AIN v Medical Council of New South Wales

[2016] NSWCATAD 7

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

AIN v Medical Council of New South Wales [2016] NSWCATAD 7

Hearing dates:

10 and 11 September 2015

Date of orders:

05 January 2016

Decision date:

05 January 2016

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

N Isenberg - Senior Member

Decision:

1. With respect to items 1 and 2, I direct that the Respondent undertake a search of the ‘Revisions’ folder and provide to the Applicant within 14 days a screen shot of its contents. If there are no contents, then the decision under review is dismissed with respect to items 1 and 2.

2. If the folder is other than empty, the matter is to be re-listed for appropriate orders.

3. With respect to item 14 the application is dismissed.

Catchwords:

Section 14 – versions – “revisions” - electronically held information

Legislation Cited:

Privacy and Personal Information Protection Act 1998

Category:

Principal judgment

Parties:

AIN (Applicant)
Medical Council of New South Wales (Respondent)

Representation:

Solicitors:
AIN (Applicant in Person)
Crown Solicitor’s Office (Respondent

File Number(s):

1410022

Judgment

Introduction

1. On 15 January 2014, the Applicant applied to the Tribunal, alleging a breach of s.14 of the Privacy and Personal Information Protection Act 1998 (‘PPIP Act’) by the Respondent, the Medical Council of New South Wales.

Background

2. The Applicant is a medical practitioner. Registration as a medical practitioner is determined by the Respondent and, formerly, by its predecessor, the Medical Board of NSW (‘the Board’).

3. For reasons associated with her registration status, the Applicant brought proceedings before the Medical Tribunal. The parties settled the proceedings, save as to costs (which were awarded in the Applicant’s favour), by agreeing to orders imposing revised conditions on the Applicant's general registration. The Medical Tribunal delivered its decision ex tempore. A written copy of the Medical Tribunal’s decision was made available to the Respondent, shortly thereafter; the Applicant only received an earlier draft. The parties were referred to as “Re A practitioner”, and (erroneously) the "Office of the Health Care Complaints Commission", although this was subsequently corrected.

4. At the Medical Tribunal hearing the Applicant sought, and, by consent, was granted, a non-publication order (‘NPO’). The NPO prohibited the publication or disclosure of the Applicant's name, the name of her son, or any other identifiers of the Applicant or her son. Neither party appears to have sought a formal, sealed, copy of the Orders as entered, but there is no dispute that the NPO was made.

Application

5. In her application to the Tribunal the Applicant alleged various breaches of the PIPP Act by the Respondent.

6. However, the Applicant's application for internal review (on which this Tribunal’s jurisdiction is founded) complained of the following alleged conduct, based on her application under s.14 PPIP Act for access to her personal information:

On 28 June and 2 July 2013, the Council responded to the Applicant's letter of 11 June 2013 (which made a written request under s. 14 PPIP Act for access to personal information listed in a schedule attached to the letter), by providing some but not all of the requested information.

On 3 and 5 July 2013, the Council provided some, but not all, of the requested information from the Applicant's letter of 3 July 2013 (which alleged a failure by the Council to provide the requested information), and stated that it had now provided the Applicant with the information provided to the best of its ability.

On 17 July 2013, the Council responded to the Applicant's letter of 10 July 2013 (challenging whether all requested personal information had been provided to the best of its ability) by confirming that it had now produced all material in response to the Applicant's request that it holds.

The [remaining] information requested by the Applicant was known to have been held by the Council [and was not provided].

7. The scope of the Tribunal's review, is limited to considering the conduct said to be in breach of the PPIP Act, as identified by the Applicant in her application for internal review under s.53 of the PPIP Act KO and KP v Commissioner of Police, New South Wales Police Force [2005] NSWADTAP 56.

Relevant legislation

8. Section 14 of the PPIP Act provides that a "public sector agency that holds personal 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".

9. Section 4(4) of the PPIP Act provides that personal information is "held" by a public sector agency if:

the agency is in possession or control of the information, or

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

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

The hearing

10. The Applicant has a number of matters before the Tribunal, and all (bar one) were dealt with at the same time, but are the subject of separate decisions. It was discussed at the outset of the hearing that the Tribunal would consider only liability at this stage and that remedies, if any, would be considered later.

11. The Applicant provided a detailed statement. The Respondent relied on the evidence of Ms Domarina Azad, the Council's A/Legal Director, and her statements of 12 May 2014 and 23 June 2014. Both parties made extensive written and oral submissions.

12. The parties agreed that it is useful to deal with the applicant's complaints as they relate to specific records held or allegedly held by the Council. In the end result, only two items were in issue – items 1 (and 2, which is the same document) and item 14.

CONSIDERATION

13. The Respondent made lengthy submissions in relation to whether the information sought by the Applicant was ‘metadata’ and contended that ‘metadata’ should not properly be regarded as ‘personal information’ for the purposes of ss.4 and 14 PIPP Act. This contention does not require consideration, in my view, because the scope of the Applicant’s request, with respect to the items remaining in contention, is clear.

14. The Respondent's position was that all the Applicant’s personal information it holds which the Applicant has requested had been provided to her.

The Applicant's complaints in respect of specific records

Items 1: Document entitled "[AIN] - MT Decision dated 19 October 2010.tr5", a copy of which was attached to the email sent by Ann Kerley on 17 January 2011

Item 2: Document entitled "Dr [AIN] - MT Decision dated 19 October 2010 (scan for website)"attached to the email from Claudette Ichayagouri to Ann Kerley on 17 January 2011.

15. Ms Azad’s evidence, which appeared to be uncontested, was to the effect that, the same document was attached to each of the emails.

16. The Applicant seeks the version of the Medical Tribunal decision which was attached to the emails.

17. The original recipients/senders of the emails were members of the Council’s staff. Ms Grati-Feliks, the only current staff member, forwarded to the Internal Review Officer (‘IR officer’) an email matching the description in Item 2. No copy of the document described at Item 1 in email format could be located. Ms Azad said Ms St Hill, who had apparently printed the email record for the Council's paper file, reportedly did not hold the emails in her email history.

18. The Council searched its paper files and, while it had located a printed copy of both emails, no printed copy of the attachments could be found. Ms Azad gave evidence that the Council then searched its electronic database (‘TRIM’) but was unable to locate the electronic versions of the emails with attachments. The precise form of the Medical Tribunal decision attached to the emails could not be identified.

19. Ms Azad’s evidence was that documents scanned onto the TRIM system, are automatically marked "Final", which prevents revisions being made. No revisions are possible because they are scanned documents (usually in .PDF form). Further, there was no ‘TRIM Revisions Tab’ with respect to the Applicant’s Medical Tribunal decision; the Council was therefore unable to comply with the Applicant's request for it to provide screen shots of the "Revisions Tab" for these scanned documents, because there is no such tab. As the Applicant pointed out, this was clearly incorrect, as the screen shot of the TRIM record shows a ‘Revisions’ Tab (see Tab 10 of s.58 documents).

20. Also Ms Azad appears to have been in error in her opinion that no revisions can be made to documents scanned onto the TRIM system. A screen shot of the Properties in the TRIM record relevant to the Medical Tribunal decision, refers to ‘Revision 2’, which tends to suggest that, not only are documents capable of revision, but in fact, there was an earlier version of the Medical Tribunal decision. Although in error, I do not consider Ms Azad acted in other than good faith.

21. It was submitted from the bar table that the Respondent had looked in the ‘Revisions’ folder and found it to be empty. It is particularly unfortunate that although screen shots were provided in respect of several of the Tabs in the TRIM file, no screen shot was provided of the contents of ‘Revisions’.

22. The Respondent contended however that what the Applicant has sought the attachment to the emails, and that it is impossible to now say what was the attachment, irrespective of what might be in the ‘Revisions’ folder.

23. The Respondent hypothesized about what had occurred when a copy of the Medical Tribunal's decision was emailed to an officer of the Council and that it may have ultimately been deleted from the recipient’s email. The explanation is speculative, and unhelpful.

24. The Respondent took what seemed to me to be a fine point, namely that because it cannot identify what precisely was the attachment to the emails, it need go no further in its search for a previous version of the Medical Tribunal decision (if any). The difficulty with this approach is that the Respondent assumes that the version it has already provided to the Applicant is that which was attached to the emails. Further, in the long history of this matter, including ongoing correspondence between the Applicant (and her former solicitors) and the Respondent (and its solicitors), it was abundantly clear that the Applicant seeks assurance about whether there is an earlier version of the Medical Tribunal decision.

25. On balance, the screen shot which referred to ‘Revision 2’ tends to suggest that there may be an earlier version of the Medical Tribunal decision held in TRIM.

26. The Respondent’s position was informed by Ms Azad’s evidence that there was no Revisions tab, which, was clearly an error. It was inconsistent in my view for the Respondent, from the bar table, to assert that it had looked in the ‘Revisions’ folder and found it to be empty. As I have observed, it is particularly unfortunate that no screen shot was provided of the contents of ‘Revisions’.

27. I have come to the view that, in the event the ‘Revisions’ folder is empty, as the Respondent asserts, the Respondent could not be said to have failed to discharge its obligation under s.14 PIPP Act. I therefore direct that the Respondent undertake a search of the ‘Revisions’ folder and provide to the Applicant within 14 days a screen shot of its contents. If there are no contents, then the decision under review is dismissed with respect to items 1 and 2. If the folder is other than empty, the matter is to be re-listed before me for appropriate orders.

Item 14 - Each response to the email/s sent by Anne Harvey to "Friends" at 2.16pm on 22 September 2010 concerning a Summons in the Applicant’s matter

28. On 22 September 2010 Ms Harvey sent an email to the internal mail group "Friends" (the members of which, on the evidence of Ms Azad, cannot now be identified) asking each to check to ensure that all documents meeting the description of those sought by the Applicant in her summons had ‘made it onto the file’. The Applicant seeks the responses.

29. The Council searched its paper and TRIM files, but was unable to find copies of any responses. Subsequently, the Council's IT provider found one email which matched this description, being an email from Julia Burke to Ms Harvey dated 22 September 2010. That email has been provided to the Applicant. The Applicant did not accept that there could be only one response to Ms Harvey’s email. In the absence of information about the size of the ‘Friends’ email group, it is difficult to assess the extent to which there was either a failure to respond, or whether such responses are now unable to be located. I accept that the Council is a small organization, with few staff.

30. That the Council's IT provider found an email satisfies me that the Respondent went beyond searching its paper files and made a further effort to locate any response. The terms of the email, it seemed to me, in any event, did not necessarily require a response.

31. I accept that the Council has nothing further to provide to the Applicant in response to her s.14 application with respect to item 14.

32. The application insofar as it relates to item 14 is dismissed.

Conclusion

33. The Applicant is clearly distrustful of the Respondent and is unconvinced that the Council has provided her with the requested personal information in the formats in which it holds that information. It is doubtful that, despite its good intentions, the Council will be able to assuage the Applicant's distrust.

DECISION

34. With respect to items 1 and 2, I direct that the Respondent undertake a search of the ‘Revisions’ folder and provide to the Applicant within 14 days a screen shot of its contents. If there are no contents, then the decision under review is dismissed with respect to items 1 and 2.

35. If the folder is other than empty, the matter is to be re-listed before me for appropriate orders.

36. With respect to item 14 the application is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 05 January 2016