O'Connor, Kevin --- "The privacy and FOI jurisdiction of the New South Wales Administrative Decisions Tribunal" [2002] PrivLawPRpr 23; (2002) 9(1) Privacy Law and Policy Reporter 15

The privacy and FOI jurisdiction of the New South Wales Administrative Decisions Tribunal

Kevin O’Connor

This paper was given at an International Symposium on Freedom of Information and Privacy, Auckland, 28 March 2002, organised by New Zealand Privacy Commissioner Bruce Slane, and is reproduced here by kind permission of the Commissioner and the author. This paper should be read together with Chris Puplick’s preceding factual outline of the two laws — Associate Editor.

In New South Wales the Administrative Decisions Tribunal (ADT) is the external body in which unresolved disputes arising under the State’s Freedom of Information Act 1989 (FOI Act) and Privacy and Personal Information Protection Act 1998 (PPIPA) may be determined.

The ADT follows procedures broadly similar to those of a court. The ADT’s orders are final and binding. These disputes are heard in the General Division of the ADT before a single member of the ADT, known as a ‘judicial member’. The term ‘judicial’ is used to distinguish legally qualified presiding members from members from a non-legal background, the latter being known as ‘non-judicial members’. A judicial member needs to be legally qualified. Typically the member is a practising barrister or solicitor who sits at the ADT on a sessional or part time basis. The Act setting up the ADT, the Administrative Decisions Tribunal Act 1997 (ADTA), requires that the President be a judge of the District Court of the State. (This is the main trial court of the State, an intermediate court in the judicial hierarchy, responsible for hearing most serious criminal charges and most personal injury claims as well as commercial disputes up to $750,000.)

An appeal from a decision of the General Division of the ADT may be made to a three member Appeal Panel of the ADT. The Appeal Panel is usually presided over by the head of the relevant Division or the President. The second member must be a judicial member of the ADT, and the third must be a non-judicial member. The Act permits an appeal to be made on a ‘question of law’ with an appeal in relation to disputed findings of fact only being permitted by leave of the Appeal Panel. In practice the Appeal Panel has required that an error in the legal reasoning of the Division be shown before it will consider re-examining the findings of fact. A further appeal is available from the Appeal Panel to the Supreme Court. The appeal may only be made on the basis that there is an error in the legal reasoning.

The FOI Act provides citizens with a right of access to documents held by public sector agencies. An agency is broadly defined and includes any body set up by statute — for example, all universities in New South Wales and local government councils. Some government bodies have exclusions from the operation of the Act.

Most FOI cases in the ADT relate to the question of whether an agency was entitled to refuse access to documents because the documents are protected by a category of exemption set down in the Act — for example, in-confidence communications, Cabinet documents, personal affairs of third parties or law enforcement documents. Typically the exemption categories are formulated in a multi-factored way and it is necessary for the agency to demonstrate to the satisfaction of the ADT that each of the requirements of the exemption is met in the circumstances before its decision will be upheld.

Citizens also have a right to apply for amendment of documents to which they have been granted access which relate to their personal affairs. The ADT has now dealt on a number of occasions with questions such as the approach to be adopted in assessing whether it should order that an opinion be amended, as distinct from merely permitting the applicant to have a notation of his or her view added to the record.

FOI proceedings in the General Division take the form of an ‘application for review’ of the agency’s decision. Typically an applicant’s access or amendment application will have been the subject of an initial decision by the agency, and an internal review by the agency before it comes to the ADT. It is also possible for an applicant after the internal review stage to make a complaint to the Ombudsman in relation to the agency’s decision. The Ombudsman has investigative staff and relevant powers. In light of the investigation, the Ombudsman may chose to intercede on behalf of the citizen and make recommendations to the agency, for example, to release more documents or make amendments. The agency is not bound by these recommendations but usually accepts them. Though not required to do so, citizens often go to the Ombudsman first and then bring their case to the ADT. The ADT does not have any investigative staff of its own though it has relevant powers, so it is substantially reliant on the applicant and the parties for evidence and submissions.

The ADT’s order-making powers in relation to FOI matters are set out in the ADTA and are to affirm, vary or set aside the decision, or to remit to the agency with recommendations. These are the powers typically given to tribunals in Australia that are responsible for undertaking ‘merits review’ of administrative decisions by Ministers, agencies and officers of agencies.

PPIPA lays down information protection principles to be observed by public sector agencies. Like the FOI Act, these are widely defined. If a citizen considers that the conduct of an agency contravenes an applicable Information Protection Principle (IPP) or an applicable code of practice or involves disclosure of personal information kept in a public register, the citizen may apply to the public sector agency for a ‘review of the conduct’. The public sector agency is required to notify the State Privacy Commissioner of any such complaint. The Privacy Commissioner may make submissions to the agency internal review, and may, at the request of the agency, undertake the internal review on behalf of the agency. If the citizen is not satisfied with the outcome of the internal review, he or she may apply ‘for a review of the conduct that was the subject of the application [to the agency]’.

In contrast to the position in FOI cases, the ADT has a wide power to make appropriate orders in PPIPA cases. It may require the payment of monetary compensation in respect of a contravention to a maximum amount of $40,000. It may, for example, require an agency to cease contravening conduct, to engage in conduct consistent with the principles, or to correct personal information that has been disclosed.

The IPPs of the PPIPA became binding on public sector agencies on 1 July 2000. The ADT’s jurisdiction commenced on the same date, subject to its power to make a monetary compensation order being deferred for a further 12 months until 1 July 2001.

There are presently several applications under the PPIPA at the preliminary stages in the ADT, but so far there has been no case in which a hearing has been held on the question of whether conduct constitutes a contravention of an IPP.

The IPPs are set out in Pt 2 of PPIPA, and follow the familiar sequence of limitations on collection of personal information, requirements in relation to methods of collection and the scope of collection, principles as to retention and security of information, information as to the existence of systems and practices, rights of access and alteration, principles as to data quality, limitations on the use of information, limitations on disclosure of personal information and special restrictions of disclosure of sensitive categories of personal information. PIPPA creates an Office of Privacy Commissioner, and that Office is responsible for implementing the legislation. It has wide power to conduct inquiries and investigations. Complaints may be made to the Privacy Commissioner of ‘alleged violation of, or interference with, the privacy of an individual’. This is a broad jurisdiction and goes beyond a complaint as to conduct of the kind that can be dealt with (also) by the ADT. The Privacy Commissioner is obliged to seek to resolve complaints by conciliation. The Privacy Commissioner, like the Ombudsman in FOI matters, may make recommendations to a respondent to a privacy complaint as to what action might be taken in response to the complaint.

When an application for review of an agency decision under the FOI Act or an application for review of conduct by an agency under the PPIPA is made to the ADT, the ADT initially lists the application for what is called a ‘planning meeting’. This is a preliminary hearing where a judicial member canvasses with the parties the question of the extent to which the dispute remains capable of resolution without going to hearing. Often the issues in dispute are reduced at this stage. Sometimes a new compromise is reached, and the proceedings discontinued. The ADT has the power to appoint mediators, to give the parties an independent, neutral evaluation of the dispute and to commission an assessor to make findings of fact on matters requiring special expertise. So far it has not been found necessary to use any of those special powers in either FOI or PPIPA cases.

In most cases the ADT gives detailed written reasons for decision. Our decisions in relation to FOI and PPIPA cases can be located using the search engine on the Caselaw NSW website. This site can be reached via the ADT website, which is <www.lawlink.nsw.gov.au/adt>, or directly at <www.lawlink.nsw.gov.au/caselaw/caselaw.nsf/pages/adt>.

Finally, I should note that the FOI Act and PPIPA are two of approximately 100 State statutes that confer jurisdiction on the ADT. The ADT has three broad areas of responsibility: merits review of govern-ment administrative decisions (including occupational licensing decisions); civil determinations relating to equal opportunity complaints and retail leases claims; and professional discipline inquiries (lawyers, veterinary surgeons).

Judge Kevin O’Connor is President of the Administrative Decisions Tribunal New South Wales, and was Australia’s first federal Privacy Commissioner from 1989-1996.