In the case of OS v Mid-Western Regional Council (No 3) [2011] NSWADT 230 the Administrative Decisions Tribunal of NSW considered whether the use of an aerial photograph by the Council as part of its investigation function in relation to the categorisation of property for rating purposes was a breach of the Privacy and Personal Information Protection Act 1998.
The Tribunal found that the “Direction relating to the Processing of Personal Information by NSW Public Sector Agencies in relation to their Investigative Function” (Direction) made by the Privacy Commission under s41 of the Act applied. Therefore, it was decided that the Tribunal had no jurisdiction to determine OS’ application for external review. Section 41 provides that the Privacy Commissioner may make a written direction that a public sector agency is not required to comply with an information protection principle or a privacy code of practice.
The Tribunal had previously considered several alleged breaches of Information Privacy Principles in the business paper presented to a meeting of the Council in relation to the determination to rate the Applicant’s land as Business (“OS’ Nursery”), rather than Residential, in the case of OS v Mudgee SC [2009] NSWADT 315.
“Personal Information” is defined as “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”. However the Act provides that personal information does not include “information about an individual that is contained in a publicly available publication …”
The Tribunal found that the following statements in the report did refer to “personal information”:
- A statement in relation to an inspection of the land. The Applicant claimed the inspection was carried out in a clandestine manner and that he had not been allowed to see the information gathered, or correct inaccuracies in it;
- A statement in relation to the property having existing use rights. The Applicant claimed that the information was not relevant to rating purposes;
- A statement in relation to a development consent approving a single storey dwelling and change of use from a dwelling, to a nursery, office and storeroom. The Applicant claimed that this information had been collected and held for purposes other than rating purposes;
- A statement in relation to “OS’ Nursery” signage used on the property. The Applicant sought advice as to how this applied to an assessment of the dominant use of the property.
However a telephone and internet advertisement of the Applicant’s business was found not to be “personal information”. While it was ultimately not necessary for the Tribunal to decide on the issue, the Council also argued that the aerial photo was not “personal information” under the Act because the aerial photo was publicly accessible on the Department of Lands website.
As the Tribunal found that the Direction applied to all the conduct of the Council, the privacy provisions of the Act alleged to have been breached did not apply to regulate the Council’s conduct. The Tribunal concluded that “… the complaint, at its heart, goes to the procedures adopted by [the Council] and the accuracy of the information obtained as a result. That, however, is not a matter for the Tribunal, and is not governed by the PPIP Act.”
Note: This information is not to be relied upon as legal advice