AFW v WorkCover Authority of New South Wales

[2012] NSWADT 136

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

AFW v WorkCover Authority of New South Wales [2012] NSWADT 136

Hearing dates:

On the papers

Decision date:

12 July 2012

Jurisdiction:

General Division

Before:

S Montgomery, Judicial Member

Decision:

In matter No. 113274, pursuant to section 55(2) of the Privacy and Personal Information Protection Act 1998 the Tribunal determines not to take any action on the matter.

In matter No. 113275, pursuant to section 54(1) of the Health Records and information Privacy Act 2002 the Tribunal determines not to take any action on the matter.

Catchwords:

personal information - health information - access Request - whether documents are held by Respondent - the interaction between Acts - legal professional privilege - conduct

Legislation Cited:

Government Information (Public Access) Act 2009
Health Records and information Privacy Act 2002
Privacy and Personal Information Protection Act 1998
Workers Compensation Act 1987

Cases Cited:

LB v Hunter New England Area Health Service [2009] NSWADT 132
Ormonde v NSW National Parks & Wildlife Service (No 2) [2004] NSWADT 253
SL v University of Sydney [2011] NSWADT 65

Category:

Principal judgment

Parties:

AFW (Applicant)
WorkCover Authority of New South Wales (Respondent)

Representation:

AFW (Applicant in person)
A. Quinn, Solicitor WorkCover Legal Group
J McAteer, Office of the Privacy Commissioner

File Number(s):

113274, 113275

REasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): In these reasons the names of several private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as AFW. I have also limited my discussion of the evidence in order to avoid the possibility that the identities of individuals might be revealed.

1. AFW has applied to the Tribunal for review of two decision of the Respondent concerning access to documents. By letter dated 8 June 2011, AFW requested access to documents under the Privacy and Personal Information Protection Act 1998 ("the PPIPA"). The documents he sought were listed in a schedule to his letter. By letter dated 9 June 2011, AFW requested access to documents under the Health Records and information Privacy Act 2002 ("the HRIPA"). The documents he sought were listed in a schedule to that letter.

1. In each case, the documents to which access was requested are identical. AFW had previously sought access to the documents under the Government information (Public Access) Act 2009 ("the GIPA Act"). The Respondent had also refused the GIPA Act request.

1. In his requests AFW referred to a letter dated 1 June 2011 from Mr Craig McBride, Manager, Executive and Ministerial Services Unit of the Respondent, in which Mr McBride had identified various documents. By reference to that letter AFW requested the following documents:

1. Email from K Mitchell to K Sutherland 31/03/11

2. Email from K Mitchell to K Sutherland 31/03/11

3. Email from K Sutherland to K Mitchell 31/03/11

4. Email from K Mitchell to K Sutherland 31/03/11

5. Email from B O'Sullivan to K Mitchell 1/04/11

6. Allianz Request for Surveillance 2/01/08

7. Austrace Investigation Report 19/03/11

8. Email from K Mitchell to K Sutherland 8/04/11

9. Email from B O'Sullivan to K Mitchell 9/04/11

10. Memorandum from S Kelly, Principal

Legal Officer to K Sutherland regarding

privacy complaint by [AFW] 7/04/11

11. Allianz Response to ASDB Enquiry 31/03/11

1. AFW also sought a copy of all documents or records relating to surveillance, which contain, or refer to, any personal Information about AFW. The request covered documents or records held by: Allianz Australia Workers' Compensation (NSW) Limited ("Allianz") or related entities; Workers Compensation Nominal Insurer ("Nominal Insurer"); WorkCover; any third party service provider engaged by Allianz (or related entities), the Nominal Insurer or WorkCover; and any other person, organisation or government agency.

1. It is not in dispute that AFW is in receipt of workers compensation under the Workers Compensation Act 1987. His claim is managed by Allianz, a scheme agent appointed by the Nominal Insurer.

Applicable Legislation

1. A number of provisions in the PPIPA and the HRIPA are relevant to these matters. Section 4(4) of the PPIPA provides:

4 Definition of "personal information"

...

(4) For the purposes of this Act, personal information is held by a public sector agency if:

(a) the agency is in possession or control of the information, or

(b) the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement, or

(c) the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998.

1. Section 5 of the PPIPA provides:

5 Government Information (Public Access) Act 2009 not affected

(1) Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009.

(2) In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency.

1. Section 20(5) of the PPIPA provides:

20 General application of information protection principles to public sector agencies

...

(5) Without limiting the generality of section 5, the provisions of the Government Information (Public Access) Act 2009 that impose conditions or limitations (however expressed) with respect to any matter referred to in section 13, 14 or 15 are not affected by this Act, and those provisions continue to apply in relation to any such matter as if those provisions were part of this Act.

1. Section 25 of the PPIPA provides:

25 Exemptions where non-compliance is lawfully authorised or required

A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if:

(a) the agency is lawfully authorised or required not to comply with the principle concerned, or

(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

1. Section 9 of the HRIPA provides:

9 What constitutes "holding" information

For the purposes of this Act, health information is held by an organisation if:

(a) the organisation is in possession or control of the information (whether or not the information is contained in a document that is outside New South Wales), or

(b) the information is in the possession or control of a person employed or engaged by the organisation in the course of such employment or engagement, or

(c) in the case of a public sector agency - the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998.

1. Section 22 of the HRIPA provides:

22 Government Information (Public Access) Act 2009 not affected

(1) Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009.

(2) In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency.

(3) Without limiting the generality of subsection (1), the provisions of the Government Information (Public Access) Act 2009 and the Privacy and Personal Information Protection Act 1998 that impose conditions or limitations (however expressed) with respect to any matter referred to in HPP 6 (Information about health information held by organisations), HPP 7 (Access to health information) or HPP 8 (Amendment of health information) are not affected by this Act, and those provisions continue to apply in relation to any such matter as if those provisions were part of this Act.

1. Schedule 1 to the HRIPA sets out a number of Health Privacy Principles. Clause 7 of Schedule 1 provides:

7 Access to health information

(1) An organisation that holds health information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

Note. Division 3 (Access to health information) of Part 4 contains provisions applicable to private sector persons in connection with the matters dealt with in this clause.

Access to health information held by public sector agencies may also be available under the Government Information (Public Access) Act 2009 or the State Records Act 1998.

(2) An organisation is not required to comply with a provision of this clause if:

(a) the organisation is lawfully authorised or required not to comply with the provision concerned, or

(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

The Determination

1. Access to documents numbered 1 to 9 inclusive and document number 11 was refused on the basis that the documents dealt with the management of a specific workers compensation claim and fell within the exclusion provided by Schedule 2, clause 3 of the GIPA Act. Schedule 2 describes the functions of specified agencies in respect of which information is defined as excluded information. Clause 3 of Schedule 2 provides as follows with regard to the Nominal Insurer:

"Schedule 2 Excluded information of particular agencies

...

3 Competitive and market sensitive information

...

The Workers Compensation Nominal Insurer established under the Workers Compensation Act 1987 - functions relating to the issuing of policies of insurance to employers and the calculation of premiums (but only in relation to individual employers), the management of specific claims and to asset and funds management and investment."

1. Section 43 of the GIPA Act provides:

43 Access application cannot be made for excluded information

(1) An access application cannot be made to an agency for access to excluded information of the agency.

Note. Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency.

(2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section.

1. Access to document 10 was refused on the basis that it was a document to which legal professional privilege attached, giving rise to a conclusive presumption of an overriding public interest against disclosure pursuant to clause 5 of Schedule 1 to the GIPA Act.

1. Clause 5 of Schedule 1 provides:

"Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure

...

5 Legal professional privilege

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5."

Reconsideration

1. Following the application to the Tribunal the Respondent reconsidered its position and decided to release some of the documents and parts of some other documents to AFW. It maintained its decision to refuse access to the following documents.

4(a), (b) and (c) Attachments 1, 2 and 3 to Document 4 (an Email dated 31/03/11 from K Mitchell to K Sutherland

6 Allianz Request for Surveillance

7 Austrace Investigation Report

9 Email from B. O'Sullivan to K Mitchell

10 Memorandum from S Kelly, Principal Legal Officer to K Sutherland regarding privacy complaint by [AFW]

11 Allianz Response to ASDB Enquiry·

The Respondent's Reasoning

1. The Respondent relies on provisions in the PPIPA and HRIPA as the basis for rejecting the request. The determination stated:

On 15 June 2011 WorkCover made a decision to withhold the request for access to information dated 8 June 2011 under the PPIPA on the basis that section 20(5) of the PPIPA contains an exception whereby information that cannot be obtained under the GIPA Act cannot otherwise be obtained under the PPIPA.

WorkCover also made a decision on 15 June 2011 to withhold the request for access to information dated 9 June 2011 under the HRIPA on the basis that section 22(1) of HRIPA provides that "nothing in this Act affects the operation of the GIPA Act". WorkCover conveyed these decisions to you in a letter dated 15 June 2011.

AFW's Submissions

1. The essence of AFW's case is that there are two public sector agencies for purposes of the information in question: the Respondent and the Nominal Insurer.

1. AFW disputes the Respondent's assertion that the Nominal Insurer holds the information that AFW had requested and that pursuant to Schedule 2 of the GIPA Act the information was "excluded information of the agency". AFW asserted that the information cannot be excluded information pursuant to Schedule 2 of the GIPA Act as Schedule 2 of the GIPA Act does not provide for any exemption for information held by the Respondent.

1. AFW submitted that the Respondent and the Nominal Insurer are distinct legal entities. Accordingly, any Schedule 2 exemption in relation to the Nominal Insurer is not applicable to the Respondent.

1. AFW also noted that in Schedule 3 of the Government Information (Public Access) Regulation 2009 that the Nominal Insurer is not listed as a subsidiary agency of the Respondent or vice versa. They are therefore considered to be two separate agencies.

1. Further, AFW submits that the Respondent "holds" the requested information. In support of that submission he relies on section 4(4) of the PPIPA and section 9 of the HRIPA.

1. AFW further submits that as the Respondent satisfies every one of the criteria that define the holding of information. He claims that the Respondent holds the requested information, pursuant to the above provisions, and that there is no exemption that allows the Respondent to withhold the requested information. Alternatively, AFW submits that the Nominal Insurer and the Respondent both hold the requested information.

1. AFW also raised concerns about the Respondent's handling of these matters. In his the opinion, the Respondent has failed to follow due process and it has treated both him and the Respondent's statutory obligations in these matters with contempt.

The Respondent's Submissions

1. The Respondent explained the relationship between it and the Nominal Insurer as follows

• The Nominal Insurer is a statutory legal entity constituted by section 154A of the Workers Compensation Act 1987 ("the 1987 Act"). The Nominal Insurer is taken to be a licensed insurer: section 154B of the 1987 Act. It is responsible for managing the operation of the Workers Compensation Insurance Fund: section 154D of the 1987 Act. Section 154A (3) provides that the Nominal Insurer does not represent the State or any authority of the State.
• The Respondent acts for the Nominal Insurer: section 154C of the 1987 Act, but remains a distinct legal entity, namely, a statutory corporation representing the Crown: section 14 of the Workplace Injury Management and Workers Compensation Act 1998 ("the 1998 Act").
• The 1987 Act and the 1998 Act are to be read together: section 2A of the 1987 Act.
• Under section 154C (2) of the 1987 Act, in acting for the Nominal Insurer, the Respondent has and may exercise all of its functions under the 1987 Act, the 1998 Act and any other Act or law.
• Section 154G of the 1987 Act enables the Nominal Insurer to enter in arrangements by contract or otherwise with scheme agents in connection with the exercise of the Nominal Insurer's functions.
• All records and other documents made and kept or received and kept by a scheme agent in the exercise of the Nominal Insurer's functions are the property of the Nominal Insurer: section 154K of the 1987 Act.
• In recognition of the commercial arrangements existing between the Nominal Insurer and scheme agents and the investment functions of the Nominal Insurer, the Nominal Insurer was included within Schedule 2 of the Freedom of Information Act 1989 as an exempt body in relation to the issuing of policies of insurance to employers and the calculation of premiums for individual employers, the management of specific claims, and in relation to asset and funds management and investment.
• This exemption was carried forward into clause 3 of Schedule 5 of the GIPA Act. Accordingly, information that relates to functions of the Nominal Insurer relating to the issuing of policies of insurer to employers and the calculation of premiums (but only in relation to individual employers), the management of specific claims and to asset and funds management and investment, is by the operation of clause 3 of Schedule 5 of the GIPA Act, excluded information.

1. The Respondent says that in practice, it receives access applications in its capacity as acting for the Nominal Insurer without requiring the applications to be made to the Nominal Insurer. This is a practical and helpful approach that assists applicants and avoids the complexities that would be involved in requiring a formal delineation of functions between the two entities.

1. In response to AFW's submission that it holds the requested information in its own right, the Respondent submits that this construction would operate to render useless the exemption under Clause 3 of Schedule 2. It submits that this cannot be the intention of Parliament in enacting the specific exemptions in clause 3 of Schedule 2 of the GIPA Act in respect of the Nominal Insurer.

The Respondent further submits that AFW has not challenged the applicability of the original exemptions under the GIPA Act. If dissatisfied with refusal of access under the GIPA Act, the remedy for AFW would have been to utilise the review provisions of the GIPA Act.

1. The Respondent points to a number of provisions within the PIPPA and the HRIPA, set out above, in support of its submission that it is the intention of the legislation that the exemptions from access available under the GIPA Act are not overridden by the access obligations under the PIPPA and the HRIPA. The provisions ensure that access under the PIPPA and the HRIPA is no greater than that available under the GIPA Act.

1. The Respondent relies on the decision in LB v Hunter New England Area Health Service [2009] NSWADT 132 in which the Tribunal declined to conduct an inquiry into the question of access to documents sought by LB under the HRIPA because the issue had already been determined in prior decisions made by the Tribunal under the Freedom of Information Act 1989. The Respondent submits that, while the facts in the present case are dissimilar, the legal reasoning in the LB v Hunter New England Area Health Service case lends support to the view that where access can be refused under the GIPA Act, access is not available under the PIPPA and the HRIPA.

1. It submits that, as access to the documents has been validly refused under the GIPA Act, sections 5 and 20 (5) of the PIPPA, sections 22 and 23 of the HRIPA and sub clause (2) of Health Privacy Principal 7 operate to justify refusal of the current applications.

Document 10

1. As noted above, document 10 is a memorandum from S Kelly, Principal Legal Officer to K Sutherland. Access to document 10 was refused on the basis that it was a document to which legal professional privilege attached, giving rise to a conclusive presumption of an overriding public interest against disclosure pursuant to clause 5 of Schedule 1 to the GIPA Act. A copy of document 10 has been provided to the Tribunal on a confidential basis.

1. The Respondent relies on a statement by Mr McBride in which he confirmed that document number 10 is legal advice provided to an officer in the Executive and Ministerial Services Unit from the Respondent's Legal Group.

1. In relation to the claim for client legal privilege in respect of this document, the following further information is provided:

• Document number 10 is from a Principal Legal Officer in the Legisation, Advisings and Commercial Branch of the Respondent's Legal Group and is addressed to an officer within the Executive and Ministerial Services Unit of the Respondent. This Unit frequently seeks advice from Legal Group on a range of issues. In this case, the memorandum is a response to a request for advice on an issue concerning the privacy policy of a Scheme Agent of the Nominal Insurer. It is clearly marked "Privileged and confidential legal advice". Apart from the circumstances of its creation and the nature of the document itself, the contents of the memorandum establish that the dominant purpose of the memorandum is the provision of legal advice to an officer within the Respondent.
• the Respondent's Legal Group comprises persons who are qualified to practice law as Australian legal practitioners as well as administrative support staff. Legal Group provides a full range of legal services to the Respondent in the provision of advice and legal representation. All legal practitioners hold current practising certificates and comply with the compulsory professional development requirements necessary to retain those certificates. The Director of Legal Group holds an unrestricted practising certificate and is the solicitor on the record for purposes of litigation. Lawyers within Legal Group are expected to comply with the standards of professional conduct required of the profession.
• the Respondent's Legal Group is the source of legal advice to the Respondent. Communications between Legal Group and other staff in seeking and providing legal advice and in legal representation are treated with confidentiality.
• In the provision of legal advice and representation, Legal Group is not subject to external direction. Within the Respondent's Legal Group, advice is reviewed for quality and consistency by supervising lawyers, in this case by the Manager, Legislation, Advisings and Commercial Branch and by the Director, Legal Group. The final reviewed advice is regarded as that of the Legal Group, with due acknowledgment and responsibility being attributed to the author of the advice. This is consistent with arrangements in private practice and in the Crown Solicitors Office.
• The standard template advice form adopted by the Legal Group contains a note warning the recipient of the advice that disclosing the document or discussing its contest with a third party may mean that legal professional privilege is lost.
• There is no evidence to suggest that there has been wide circulation of the document or that there are any other facts or circumstances that have arisen that would amount to waiver of the privilege.

1. The Respondent submits that the appropriate outcome in each matter is that the Tribunal should decide not to take any action on the matter.

Privacy Commissioner's Submissions

1. Mr McAteer submitted that these applications raise a number of issues for consideration regarding the application of the PPIPA and the HRIPA. These concern firstly, the interaction between the PPIPA and HRIPA on the one hand and the GIPA Act on the other regarding applications for access to personal and/or health information. Secondly, whether, because the Respondent "holds" the requested information, it is not entitled to decline access on the ground that the information relates to one of the functions of the Nominal Insurer. Thirdly, whether the Respondent has met its evidentiary obligations in resisting an order of the Tribunal for release of the information and fourthly, whether the management of the internal review application by the Respondent should be subject to orders of the Tribunal.

1. In relation to the first issue, Mr McAteer submitted that the Respondent has adequately represented the interaction between the privacy statutes and the GIPA Act. He submitted that when the question is whether there is present an overriding public interest against disclosure, or whether the information is excluded information according to the GIPA Act, an access application made under the PPIPA or the HRIPA should not yield a different outcome to an application made under the GIPA Act where the facts and circumstances are not materially different. The legislative scheme as a whole aims at a policy of avoiding inconsistent outcomes; it aims to avoid "forum shopping" by applicants.

1. In relation to the second issue, Mr McAteer submitted that the workers compensation legislation created the Nominal Insurer as a "legal entity" with legal capacity to sue and be sued. It did not establish the Nominal Insurer as an agency of the State. It specifically stipulates that the Nominal Insurer is not and does not represent the State or any Respondent of the State. In this regard AFW could not make an application for access to this information under the privacy statutes directly to the Nominal Insurer, as the Nominal Insurer does not exist as an agency. The only agency available to answer such application for access and be subject to an internal review under the privacy statutes is the Respondent.

1. Mr McAteer likens the Nominal Insurer as a concept similar to that of the Nominal Defendant. Various legal schemes that enable a person to seek compensation have created a Nominal Defendant so that there is always someone with legal capacity to be sued, or always a pool of money from where compensation may be paid to an applicant. The Nominal Defendant is variously described as a legal abstraction or a legal device created to assume various liabilities under a compensation scheme.

1. In relation to the third issue, Mr McAteer submitted that the relevant facts that enable an agency to support a decision to decline access to information are wholly within that agency's peculiar knowledge, requiring the agency to prove them to the reasonable satisfaction of the Tribunal. In this case the Respondent is required to prove that:

(a)   Documents 4(a), (b) and (c), 6, 7, 9, and 11 contain information about its functions as representative of the Nominal Insurer relating to the management of a specific claim, namely AFW's claim.

(b)   Document 10 contains information created for the dominant purpose of giving or receiving legal advice or in connection with pending or anticipated litigation.

1. In his submission the mere submission or assertion as to the function or purpose of the information in question is not sufficient to support an agency's claim in Tribunal proceedings. A line of authority under the FOI Act required agencies to present some evidence in reliance of their claim. Mr McAteer submitted that resistance to access in applications under the GIPA Act and the privacy legislation should proceed in the same manner. He referred to the decision in SL v University of Sydney [2011] NSWADT 65 in which similar issues were discussed.

1. In relation to the fourth issue, Mr McAteer submitted that Tribunal decisions have established the principle that the Tribunal may only review conduct that has been subject to the internal review application reasonably construed.

1. Further, the conduct about which an applicant may request internal review is limited to a contravention of an Information Protection Principle (or Health Privacy Principle), or a Privacy Code of Practice, or the disclosure of personal information kept in a public register: section 52(1) of the PPIPA. Conduct for purposes of section 52(1) does not extend to other kinds of conduct, such as issues of procedure: Ormonde v NSW National Parks & Wildlife Service (No 2) [2004] NSWADT 253. In Ormonde I stated at paragraph [14]:

14 Section 52 of the PPIP Act provides for the types of conduct that may be reviewed under the PPIP Act. It is confined to conduct that has occurred at the time an application for Internal Review is made under section 53: Wykanak v Director General, Department of Local Government [2002] NSWADT 208 at paragraph 17. Any failure to afford Mr Ormonde procedural fairness or to follow prescribed public service procedures is not conduct that may be reviewed under the PPIP Act.

Discussion

1. It is common ground that AFW previously sought access under the GIPA Act to the same documents that are the subject of these applications. I agree with the submission that an access application made under the PPIPA or the HRIPA should not yield to a different outcome to an application made under the GIPA Act where the facts and circumstances are not materially different.

1. I also agree with the Respondent's submission

that if dissatisfied with refusal of access under the GIPA Act, the appropriate action by AFW was to seek a remedy under the GIPA Act.

1. I agree that where facts are wholly within an agency's peculiar knowledge it is for the agency to provide evidence to the Tribunal to support its position and to prove its case them to the reasonable satisfaction of the Tribunal. The evidence required to achieve this will vary from case to case. I some matters, as is the situation here, the documents themselves may be sufficient evidence.

1. I have considered each of the documents that are in issue in this matter. In regard to each of Documents 4(a), (b) and (c), 6, 7, 9, and 11 I am satisfied that the document contains information about the Respondent's functions as representative of the Nominal Insurer relating to the management of AFW's claim.

1. I agree with the Respondent's submission that to adopt the construction urged by AFW would operate to render useless the exemption under Clause 3 of Schedule 2. In my view, the legislation should be construed to give a consistent outcome. The exemption in clause 3 of Schedule 2 of the GIPA Act in respect of the Nominal Insurer should be construed so as to also be applicable to the Respondent insofar as it is performing functions as representative of the Nominal Insurer relating to the management of AFW's claim. In that capacity, the Respondent acts for the Nominal Insurer. The Respondent does not hold the requested information in its own right.

1. On the basis of the material provided by the Respondent, I am satisfied that Document 10 contains information created for the dominant purpose of giving or receiving legal advice. In my view it is a document to which legal professional privilege attached, giving rise to a conclusive presumption of an overriding public interest against disclosure pursuant to clause 5 of Schedule 1 to the GIPA Act. I am satisfied that the privilege has not been waived. There are no interests in favour of disclosure that would outweigh the overriding public interest against disclosure. In my view, the decision made under the GIPA Act was the correct and preferable one.

1. I agree with Mr McAteer that the issues raised by AFW regarding the management of the internal review application by the Respondent is not conduct that may be reviewed under the PPIPA. I note, however, that there appears to be some merit in the issues that AFW has raised and some form of apology may be warranted.

1. It follows, in my view, that the correct and preferable decision in each of these matters is that proposed by the Respondent. That is, that the Tribunal should decide not to take any action on each of the matters.

Orders

In matter No. 113274, pursuant to section 55(2) of the Privacy and Personal Information Protection Act 1998 the Tribunal determines not to take any action on the matter.

In matter No. 113275, pursuant to section 54(1) of the Health Records and information Privacy Act 2002 the Tribunal determines not to take any action on the matter.

**********

Decision last updated: 12 July 2012