UH v Department of Justice& Attorney General [2011] NSWADT 49 (10 March 2011)

Last Updated: 16 May 2011

Administrative Decisions Tribunal New South Wales

Case Title:	UH v Department of Justice & Attorney General
Medium Neutral Citation:	[2011] NSWADT 49
Hearing Date(s):	On the papers
Decision Date:	10 March 2011
Jurisdiction:
Before:	S Montgomery, Judicial Member
Decision:	The Tribunal determines to take no further action in this matter.
Catchwords:	Privacy - information protection principle - personal information
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998
Cases Cited:	JD v Department of Health (GD) [2005] NSWADTAP 44 KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56 NZ v Department of Housing [2005] NSWADT 234 PT v NSW Medical Board [2010] NSWADT 107
Texts Cited:
Category:	Principal judgment
Parties:	UH (Applicant) Department of Justice & Attorney General Privacy Commissioner (Respondent)
Representation
- Counsel:
- Solicitors:	UH (Applicant in person) G Wallace (Respondent) J McAteer (Privacy Commissioner)
File number(s):	103155
Publication Restriction:	Section 75(2)(b) of the Administrative Decisions Tribunal Act 1997 applies in relation to the identity of the applicant.

REASONS FOR DECISION

1. In these reasons the names of private individuals have been anonymised so as to preserve the privacy of their personal affairs. The applicant is referred to as UH.

2. This matter concerns an application by UH for review of conduct by the Respondent, which he asserts amounts to a contravention of the Information Protection Principles ("IPPs") under the Privacy and Personal Information Protection Act 1998 ("the PPIP Act').

3. On 13 July 2009 UH sent a letter ("the 13 July 2009 letter") addressed to the Registrar, Katoomba Local Court via Express Post. UH asserts that he subsequently contacted the staff at the Katoomba Court House ("the Court House") and requested that the 13 July 2009 letter not be opened. It seems that he attended the House to collect it but at that stage it had not been delivered.

4. UH advised staff at the Court House that he wished the envelope to be returned to him. The Registry were unable to locate the 13 July 2009 letter until 15 July 2009 when the contents of the envelope were returned to UH, the letter having been opened. UH asked for the envelope to be returned. The envelope was subsequently located in a 'recycling bin' and returned to UH under letter dated 29 July 2009.

5. UH made a complaint to the Attorney General about the incident and related service issues.

6. A completed application form titled 'Privacy Complaint: Internal Review Application Form' was forwarded from Privacy NSW to the Respondent's Legal Services Branch by letter dated 15 April 2010 ("the 15 April 2010 complaint"). UH complained that his personal information had been collected, stored and used in breach of the PPIP Act.

7. An Internal Review was conducted by Lida Kaban, Director, Legal Services Branch, as provided for by section 53(4) of the PPIP Act. The internal review concluded that the issues raised by UH do not constitute a breach of the PPIP Act. Accordingly, no further action was recommended.

The scope for the application for review by the Tribunal

8. Sections 52, 53 and 55 of the PPIP Act confer jurisdiction for the Tribunal to review certain conduct.

9. Sections 53(1) provides that a person who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct. Where a competent application for review has been received, the agency is obliged to review the conduct the subject of the application: subsections 53(2) and (5). The conduct that is to be reviewed is the conduct, if any, which comes within section 52 and which is specified in the application.

10. Where a person who has made a competent application under section 53 is not satisfied with the findings or the action taken in relation to the application, that person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53: section 55(1).

11. The scope of the application for internal review, reasonably construed, provides the scope for the agency's examination of the application. Unless there is some widening of the application within that process which is accepted by the agency, the application for internal review, reasonably construed, sets the scope for the application for review of the conduct by the Tribunal. The key question is what facts and circumstances has the applicant referred to which might give rise to questions of compliance with the IPPs: see KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56 at paragraphs [13] - [14].

12. Further, there must be some apparent connection between the conduct identified and some possible contravention or breach of one of the IPPs: see NZ v Department of Housing [2005] NSWADT 234 at paragraph [9].
13. Accordingly, the scope for the application for review of the conduct by the Tribunal in this matter is set by the 15 April 2010 complaint.

14. Regrettably, UH's initial complaint has escalated to numerous complaints about the conduct of various members of the Respondent's staff. Those complaints have been aired both in correspondence to the Tribunal and to various other bodies and are not limited to complaints about the staff at the Court House. However, as most of these issues were not raised in the 15 April 2010 complaint, they are not within the scope of the application for review by the Tribunal. I note that UH's complaints have been the subject of correspondence from the Attorney General and that he has been referred to the NSW Ombudsman.

15. In my view, the only matters for determination by the Tribunal concern the opening of the 13 July 2009 letter.

Personal Information

16. Section 4 of the PPIP Act defines "personal information" to mean 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.

17. It is not in dispute that the 13 July 2009 letter contained information about UH or that UH's identity was apparent from the information. I am satisfied that the 13 July 2009 letter contained UH's personal information.

Collection principles

18. Section 4(5) of the PPIP Act states that, for the purposes of the Act, personal information is not collected by a public sector agency if the receipt of the information by the agency is unsolicited.

19. It is common ground that UH sent the 13 July 2009 letter to the Respondent. There is no evidence to suggest that the Respondent sought the information from UH. I am satisfied that the 13 July 2009 letter was unsolicited. Accordingly, the principles set out in sections 8 to 11 of the PPIP Act do not apply to this matter.

Retention and security of personal information

20. Section 4(4) of the PPIP Act states that for the purposes of the Act, personal information is held by a public sector agency if "(a) the agency is in possession or control of the information ...". I am satisfied that the 13 July 2009 letter containing UH's personal information was held by the Respondent from the time it was delivered to the Court House on about 14 July 2009 until it was returned to UH.

21. Section 12 of the PPIP Act provides that a Respondent holding personal information must ensure that it is retained and secure as provided for in subsections (a)-(d). Subsection 12(c) states that an agency must ensure that the personal information it holds is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse.

22. In this matter, while there was apparently some delay in the delivery of the 13 July 2009 letter to the Court House, there is no evidence from which I could infer that it had been lost. Nor is there evidence to suggest that the envelope was opened other than in the normal course of the receipt of mail by the Court Registry. In my view there is no breach of section 12 of the PPIP Act.

Use of personal information

23. The word "use" normally bears the connotation of employing the information for a purpose. Mere access to or retrieval of information in an agency's possession does not amount to "use" of the information for the purposes of the PPlP Act: JD v Department of Health (GD) [2005] NSWADTAP 44 at [42].

24. Section 16 of the PPIP Act, along with section 17, regulates the internal use by agencies of the information they have collected or obtained. Section 16 provides:

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

25. In the circumstances of this matter, the 13 July 2009 letter containing UH's personal information was held by the Respondent. However, the Registry's actions were limited to opening UH's Express Post envelope, perusing its contents, putting the contents into another envelope and returning it to UH. Following UH's further enquiries, the Department also searched for and located the particular envelope UH had used and returned it to UH under letter dated 29 July 2009. In my view, none of this access, retrieval and return amounts to administrative action by the Respondent for its own internal purposes.

26. In any event, even if this action does constitute use by the Respondent, it is not suggested that the Respondent failed to take reasonable steps to ensure that the information is relevant, accurate, up to date, complete and not misleading. In my view there is no breach of section 16 of the PPIP Act.

27. Section 17 of the PPIP Act provides:

17 Limits on use of personal information

A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless:

(a) the individual to whom the information relates has consented to the use of the information for that other purpose, or

(b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or

(c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person.

28. It will be seen that section 16 has no constraint that speaks of 'collected' information, it applies to any information that is 'held'. However, the principle in section 17 is expressly predicated on the information having been 'collected' by the Respondent. As UH's personal information was not 'collected' by the Respondent, the principle in section 17 does not apply in this matter: see PT v NSW Medical Board [2010] NSWADT 107. It is my view that the Respondent has not used UH's personal information and, accordingly, there is no breach of section 17 of the PPIP Act. However, if that assessment is wrong and if section 17 was triggered by the Respondent's actions, it is my view that UH consented to his personal information being used for the purpose of retrieving the 13 July 2009 letter and returning it to him.

29. I do not understand that UH has alleged that the Respondent has modified or disclosed his personal information. As the 13 July 2009 letter was returned to UH, and not disclosed to any other external party, there is no breach of section 18 of the PPlP Act.

30. It follows, in my view, that no further action should be taken in this matter.

31. I note that this matter has generated a significant amount of correspondence and animosity between the parties. While I have found that there has been no breach of the PPlP Act, it seems to me that much of what has transpired could have been avoided by a more prudent approach to the handling of UH's concerns by the Respondent. It appears that the situation has been inflamed rather than resolved by its intransigence. In my view, this is to be regretted.

Order

32. The Tribunal determines to take no further action in this matter.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

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