Is information contained in a document about a residential property “personal information” about the owners or occupants of the property under NSW privacy legislation even if the document doesn’t directly identify the owners or occupants? This was the question that the Appeal Panel of the NSW Civil and Administrative Tribunal had to consider in Office of Finance and Services v APV and APW, decided on 21 November 2014.
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The documents alleged to contain personal information
APV and APW held a 99 year lease from the State over a residential property in the City of Sydney. The property was one of several in a sensitive area, each of which required fairly significant renovation and conservation works. The State progressively let the properties to members of the public through a tender process. APV and APW were one of the earlier successful tenderers.
They agreed to undertake renovation and conservation works worth approximately $1m over two years. The State arranged for a conservation architect to prepare a conservation management plan and an associated schedule of works for properties adjacent to APV and APW’s property, so that the State could require, as a term of the lease, that incoming lessors of the adjacent properties renovate and maintain their properties in a manner similar to APV and APW.
The conservation management plan and schedule of works specified the address of APV and APW’s property and contained information about the works carried out at APV and APW’s property, including photographs of the interior and exterior, floor plans and other internal design features. The conservation management plan and schedule of works did not contain the names of APV or APW, nor any photographs of the individuals or other information that might easily identify them.
APV and APW objected to the use to which the Office of Finance and Services (the agency responsible for managing the State’s property portfolio) put the conservation management plan and schedule of works, on the basis that those documents contained “personal information” about APV and APW and that the State’s conduct contravened a number of privacy principles set out in the NSW Privacy and Personal Information Protection Act (the use and disclosure principles).
Photo credit: Keoni Cabral / Foter / CC BY
The decision
The Appeal Panel found that the information contained in the conservation management plan and schedule of works was “personal information” about APV and APW. The critical factor was that it was possible to conduct a search on the internet of the address of their property and discover from the “NSW Tendering” website controlled by the Office of Finance and Services the names of APV and APW and that they had been the successful tenderers for the property at that address.
In the NSW privacy legislation:
“’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”
Here the question was whether it was legitimate to take into account information contained on the NSW Tendering website to reach a conclusion that the identity of APV and APW could reasonably be ascertained from the conservation management plan and schedule of works. The agency argued that because APV and APW’s names were not contained in those documents, their identities were not reasonably ascertainable from the documents. The Appeal Panel rejected that argument on two bases: as a matter of construction of the words of the definition; and because the legislation is beneficial to individuals. The reasoning on the construction point was as follows (at [56]):
“The definition of personal information states that the information is about an individual “whose identity is apparent or can reasonably be ascertained from the information or opinion.” Those words do not mean that other material cannot be consulted. That is obvious from the fact that there are two ways in which information or an opinion may disclose a person’s identity. Either the identity is “apparent” from the information or it “can reasonably be ascertained” from that information. The dictionary definition of the adjective “apparent” is “capable of being clearly perceived or understood; plain or clear.” (Macquarie Dictionary online). The verb “ascertain” means “to find out by trial, examination, or experiment, so as to know as certain; determine.” (Macquarie Dictionary online). By including the option that a person’s identity can “reasonably be ascertained” from the information, the legislature was intending to allow a person to find out or determine the identity of the person from the information and, where reasonably identifiable from other information, from that other information.”
The NSW privacy legislation contains a number of exceptions to the definition of “personal information”, including “information about an individual that is contained in a publicly available publication”. The Appeal Panel held that even if the information published on the NSW Tendering website was “contained in a publicly available publication”, that exempted information did not extend to the floor plan, internal design features etc in relation to the property.
Comparative position
The Appeal Panel reviewed some decisions in other Australian jurisdictions, none of which involved a decision by a court directly on point. The Appeal Panel’s conclusion was found to be consistent with the position taken by external administrative appeal bodies in Victoria and at the Commonwealth level.
The definition of “personal information” was amended in the federal Privacy Act with effect from March 2014 following recommendations by the Australian Law Reform Commission (ALRC) so as to focus on “information or an opinion about an identified individual, or an individual who is reasonably identifiable”. The proviso that the identity be ascertainable “from the information or opinion” was deliberately dropped. The ALRC concluded that the consequence of this approach was as follows (ALRC, For Your Information: Australian Privacy Law and Practice, Report 108, at [6.60]):
“While stand alone telephone numbers, street addresses and IP addresses may not be personal information for the purposes of the Privacy Act, such information may become personal information in certain circumstances”
The Appeal Panel’s decision is consistent with the position in the UK. The Data Protection Act 1998 (UK) states that “personal data” means:
“data which relate to a living individual who can be identified:
(a) from those data, or
(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller” (emphasis added)
Practical consequences
The government agency in this case was clearly concerned about what it would need to do to identify whether or not information in their possession which had not previously been considered to be “personal information” would now need to be treated as such. The Appeal Panel had this to say about one option suggested by the agency (at [72]):
“Contrary to their submissions, it would not be incumbent on agencies to compile a list of key words relevant to each piece of information it holds and then conduct an internet search in respect of each one of those key words. What an agency would need to do, at least in relation to information it is disclosing to the public, is to consider whether having regard to information on a publicly accessible website controlled by the agency and the information it proposes to disclose, the person’s identity can be ascertained. An agency would also be obliged to consider whether there is other information that is publicly available from which a person’s identity can reasonably be ascertained. Each case will turn on its own facts. Agencies would not be expected to anticipate every possible way in which a person’s identity could be ascertained.”
Although we are yet to have an authoritative decision from a NSW court in relation to this issue, it seems reasonably clear that NSW government agencies who are bound by the NSW privacy legislation should act in the same way as a federal government agency or private sector organisation in Australia must act. It will be a case-by-case matter whether the identity of an individual can reasonably be ascertained, taking into account the cost, difficulty, practicality and likelihood that two or more sources of data will be linked in such a way as to identify the individual.
