believe a housing recycling reformation will prevent the rorters from abusing the system.

The Department would have to work to prevent the rorts if they are to recover their monies from bad tenants like those who have defrauded the Dept.

There, are however, other tenants who have properties and rort the system."

15 The letter was marked as an exhibit in Apprehended Violence Order (‘AVO’) proceedings brought against NZ by members of her family in Waverley Local Court, as is apparent from p 73 of a court transcript for 5 August 2003. The Applicant submits that since this letter is date stamped as having been received by the Department, it must have been disclosed by the Department to NZ’s niece who provided the letter to the Court.

16 The Applicant submits that the Department breached the IPPs set out in s 12 and s 16 of the PPIP Act by its unauthorised use and disclosure of this document, which was used in AVO proceedings against NZ in August 2003, and also in later AVO proceedings involving NZ and her neighbour on 16 January 2004. At p 73 of the transcript for the proceedings on 5 August 2003, NZ’s niece implied, in giving evidence, that the letter had been provided to her by a departmental officer. The niece said the officer "showed us a file and he’s basically said it’s [the letter dated 26 January 2003] just from the envelopes alone he can tell it’s ... [NZ’s] because she writes anonymously and she also writes in her own handwriting ..."

17 Ms Goodchild submitted that although the letter dated 26 January 2003 does not refer to NZ by name, NZ’s identity can be ascertained from the information contained in the document and the context in which it was used. She asked the Tribunal to infer that the letter referred to NZ, and submitted that, in terms of the definition of ‘personal information’ in s 4(1) of the PPIP Act, NZ’s identity "can reasonably be ascertained" from the circumstances of its release.

18 Mr Jungwirth submitted that the first page of the letter dated 26 January 2003 is not capable of forming the basis of a complaint of a breach of privacy. In terms of s 4(1), it does not contain information or an opinion about NZ. There is no reference to NZ by name, and it cannot reasonably, that is objectively, be ascertained that the letter refers to her. Reference to NZ’s extended family is not sufficient. Moreover, Mr Jungwirth pointed to the lack of evidence as to the disclosure or use of the document.

19 Having considered the submissions of the parties, I am not satisfied that the information or opinion contained in the letter dated 26 January 2003 meets the definition of ‘personal information’ in s 4(1) of the PPIP Act. NZ is not identified by name and, in my view, her identity cannot reasonably be ascertained from any information or opinion expressed on the first page of the letter. While I acknowledge that the PPIP Act is beneficial legislation and the meaning of ‘personal information’ is to be interpreted liberally, in my view, the connection drawn by the Applicant is too remote and I do not accept that NZ’s identity can reasonably be ascertained from the letter. The Applicant seeks to rely on the relatively brief evidence given in the AVO proceedings on 5 August 2003, without there being other evidence of disclosure or use, and in circumstances where the Department is unable to locate this letter among its documents relating to NZ. In the absence of other evidence, I am not therefore satisfied that the reference to the letter by a family member in her oral evidence in the AVO proceedings is sufficient to reasonably ascertain NZ’s identity in relation to the letter for the purposes of s 4(1).

NZ’s complaints of breach of privacy

20 NZ suffers from a psychological condition (severe agoraphobia and social phobia) that prevents her from leaving her home. She has provided a number of reports from her general practitioner and treating psychologist attesting to this. Even when discussing her application with the Tribunal on the phone, NZ quickly becomes distressed. NZ also seems to experience difficulty in organising and collating the documents that she states are relevant to her claims. She appears to overcompensate for her isolation by submitting sometimes hundreds of pages of documents, not all of which are complete, many of which appear not to be directly relevant, and on which she often makes handwritten notations and adds highlighting.

21 This tends to confuse the reader and makes it difficult to understand the nature of NZ’s claims, some of which seem to be very general in nature, without specific reference to the PPIP Act, and which appear to represent her belief that various members of her family, her neighbour, and the officers of various agencies are involved in "fraudulent" activity and in making false allegations with the aim of bringing her into disrepute and damaging her reputation. I have done my best to sort through the documents provided by NZ and, with reference to NZ’s oral submissions, the following addresses the other complaints made by NZ of breaches of her privacy. I note that some of these complaints relate to events that took place some years ago, which raises potential problems for NZ in terms of the time within which a complaint must be made and a review sought. I have chosen to ignore any such problems because, in my view, NZ’s complaints are, in any event, lacking in substance.

22 First, in relation to the letter dated 26 January 2003, discussed above, NZ referred to the other four pages of the letter, the last page of which concludes with identifying the author as "‘JJ’ Community Resident". She also referred to an additional page, undated, that states that ‘JJ’ is in fact NZ. It is not clear to me where this additional page comes from, and I am not satisfied that it establishes any breach by the Department.

23 NZ referred further to a statement made to the Department by NZ’s sister on 15 January 2003, witnessed by a departmental officer, Michael Modder, in which NZ’s sister claimed that NZ had made false allegations of fraud against her. NZ contended that this was an example of the Department breaching her privacy. In my view, this is not a departmental breach – merely verification of NZ’s sister’s signature on the statement by Mr Modder.

24 Second, NZ also contends that, in other proceedings (in the Equal Opportunity Division of the Tribunal), the Department breached her privacy by using statements made by NZ’s neighbour, dated 2 February 2006 and 20 April 2006. To the latter statement are attached two pages, comprising a collage of abusive notes that the neighbour claims were left outside her door. Some of the notes, however, contain abusive comments about NZ. NZ claims that a departmental officer, Mr Chouman, who visited her neighbour, took the notes with him.

25 The Department submits that in filing these statements, in other proceedings brought by NZ, it is lawfully authorised not to comply with the collection and use of personal information provisions in the PPIP Act pursuant to s 23(2) and s 25 of that Act. I agree. Section 23(2) states that a public sector agency is not required to comply with the s 9 collection of personal information IPP if the information is collected in connection with proceedings before any court or tribunal. Section 25 exempts an agency from compliance from a range of IPPs if the agency is lawfully authorised or required not to comply with the IPP concerned or if non-compliance is otherwise permitted under an Act or any other law. The statements in questions were filed and served on NZ by the Department in response to proceedings in the Equal Opportunity Division proceedings instigated by NZ. In my view, the Department did not, therefore, breach NZ’s privacy in terms of the protection afforded by the PPIP Act.

26 Third, NZ claims that Mr Chouman, the departmental officer who visited her neighbour and took away the abusive notes, breached NZ’s privacy, apparently by taking the notes with him. The Department, which has been unable to locate any record of or documents in relation to the above incident, contends that there is no evidence of a breach of NZ’s privacy. In the absence of any relevant evidence, I agree.

27 Fourth, NZ also claims that a letter from a departmental officer, Estella Yuen, dated 3 May 2002, breached her privacy. This letter (containing various grammatical errors), on which NZ’s address has been handwritten in the top left hand corner, states:

"Dear Resident,

I am writing to seek your co-operation for not to park at the disability parking spot. (The spot right next to Building 242 and has disability parking written on the floor). We have a tenant who resides at 242 has a disability parking permit. Her car registration number is ...

The tenant who has mobility problem found it very difficult to find parking space because other tenants have been parking in the disability parking spot. I wanted to stress to you that the Disability Parking Spot is strictly reserve for tenant who has disability-parking permit only. If any tenant who park in the disability parking spot without permission, the department will not hesitate to take action against your tenancy."

28 NZ claims that the Department has unlawfully used her name and that this is a breach of her privacy. In its internal review dated 7 June 2007, the Department contends that no breach of privacy is indicated by this letter. I agree. I am not satisfied that this letter establishes any breach of the IPPs in the PPIP Act. The fact that the Department wrote to NZ, apparently along with other residents of the housing complex where she lives, about parking problems at the complex, does not establish a breach of NZ’s privacy.

29 Fifth, NZ claims a breach of her privacy in relation to her statutory declarations dated 4 March 2002 and 29 March 2002, referred to in par 4, above. I am unable to understand how either of these documents could be said to involve a breach of NZ’s privacy by the Department.

30 Thus, in my view, NZ has failed to establish any conduct of the Department contravening the IPPs set out in the PPIP Act. Her application under s 55(1) of the PPIP Act must therefore be dismissed.

Section 73(5)(h) application

31 Mr Jungwirth requested that the Tribunal dismiss NZ’s application pursuant to s 73(5)(h) of the ADT Act. Section 73(5)(h) empowers the Tribunal to dismiss proceedings before it "if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance". I am not satisfied that the proceedings are frivolous or vexatious in the sense of their being instituted with the intention of annoying, harassing or embarrassing the Respondent, or for some other collateral purpose. NZ is obviously convinced of ‘the rightness’ of her cause in seeking to remedy what she believes to be "fraudulent" activity and false allegations made with the aim of bringing her into disrepute and damaging her reputation.

32 However, with the exception of the issue of the letter of 26 January 2003 upon which Ms Goodchild made submissions to the Tribunal, in my view, the proceedings are otherwise misconceived or lacking in substance in the sense that NZ appears to misunderstand the scope of the protection afforded by the PPIP Act, believing it to be much broader in its application than is the case. Nevertheless, having otherwise dismissed NZ’s application, it is unnecessary for me to make an order under s 73(5)(h).

Decision

33 The Applicant having failed to establish a breach by the Department of the IPPs set out in the PPIP Act, the Tribunal determines to take no further action on this matter in accordance with s 55(2) of the PPIP Act.

Costs

34 The Department seeks costs. Pursuant to s 88(1) of the ADT Act, the Tribunal may award costs if it is satisfied that there are special circumstances warranting such an award. At the hearing, I told the parties that should I find in favour of the Department, I would invite further submissions on the issue of costs.

35 The Tribunal therefore invites further submissions on the issue of costs. Unless either of the parties applies for submissions on this issue to be made orally, such application to be made within seven days of the date of this decision, the Tribunal proposes to invite written submissions in accordance with the following timetable and to make a decision ‘on the papers’:

(a) The Respondent to file and serve written submissions on the issue of costs within two weeks of the date of this decision.

(b) The Applicant to file and serve written submissions in reply within two weeks of the filing and serving of the Respondent’s submissions.

AMENDMENTS:


14/01/2008 - Incorrect Respondent recorded. Amended decision by replacing "Commissioner of Police, NSW Police" with "NSW Department of Housing". - Paragraph(s) Citation and parties name (Respondent) in file cover.