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Friday, January 16, 2009

Smart lawyering can't undo the facts about privacy complaint after the event.

Two recent decisions by the NSW Administrative Decisions Tribunal involving local councils have both confirmed that a complaint about an alleged breach of privacy received by an agency outside the six month deadline, but acted upon, at least in a preliminary fashion, cannot later be claimed to have been invalid because it was a late application.In both cases, the issue arose in a challenge to jurisdiction when the complainant lodged a subsequent application for review by the Tribunal.

In JW v Pittwater Council[2009] NSWADT 4 the applicant for review claimed there had been a breach of NSW privacy law by the council in releasing details of a complaint made by JW about a third party when council had incuded identifying details when responding to an application for documents under Section 12 of the Local Government Act.

The preliminary issue for decision by the Tribunal was whether it had jurisdiction to hear the matter, which turned on whether JW had sought internal review within six months of becoming aware of the alleged breach, or alternatively, whether the council had allowed extra time for the lodging of the application. The problem for the council was that in response to what the Tribunal found to be a late application, the General Manager had written to JW accepting the application and indicating he had asked a senior officer to investigate, and had notified the Privacy Commissioner of receipt of the complaint as required by the Act. The Council had only raised lateness subsequently, after it had sought legal advice.

Judicial Member Higgins stated:
31 In my opinion, on the basis of the contents of the letters from Mr Ferguson to JW (21 May 2008) and the Privacy Commissioner (22 May 2008), from the time the respondent received JW’s application for an investigation into its conduct in releasing JW’s complaint to the third party it accepted the application and dealt with it in accordance with the internal review provisions of the PPIP Act. That is, by inference from the manner in which it initially dealt with the application it allowed JW to lodge her application at the later date it was in fact received.

32 Paragraph 53(3)(d) of the PPIP Act does not contain any formal requirements that must be met by an agency before it can be found to have allowed an applicant for internal review to lodge his/her application outside the prescribed time. As the PPIP Act is beneficial legislation, in my opinion, whether an agency has allowed an applicant for review to lodge his/her application outside the time prescribed can be inferred from its conduct after the agency has received an application for review.

33 In this case, JW’s application was accepted by the most senior employed officer of the respondent, the General Manager. It was at all times open to him to refuse to accept the application on the basis that it was or may be out of time. This he did not do. Instead he nominated the officer who would be responsible for ‘dealing’ with her application for review and advised JW that her application for review would be dealt within a specified period of time and if it was not dealt with within the 60 day period she had a right of review to the Tribunal.
The Tribunal remitted the substantive issues to the Council for reconsideration. The facts of the case are yet another reminder to councils in NSW about the complex relationship between the various acts that apply, and the need for clear and legally accurate guidance for staff who deal with applications for access to documents.

In JR v Snow(sic) River Shire Council [2009] NSWADT 3 Judicial Member Montgomery had reached a similar conclusion about another council's actions in dealing with a late application, although the facts in this case were even more compelling:
32 I have examined the notice sent from the Respondent to the Second Applicant by letter dated 12 September 2008. While I accept that the attachment to the notice states that the internal review application was out of time, in my view it is clear that the Respondent nevertheless undertook the review. The letter clearly states that the Respondent "has undertaken an internal review". It can be implied that the Respondent must have exercised its discretion to accept the application outside the timeframe imposed under the Act. The Respondent could have easily stated that it refused to undertake an internal review because the application was out of time, but it did not do so.

33 I find as a fact that the Respondent exercised its discretion to accept the Second Applicant’s application for review outside the timeframe imposed under the Act and that the Respondent undertook the review.

In this case the Tribunal confirmed that if the Council had exercised its discretion to refuse a late application for review, the Tribunal would have had no jurisdiction to later consider the matter.

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