Privacy Case Note: Transport for New South Wales v Waters (No 2) [2019] NSWCATAP 96

Read the full decision here: Transport for New South Wales v Waters (No 2) [2019] NSWCATAP 96  

Summary

In this matter, the Appeal Panel dealt with its first appeal decision in Transport for NSW v Waters [2018] NSWCATAP 200 by way of a new hearing. The Appeal Panel set aside the decision of the Tribunal at first instance in Waters v Transport for NSW [2018] NSWCATAD 40 which had found that Transport for NSW unlawfully collected personal information about the respondent when travelling on public transport using his registered Gold Opal card, in contravention of the Information Privacy Principle (IPP) in section 8 of the Privacy and Personal Information Protection Act 1998 (PPIP Act). In setting aside this decision, the Appeal Panel determined that the agency collected the respondent’s travel data when he ‘tapped on and off’ using the Gold Opal Card, which was for the lawful purpose of the agency’s ticketing functions and activities. In this case, the Appeal Panel considered that the collection of the ’personal information’ (travel data) was reasonably necessary for the lawful purpose for which it was collected.

What you need to know

The decision is about the collection principle in section 8 of the PPIP Act. Section 8(1)(a) provides that an agency must not collect personal information unless the information is collected for a lawful purpose that is directly related to a function or activity of the agency; and section 8(1)(b) requires the collection of the information is reasonably necessary for that purpose.

The decision confirms that collection occurs only once, at the point at which the individual provided the information, or when the agency receives the information from the individual, not when the data is electronically imported to the agency’s internal data storage system. This distinction was important because the Appeal Panel considered that what happens to the data internally by the agency after it is collected cannot be characterised as a second collection (at [20]-[21]).

The decision also provides guidance on how to interpret the meaning of ‘personal information’ within section 4 of the PPIP Act in relation to the collection principle in section 8(1)(a), and with respect to collection ‘for a lawful purpose’. The decision confirms that this analysis requires consideration of whether collection is reasonably necessary.

Legislative background

Definitions

Section 4 definition of ‘personal information’

Information Protection Principles (IPPs)

Section 8 collection of personal information (IPP1)

Review requirements and jurisdiction

Section 53 Internal review by public sector agencies

Section 55 Administrative review of conduct by Tribunal

Sections 80 of the Civil and Administrative Tribunal Act 2013 (NSW) internal appeals

Factual background

The decision concerns an appeal by Transport for NSW of the Tribunal decision that it had breached section 8 of the PPIP Act. The issue concerned Transport for NSW’s collection of information through the electronic ticketing system for public transport concession entitlement holders, the Gold Opal card, and the storage of this information on the Transport for NSW’s two databases – the ‘Customer Database’ and the ‘Entitlement Management Database’.  The information contained on these databases is referred to as the ‘registration data’. On appeal, the parties agreed that the registration data is personal information and that its collection was not contrary to section 8 of the PPIP Act. The dispute concerned the ‘travel data’ which is collected by smart readers when a passenger taps on and taps off the Opal card. This data is contained in the ‘Transaction Database’. In the first instance decision, the Tribunal found that the travel data was ‘personal information’ because it could be linked with the registration data, and Transport for NSW breached section 8 because there was no basis for the collection of travel information for the purpose of enforcing the entitlement to the concession Opal Gold card. In the first Appeal Panel decision, the Tribunal found that the issues raised various questions of law and considered that these grounds warranted a new hearing to precisely identify the personal information and its point of collection, to determine whether the collection was lawful. 

Appeal Panel findings

The key findings of the Appeal Panel are:

• The information in dispute is personal information, and this was identified as the respondent’s travel data;
• There was one collection of this personal information by the agency, and this occurred when the respondent ‘tapped on’ and ‘tapped off’ the Gold Opal Card when travelling on public transport. There is no further or separate collection of travel data at the point at which the data is recorded in the Transaction Database;
• The collection of personal information was for the lawful purpose to calculate and charge each customer with the correct fare, to make payments to transport operators, and otherwise to manage the ticketing system.

The Appeal Panel confirmed (at [18]) that before considering whether information has been collected for a lawful purpose under section 8, the information collected must come within the definition of personal information in section 4 of the PPIP Act. The Appeal Panel identified the ‘personal information’ as Mr Waters’ ‘travel data’, described as his Opal Card number,  date/time of transaction, location, mode of transport, type of Opal Card used, journey cost, and transaction sequence number. The agency’s Opal Privacy Policy similarly listed these types of information as ‘being collected in respect of each Opal card’ (at [14]).

The Appeal Panel also observed (at [22]):

“We also find that the Travel Data is personal information at the time it is collected by a smart card reader [the Opal Card]. While Mr Waters’ identity is not ‘apparent’ when the information is collected by a smart card reader, it can ’reasonably be ascertained’ by interrogating the Registration Database.”

The Appeal Panel affirmed the appellant’s view and found (at [21]):

“We do not consider that personal information may be ’collected’ from an individual at a point in time which is later than that at which the individual provides the information to the agency, or the agency receives it from the individual. We find that the Travel Data is collected by the card reader when Mr Waters taps on or taps off. What happens to this information within the agency after it is collected cannot be characterised as a second collection. It is the same information and it is only collected once.”

In considering whether the collection was reasonably necessary for the agency’s ticketing purpose, the Appeal Panel found (at [34]-[35]):

“Collection of the information must be reasonably necessary for the appellant’s ticketing purpose. The legal character of that information within section 4(1) of the Privacy Act is relevant only insofar as it means that section 8(1) must be applied at all.

We agree with the appellant that the issue is whether the collection of the particular information that constitutes ‘personal information’ is reasonably necessary for the lawful purpose for which it has been collected. Section 8(1)(b) does not require us to answer the question of whether the collection of information as personal information is reasonably necessary. Mr Waters’ submission focuses on the consequences of collection, not on whether the collection is reasonably necessary for the ticketing purpose.”

Appeal Panel outcome

The Appeal Panel affirmed the decision by Transport for NSW on internal review, and concluded (at [36]):

We find that the collection of the Travel Data is for the ticketing purpose (calculation and collection of the correct fare) and is reasonably necessary for that purpose.