AIN v Medical Council of NSW

[2016] NSWCATAD 8

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	AIN v Medical Council of NSW [2016] NSWCATAD 8
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:	The Respondent breached s.14 PIPP Act in that it held the Applicant’s personal information access to which was not provided to the Applicant without excessive delay. ORDERS The Applicant file and serve submissions as to remedy, not exceeding 2000 words, within 14 days. The Respondent file and serve submissions as to remedy, not exceeding 2000 words, within 14 days after receipt of the Applicant's submissions as to remedy. The matter is to be relisted for directions as to remedy on 18 April 2016 at 9.30am.
Catchwords:	Privacy – request for information – delay – scope of request - versions of document
Legislation Cited:	Privacy and Personal Information Protection Act 1998
Cases Cited:	KO and KP v Commissioner of Police, New South Wales Police Force [2005] NSWADTAP 56
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):	1410023

Judgment

Introduction

1. On 15 January 2014, the Applicant applied to the Tribunal for review of the Respondent’s deemed refusal to deal with her internal review application of 20 October 2013 under the Privacy and Personal Information Protection Act 1998 (‘PPIP Act’).

2. The Applicant’s internal review application concerned a request, under s.14 PPIP Act, for access to specific personal information about her which she alleged was held by the Respondent. The requested personal information can be summarised as follows:

1. whether a copy of the "Conditions Letter" was forwarded to the Applicant on any date before 13 October 2011;

2. whether a version of the "Conditions Letter" with a print-out date of 4 November 2008 exists or has ever existed (and, presumably, whether this is held by the Council);

3. any documentation or other information that indicates when and how such a version came into existence, whether it was ever sent to the Applicant and whether it was ever placed on her file; and

4. Whether the "Conditions Letter" (or a version of the "Conditions Letter") was forwarded to any other medical practitioner between 2008 and 2011.

Background

3. 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’).

4. Each year from 2004 to 2008, the Applicant applied for general registration and declared that her professional indemnity insurance status for the practice year would be “Limited Prescribing and Referral” (‘LPR’), which permitted her to undertake limited practice without professional indemnity insurance.

5. In May 2009, the Applicant sought general registration without the LPR restriction, but the Board’s Registration Committee refused her application. The Applicant then lodged an appeal to the Medical Tribunal.

6. In October 2009, after receiving further information from the Applicant, the Board referred the Applicant's application for unconditional general registration to a formal inquiry (‘Inquiry’), under Schedule 1 to the (now-repealed) Medical Practice Act 1992.

7. In December 2009, following the Inquiry, the Board decided that although it was appropriate to grant the Applicant general registration, the registration was to be subject to conditions, including as to supervision. The Applicant appealed the Board’s decision to the Medical Tribunal.

8. Both Medical Tribunal appeals were heard on 18-19 October 2010. 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.

Relevant legislation

9. Section 14 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".

Issue

10. Has the Respondent breached its obligations to the Applicant under s.14 PIPP Act?

The hearing

11. 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.

12. The Applicant made a detailed statement and made extensive submissions in this matter. In addition to its submissions the Respondent relied on a written statements by Ms D. Azad, the Council's A/Legal Director, dated 12 May 2014 and 23 June 2014.

13. The scope of the Tribunal's review is limited to considering the conduct said to be in breach of the PPIP Act, as initially 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.

CONSIDERATION

14. The Respondent was under the impression that, in about November 2008, it had written to the Applicant to advise her that the Register (of medical practitioners) had been amended and that her registration had been transferred to the LPR category with effect from 5 November 2008, in accordance with her instructions (‘Conditions Letter’) which set out agreed conditions of practice.

15. The Applicant claims that the first time she received the Conditions Letter was in October 2011 when it was forwarded to her by Ms Harvey, a Legal Officer of the Board. It appears that, had the Applicant received the Conditions Letter at an earlier date, she may not have chosen to transfer to the LPR category of registration and would have avoided proceedings before the Registration Committee, the Inquiry and the Medical Tribunal.

16. According to Ms Azad, the Respondent is unable to determine whether the Conditions Letter was sent to the Applicant on any date before 13 October 2011, and in fact, is unable to confirm whether a version of the Conditions Letter with a print-out date of 4 November 2008 ever existed, as it is unable to locate in its paper files any version of the Conditions Letter dated 4 November 2008, or with a print-out date prior to 26 November 2009.

17. Ms Azad said that, there is, however, an electronic copy of the Conditions Letter which was created on 4 November 2008 which appears in a TRIM container associated with the Applicant's files. The first three "versions" of the Conditions Letter contain a "Date field" that auto-populates to the date on which the file is opened. The dates on which the Conditions Letter was "checked in" to TRIM are 4 November 2008, 24 November 2009 and 26 November 2009. Ms Azad’s evidence was that she understood that a "revision" on TRIM is merely a reference to any time that the document is "checked back" into TRIM and does not indicate any intention by the author to create a new version of the document.

18. The Applicant contended that, in contravention of s.14 PPIP Act, the Respondent had failed to provide her with the various versions of the Conditions Letter in the TRIM system, and thereby there had been excessive delay and requiring her to incur excessive expense, including by having to bring proceedings under the Government Information (Public Access) Act 2009.

19. The Respondent submitted that the Applicant’s contention is outside the scope of the Tribunal's review, as it was not raised in the Applicant's initial letter to the Council of 2 October 2013, nor in her internal review application. It submitted that the Applicant did not specify in her application that she wished to be provided with every TRIM revision of the Conditions Letter. Further, it submitted, there was no reason for the Council to have known that the Applicant would want every TRIM revision of the Conditions Letter.

20. However, the Applicant had clearly raised the provenance of the Conditions Letter in the context of her first GIPA request on 19 June 2012. Further, and in my view, consistent with her contention, in her internal review application she referred to “version(s)” of the Conditions Letter. Indeed, this was the theme of the application.

21. The documents were ultimately produced on 5 July 2013. Version 5 was not provided to the Applicant until it was produced as part of the material attached to Ms Azad’s second statement.

22. I find that the Respondent held the Applicant’s personal information, access to which was not provided to the Applicant without excessive delay, contrary to s.14 PIPP Act.

23. The Applicant made serious allegations suggesting that there was evidence that the letter dated 4 November 2008 was "recreated" by Ms Harvey within the TRIM system on 24 November 2009, but these are not matters for the Tribunal.

24. The Applicant also raised issues associated with the use of the letter by the Council in October 2011 by Ms Harvey's representing that it had been sent to the Applicant in November 2008 and was a breach of s.16 of PPIP Act. This was not a matter raised in the internal review and, consequently, is outside the scope of the Tribunal’s review.

25. She also alleged that the Council failed to disclose any of that information prior to the decision of the Tribunal in earlier proceedings, it thereby contravened s.13(c) PPIP Act. This also was not a matter raised in the internal review and, consequently, is outside the scope of the present review.

26. She also contended that Ms Harvey's alleged recreation of the letter in November 2009 was an unauthorized modification of the record and the Respondent thereby contravened s.12(c) of PPIP Act. This too is outside the scope of the review because it was not raised in the internal review.

27. The Applicant's final request (for information regarding whether the Conditions Letter, or a version of the Conditions Letter, was forwarded to any other medical practitioner between 2008 and 2011) relates to information that is not personal information about the Applicant. Consequently s.14 PPIP Act does not apply.

DECISION

28. The Respondent breached s.14 PIPP Act in that it held the Applicant’s personal information, access to which was not provided to the Applicant without excessive delay.

ORDERS

29. The Applicant file and serve submissions as to remedy, not exceeding 2000 words, within 14 days.

30. The Respondent file and serve submissions as to remedy, not exceeding 2000 words, within 14 days after receipt of the Applicant's submissions as to remedy.

31. The matter is to be relisted for directions as to remedy on 18 April 2016 at 9.30am.

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