Report into complaint by Ms Carol Atkins
PRIVACY NSW
Office of the Privacy Commissioner
Special Report to NSW Parliament
under section 65 of the
Privacy & Personal Information Protection Act 1998
Complaint by Ms Carol Atkins
against
Queanbeyan City Council
Special Report No 1
September 2001
Special Report to NSW Parliament
by the New South Wales Privacy Commissioner
under section 65 of the
Privacy & Personal Information Protection Act 1998
Complaint by Ms Carol Atkins
against
Queanbeyan City Council
PNSW Ref: 98/258 Date: 17 September 2001
The Complaint
This matter concerns a complaint made to Privacy NSW by Ms Carol Atkins on 22 July 1999 against the General Manager of the Queanbeyan City Council, Mr Hugh Percy (known as the Centrelink matter). Ms Atkins (later a Councillor on the Queanbeyan City Council) alleged that a letter accusing her of a fraudulent receipt of a Commonwealth child care subsidy was written by some person and subsequently faxed to Centrelink by Mr Percy.
Ms Atkins stated that for fifteen months in the lead-up to the local council elections she had been critical of decisions and actions taken by Council at meetings and in the local press. She believes that Mr Percy’s actions were therefore aimed at discrediting her in the lead-up to the elections in which she was a candidate for the positions of Mayor and Councillor. On 11 September 1999 Ms Atkins was elected as a Councillor on Queanbeyan City Council.
Privacy NSW conducted an investigation into this matter pursuant to section 36(2)(k) of the Privacy & Personal Information Protection Act 1998 (the Act). As Ms Atkins’ complaint concerns matters which occurred before the commencement of the Information Protection Principles in Part 2 of the Act my conclusions and recommendations regarding the three issues arising from Ms Atkins’ complaint are based on Privacy NSW’s Data Protection Principles (DPPs) which were relevant at that time. The DPPs do not have the force of law but serve as a guide for the handling of information and they form the basis of my determinations for privacy complaints which fall outside the regulatory scope of the Act.
The allegations raised by Ms Atkins were put to Mr Percy and he denied them. However information obtained in the course of investigating this matter indicates that Mr Percy breached Ms Atkins’ privacy by obtaining, using and disclosing information relating to Ms Atkins. This matter was referred to the Independent Commission Against Corruption (ICAC) on the grounds that these actions possibly constituted corrupt conduct as defined by section 11(2) of the ICAC Act 1988. The ICAC declined to investigate the matter and when a review of that decision was sought by Privacy NSW the ICAC confirmed its decision not to pursue the matter.
Background to the Complaint
In her letter to Privacy NSW Ms Atkins stated that in June 1999 she received a copy of an anonymous typed letter (tab 1) in her letterbox which was addressed to Centrelink. The letter contained detailed information about her assets and income, and her dealings with Council, including the fact that she received a payment of a Family Day Care subsidy. Ms Atkins alleged that copies of the typed letter were also placed in the Council pigeon holes of two Queanbeyan City Councillors at the Queanbeyan City Council premises. Ms Atkins suspected that Mr Percy had faxed this letter to Centrelink, and she consequently requested and received a copy of the fax cover sheet under the Commonwealth FOI Act (tab 2). The cover sheet contained Mr Percy’s contact details and his signature.
Privacy NSW’s investigation
· Information obtained
In the course of the investigation Privacy NSW received the following information relating to the Ms Atkins’ complaint. Some of the information was requested by Privacy NSW and some information was unsolicited. The information which is relevant to my determination of this matter is listed in the order in which it was received.
24 August 1999: Prior to the receipt of Mr Percy’s first response to Privacy NSW, a second letter was received from Ms Atkins which included a copy of an investigation report conducted by EM & EJ Security on the instructions of the Mayor, Mr Frank Pangello (tab 3). The EM & EJ Security Investigation Report (the copy of which was incomplete) contained a reference to a second (handwritten) letter which the investigators found in Mr Percy’s office and which also contained information relating to Ms Atkins’ entitlement to the child care subsidy. Ms Atkins alleged that the handwritten letter was further evidence that Mr Percy was attempting to discredit her in the lead-up to the election. The handwritten letter was not attached to the report.
19 October 1999: A letter was received by Privacy NSW from Mr Percy in which he stated that he faxed the typed letter to Centrelink for “investigation of possible breaches of the law” (tab 4). Mr Percy denied writing the letter about Ms Atkins and he referred to the stated conclusion of the Investigation Report by EM & EJ Security, that there was no link found between the Council’s records and the information contained in the letter. Mr Percy said that he did not record his receipt of the letter in Council records as he thought that Ms Atkins might suffer embarrassment if he did so. In his letter to Privacy NSW Mr Percy did not make any reference to the handwritten letter.
In his letter Mr Percy also stated that the complaint had been investigated by the Department of Local Government and the Ombudsman, and that the outcome was a recommendation that the Council’s procedures regarding the receipt of confidential or sensitive material be reviewed.
17 November 1999: Ms Atkins forwarded a copy of a report by Forensic Document Services which examined the photocopy of the typed letter sent to Centrelink (tab 5). The report concludes that a “trash mark” found on the copy of the typed letter matched a mark found on a document which had been copied on a photocopier in Mr Percy’s office.
13 January 2000: Privacy NSW received a letter from an individual who requested anonymity (copy not included). The letter made allegations similar in substance to those made by Ms Atkins and included a copy of the handwritten letter (tab 6), a copy of a statement apparently made by Mr Percy concerning his receipt of the typed letter (tab 7), a copy of Ms Atkins’ building application and the approval notice. Also enclosed was a copy of an email print-out from Mr David Turner, Manager of Community Services, at the Council to Mr Percy (tab 8).
3 February 2000: A letter was received by Privacy NSW from Mr Percy in response to a request for further information which stated that he did not examine any Council records relating to Ms Atkins (tab 9). In response to Privacy NSW’s request for a copy of the handwritten letter, Mr Percy stated that it was attached to the EM & EJ Security Investigation Report. Ms Atkins’ copy of the investigation report did not include a copy of the handwritten letter and thus Mr Percy was asked to provide the same. Mr Percy was unaware that Ms Atkins did not have a copy of the handwritten letter.
18 February 2000: A letter was received from Mr Percy complaining about Privacy NSW’s decision to forward a copy of his response dated 28 January 2000 to Ms Atkins (tab 10). Mr Percy took particular objection to the provision of his response to Ms Atkins because Ms Atkins had publicly quoted it in an extraordinary meeting of Council on 16 February 2000. In response to Mr Percy’s concerns, he was advised about Privacy NSW’s investigation procedures and the requirements of the Privacy NSW Complaints Protocol. The Commissioner provided Mr Percy with an undertaking that he would not give further copies of his correspondence to Ms Atkins As a result of Mr Percy’s objection the Privacy NSW Complaint Handling Protocol was amended to provide that copies of respondents’ letters should not be provided to complainants if it would be considered inappropriate. As a matter of course information contained respondents letters will be provided in a summary form where the information is considered by the Commissioner to be germane to the complaint..
28 February 2000: A letter was received from Ms Atkins advising that she had recently been given a copy of the handwritten note (tab 11). Ms Atkins alleged that a Council employee was the author of the handwritten letter and she alleged a conspiracy on the part of Mr Percy, Mr Pangello and the staff member to defame Ms Atkins’ husband, her staff and herself. Ms Atkins sent a sample of the employee’s handwriting which she believes is the same as the writing in the handwritten letter.
4 April 2000: A letter was received from Mr Percy enclosing a copy of the handwritten letter (tab 12).
5 April 2000: A letter was received from the Mayor, Mr Frank Pangello acceding to a request for copies of all documents held by Queanbeyan City Council regarding Ms Atkins’ complaint against Mr Percy (tab 13). A list of the 160 documents is at tab 14.
3 July 2000: A letter was received from Ms Atkins which included clippings from local newspapers regarding her opposition to decisions and actions taken by Council in the lead-up to the elections in September 1999 (tab 15). Ms Atkins also alleged that the Mayor engaged the services of EM & EJ Security before she lodged her complaint about the typed letter.
11 July 2000: A letter from Mr Percy in response to a request for further information (tab 16). Mr Percy advised that Mr John Jedryk, Director of Corporate and Community Services at the Council and Mr David Turner, Manager Community Services at the Council declined to provide the information requested because both officers wanted to contact Privacy NSW directly. Mr Turner and Mr Jedryk contacted Privacy NSW by telephone and advised that they were unwilling to provide information on this matter.
In his letter Mr Percy also stated that the NSW Ombudsman’s office, the Department of Local Government and the ICAC had investigated “the matter” and he enclosed copies of letters from those bodies which he stated were documentation of the outcomes of the investigations by those bodies. The letter from the ICAC is at tab 17. It appears to relate to a complaint Mr Percy made to the ICAC about Ms Atkins.
· The Letters
-The handwritten letter
From the information obtained in the course of Privacy NSW’s investigation it appears that the existence of the handwritten letter only came to the attention of the investigators and Ms Atkins once the investigation had commenced. The investigation report states that the letter was found in Mr Percy’s office, and when interviewed, Mr Percy stated that the handwritten letter had been pushed under the front door of the Council offices in April 1999.
Mr Percy told the investigators that he placed the letter in the safe in his office and that he then decided to make enquiries about Ms Atkins’ child care subsidy entitlement with the Council’s Community Services Section, the branch of the Council which administers child care subsidies on behalf of the Commonwealth Department of Health and Community Services.
Mr Percy told the investigators that the letter was inside an unmarked envelope which did not include any overt reference to Ms Atkins. Mr Percy said he thought the envelope or something else inside it contained Ms Atkins’ name and he somehow concluded that the letter and the envelope referred to Ms Atkins. Mr Percy stated that it was for this reason and because the letter alleged that the un-named subject was falsely claiming a “child care rebate” that he did not record his receipt of the letter in the Council’s correspondence register.
The Investigation Report notes that Mr Percy did not bring the handwritten letter to the attention of Mr John Jedryk, the Head of Community Services, but instead he made enquiries of Mr David Turner the Manager of Community Services regarding Ms Atkins’ receipt of the child care subsidy. According to the report Mr Turner advised Mr Percy that Ms Atkins received the maximum subsidy.
In his advice to Privacy NSW on this issue Mr Percy stated that he could not recall the dates or times when he spoke to community services staff about Ms Atkins’ entitlements to the child care subsidy, and he denies having examined or seen any Council records relating to Ms Atkins when he made those enquiries.
Mr Percy also advised Privacy NSW that he did not include any reference to the handwritten letter in his statement to the Mayor (tab 7) because he did not make a connection between the task of explaining his actions in faxing the typed letter to Centrelink with his receipt of the handwritten letter. He stated that he “did not connect the handwritten letter or [his] earlier enquiries to that matter”.
-The typed letter
The letter contains Ms Atkins’ name and address and detailed information about her income and assets. The letter also contains information which Ms Atkins provided directly to Council, such as the cost of extending her garage and back-filling her land.
Mr Percy told EM & EJ Security, the investigators engaged by the Mayor to investigate Ms Atkins’ complaint to Council, that he found the letter on or about 1 June 1999 and that on 4 June 1999 he rang Centrelink for advice about forwarding the letter. He stated that he faxed the letter to Centrelink that day.
EM & EJ Security report that they were unable to draw any conclusion as to the author of letter and they formed the view that Mr Percy was justified, if not obliged to send it to Centrelink.
In his advice to Privacy NSW, Mr Percy stated that the typed letter was pushed under the door of the Council’s offices and he confirmed that he faxed the typed letter to Centrelink. He denied writing the letter.
-Content of the letters
Both the handwritten and the typed letters include the following information:
· ownership of four motor vehicles
· ownership of a house and land on which the subject has built a double garage and had back-filling work completed
· ownership of tools/equipment
· an allegation that the subject was paying her staff “cash in hand” at the gym which she owns
· an allegation that the subject was fraudulently receiving child care rebates
The typed letter includes Ms Atkins’ personal details, but the handwritten letter only contains the information listed above. The typed letter also records the cost for backfilling and building a double garage as $20,000 with the development application for the garage.
The typed letter also contains Ms Atkins’ Health Care Card number and its period of currency, and information relating to the turnover of her gym. The EM & EJ Investigation Report states that all the foregoing information had been tabled by Ms Atkins’ at a public meeting of Council and that the information was therefore publicly available.
· Email from Mr Turner
The EM & EJ Investigation Report does not state exactly when Mr Percy recalled making his enquiries with the Community Services Section about Ms Atkins, but it states that Mr Turner “and a number of his staff” confirmed that Mr Percy made enquires “around the time detailed by Mr Percy”.
The report states that on 27 April 1999 Mr Turner sent an email to Mr Percy advising that complaints relating to child care subsidies could be referred to the Department of Health and Family Services. The print-out of the email (tab 8) contains the following handwritten information:
*Centrelink
1800 050 021
*Lodge with area office
* Manager - Urgent
02 6200 5330
Theresa Middis
PO Box 601
QBN 2620
Queanbeyan Centrelink Office
Mr Percy is reported by EM & EJ Security as having made these notes when he rang Centrelink but he stated could not recall the date on which he made the notes. The EM & EJ Investigation Report offers the suggestion that Mr Percy made these notes after he received the email from Mr Turner, and that he may have contacted the Department of Health and Community Services who provided him with a contact telephone number for the Queanbeyan Centrelink office. This is not supported by Mr Percy’s account of events or any other information.
· Mr Jedryk’s letter
One of the documents provided to Privacy NSW by the Mayor is a letter dated 16 August 1999 to him from Mr John Jedryk (tab 18). In the letter Mr Jedryk expresses serious concerns about the veracity of the investigation report. Mr Jedryk states that the report omitted certain information which was provided to the investigators by members of his staff. That information concerned the date on which Mr Percy made enquiries regarding Ms Atkins entitlements. Mr Jedryk asked that his concerns be brought to the attention of Councillors at a Council meeting which was to take place on 18 August 1999.
· Letter from EM & EJ Security
The Mayor forwarded a copy of Mr Jedryk’s letter to EM & EJ Security for comment (tab 19) and the reply (tab 20) refers to a telephone conversation with the Mayor and an EM & EJ representative, Mr Baldock. The reply from EM & EJ Security actually states that Mr Turner had informed the Mayor that Mr Percy made his enquiries about Ms Atkin’s entitlements to the child care subsidy in September 1998, eight months before he came into possession of the handwritten note.
The letter from EM & EJ Security to the Mayor also states that when they questioned Mr Turner he stated that Mr Percy had enquired about Ms Atkins in December 1998 or January 1999. The letter states that the Investigators thought that Mr Turner was mistaken in reporting these dates. They based this view on the fact that Mr Turner sent Mr Percy the email about the reporting of alleged fraud in April 1999. The Investigation Report does not record a follow-up interview with the Mayor about Mr Turner’s statement.
The letter from EM & EJ Security also states that two other Community Services staff members had been approached by Mr Percy for information about Ms Atkins, one of whom could not recall when the contact was made and the other thought Mr Percy had made his enquiries in November or December 1998. The Investigators stated that they did not take written statements from Mr Turner or the other staff members because Mr Percy had admitted making enquiries of them, notwithstanding the discrepancy as to the dates on which he made those enquiries.
· Letter from Mr Pangello to Mr Jedryk
In a letter to Mr Jedryk dated 20 August 1999 (tab 21), Mr Pangello referred to a conversation which had taken place between himself, Mr Jedryk and Mr Turner to discuss the contents of Mr Jedryk’s letter. Mr Pangello advised that pursuant to a Council resolution on 18 August he would forward the Mayor’s investigation report and all files relating to the matter to the Department of Local Government for a full review. He also advised that he would forward a copy of Mr Jedryk’s letter and the reply from EM & EJ Security.
· Letter from Mr Pangello to the Department of Local Government
In a letter to the Department of Local Government, Mr Pangello asked that his file concerning the complaint be reviewed by the Department (tab 22). It is unclear from that letter whether Mr Pangello included Mr Jedryk’s letter in the file. In his reply to Mr Pangello, Mr Gary Payne, Director General of the Department of Local Government, (tab 23), advised that he would not determine the accuracy of the findings of the investigation.
· Other information
Privacy NSW received other written correspondence and telephone advice from individuals substantially involved in this matter, but the information provided is not documented in this report as it does not bear on my determination of the issues arising from this matter.
Privacy NSW solicited information from the Commonwealth Department of Family & Community Services, from the NSW Ombudsman’s Office and from the NSW Department of Local Government on the role and function of General Managers of Local Councils and their obligations to report allegations of fraud.
ISSUES
Issue 1: When did Mr Percy make enquiries about Ms Atkins?
The date or dates on which Mr Percy enquired about Ms Atkins’ entitlement to the child care subsidy is crucial in determining whether Mr Percy was complicit in compiling the letters. This issue also goes to the veracity of the all the information provided to Privacy NSW by Mr Percy.
Analysis
Mr Percy told Privacy NSW that he had “no recollection or record of the dates or times” on which he made the enquiries about Ms Atkins. The EM & EJ Security Investigation Report records that Mr Percy advised the EM & EJ Investigators that he made his enquires after he received the handwritten letter in April 1999 and before he received the typed letter in June 1999. However the letter from EM & EJ Security to the Mayor refers to Mr Turner’s advice to the Mayor that Mr Percy had made enquiries about Ms Atkins’ entitlement to the subsidy in September 1998, some eight months earlier. The letter also points out that the EM & EJ Investigators were told by Mr Turner that Mr Percy made his enquiries in December 1998 or January 1999, and that an un-named member of staff recalled Mr Percy making his enquiries in November or December 1998. The un-named member of staff was not able to be contacted and Mr Turner was unwilling to provide information to Privacy NSW on this issue.
The email to Mr Percy from Mr Turner dated 27 April 1999 supports the conclusion in the EM & EJ Investigation Report that Mr Percy enquired about the subsidy before he received the typed letter. It does not however prove that Mr Percy did not make his enquiries before his receipt of the handwritten letter.
Conclusion
In the absence of supporting information from either Mr Turner or the other member of staff it is not possible to state categorically that Mr Percy sought and obtained information about Ms Atkins before he received the handwritten letter. It is clear however that Mr Percy did make enquiries about Ms Atkins before he faxed the typed letter to Centrelink.
If Mr Percy sought and obtained the information about Ms Atkins between April and June 1999 it is not clear why he did not provide this information to Privacy NSW. In the context of the information contained in the letter to the Mayor from EM & EJ Security, Mr Percy’s failure to be frank lends weight to the view that Mr Percy did make enquiries about Ms Atkins before April 1999.
Issue 2: Did Mr Percy breach Ms Atkins’ privacy by making enquires about her at Council?
Because the information contained in the handwritten and typed letters came into Mr Percy’s possession when he apparently found them on the floor of the Council chambers, the receipt of unsolicited letters can not be strictly viewed as a collection of personal information as defined by Data Protection Principle 1.
However Mr Percy has admitted seeking information relating to Ms Atkins’ entitlement to child care subsidy from the Community Services Section of the Council. His request for this information was clearly a collection of personal information. The question therefore arises: was Mr Percy was entitled or obliged by law or any other instrument, to collect the information from the Community Services Section. If this question is answered in the negative, it must be determined whether the collection of personal information amounted to a breach of privacy under Privacy NSW’s Data Protection Principles.
Analysis
Privacy NSW’s Data Protection Principles provide inter alia that dealings with personal information which are authorised or required by law are not considered to be privacy beaches. Principle 1, which relates to the collection of personal information, provides that the requirement to obtain the individual’s consent before collecting personal information is not required where:
1. (a) the information is collected for a purpose that is a lawful purpose directly related to a function or activity of the collector; and
(b) the collection of the information is necessary for or directly related to that purpose.
2. Personal information shall not be collected by a collector by unlawful or unfair means.
Mr Percy’s stated reason for making the enquiries about Ms Atkins was to ascertain the veracity of the information contained in the handwritten letter. Whether Mr Percy’s actions in doing so were lawful depend on whether he was acting within his role as General Manager. The role of General Manager is defined by section 335 of the Local Government Act 1993:
(1) The general manager is generally responsible for the efficient and effective operation of the council's organisation and for ensuring the implementation, without undue delay, of decisions of the council.
(2) The general manager has the following particular functions:
 the day-to-day management of the council
 to exercise such of the functions of the council as are delegated by the council to the general manager
 to appoint staff in accordance with an organisation structure and resources approved by the council
 to direct and dismiss staff
 to implement the council's equal employment opportunity management plan.
(3) The general manager has such other functions as may be conferred or imposed on the general manager by or under this or any other Act.
The Department of Local Government publication Management Planning for NSW Local Government expands on the term “day to day management”:
Certain activities, such as staff allocation and the care of council assets are recognised as coming under the term day to day management…The General Manager remains accountable to the Council through the performance agreement. February 2000, at page 12
Neither the Local Government Act or the Management Planning document address the issue of a General Manager’s legal obligation to report anonymous allegations relating to a Commonwealth child care subsidy. Privacy NSW is not privy to Mr Percy’s Performance Agreement, but is assumed that if the Agreement contained a requirement to report such matters Mr Percy would have relied on the relevant provision in his response to Privacy NSW’s investigation.
The Queanbeyan City Council Code of Conduct which was current at the time that Mr Percy collected the information merely quotes the Local Government Act in this regard:
The General Manager is generally responsible for the efficient and effective operation of the Council’s organisation and for ensuring the implementation, without undue delay, of decisions of the Council. Section 335(1)
It appears therefore that there is no legal or policy obligation upon a General Manager to establish the veracity of anonymous allegations regarding a ratepayer. Mr Percy was therefore not obliged to establish the veracity of the information contained in the handwritten letter and in making enquiries in this regard he breached Principle 1.
Conclusion
Despite Mr Percy’s concerns that Ms Atkins may have committed social security fraud it has not been shown that he was obliged or authorised by law or policy to collect personal information about her from the Community Services Section Staff. In the absence or any such obligation or authorisation Mr Percy breached Principle 1 of the DPPs by collecting the information and in doing so breached Ms Atkins’ privacy.
Issue 3: Did Mr Percy breach Ms Atkins’ privacy by forwarding the typed letter to Centrelink?
The privacy issues in relation to the collection of the information from the Community Services Section and the disclosure of the information contained in the typed letter by fax are related. The question once again is whether Mr Percy was authorised or required by law or any other instrument to take action with respect to Ms Atkins’ personal information? If this question is answered in the negative did Mr Percy breach the Data Protection Principles by faxing the typed letter to Centrelink?
Analysis
Data Protection Principle 10 states:
1. A recordkeeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:
(a) the individual concerned has been informed under Principle 2, that information of that kind is usually passed to that person, body or agency;
(b) the individual concerned has consented to the disclosure;
(c) the recordkeeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person;
(d) the disclosure is required or authorised by or under law.
Clearly Ms Atkins was not informed that the typed letter would be sent to Centrelink nor was her consent sought for this purpose. As stated above Mr Percy faxed the typed letter to the Queanbeyan Centrelink office on 27 April 1999. He advised Privacy NSW that he did so because he thought that Centrelink would investigate “possible breaches of the law”. Mr Percy did not name the law or laws which Ms Atkins had possibly breached.
Mr Percy told the investigators that he faxed the typed letter to Centrelink because he believed that he was obliged to do so. The investigation report suggested that Mr Percy was authorised to forward the information to Centrelink under the Privacy & Personal Information Protection Act 1998 (the Act). This is clearly erroneous as Mr Percy sent the fax in June 1999 and the Information Principles in Part 2 of the Act had not commenced at that time, only coming into force on 1 July 2000.
In his own statement dated 14 July 1999, (tab 7), Mr Percy stated that in retrospect he thought that he was obliged to forward the letter to Centrelink on the basis of the ICAC Guidelines. The ICAC Guidelines concern the conduct of public sector officials and do not relate to private citizens. Ms Atkins was a private citizen at the time that Mr Percy faxed the letter to Centrelink.
The Commonwealth Department of Family and Community Services (DFCS) advised that the relevant legislation, A New Tax System (Family Assistance) Act 1999, A New Tax System (Family Assistance)(Administration) Act 1999 and A New Tax System (Family Assistance and Related Measures) Act 2000 does not impose any obligation upon local councils to report allegations of fraud on the part of child care subsidy recipients. The DFCS advised that the Family Assistance Office at Centrelink has the responsibility for reconciling information provided by child care subsidy applicants with tax return information. The FAO has authorised access to the Tax Office database for this purpose.
Conclusion
Clearly, Mr Percy was not obliged or authorised by law to disclose the information contained in the typed letter to Centrelink and his actions in doing so breached Principle 10.
I conclude that Mr Percy should not have disclosed the personal information contained in the typed letter to Centrelink. The fact that Mrs Atkins was a candidate in the coming local election should have alerted Mr Percy to the fact that the letters may have been part of a campaign to discredit her.
Issue 4: Should Mr Pangello have alerted the Queanbeyan City Council to inconsistencies in the investigation report?
The letter from Mr Jedryk and the subsequent correspondence between the Mayor and EM & EJ Security disclose discrepancies in the date or dates on which Mr Percy made his enquiries relating to Ms Atkins’ receipt of the child care subsidy. In his letter Mr Jedryk suggested that the Mayor bring those discrepancies to the attention of Councillors before the meeting of 18 August 1999.
Analysis
Data Protection Principle 8 states:
A recordkeeper who has possession or control of a record that contains personal information shall not use that information without taking such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date and complete.
From the information obtained by Privacy NSW it is not clear why Mr Pangello did not request a formal statement from Mr Turner and from the other members of staff when Mr Jedryk raised his concerns about the inconsistencies in the investigators’ report. It is acknowledged that Mr Pangello spoke to Mr Jedryk and to Mr Turner and raised the matter with EM & EJ Security. However, it appears that Mr Pangello accepted the investigators’ opinion that Mr Turner’s email to Mr Percy proved that Mr Percy’s recollection was to be accepted over the word of Mr Turner and the other member of staff. Despite the fact that the investigators pointed out that Mr Turner had told the Mayor that Mr Percy had made enquiries about Ms Atkins in September 1998, the Mayor did not bring this matter to the attention of Councillors at the meeting on 18 August 1999.
Conclusion
I take the view that the information contained in the EM & EJ Investigation Report was incomplete, in that it excluded information about the different account of events as reported by staff of the Social Services Section. Because the report was incomplete, its conclusions may well have been inaccurate and on this basis should not have been presented to Council. I believe that Mr Pangello should have obtained a written statement from Mr Turner, and should have interviewed the staff who had been questioned by Mr Percy about Ms Atkins’ entitlement to the subsidy. I conclude that Mr Pangello breached Principle 8 by failing to ensure that the conflicting account of events were incorporated in the Investigation Report before it was tabled at the meeting of Council, and by failing to inform Council of these inconsistencies and discrepancies.
Recommendations
At the conclusion of my investigation of Ms Atkins’ complaint I prepared an Investigation Report which made certain recommendations based on the conclusions reached above. I made the following recommendations pursuant to section 36(2)(j) of the Privacy & Personal Information Protection Act 1998:
· With respect to Issue 2, I recommend that Mr Percy provide Ms Atkins with a written apology for having breached her privacy when he collected information about her from the Community Services Section.
· With respect to Issue 3, I recommend that Mr Percy provide Ms Atkins with a written apology for having faxed the written letter to Centrelink.
· With respect to Issue 4, I recommend that Mr Pangello advise Queanbeyan City Councillors that the EM & EJ Security report was incomplete and therefore inaccurate in its conclusions.
· With respect to Issue 4 I recommend that Mr Pangello issue Ms Atkins with a written apology for failing to take reasonable steps to ensure that the investigation report was complete and accurate before submitting it to Council.
I further recommended that effect be given to these recommendations by no later than 30 June 2001 and I concluded by noting my powers under section 65 of the Privacy & Personal Information Protection Act 1998 to prepare a Special Report to Parliament on any matter arising in connection with the discharge of my functions. I proposed to reconsider this action in the light of Messrs Pangello’s and Percy’s response to my recommendations.
This Investigation Report was sent on 26 April 2001 to the following individuals and organisations:
Ms Carol Atkins
Mr Hugh Percy
Cr Frank Pangello
Mr John Jedryk
Mr David Turner
Mr Bruce Barbour, NSW Ombudsman
Mr Garry Payne, Director General, Department of Local Government
On 22 June 2001 Privacy NSW received a letter from Mr Percy in which he expressed dissatisfaction with the methodology, conclusions and recommendations in the Investigation Report. Mr Percy stated that he would not apologise to Ms Atkins. Mr Percy’s letter was acknowledged in a letter dated 2 July 2001 and his concerns regarding the Report were addressed in a letter dated 31 July 2001 (tab 24). In that letter I again advised Mr Percy that I would consider forwarding a Special Report to Parliament if he refused to carry out my recommendations. Mr Percy did not respond to that letter.
On 22 June 2001 Privacy NSW also received a letter from Mr Pangello which expressed dissatisfaction with the Report. Mr Pangello stated that he had not been afforded procedural fairness before the Investigation Report was completed. Mr Pangello’s letter was acknowledged on 2 July 2001 and in a letter dated 31 July 2001 (tab 25) I noted and addressed Mr Pangello’s concerns. I formally invited Mr Pangello the opportunity to provide information or other relevant material which addressed the findings in Issue 4 of the Report. Mr Pangello did not respond to that letter.
On 29 August I wrote to Messrs Percy and Pangello to advise that I intended to forward a Special Report to Parliament on 17 September 2001 unless I received notice that my recommendations were complied with before 5pm on 13 September 2001. I did not receive any such notice by that time and I am consequently submitting this Special Report to Parliament in accordance with section 65 of the Privacy & Personal Information Protection Act 1998.
Chris Puplick
PRIVACY COMMISSIONER
Appendix 1
| Tab | Document |
| 1 | Typed letter |
| 2 | Fax cover sheet |
| 3 | EM & EJ Security Investigation Report |
| 4 | Letter from Mr Percy to Privacy NSW received 19 October 1999 |
| 5 | Forensic Document Services Report |
| 6 | Handwritten letter |
| 7 | Statement by Mr Percy |
| 8 | E-Mail from D Turner |
| 9 | Letter from Mr Percy to Privacy NSW received 3 February 2000 |
| 10 | Letter from Mr Percy to Privacy NSW received 18 February 2000 |
| 11 | Letter from Ms Atkins to Privacy NSW received 28 February 2000 |
| 12 | Letter from Mr Percy to Privacy NSW received 4 April 2000 |
| 13 | Letter from Mr Pangello to Privacy NSW received 5 May 2000 |
| 14 | List of documents provided by Mr Pangello |
| 15 | Letter from Ms Atkins to Privacy NSW received 3 July 2000 |
| 16 | Letter from Mr Percy to Privacy NSW received 11 July2000 |
| 17 | Letter from Ombudsman dated 13 October 2000 |
| 18 | Letter from Mr Jedryk to Mr Pangello dated 16 August 2000 |
| 19 | Letter from Mr Pangello to EM & EJ Security 13 July 1999 |
| 20 | Letter from EM & EJ Security to Mr Pangello 18 August 1999 |
| 21 | Letter from Mr Pangello to Mr Jedryk dated 20 August 1999 |
| 22 | Letter from Mr Pangello to Dep’t of Local Govt dated 19 August 1999 |
| 23 | Letter from Dept Local Govt to Mr Pangello dated 24 September 1999 |
| 24 | Letter to Mr Percy dated 31 July 2001 |
| 25 | Letter to Mr Pangello dated 31 July 2001 |
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