F v Shoalhaven City Council [2011] NSWADT 6 (17 January 2011)

Last Updated: 9 March 2011

Administrative Decisions Tribunal New South Wales

Case Title:	SF v Shoalhaven City Council
Medium Neutral Citation:	[2011] NSWADT 6
Hearing Date(s):	5 October 2010, 2 November 2010
Decision Date:	17 January 2011
Jurisdiction:
Before:	S Montgomery, Judicial Member
Decision:	The application is dismissed
Catchwords:	Privacy - Personal Information
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998
Cases Cited:	FM v Vice Chancellor, Macquarie University [2003] NSWADT 78
Texts Cited:
Category:	Principal judgment
Parties:	SF (Applicant) Shoalhaven City Council (Respondent) Privacy Commissioner
Representation
- Counsel:	D Tynan (Applicant)
- Solicitors:	Sparke Helmore (Respondent)
File number(s):	103119
Publication Restriction:

Reasons for Decision

1	In these reasons the name of the applicant has been anonymised so as to preserve the privacy of his personal affairs. The Applicant is referred to as SF.

Background

2	The parties are in general agreement in regard to the background and issues in regard to this matter.
3	In 2009 Shoalhaven City Council ("the Council") installed 18 high definition Closed Circuit Television Cameras ("the CCTV cameras") in Nowra Central Business District. SF objected on the grounds that it was an invasion of his privacy for the Council to videotape him while he was in a public place carrying out his lawful business. He objected to such images being stored and made available to other agencies without his consent.
4	In November 2009 SF requested that the Council carry out an internal review of conduct under the Privacy and Personal Information Protection Act 1998 ("the PPIP Act"). The Council refused on the grounds that the CCTV cameras had not been activated and no personal information had been acquired. Following further investigations the Council acknowledged that the CCTV cameras had been activated when they were functionally tested during two separate periods from 29 October 2009 to 15 December 2009 and 13 January 2010 to 19 January 2010. The Council subsequently carried out internal reviews in relation to the conduct.
5	SF was not satisfied with the outcome and he filed an application with this Tribunal seeking a review of the Council's decision. In that application, he complained that the Council's conduct was a breach of a number of the Information Protection Principles ("IPPs") contained in PPIP Act.
6	He argued that:

1. It is not lawful to record and retain his videotaped and/or digital image without his consent when he is carrying out his lawful business in a public place. He says that to do so is a violation of his privacy. He says that the images collected are personal information because they identify him. He further says that the images have been stored and viewed by Council staff and NSW Police.

2. He says that there is no lawful purpose in collecting images of him. They are only being collected because the technology (high definition CCTV cameras) does not discriminate between those who are breaking the law and those who aren't.

3. Alternatively, he says that even if it were lawful, it is not directly related to Council's functions. The collection of CCTV images is primarily to assist with crime prevention by aiding NSW Police in their investigations and possible prosecutions. This is evidenced by the fact that the monitor and video images are held at Nowra Police Station. Council is acting as a proxy for the NSW Police. They are not making use of these images themselves. Any benefits to the community are highly debateable and indirect at best. If the Police were not able to access these video images, Council would not have installed these CCTV cameras.

4. He further says that the videotaped images are not being collected directly and Council does not have his consent to obtain the images. Whilst living at Meroo Meadow he shopped and banked in Nowra two to three times per week because it was his closest shopping centre. The CCTV cameras are located above street level and unless you look above the roofline you wouldn't know they are there. The signs that Council have erected are part of the melee of public and private street signs that pedestrians are bombarded with, but even if they were more obvious they do not imply consent. He says that he would have had to shop in a far less convenient location in order to avoid being videotaped. He shouldn't have to make a choice between protecting his privacy and shopping in his local area. For information to be collected directly there needs to be proximity in time and/or place between the collector and the collectee, such that the latter knows the information is being collected and by whom. CCTV cameras in Nowra CBD do not meet this test because they are hard to see and it is unclear who is operating the CCTV cameras. The method of collection effectively prevents Council from communicating directly with individuals prior to and after collection."

5. He says that a sign on the perimeter of the CCTV coverage area is not sufficient to inform people that they being videotaped. Council signs in built up commercial areas are part of the flotsam and jetsam of signs that pedestrians are inundated with. He submits that many people don't even know what the initials CCTV stands for and that people who are illiterate or of a non-English speaking background might not know they are being videotaped. He says that these signs do not comply with IPP 3 because they do not inform you of the purpose of collecting the images; the intended recipients of the images; whether the information being collected is required by law or is voluntary, and if the latter how a person may avoid being videotaped; how a person may access the images; and that the images are being transferred and stored at Nowra Police Station. Nor should the onus be on the individual being videotaped to have to seek additional information from Council about their rights, as is the case with Council's privacy notification.

6. He says that collecting videotaped images of him has no relevancy - if he is not breaking the law, then the images of him are redundant. He says that his privacy is being violated in order that images of a small minority in the community can be captured and possibly used to assist the police with their investigations. He does not believe that the majority of law abiding people should be penalised because of the wrongdoing of a few. Videotaping and storing images of him and providing these images to the NSW Police, all without his consent, is an unreasonable and unnecessary intrusion into his personal affairs.

7. He says that Council has not complied with IPP 11 because they have shown videotaped images of him to Nowra Police whilst knowing that he strongly objected to such action. Such images were not shown to the Police in connection with proceedings for an offence or for law enforcement purposes. These images were part of the functional testing of the CCTV cameras. He says that his privacy was violated in order to test whether the system worked. He says that he committed no offence and that the Police were not enforcing any law by viewing images of him.8. He says that Council has not complied with IPP 5 because the images they collected of him during the period from 29/10/09 to 15/12/09 were deleted at some unknown date prior to the 13/1/10. This is despite the fact he lodged an application for internal review on 5/11/09, Council's then draft Code of Practice required that images not be held for more than 60 days unless they were the subject of a police investigation. Council has no idea whether they complied with their own Code because they don't know when these images were disposed of. If Council had authorised the disposal of these images by the contractor, surely they would know when this occurred. The fact they didn't indicates Council has not done everything in their power to prevent unauthorised use of the images.

9. In a democratic society privacy is a fundamental freedom that must be protected against unnecessary and unjustified intrusions by the State. The State, in this case Shoalhaven City Council, has no right to record, retain and use his image without his consent.

7

SF has asked the Tribunal to order the Council to remove the Closed Circuit Television Cameras.

8

The Council conceded that it is probable that SF's image was captured by the CCTV cameras at the time they were in operation. It also conceded that at that time it did not have the necessary signage and/or supporting documentation in place. Consequently it conceded that it has not complied with some requirements of the PPlP Act. Council offered SF an apology and an undertaking to take all measures as are necessary to ensure full compliance with privacy obligations.

The Applicable Legislation

9	It is common ground that an image captured by the CCTV cameras could constitute personal information for the purposes of the PPIP Act.
10	Section 4 of the PPIP Act defines "personal information" 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.

...

11	In my view, an image captured by the CCTV cameras would only fall within the scope of the section 4 definition of "personal information" if an individual's identity is apparent or can reasonably be ascertained from the collected data. This must necessarily be a matte for evidence.
12	The Tribunal's jurisdiction to review conduct is conferred by section 55 of the PPIP Act :

55 Review of conduct by Tribunal

(1) If a person who has made an application for internal review under section 53 is not satisfied with:

(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application,

the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53.

(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:

(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

(c) an order requiring the performance of an information protection principle or a privacy code of practice,

(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,

(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,

(f) an order requiring the public sector agency not to disclose personal information contained in a public register,

(g) such ancillary orders as the Tribunal thinks appropriate.

(3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 .

(4) The Tribunal may make an order under subsection (2) (a) only if:

(a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and

(b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency. ...

13	The requirements for the internal review referred to in section 55 are set out in section 53 of the PPIP Act:

53 Internal review by public sector agencies

(1) A person ( "the applicant") who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.

(2) The review is to be undertaken by the public sector agency concerned.

(3) An application for such a review must:

(a) be in writing, and

(b) be addressed to the public sector agency concerned, and

(c) specify an address in Australia to which a notice under subsection (8) may be sent, and

(d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and

(e) comply with such other requirements as may be prescribed by the regulations.

(4) Except as provided by section 54 (3), the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practicable, a person:

(a) who was not substantially involved in any matter relating to the conduct the subject of the application, and

(b) who is an employee or officer of the agency, and

(c) who is otherwise suitably qualified to deal with the matters raised by the application.

(5) In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by:

(a) the applicant, and

(b) the Privacy Commissioner.

(6) The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for a review of the conduct concerned.

(7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following:

(a) take no further action on the matter,

(b) make a formal apology to the applicant,

(c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant),

(d) provide undertakings that the conduct will not occur again,

(e) implement administrative measures to ensure that the conduct will not occur again.

(7A) A public sector agency may not pay monetary compensation under subsection (7) if:

(a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and

(b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and

(c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.

(8) As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of:

(a) the findings of the review (and the reasons for those findings), and

(b) the action proposed to be taken by the agency (and the reasons for taking that action), and

(c) the right of the person to have those findings, and the agency's proposed action, reviewed by the Tribunal.

14	The relevant "conduct" for the purposes of the application for review under section 53 is set out in section 52 of the PPIP Act :

52 Application of Part

(1) This Part applies to the following conduct:

(a) the contravention by a public sector agency of an information protection principle that applies to the agency,

(b) the contravention by a public sector agency of a privacy code of practice that applies to the agency,

(c) the disclosure by a public sector agency of personal information kept in a public register.

(2) A reference in this Part to conduct includes a reference to alleged conduct.

...

15	As noted above, SF has alleged that the Council has contravenes a number of the IPPs set out in Part 2 of the PPIP Act. The IPPs impose obligations on an agency in relation to the collection, storage, use and disclosure of personal information.

Status of Privacy Commissioner

16

Under section 55(7) of the PPlP Act , the Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to a review under that section. In FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 the Deputy President of this Tribunal found that the words of section 55(7) do not confer the burdens and benefits of party status on the Commissioner. The Commissioner has a right to intervene in proceedings and be heard.

17

The Commissioner's role is in the nature of amicus curiae at common law, rather than a party who is necessarily concerned with the facts of the case and the adversarial nature of proceedings. The Commissioner generally maintains a neutral position before the Tribunal in PPlP Act proceedings and does not intervene on matters that depend on the facts of the case.

The Hearing

18	The matter came before me for hearing at Nowra on 5 October 2010. Mr McAteer, the Acting Privacy Commissioner, appeared in the proceedings and made several submissions regarding the approach to be taken by the Tribunal. Prior to commencement of the evidence, Mr McAteer submitted that the Tribunal should make a finding in regard to whether or not SF's personal information had in fact been captured by the CCTV cameras.
19	As noted, the Council conceded that it is probable that SF's image was captured by the CCTV cameras at the time they were in operation. However, no evidence had been presented to confirm that this was the case. Similarly, there is no evidence to confirm whether SF's was identifiable from any of the data that had been captured.
20	In light of the contentious nature of the issue involved in this matter, it would have been prudent for SF to have taken steps to address these issues before prosecuting this matter.
21	I allowed SF further time to peruse the recorded data and to provide evidence to show that his personal information had in fact been captured.
22	At the time of the hearing I considered that it was prudent to hear evidence on the assumption that there would be a finding consistent with that concession rather than to incur the additional expense of reconvening in Nowra after SF had had time to peruse the recorded data and to provide further evidence.
23	The matter was subsequently relisted for further directions on 2 November 2010. At that time I was advised that all the relevant recorded data had been deleted. SF was therefore unable to provide evidence to show that his personal information had in fact been captured.

Discussion

24	In my view, the Tribunal will only have jurisdiction to review the Council's conduct where that conduct relates to an alleged contravention of an IPP that applies to the Council. It must be alleged that the Council has failed to meet an obligation in relation to the collection, storage, use and disclosure of SF's personal information. As SF is making the allegation that the Council has failed to meet its obligations in relation to his personal information, he must establish that his personal information was in fact captured by the CCTV cameras. He has not provided any evidence to show that this was the case.
25	I do not agree that the Tribunal will have jurisdiction merely because both parties agree that SF's image would probably have been captured. In my view, this is not sufficient to ground jurisdiction. However, even if SF's image was captured by the CCTV cameras, it does not necessarily follow that his identity would be apparent or could reasonably be ascertained from that captured image. The success of SF's application is dependent on establishing that fact.
26	Given that the data that was captured by the CCTV cameras has been destroyed, SF is no longer in a position to provide the evidence to establish that his personal information was captured by the CCTV cameras.
27	In the circumstances, as SF is unable to establish that his personal information was captured by the CCTV cameras, the application should be dismissed pursuant to section 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997 as it is misconceived or lacking in substance.

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

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