OS v Mudgee Shire Council (No 2) [2011] NSWADT 34

OS v Mudgee Shire Council (No 2) [2011] NSWADT 34

Because Council, despite repeated directions and requests, filed no evidence about how the aerial photograph was accessed, its provenance, or its use, and because the information was within Council's knowledge while OS could not provide it, the Tribunal was not satisfied that the photograph was information contained in a publicly available publication for the purposes of s 4(3)(b). The beneficial nature of the Act and the agency's evidentiary burden meant the exception was not established.

Jurisdiction
Australia
Judgment Date
23 February 2011
Procedural Posture
Application to Review Conduct Under the Privacy and Personal Information Protection Act 1998 / Preliminary Determination on the Papers Concerning Whether S 4(3)(b) Applies to the Photograph in Point 6
Outcome
Section 4(3)(b) of the Privacy and Personal Information Protection Act 1998 was found not to apply to the photograph in point 6, and the matter was to proceed to determination.
Legal Topics
['personal Information' 'publicly Available Publication' 'review of Conduct' 'evidentiary Burden']
['privacy Law' 'administrative Law'] ['personal Information' 'publicly Available Publication' 'review of Conduct' 'evidentiary Burden']

Case Brief

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Procedural Posture

Application to Review Conduct Under the Privacy and Personal Information Protection Act 1998 / Preliminary Determination on the Papers Concerning Whether S 4(3)(b) Applies to the Photograph in Point 6

Legal Issues

  1. 1 ["Whether the aerial photograph of OS' property in point 6 was excluded from the definition of personal information by s 4(3)(b) of the Privacy and Personal Information Protection Act 1998 as information contained in a publicly available publication." 'Whether Council had provided sufficient evidence about the provenance, access and use of the photograph to establish the s 4(3)(b) exception.']

Ratio Decidendi

Because Council, despite repeated directions and requests, filed no evidence about how the aerial photograph was accessed, its provenance, or its use, and because the information was within Council's knowledge while OS could not provide it, the Tribunal was not satisfied that the photograph was information contained in a publicly available publication for the purposes of s 4(3)(b). The beneficial nature of the Act and the agency's evidentiary burden meant the exception was not established.

Court Disposition

Section 4(3)(b) of the Privacy and Personal Information Protection Act 1998 was found not to apply to the photograph in point 6, and the matter was to proceed to determination.

Orders

  • ['The Tribunal find that s 4(3)(b) of the Privacy and Personal Information Protection Act 1998 does not apply to the photograph in point 6.' 'OS shall file and serve any statements or other documentary evidence on which he wishes to rely by 11 March 2011.' 'This matter is listed further planning meeting at 2pm on 18...