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Stevenson v Hastings District Council [2006] NZHRRT 7 (14 March 2006)

Last Updated: 6 April 2006

Decision No. 07/06
Reference No. HRRT 29/04

BETWEEN MARK ROBERT STEVENSON

Plaintiff

AND HASTINGS DISTRICT COUNCIL


Defendant

BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL

Mr R D C Hindle Chairperson
Mr A A Hall Member
Dr A Trlin Member

HEARING: 30 November 2005 (Napier)

APPEARANCES:
Mr J A Garrett & Ms Z Tope for plaintiff
Mr B W Gilmour & Ms R K Craighead for defendant

DATE OF DECISION: 14 March 2006

DECISION

Preliminary

[1]This is another one of those privacy cases which, despite the apparent simplicity of the essential facts, gives rise to some complex issues.

[2]The essential question is whether the defendant (‘the Council’) interfered with Mr Stevenson’s privacy when it set up monitoring devices on properties adjacent to and near his property, for the purpose of recording the sound of his dogs barking. Mr Stevenson claims that in doing so the Council collected personal information about him in a way that contravenes Principle 4 of the Information Privacy Principles set out in the Privacy Act 1993 (‘the Act’).


Conduct of the proceedings

[3]The claim was filed in June 2004, and was later set down for hearing before the end of that year. However progress was delayed because of the jurisdictional issues that were dealt with by the Tribunal in Lehmann v The RadioWorks Ltd (HRRT Decision 20/05, 22 July 2005) and KI v Gilligan Sheppard (HRRT Decision 21/05, 22 July 2005).

[4]By the time this case came on for its substantive hearing on 30 November 2005, it was common ground that the Tribunal had jurisdiction to deal with the matter under Principle 4.

[5]In September 2004 Mr Gilmour and counsel then acting for Mr Stevenson (who was not Mr Garrett) agreed a statement of facts for the case. Mr Gilmour relied on the statement in preparing for the substantive hearing. But at the hearing Mr Stevenson’s evidence made it clear that he did not regard the ‘agreed’ statement of facts as being either complete or accurate. In addition to the complications created by that state of affairs, the claim as originally filed on behalf of Mr Stevenson purported to be brought in reliance on Principle 4 (b) only. It emerged at the hearing, however, that Principle 4 (a) was at least as important a part of the argument for Mr Stevenson.

[6]It would in our view have been open to Mr Gilmour to object that the Council was surprised both by the way in which the matter was being advanced, and by some of the evidence that was given. But with respect to the reliance on Principle 4(a), Mr Gilmour indicated that he had come prepared to deal with that despite the way in which the claim had been worded. He also confirmed that the Council was willing to have the Tribunal deal with the matter under Principle 4(a) as well as Principle 4(b). And, although he was not so well prepared to deal with the unexpected evidence given by Mr Stevenson about the agreed statement of facts, again Mr Gilmour accepted that there was a need to get on with the hearing so as to bring the matter to a conclusion.

[7]We were grateful for the pragmatic approach taken by the Council. As a result, we were not required to determine some potentially difficult issues that might otherwise have been unavoidable, including the question of just how the ‘agreed’ statement had been prepared. Instead we were able to focus on the substantive issues without being distracted by procedural matters.


The witnesses

[8]Despite the ‘agreed’ statement of facts that had been filed, there were conflicts in the evidence we heard.

[9]After Mr Garrett opened the case, he called Mr Stevenson to give his evidence. When that had been completed, Mr Garrett called Mr Hodgson, who is the Council Officer responsible for dog control in the relevant area. Mr Garrett also called a Mr East, who is the Chief Animal Control Officer of the Napier City Council. Both Mr Hodgson and Mr East appeared in answer to witness’ summonses that had been issued on behalf of Mr Stevenson. The situation was a little unusual, but the fact that Mr Hodgson was called to give evidence for Mr Stevenson removed any need for the Council to call evidence of its own. And, notwithstanding that strictly speaking both Mr Stevenson and Mr Hodgson were giving evidence on the same side of the case, there were material differences between them as to what had happened.

[10]By and large, we think the evidence given by Mr Hodgson is more likely to be reliable. His recollection of events was supported at least to some extent by notes he had made at the time of the events in issue – a recording procedure that one would expect of a Council officer performing this particular role. Mr Stevenson, in contrast, struck us sometimes as a rather careless witness. He was quick to make firm assertions of fact but then, when pressed to explain or be more specific on certain points, he had to either qualify or altogether change what he had just said. It was difficult to escape an impression that his commitment to his cause may have compromised his ability to be truly objective. We were also left with a concern that his memory of events may have been affected by his own very firm perceptions about how poorly he considers he has been treated by the Council.

[11]We wish to make it clear, however, that we are not suggesting that Mr Stevenson was a dishonest witness. We have no doubt that he firmly believed everything that he told us. Nonetheless, for reasons we have given, where there were conflicts in the evidence we think it safer to rely on the evidence given by Mr Hodgson.


Facts

[12]At all material times Mr Stevenson was the proprietor of Mahore Service Centre Ltd, which is a property on the corner of Tomoana and Burnett Streets in Hastings. It is a commercial property, but there are residential properties in the vicinity and adjacent to it.

[13]Mr Stevenson was having difficulties with vandalism and burglaries at the Service Centre. He brought two dogs onto the property, intending that they would act as guard dogs. But by early August 2001 the Council had received complaints that the dogs were barking loudly and persistently at times from around 10.00 p.m. onwards and again in the early hours of the morning. The complainant(s) said that the barking was affecting their sleep.

[14]It was as result of these complaints that Mr Hodgson became involved. His notes show that on 10 August 2001 he spoke to Mr Stevenson on two separate occasions. On the first occasion, he was told by Mr Stevenson that he (Mr Stevenson) had been taking the dogs home for a few days as a response to the complaints, to see if the complaints continued. With that information, Mr Hodgson then telephoned the complainant he was dealing with at that particular time. Mr Hodgson’s note of that conversation records "Advised sending Noisy Dog letter & at [sic] Recorder situation should we receive further complaints". After that Mr Hodgson called Mr Stevenson again. Mr Hodgson’s note of that conversation is "Phoned Mark back and advised".

[15]Mr Hodgson was adamant that when he spoke to Mr Stevenson on the second occasion that day he told Mr Stevenson that if there were ongoing complaints then the Council might set up devices to monitor the barking. Mr Stevenson said he did not. Our assessment is that Mr Hodgson probably did say something about the possibility of monitoring the barking by using a monitoring device, but that at that stage it was not presented as anything more than a possibility to be considered in the future. We do not think that Mr Hodgson said anything that would have led Mr Stevenson to understand there was an imminent prospect that monitoring devices would be set up. And, although we find that Mr Hodgson probably did say something about the possibility of monitoring devices being set up, we also find Mr Stevenson either did not hear him, or did not understand him, and in any event that Mr Stevenson certainly did not appreciate at that time that the Council might go ahead and set up its monitoring devices without any further discussion with him (in part we have reached this conclusion because it is clear that when the devices were set up in November Mr Hodgson did think it appropriate to talk to Mr Stevenson first).

[16]On the same day (i.e. 10 August 2001) Mr Hodgson sent Mr Stevenson what was referred to as a ‘Noisy Dog’ letter. The letter is a standard form that is used by the Council when complaints about noisy dogs are received. It makes a number of suggestions as to how a dog owner such as Mr Stevenson might control problem barking. The letter to Mr Stevenson did not, however, make any mention of the possibility that monitoring devices might be set up to record what was happening.

[17]There were a number of other interactions between Mr Hodgson and Mr Stevenson between August and 2 November 2001. Mr Hodgson accepted, however, that nothing that was said or done in that period would have alerted Mr Stevenson to the possibility that devices might be set up to record the sound of Mr Stevenson’s dogs barking.

[18]On 25 October 2001 Mr Hodgson set up a monitoring device on a property across Tomoana Road from the Service Centre to record the sounds to be heard in the vicinity of the Service Centre. We find that he did so without giving any warning to Mr Stevenson; as we have said, we do not think anything that was said on 10 August 2001 was sufficient to constitute notice to Mr Stevenson that the Council was actually going to set up its monitoring devices.

[19]The device that was used was a standard handheld-type dictaphone. It was put in a plastic box with the top slightly ajar - the box being to keep the device dry, the lid being left open so sounds could reach the recording mechanism. The box also contained a clock that was capable of stating the time aloud at pre-set intervals. The recording device was activated by noise, such as the sound of dogs barking, traffic, people talking, or the clock announcing the time. The sounds were recorded onto a micro-cassette audio-tape.

[20]When the noise dropped below the level needed to activate the recording mechanism, the recording stopped. The result was that the Council was able to obtain a record of the sounds that had activated the mechanism, and was able to place the recordings within certain timeframes because the device had recorded the times announced by the clock.

[21]Mr Hodgson later took the tapes of recordings made on the night of 25/26 October to ‘transcribe’ them. He did so by listening to the tape(s) and marking various sounds within identified time intervals. For the most part his transcript refers to the sounds of dogs barking, but the transcript from that night also includes references to the sounds of a radio, traffic noise, and Mr Hodgson’s own voice when he was setting the equipment up. His transcript shows that the device operated from around 2 pm on 25 October to 8 am on 26 October 2001.

[22]Mr Hodgson decided that monitoring from the property across Tomoana Avenue was not satisfactory because there were too many other noises that intervened. He removed the device on 26 October 2001, and the tape of the noises recorded that night was subsequently used again and recorded over. (We add that there is no criticism in that regard; as we will note it took a considerable time after these events before Mr Stevenson made his complaint to the Privacy Commissioner. Subsequent correspondence between solicitors acting for Mr Stevenson and for the Council makes it clear that the recordings from 25/26 October had already been recorded over by 7 December 2001. There is no reason to suppose that either Mr Hodgson or the Council should have been aware at that stage that the tape might later be needed for proceedings in this Tribunal). The result is that the only evidence of what was on the tape recordings for 25/26 October 2001 is Mr Hodgson’s hand-written transcript.

[23]There is nothing in the transcript of the tape for 25/26 October 2001 to suggest that anything that could possibly be described as personal information about an identifiable individual was collected on that occasion.

[24]There was no further monitoring before November 2001. It is clear, however, that the concerns about Mr Stevenson’s dogs were not resolved.

[25]On 2 November 2001 Mr Hodgson and Mr Stevenson met at the Service Centre. Mr Hodgson made a note of their discussion that day at the time. From that note, he was able to say that there had been some discussion between the two, and that he had suggested to Mr Stevenson that a monitoring device should be set up at the Service Centre. Mr Stevenson firmly rejected the suggestion, saying that any monitoring devices should be set up on the properties of those who were complaining about his dogs. There was obviously also some discussion about the prospect of Guy Fawkes, then only 3 days away.

[26]Although Mr Stevenson’s evidence about this discussion was not altogether secure, in the end he accepted that he had been told by Mr Hodgson that there was a possibility that the Council might record his barking dogs with a monitoring device. He also accepted that he had said words to the effect that he would not have such a device on his property, and that any such devices should be set up on the property or properties of those who were complaining if the Council wanted to do that. Mr Stevenson went on to say, however, that Mr Hodgson made it clear to him that the Council would not actually set up any devices without talking to him again.

[27]Mr Hodgson denies this. He said that he left the meeting with Mr Stevenson on 2 November on the footing that the Council would set up its devices as it saw fit, and that he had no obligation to talk to Mr Stevenson again before doing so.

[28]As we have said, we prefer Mr Hodgson’s evidence. His contemporaneous note makes it clear that both men recognised that Guy Fawkes would likely provoke the dogs. We think that Mr Hodgson may well have said something about leaving the monitoring until after Guy Fawkes. But we do not accept Mr Stevenson’s evidence that Mr Hodgson assured him that nothing would be done without further discussion with him. After all, it is clear that Mr Stevenson had just told Mr Hodgson in no uncertain terms what he could do with the devices – i.e., he could set them up on the property or properties of the complainant(s) and not on his property. There was nothing to suggest that Mr Stevenson was likely to have changed his mind if Mr Hodgson had spoken to him again.

[29]Mr Hodgson then set up a device on a property next to the Service Centre, in Burnett Road. He did so without any further discussion with Mr Stevenson. The device was the same kind as had been used in October. It was set up inside the adjoining property, effectively on the boundary between the two. In that position it was about 17 metres from the rear of the building on the Service Centre and the kennels where the dogs were housed.

[30]Mr Hodgson took recordings from that position at various times from around 3 pm on 6 November to about 6.00 pm on 11 November 2001. All in all, the recordings cover a period of around 116 hours in total.

[31]While the recording was taking place, Mr Hodgson would go to the monitoring device every now and again, remove the tape, and either change it or reset the device. Tapes of recorded noises were taken away for analysis.

[32]Mr Hodgson later transcribed those tapes as well. Again the transcript notes a good deal of barking, and there are also notes about the noises of vehicles and a mower. However there is nothing in the transcripts that Mr Hodgson prepared that could possibly be described as personal information about any identifiable individual.

[33]Mr Garrett described this monitoring process as being ‘indiscriminate’, and we agree with him in the sense that the device was unable to differentiate between different kinds of sounds. If any noise were loud enough to activate the mechanism then it was recorded. The result is that the tapes contained a variety of sounds - traffic noise, the noise of dogs barking, and the sound of the clock. The device would of course also record human voices if near enough and loud enough to activate the device.

[34]As a result of its monitoring the Council issued Mr Stevenson with an abatement notice pursuant to section 55(1)(b) of the Dog Control Act 1996. In that process Mr Stevenson was provided with the transcripts of the recordings. He said that was how he learned that his property had been monitored.

[35]Mr Stevenson challenged the abatement notice. His objection was heard by the Council on 18 December 2001. The notice was confirmed. We do not know what subsequently was done to alleviate the barking problem, or what became of Mr Stevenson’s dogs.

[36]Some 18 months later in June 2003 Mr Stevenson complained to the Privacy Commissioner (‘the Commissioner’) about what had happened. Subsequent correspondence shows that by August 2003 the Commissioner had decided to discontinue his investigation of the matter under s.71(2) of the Act. No final opinion was issued, but the correspondence does make it clear that in the Commissioner’s view there had been no interference with Mr Stevenson’s privacy. The Commissioner did not accept that the manner of collection of any personal information had been unlawful, unfair or unreasonably intrusive into Mr Stevenson’s affairs.

[37]Mr Stevenson commenced this proceeding in this Tribunal in June 2004.


The personal information at issue

[38]Principle 4 applies when an agency collects personal information. The definition of ‘personal information’ in s.2 of the Act makes it clear that it must be information about an identifiable individual. But it was common ground at the hearing that the sounds of dogs barking in this case was not personal information about an identifiable individual, even if the dogs did belong to Mr Stevenson.

[39]Before the hearing, however, Mr Stevenson had taken the trouble of having certain parts of the tapes duplicated onto a CD. The CD was played to us. Out of all of the 116 or so hours over which the monitoring took place, there is only one segment of recording that is about 17 seconds long and which is material.

[40]The segment in question contains noises which suggest a car arriving at the Service Centre. A voice is heard to say "Who’s you after then?". There is some further noise, and then the same voice says "You just got a stone in your wheel". A vehicle is then heard to drive away.

[41]For the Council, Mr Gilmour had a number of submissions to make about whether any of this could amount to personal information about Mr Stevenson, or anyone else. But putting aside those legal issues, there is a technical matter that needs to be noted first.

[42]As we have said, the recordings were originally made on micro-cassette audio-tapes. Mr Gilmour played us the original tape that corresponds with the segment we had heard from the CD. We agree with Mr Gilmour that what can be heard on the tape is too indistinct to identify anyone. Perhaps a very careful listener might be able to pick up the character of the voice that can only barely be heard, but we accept that probably the only person who could have identified the voice as being that of an identifiable individual is the individual concerned, namely Mr Stevenson.

[43]Clearly the process of transferring the audio recording from the tape to the CD has enhanced the quality of the recording very significantly (it was not suggested at any stage that the CD is not a copy of what was on the tape). We find that the quality of the recording on the CD is such that the voice which can be heard very much more clearly could probably be identified not only by Mr Stevenson, but also by others who were familiar with his voice.

[44]As a result, there is a question as to whether our assessment concerning any collection by the Council of personal information about Mr Stevenson should be based on the tape recording as it was originally made, or on the enhanced CD copy of the recording. We will come back to that issue.

[45]Mr Garrett identified three pieces of information on the CD which he submitted to be personal information about Mr Stevenson:

(a) The fact that Mr Stevenson spoke the words "Who’s you after then?";
(b) The fact that Mr Stevenson spoke the words "You just got a stone in your wheel";

(c) The fact that Mr Stevenson’s car was being operated.

[46]In addition Mr Stevenson said that as a result of listening to the segment he knew who it was who had come to see him, and to whom he can be heard talking. Mr Stevenson said it was an acquaintance of his, although he could not remember the person’s name.

[47]We are not willing to accept that the tape contains anything that amounts to personal information about another identifiable individual in this respect.

[48]In our view item (c) cannot sensibly be described as a piece of personal information about an identifiable individual either. Mr Stevenson may be able to recognise the sound of his motor, but we did not hear anything that might sensibly establish that the noise was that of his (Mr Stevenson’s) car as opposed to any other car. In any event Mr Stevenson’s suggestion is at odds with the fact that he was talking to an acquaintance about the acquaintance having a stone in his wheel. Nor do we accept that the sound of the car in this case is much different in terms of the privacy issues from the sound of barking dogs. We are not willing to accept that the sound of the car that is heard on the tape is personal information about anyone.

[49]In our view the only two items that could even arguably be said to have been ‘personal information’ about an identifiable individual (i.e., Mr Stevenson) are (a) and (b) – which, for practical purposes, comes down to saying that this case is only concerned with the Council’s recording of Mr Stevenson saying to an unknown person "Who’s you after then? ... You just got a stone in your wheel."


The Issues

[50]The Council accepts that it is an agency to which the Act applies.

[51]Five separate questions were identified:

(a)Can Principle 4 apply to attempts to collect personal information, even if no personal information is in fact collected? (this was raised because there was an obvious possibility that the Tribunal might find that no personal information was collected at all);
(b)If Principle 4 only applies where personal information is actually collected, was any personal information collected by the Council?

(c) Was the manner of collection of any personal information such as to contravene Principle 4?

(d)If a contravention of Principle 4 is established, what harm did Mr Stevenson suffer?

(e)If an interference with privacy is established, what remedy is appropriate?

[52]The issues raised by questions (a), (b) and (c) are complex, and our conclusions are tentative in some aspects. We will deal with them, but we think it best to start with question (d). In that regard we have a clear view of the outcome, and one which will dispose of the case irrespective of the other issues.


What harm did Mr Stevenson suffer?

[53]Because this is a claim under Principle 4, Mr Stevenson must establish that he has suffered from adverse consequences of one or more of the kinds set out in s.66(1)(b)(i) to (iii) of the Act before any interference with his privacy can be found (we will use the word ‘harm’ as a shorthand way of describing all of the different elements of s.66(1)(b)(i) to (iii)). Without that, there is no statutory basis to consider the issue of remedy: see s85(1) of the Act. And we note that if the harm that is relied upon is in the nature of humiliation, loss of dignity or injury to feelings then it must be shown to have been ‘significant’ in the sense that it was considerable or important: see H v WestpacTrust (CRT Decision 28/99, 20 October 1999) and Winter v Jans (unreported, High Court, Hamilton, CIV-2003-419-854, per Paterson J, P J Davies and L Whiu, 6 April 2004 at para [35])

[54]We have a clear view that Mr Stevenson has not suffered any real harm, much less harm of a kind that crosses the threshold of s.66(1)(b).

[55]Indeed Mr Stevenson gave no evidence of any kind as to any adverse consequences until the matter was raised at the very end of his examination by the Chairperson of the Tribunal. When prompted by the Chairperson, Mr Stevenson said in essence that the whole process that the Council had undertaken had left him out of favour with his neighbours. But we think Mr Gilmour is right to say that, if that is so, it is very much more likely to have been a result of the fact that his dogs were noisy, and the way in which he responded to the Council’s attempts to deal with that, than it is a consequence of what little personal information the Council may have obtained about him from its recordings of the barking dogs.

[56]Mr Garrett’s primary submission on this issue was that Mr Stevenson should be reimbursed for the costs incurred in bringing this claim against the Council. But the Act deals with the question of costs (see s.85(2)) quite separately from the questions of harm that give rise to an interference with privacy (s.66) and of awarding damages (ss.85(1)(c) and 88). It confirms what we would have thought was obvious in any event. Mr Stevenson cannot rely on the fact that he has incurred costs in this litigation to establish harm under s.66, or to justify an award of damages.

[57]Beyond that, Mr Garrett did not really argue that there had been any harm to Mr Stevenson. Instead his submission was that the wording of s.66 is such that there can be an interference with privacy if there is no more than a possibility of harm, even if hypothetical. He drew our attention to the way in which the section uses the words "... has caused, or may cause ...", "... has adversely affected, or may adversely affect ..." and "... has resulted in, or may result in ..." (our emphasis) when describing the kinds of consequences that can give rise to a finding of an interference with privacy.

[58]We are not willing to accept that s.66 was intended to include purely hypothetical possibilities of harm. If that was so, it is difficult to see why Parliament would have gone to the trouble of enacting s.66(1)(b) at all. It may be that - assuming that there is adequate evidence to establish such a thing - there could be shown to be an interference with privacy even though some or all of the harm that will result from a contravention of the Privacy Principles may lie in the future, or where the conduct giving rise to the harm is continuing. But (save for cases in which Principles 6 and 7 are in issue) we are not willing to interpret the Act as meaning that there can be an interference with privacy notwithstanding that the plaintiff has not suffered any of the adverse consequences that are set out in s.66(1)(b), and cannot demonstrate by satisfactory evidence that he or she will or is likely to suffer any such harm in the future.

[59]We also agree with Mr Gilmour that the use of the word ‘significant’ in 66(1)(b)(iii) is material. It is impossible to reconcile the use of that word with the suggestion that nonetheless harm of a speculative or hypothetical kind will satisfy the statutory requirements.

[60]While we accept that the assessment of what harm is actually suffered in any case should be approached subjectively, in our view the Act demands attention to the practical realities of each case not hypothetical possibilities.

[61]As we have said, there was no evidence to establish that any of the kinds of harm listed in s.66(1)(b) were suffered by Mr Stevenson as a consequence of the fact that the Council collected a recording of him saying "Who’s you after then? ... You just got a stone in your wheel" when it was recording for the sound of his dogs barking. Nor is there any evidence to suggest that the situation has any real prospect of changing in the future: if Mr Stevenson has not yet suffered harm, we cannot see anything about the facts in this case to suggest that he is likely to suffer such harm at some unspecified future date.

[62]For these reasons we have a clear view that Mr Stevenson has not suffered any interference with his privacy.

[63]It follows that there is no need to consider the questions listed as (a) to (c) at paragraph [51] above, because the claim must be dismissed in any event. Given the way in which the case was presented, however, we think it would be wrong not to say something about those questions. We will do so, albeit in a rather more summary way than we might if the result of the case depended on the analysis.


Can Principle 4 apply to attempts to collect personal information where no personal information is in fact collected?

[64]This issue was raised because, on any realistic assessment of the pleadings, there was clearly a possibility that we might find the Council had not actually managed to collect anything that could be described as personal information about an identifiable individual. In that case, could the claim nonetheless be brought on the basis of an argument that Principle 4 applies not only to actual collections of personal information, but also to attempts to collect personal information?

[65]Having heard the evidence we are inclined to think that the Council did collect some rather innocuous personal information about Mr Stevenson, namely that on a certain day and at a given time he spoke the words "Who’s you after then ... You just got a stone in your wheel" while he was within the ‘hearing’ range of the Council’s monitoring device. Our reasoning is set out in the next section of this decision. If it is accepted, then this issue does not need to be decided.

[66]However our conclusion on the ‘personal information’ issue has its own complexities, and in any event we think it appropriate to record how this issue was argued and how we would have approached the matter had it been necessary for us to decide it.

[67]Mr Garrett argued that an action can be brought in respect of Principle 4 even if no personal information is collected. He relied primarily on the wording of s.66(1)(b) and the way in which the word ‘may ‘ has been used to describe the kinds of harm that must be established to constitute an interference with privacy – see paragraph [57] above. He submitted that if the manner of an attempt to collect personal information ‘may’ cause, or ‘may’ adversely affect, or ‘may’ result in an interference of a privacy, then there can be an interference with privacy even if no personal information is in fact collected. And, as Mr Garrett made clear, what Mr Stevenson really objected to was the fact that the Council’s devices had been set up in close proximity to his property, and that they were capable of recording not only the sounds of dogs barking and so on, but also anything that he might have said while within the ‘hearing’ range of the devices – no matter how personal or private it might have been. Mr Garrett argued that that was an intrusion that could be expected to result in harm or adverse consequences of one or more of the kinds listed in s.66(1)(b). On this basis Mr Garrett contended that the manner of collection of information in this case constituted a contravention of Principle 4 regardless of whether or not there was in fact any personal information collected.

[68]At the time that the list of issues for determination was formulated before the hearing, Mr Stevenson seemed to be having difficulty identifying what personal information about him had been collected. As we have explained, however, by the time of the hearing itself Mr Stevenson’s position was that his voice could be heard, and it was identifiable, and that was a collection of personal information about him. We mention this only to explain why Mr Gilmour did not address this issue in detail. Nonetheless, when it became clear that the issue was to be pursued, he submitted that Principle 4 is clear in its wording. He argued that it cannot apply to an unsuccessful attempt to collect personal information because, by definition, such an attempt means that the agency in question has not ‘collected’ any personal information. He also submitted that s.66 only comes into play after a contravention of one or more of the Privacy Principles has been established – so that, whatever the word "may" in s.66(1) means, it does not remove the need for a plaintiff such as Mr Stevenson to establish that a Privacy Principle has been breached.

[69]We have already dealt with the argument raised by Mr Garrett regarding s.66 above. We do not accept that the use of the word ‘may’ in s.66(1)(b) was intended to open up the possibility of claims that are no more than speculative or hypothetical. And we agree with Mr Gilmour that the use of the word ‘may’ in s.66 does not remove the need for a plaintiff in a case under the Act to show that there has been a breach of a Privacy Principle.

[70]But even so, we do not wish to completely exclude the possibility that Principle 4 might apply to an unsuccessful attempt to collect personal information. We give a hypothetical example to illustrate our concern. What if an agency were to deliberately take unlawful steps in an effort to obtain personal information, but fail to achieve its objective only because of some event or circumstances beyond its control? Evidence establishes that the subject has suffered significant loss of dignity, humiliation and/or injury to feelings upon learning of the agency’s conduct. In a case of that kind, we think it would be proper to consider whether the opening words of Principle 4 might have been intended to mean something like "An agency shall not set about collecting personal information ...". It seems to us to be at least arguable that such an approach reflects the legislative intention, and it does not raise or depend on any conclusion about what s.66 means.

[71]We make it clear that we have no firm view of the matter, save that we think this is not an appropriate case in which to endorse a broad proposition that Principle 4 can never apply unless some personal information is shown to have been collected.

[72]We do not need to determine the issue in this case because, as we have said, we would not find that there was any interference with Mr Stevenson’s privacy in any event. We add that even if we had decided that Principle 4 can apply to an unsuccessful attempt to collect personal information, in this case the evidence makes it clear that it was never the Council’s intention to collect personal information about Mr Stevenson. Its purpose was to collect information about his dogs barking. If any personal information about him was collected, that was not because the Council set out to collect that kind of information. It was because of the indiscriminate way in which the Council’s monitoring devices worked.


Was any personal information about Mr Stevenson collected by the Council?

[73]There were three aspects to this question. We take the practical issues concerning the quality of the tape recording first.

[74]As we have explained, when we listened to the tape we were unable to discern anything that would really have allowed Mr Stevenson’s voice to be identified by anyone (other, perhaps, than himself). We think the ‘agreed’ statement of fact put the situation very well in these terms:

"In addition to dogs barking there is recorded on the tapes an instance of the sounds of a human voice or human voices. It is not free from doubt as to the precise words spoken on the tape nor is it possible categorically to state that the voice, or one of the voices, so recorded is that of Mr Stevenson"

In our view, taken on its own the tape does not provide a sufficient evidential basis for a finding that the Council collected any personal information about Mr Stevenson.

[75]But we do not only have the tape. We also have the CD, which somehow reproduces the sounds from the tape in an enhanced way. We accept that Mr Stevenson’s voice can be heard on the CD, and the words he spoke are recognisable.

[76]As we understand it, the CD was prepared by Mr Stevenson from the tapes for the purpose of pursuing this claim. The result is that

[a] the Council has a tape that, taken on its own, we would not regard as sufficient to establish any collection of personal information about Mr Stevenson; but
[b] Mr Stevenson has used the tape to create a version that does allow his voice to be recognised, and which is in our view adequate to establish that information was collected.

[77]Can it be said that what we heard on the CD was information that was collected by the Council? In our view it can. After all, Mr Stevenson could not have made the CD without the tape. There is nothing on the CD that was not collected by the Council when the tapes were recorded (we should say that there was no suggestion at the hearing that what we heard on the CD was not just an enhanced version of the sounds recorded on the Council’s tape).

[78]As a matter of principle, even though the device used by the Council to replay the information that it collected is not capable of producing the sound recordings in a recognisable way under normal conditions, the noises from which the CD was made were all there, and better equipment allows it to be heard much more distinctly.

[79]The fact the information can really only be identified on the CD is, however, material to the question of whether or not there was an interference with Mr Stevenson’s privacy under s.66. It is not as if the Council ever had a version of the information in its possession (at least, not before Mr Stevenson provided it with a copy of his CD) that was ever likely to be accessed by anyone other than Mr Hodgson when he was ‘transcribing’ the tapes. We have dealt with the issue of harm above, but in the circumstances we do not find it surprising that Mr Stevenson’s evidence in chief was altogether silent on the question of what adverse consequences he had suffered.

[80]Accepting that is it appropriate to refer to the CD rather than just the tape to assess whether any personal information about Mr Stevenson was collected, the second question under this general heading is whether what was collected could amount to ‘personal information about an identifiable individual’ in any event.

[81]The only items that seem to us even arguably to constitute ‘personal information about an identifiable individual’ are the facts that, at the time and on the day indicated by the tape in question, Mr Stevenson spoke the words "Who’s you after?" and then (a very short time later) "You just got a stone in your wheel" while he was within the ‘hearing’ range of the Council’s monitoring device.

[82]What Mr Stevenson is heard to say has no intrinsic sensitivity or significance. There is absolutely nothing about his words that reveals anything of a personal nature, or really has any consequence whatsoever. If the information that the Council collected is personal information about Mr Stevenson, of itself it is inconsequential.

[83]But we think it would be wrong to allow that to obscure the underlying concern, namely that the Council obtained a recording of Mr Stevenson talking while on his own property and in circumstances where he says he did not know (or was not aware at the time he was speaking) that what he was saying was being recorded by the Council. The way in which the Council’s devices were set up were such that Mr Stevenson could just as easily have been recorded saying something of a highly confidential, personal or sensitive nature. It is for this reason that, despite the seemingly innocuous facts in this case, we consider that there are significant issues of principle at stake.

[84]There is some uncertainty as to exactly what is and what is not within the concept of ‘personal information’ to which the Act is intended to apply. We do not propose to repeat the discussion here in detail, but note that the issue has been raised in several cases including A & Another v G [1999] NZCRT 18; (1999) 5 HRNZ 598; Mitchell v Proceedings Commissioner [1994] NZCRT 3; [1995] NZAR 274; C v ASB Bank [1997] NZCRT 21; (1997) 4 HRNZ 306; Harder v Proceedings Commissioner [2000] NZCA 129; [2000] 3 NZLR 80 (Court of Appeal); Boyle v Manurewa RSA Inc (HRRT Decision 16/03, 4 June 2003); CBN v McKenzie Associates (HRRT Decision 48/04; 30 September 2004); and Apostolakis v Sievwrights (HRRT Decision 1/05, 14 February 2005).

[85]The cases (in particular the CBN v McKenzie Associates and the Apostolakis decisions) refer to academic commentary and other authorities relevant to the question as well: see also Roth, What is ‘Personal Information’? (2002) 20 NZULR 40

[86]The Apostolakis decision is presently the subject of an appeal to the High Court, with a result that some further guidance on the issue may soon be available. In the meantime, however, we stand by the view that the definition of ‘personal information’ ought not be given an unnecessarily limited or restricted meaning. We think it is clearly arguable that to record someone speaking is to collect personal information about them – at least including the facts that they spoke certain words at a certain time and in a certain place. On that basis we are inclined to think that, when the Council recorded the few words spoken by Mr Stevenson that are on the tape, then it did collect some personal information about him.

[87]But that is not the end of the matter. The third question under this general heading concerned the definition of the word ‘collect’ in s.2 of the Act: "Collect does not include receipt of unsolicited information"

[88]In Mr Gilmour’s submission, what the Council set out to do was to collect information about the barking of Mr Stevenson’s dogs. It was not looking for any personal information about him. As a result, and in that sense, it did not ‘solicit’ any personal information about Mr Stevenson at all. On that basis he submitted that the Council cannot be found to have collected personal information about Mr Stevenson – at least not in such a way that Principle 4 applies to it.

[89]Again, we consider this a potentially difficult issue. In our view it is at least arguable that, even though the Council may not have set out to collect personal information about Mr Stevenson, the way in which it set up its devices was such that when it in fact collected information of that kind, the information was not ‘unsolicited’ in the sense intended by s.2. After all, the Council set up its devices at the boundary of Mr Stevenson’s property for the purpose of recording what was going on there. It is not as if Mr Stevenson volunteered any of what he said to the Council. He had not asked the Council to set up the monitoring devices. And it must have been reasonably within the Council’s contemplation when it set up the devices that they might record the sound of voices on Mr Stevenson’s property as well as the sounds of dogs barking and other noises. As a result, although the Council may not have set out to record Mr Stevenson’s voice, we have some difficulty accepting that when it did record his voice the information thus obtained can truly be regarded as ‘unsolicited’ in its hands.

[90]We see the situation here as being different from the circumstances under consideration in Harder v Proceedings Commissioner [2000] NZCA 129; [2000] 3 NZLR 80. That case concerned the recording of two discussions. In respect of the first, it was held that information supplied during a telephone discussion between two people was ‘unsolicited’ because the caller who supplied the information had not been asked by the recipient to call him, or to tell him what she did. On the second occasion, however, it was clear that the information that was given was not unsolicited, because the recipient had arranged for the call to take place and he had asked the caller for the information. As the Court said, these were two clear examples of information that was unsolicited, and information that was solicited. But we do not see that the facts of this case are really aligned with either situation. And, again because of the way in which the case unfolded, we did not hear detailed argument on this point. We therefore note the discussion, but prefer to leave open the legal issue about what the definition of the word ‘collect’ in the Act includes and excludes.

[91]In summary:

[a] We think it is appropriate to refer to the CD to evaluate what information the Council collected;
[b] We think it arguable that the recording of Mr Stevenson’s voice did involve the acquisition by the Council of personal information about him;

[c] We leave open the question as to whether what it acquired was ‘collected’ in the way contemplated by s. 2 of the Act.


Was the manner of collection such as to contravene Principle 4?

[92]Mr Garrett’s first submission under this heading was that the manner of collection in this case was unlawful, and thus contravened Principle 4(a). The essence of his argument was that the Council and its officers cannot lawfully do anything more than that which they are expressly permitted by legislation to do. Because the Dog Control Act 1996 does not say in as many words that a council or its officers can set up monitoring equipment of the kind used in the present case, he contended that it must follow that it was unlawful for Mr Hodgson to have done so.

[93]There is perhaps some room for debate as to what the word ‘unlawful’ in Principle 4(a) encompasses. In the present case we think it is clear that what Mr Hodgson did was not illegal – i.e., it cannot be said that the monitoring was prohibited by any legislative measure. There is nothing intrinsically unlawful about setting up a tape recorder and operating it, and in this case we think it can safely be inferred that the devices were set up on the properties near and adjacent to the Service Centre with the permission of the occupiers of those properties. The Court of Appeal decision in Harder v Proceedings Commissioner (supra) makes it clear that it is neither unlawful nor necessarily unfair for one party to a conversation to record the conversation without the knowledge of another party to the conversation (see also R v A [1994] 1 NZLR 429). The same must apply a fortiori to what was intended to be a recording of barking dogs.

[94]Whether the word ‘unlawful’ in Principle 4(a) should be read as including unlawfulness in an administrative law sense is very much less obvious. We wish to make it clear that we are not deciding the point. However, even assuming that the word ‘unlawful’ is capable of encompassing that which is ultra vires, we are not persuaded that the Council did anything that it did not have power to do in the pursuit of its responsibilities under the Dog Control Act.

[95]We agree with Mr Gilmour that the starting point in this analysis must be that, as a distinct legal entity, the Council is entitled to do the things that a natural person can do save as circumscribed by law. And we think Mr Gilmour is also right to say that implicit in the Dog Control Act 1996 there must be sufficient power for council officers to carry out a council’s duties under that Act. Before an abatement notice can be issued the council’s dog control officer must have reasonable grounds for believing that a nuisance is being created by persistent and loud barking (s.55 (1) of the Dog Control Act). As Mr Hodgson told us, not all complaints are shown to be justified. It is not unknown for a monitoring exercise like this to establish that - despite complaints received - there is no sufficiently loud or persistent barking to warrant council intervention. Furthermore, if (as Mr Garrett appeared to accept) the Council could properly have collected the same information by simply having its officers sit there listening to the dogs instead of using the monitoring device, it is difficult to see how the use of the device could be described as having been ‘unlawful’, whether in the sense of being ‘illegal’ or in an administrative law sense.

[96]We do not think that the means by which the Council obtained such personal information about Mr Stevenson as it did acquire in this case was ‘unlawful’. There was in our view no contravention of Principle 4(a).

[97]Principle 4(b) has two separate limbs. The first requires us to consider whether the manner of collection was by means that were, in all the circumstances of the case, unfair.

[98]In this respect our factual findings are significant.

[99]We take the event of monitoring on 25/26 October first. We have accepted that the Council’s purpose was not to collect personal information, but to monitor the sound of barking dogs. There is no evidence that any personal information of any kind was acquired on that occasion. We think it follows from those two conclusions that Principle 4 cannot apply to anything that was recorded on 25/26 October.

[100]The situation is different with respect to the recordings that started on 6 November 2001. On that occasion, and notwithstanding that the Council did not set out to collect personal information, some personal information was in fact acquired. But we have found that on 2 November 2001 Mr Hodgson made it clear to Mr Stevenson that monitoring was likely to occur after Guy Fawkes - Mr Hodgson had offered Mr Stevenson the opportunity to have the device on the Service Centre property, but Mr Stevenson had refused saying that any devices should be set up on the properties of those who were complaining. We do not accept Mr Stevenson’s evidence that Mr Hodgson assured him that no monitoring would commence until he (Mr Hodgson) had been to see Mr Stevenson to discuss the matter again. In our assessment, Mr Stevenson knew from 2 November 2001 that the Council might well do exactly what he (Mr Stevenson) had suggested be done – namely that the devices would be set up in the vicinity.

[101]In these circumstances we do not think that the means by which the Council acquired such personal information about Mr Stevenson as it did acquire can be described as having been ‘unfair’.

[102]The second limb of Principle 4(b) requires us to consider whether the establishment of the monitoring devices on the nearby properties intruded to an unreasonable extent upon Mr Stevenson’s personal affairs.

[103]In this case the monitoring devices were not established on Mr Stevenson’s property. As least in respect of the period after 6 November, Mr Stevenson was aware that monitoring might occur since it was he who suggested that any devices should be set up on the property or properties of those who were complaining about his dogs. There is no basis for a conclusion that the monitoring equipment itself intruded into his activities, or that the process of monitoring affected his business or caused him to alter his own conduct in any way at all. In the end, the only personal information about him that was acquired was of no consequence. It may also be a factor that the monitoring was at a commercial property rather than at his home address. For these reasons we are inclined to think that what the Council did in this case cannot be said to have intruded to an unreasonable extent on Mr Stevenson’s personal affairs.

[104]There are, however, two reservations. The first is that there is room for discussion as to exactly what the words ‘personal affairs’ in Principle 4(b) covers – see Butterworth’s Privacy Law and Practice at para [1006.22B]. The second is less easy to articulate, but reflects an underlying feeling of concern about the fact of a public body like the Council indiscriminately recording everything that happens at a private address. In this respect we do have some sympathy for Mr Stevenson. We doubt that there are many people in New Zealand who would be completely untroubled at the thought of the local council setting up a tape recording device on their fence-line, in order to record whatever noises are there to be recorded even though the only noise of real interest is that of dogs barking. It is also clear that Mr Stevenson was not told exactly where the devices were set up, or when they would be running.

[105]Perhaps the Council in this case was just lucky that its recordings did not pick up anything more sensitive than they did. Had they done so, we think it would have been open to us to conclude that by setting up recording devices that were capable of acquiring such information the Council did intrude to an unreasonable extent upon Mr Stevenson’s personal affairs. If that is accepted, then we wonder whether it is appropriate to effectively endorse what the Council did here as having complied with the Privacy Act in all respects.

[106]To illustrate our concerns in this respect, we refer to an unrelated recording of people talking. The recording was played to us by Mr Garrett during the hearing (the recording was evidently on the tapes that had been provided to Mr Stevenson by the Council in this case). As we understood the position, the voices were recorded onto the tape, but the tape was later used by the Council to monitor Mr Stevenson’s property. No doubt the Council expected that by re-using the tape everything that was already on it would be deleted. But it was not. Instead an exchange between two unidentified people was still there to be heard. The voices are clear enough that they would likely be recognisable to those who know them. The discussion is of a racist and offensive kind. Perhaps the speakers knew that the Council’s machine was recording them as they spoke, but the content of their discussion makes that seem unlikely. Indeed it is difficult to imagine that either of them would be pleased to learn that the Council has a verbatim record of what they said to each other. We suspect they would feel that the recording was a most unreasonable intrusion into their personal affairs.

[107]This part of the tape does not, of course, have any direct relevance to the issues in this case. Nonetheless it did serve as a reminder of the potential dangers for any agency of operating recording equipment which cannot itself discriminate between the different kinds of information that it is capable of acquiring.

[108]We record the debate, but since it is not necessary to decide the point again we prefer to leave the issue (i.e., as to whether the operation of recording equipment in the vicinity of Service Centre amounted to an unreasonable intrusion into Mr Stevenson’s personal affairs) open.


Formal Order

[109]For the reasons we have given, Mr Stevenson’s claim must be dismissed.


Costs

[110]As we have indicated, and somewhat unusually, Mr Garrett put a claim for costs forward effectively as part of Mr Stevenson’s claim for damages. As a result we had some submissions from Mr Garrett as to the costs incurred by Mr Stevenson (although his submissions did not go into the detail as to the amount of costs incurred, or anything of that sort). For the Council, Mr Gilmour submitted that costs should be reserved to be dealt with by a later decision of the Tribunal, once the outcome of the substantive issues is known. He also indicated that the Council might want to produce some further evidence of pre- hearing correspondence that is said to be relevant to the assessment of costs.

[111]It will already be clear that we agree with Mr Gilmour that a claim for the costs incurred in litigation is not something that can or should be treated as a claim for damages. The two are quite different matters. And in view of our decision, it must follow that the Council is at least prima facie entitled to an award of costs. In the circumstances we direct that any claim for costs is to be dealt with according to the following timetable:

(a)Any application by the Council for costs is to be by way of memorandum, and is to be supported by an affidavit or affidavits to produce any further evidence that we are asked to take into account. The memorandum and supporting materials are to be filed and served by 7 April 2006;
(b) If Mr Stevenson wishes to reply, or to produce any evidence of his own, then his memorandum in reply and any responding affidavits are to be filed and served by 28 April 2006;

(c) The Tribunal will then proceed to deal with the issue of costs on the basis of those papers, and without any further viva voce hearing.

[112]In case the foregoing timetable cannot be achieved for some reason that is not apparent to us, leave is reserved to both parties to apply for a variation. In that case we will leave it to the Chairperson of the Tribunal to make such further or other timetable orders as may seem to him to be appropriate to bring the issue of costs to a conclusion.



_______________ _____________ _______________
Mr R D C Hindle Mr A A Hall Dr A Trlin
Chairperson Member Member

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