ALS v Department of Justice and Attorney-General Office of Fair Trading
[2014] QCAT 423
•19 August 2014
| CITATION: | ALS & Anor v Department of Justice and Attorney-General Office of Fair Trading [2014] QCAT 423 |
| PARTIES: | ALS (Applicant) |
| v | |
| Department of Justice and Attorney-General Office of Fair Trading (Respondent) |
| APPLICATION NUMBER: | OCL057-13 |
| PARTIES: | DJM (Applicant) |
| v | |
| Department of Justice and Attorney-General Office of Fair Trading (Respondent) |
| APPLICATION NUMBER: | OCL058-13 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 16 & 17 April 2014 |
| HEARD AT: | Townsville |
| DECISION OF: | Senior Member O’Callaghan |
| DELIVERED ON: | 19 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The complaints have not been substantiated. |
| CATCHWORDS: | INFORMATION PRIVACY ACT – where claim for compensation for breach of privacy principles – whether privacy principles apply to collection and disclosure of personal information in the conduct of investigation of complaint of misconduct – whether privacy principles breached if applicable Crime and Corruption Act 2001 (Qld), s 44 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr J A Greggery of Counsel instructed by Connolly Suthers Lawyers |
| RESPONDENT: | Mr G P Sammon of Counsel instructed by the Crown Solicitor for the State of Queensland |
REASONS FOR DECISION
In 2010, ALS and DJM (“the Applicants”) were employed by the Office of Fair Trading within the then Department of Employment Economic Development and Innovation (‘DEEDI’). DEEDI has subsequently ceased to exist and the Office of Fair Trading has been transferred to the Department of Justice and Attorney-General (‘the Department’).
ALS was the manager of the Office of Fair Trading in a regional Queensland city. DJM was a customer services officer (A03) in the same office. He had been promoted to that position in October 2006.
In March 2010, ALS was the subject of a complaint regarding alleged conduct which also involved DJM. The conduct the subject of the complaint was subsequently investigated by the Department. The Applicants say that in carrying out the investigation the Department breached the privacy principles embodied in the Information Privacy Act 2009 (Qld) (‘IPA’). They claim they are entitled to be compensated for the breach.
The Applicants lodged complaints with the Information Commissioner pursuant to the IPA. The Information Commissioner has referred the matter to QCAT to determine whether the complaints are substantiated. If found to be substantiated the Tribunal may make consequential orders including the payment of compensation.[1]
[1]IPA s 176, s 178.
The applications were heard together as the private information the subject of the referral, the particulars of the alleged breaches of the IPA by the Department and the compensation claims were the same.
The Department rejects the claims on the basis that any disclosure of personal information of the Applicants was justified in that the Department’s obligation to investigate the complaint under s 44 of the Crime and Corruption Act 2001 (Qld) (‘CCC Act’)[2] overrode any application of the privacy principles. Alternatively it claims that if the principles did apply they were not breached.
[2]Formerly the Crime and Misconduct Act 2001 (Qld).
The complaint
On 6 March 2010 an email was sent to email address ‘[email protected]’ and to the executive director of Office of Fair Trading from a ‘Jenna Woods’ in the following terms:
Subject: Official Misconduct
·ALS, as Manager, Fair Trading was on the panel as the chair and delegate that selected and promoted his former lover and also current housemate, DJM.
·Staff were directed to pick DJM up and bring him to work whenever ALS was away on business as they used the company car for transport to and from work.
·ALS also used the excuse of conducting compliance checks at the gay pubs to trawl for contacts.
·In the MOG moves ALS evicted the other A03 in the office without any due process in favour of taking his flatmate and joint owner of his properties with him.
·This is wrong and I continue to be disadvantaged due to this action. Promotion and transfer even laterally should be done fairly and seen to be done fairly.
The Legislative Scheme
One object of the IPA is to provide for the fair collection and handling in the public sector environment of personal information.[3] This object is achieved by requiring public service agencies to comply with privacy principles set out in Schedule 1 to the IPA when dealing with an individual's personal information.[4]
[3]IPA s 3(1)(a).
[4]Ibid s 27.
The IPA makes provision for an individual to make complaints to the Information Commissioner if they consider an agency has dealt with their personal information in a way that breaches the privacy principles.[5]
[5]Ibid s 164.
The complaints may be referred to QCAT to hear and determine if they are not resolved through mediation process.[6]
[6]Ibid s 174, s 175, s 176.
There is no dispute between the parties that the Department was bound by the IPA;[7] that the complaint contained personal information about the Applicants as defined by s 12 of the IPA[8] and that this information was disclosed to and collected from persons interviewed in the investigation process.[9]
[7]The Respondent’s further amended response to the Applicants amended statement of claim filed 17 March 2014 at [6(a)].
[8]Ibid at [5]
[9]Ibid at [13] and [14].
The Department says however that the disclosure and collection was justified under the provisions of the IPA itself in combination with s 44 of the CCC Act.
Section 44 provides that a public official must deal with a complaint involving official misconduct in the manner prescribed in the Act. It also makes provision for the public official to take no action in relation to the complaint if the public official is satisfied the complaint is frivolous, vexatious, lacks substance or credibility or dealing with it would be a waste of resources.[10]
[10]Crime and Corruption Commission Act 2001 (Qld) s 44.
Investigation of the complaint
Before looking at the application or otherwise of the privacy principles to the collection and disclosure of the Applicants personal information, it is useful to consider how the investigation of the complaint was undertaken.
The complaint came via email to the Executive Director Fair Trading Operations. It was also addressed to ‘[email protected]’. This email address does not exist.
The email was forwarded within the Department to Mr Jim Meyers who at the time was employed by the Department as the Acting Director Workforce Integrity Unit. Mr Meyers provided a statement[11] and gave oral evidence at the hearing.
[11]Exhibit 4 – Statement of James Meyers dated 2 January 2014.
Mr Meyers referred the complaint to the Crime and Corruption Commission (‘CCC’).[12] He said he did this for two reasons.[13] Firstly, the complainant had apparently intended to send the email to the CCC (but had used the wrong email address) and secondly as it appeared to be a complaint of official misconduct he was required by legislation to refer it.[14]
[12]Formerly Crime and Misconduct Commission.
[13]Exhibit 4 at [14] and [15].
[14]CCC Act, s 38 required a public official to refer suspected misconduct to the CCC.
Mr Meyers sent an email to the sender of the complaint email ‘Jenna Woods’ asking for more detail but he received no response. Both parties accept ‘Jenna Woods’ was apparently a pseudonym.
On 19 March 2010 the CCC referred the complaint back to the Department to deal with. The referral was via a document headed ‘Matters assessed’.[15] This document set out four allegations and categorised each as ‘allegations of official misconduct’ as follows:
1. Failure to declare interest/using authority in situation where conflict of interests exists – ALS was on a panel as the chair and delegate that selected and promoted his former lover and current housemate.
2. Misuse of official vehicle – ALS directed staff to use a government vehicle to give his former lover and housemate transport to and from work.
3. Inappropriate use of authority/failure to carryout duties obligations for personal benefit or the benefit of a significant other – ALS used the excuse of conducting compliance checks at gay clubs to trawl for contacts.
4. Inappropriate use of authority/failure to carryout duties obligations for personal benefit or for the benefit of a significant other – ALS evicted an officer without due process in favour of taking his flatmate and joint owner of his properties with him.
[15]Exhibit 4 – Annexure JM2.
The document recorded that ‘the matter was appropriate for DEEDI to deal with, subject to the CMC’s monitoring role and the CMC was to be advised of the outcome’.
The complaint was discussed at a meeting of the Department’s Assessment Committee on 23 March 2010. The case assessment form[16] produced out at that meeting indicates that the complaint was considered to involve allegations of conduct that if proven would amount to misconduct.
[16]Exhibit 4 – Annexure JM4.
The assessment document is not fully complete as it does not indicate the next step to be taken. It is nonetheless apparent that following that meeting, the task of making preliminary enquiries about the complaint was given to Mr David Gollen who at the time was employed by the Department as the Principal Investigation Officer, Corporate Services. Mr Gollen also provided a written statement and gave oral evidence at the hearing.[17]
[17]Exhibit 5 – Statement of David James Gollen dated 6 January 2014 – Annexure DG1.
Mr Gollen was asked by the head of the Complaint Management Team[18] to arrange for initial enquiries to be made regarding:
a) The process whereby DJM was appointed;
b) The use of government vehicles to transport DJM to and from work in ALS’s absence;
c) Removal of an officer from a position without due process to subsequently appoint his housemate;
d) ALS using the excuse conducting ‘compliance checks’ at gay clubs to ‘trawl for contacts’.
[18]Ibid.
Mr Gollen’s evidence was that he did not do anything immediately because there were other matters of higher priority that required investigation.
In July 2010, he made enquiries with the HR Department to obtain employment history records for the Applicants. He also obtained documents in relation to the selection process whereby DJM was promoted. This included the selection report that recommended DJM’s promotion. He noted that ALS had signed the report as a panel member (but not the chairman).[19]
[19]Exhibit 5 at [24].
These documents were relevant to the allegation that ALS had favoured DJM in his promotion.
Mr Gollen’s evidence was that the employment and HR selection panel documents gave factual substance to the complaint in that:
· The Applicants shared the same residential address; and
· DJM had been appointed to the position of A03 and ALS although not the chairman was a member of the selection committee.
Mr Gollen also says he made enquiries about where vehicle running sheets and compliance check records were held. These documents were relevant to the allegation that a government vehicle was being used to ferry DJM to and from work and that ALS had been using a government vehicle to trawl gay bars under the guise of doing compliance checks.
Mr Gollen said that his enquires revealed that the records were held in the Townsville office and he did not want to call for them at this stage as they may have alerted ALS or DJM to the investigation.
In November 2010, Mr Gollen prepared a memorandum to Mr Meyers in which he set out his findings and made a recommendation that an external investigator be engaged to conduct further enquiries.[20]
[20]Exhibit 4 – Annexure JM7.
This recommendation was accepted and the Department engaged Contingent Events Integrity Solutions (‘Contingent Events’) to conduct the external investigation.
The Applicants say that the preliminary enquiries carried out by Mr Gollen were inadequate and did not comply with his statutory obligations. They say that because he did not carry out preliminary investigations required by s 44 of the CCC Act, any argument that carrying out an investigation pursuant to that section relieved the Department of compliance with the privacy principles must be rejected. They also say that the failure to carry out proper preliminary enquiries resulted in breach of the privacy principles in engaging Contingent Events and also the investigation carried out by Contingent Events. These arguments are dealt with below.
In November 2010 Contingent Events were provided with terms of reference[21] and were engaged to commence the investigation on Monday 6 December 2010. Mr Gollen says he phoned ALS on the preceding Friday 3 December to advise him that an investigation would be starting on the Monday.
[21]Exhibit 5 – Annexure DG2.
Mr Gollen also sent emails on 3 December to the persons who had been identified in the terms of reference to be interviewed by Contingent Events.[22] The email noted relevantly that:
· They had been identified as someone who may be able to assist with an investigation into allegations concerning conduct of ALS.
· It was stressed that they were only allegations and may or may not have had any basis.
· They could expect to be contacted by Contingent Events.
· They were asked to cooperate and to keep their involvement strictly confidential.
[22]Exhibit 5 – Annexure DG4.
The terms of reference relevantly:
· Set out the four allegations in full.
· Set out the findings of Mr Gollen’s preliminary enquiries.
· Instructed Contingent Events to gather information to demonstrate in the investigators opinion, whether or not the evidence supported the allegations.
· Provided the documentation that had been gathered by Mr Gollen.
· Recommended that they obtain vehicle running sheets and compliance check records believed to be held in Townsville ‘in conjunction with any further investigation process’.
· Asked in undertaking the investigation to consider the requirements of the CCC publication ‘Facing the Facts’ (a CCC guide for dealing with suspected official misconduct in Queensland Public Sector agencies) and ensure in accordance with that document that:
oThe material and information gathered during the investigation is treated sensitively and appropriately secured.
oThe investigation is conducted in accordance with the Invasion of Privacy Act 1971.
oInterviewees are informed of the need for confidentiality on their part.
· They were given instruction to take reasonable steps to interview:
oALS;
oCheryl Black (Chair of the Selection Panel);
oBill Nason (Member of the Selection Panel);
oDJM; and
oOther departmental staff and/or external parties who may have information of relevance to the investigation eg staff that may have been involved in ferrying DJM to and from work.
Contingent Events obtained statements from Department employees Cheryl Black (who had also been the chair of the selection panel), Costa Aivaliotis, and Rachel Morley. They also carried out telephone interviews with Tim Schuurs (who was at the time the Principal Human Resources Manager) and William Nason who was the other member of the selection committee.
They also interviewed the Applicants.
All of the witnesses (except William Nason) were advised of the four allegations and asked to comment. Mr Nason was informed only of the allegation concerning the alleged favouritism to DJM in his selection and promotion to the A03 position.
The Applicants were interviewed a second time to clarify the nature of their relationship. During the second interviews they admitted having had an intimate relationship in the past.
Contingent Events found that:
· There was sufficient evidence to substantiate that part of the allegation that ALS and DJM are former lovers and at the time of the selection process for the A03 position, both were living together in a residence owned by ALS.
· There was sufficient evidence to substantiate the allegation that ALS was on the selection panel that selected his current flatmate and former lover DJM to a permanent A03 position. ALS also acted as the Departmental delegate who signed off on the appointment.
· The evidence collected revealed that ALS failed to appropriately manage a conflict of interest in conjunction with that same selection and recruitment process.
· There was insufficient evidence to substantiate the allegation that ALS directed the misuse of a government vehicle in connection with the transport of another party.
· There was insufficient evidence to substantiate the allegations that ALS misused his position, work time and/or government vehicles for private purposes.
This report was provided to Mr Gollen in January 2011.
Ultimately the report was provided to Mr David Ford, Deputy Director of the Department for consideration as to any action that would be taken against ALS.
In his letter to ALS in February 2011[23] Mr Ford advised he had made the following findings:
[23]Exhibit 9 – Letter from David Ford to ALS dated 9 February 2011.
· The following allegations were not substantiated.
(i)That ALS was responsible for the displacement of an A03 employee without following due process during machinery of government changes.
(ii)That when ALS was away on business he directed other staff to use a government vehicle to ferry DJM to and from work.
(iii)That ALS misused his position, work time and the government vehicle trawling gay bars for contacts under the guise of conducting compliance checks.
· These allegations were perceptions on the part of the complainant and there was no evidence to support the claim.
· The allegation that ALS was on the selection panel that selected his current flatmate and former lover DJM to a permanent A03 and was the Departmental delegate that signed off on the appointment, was substantiated.
· It was substantiated on the basis that whilst ALS did declare his friendship with DJM to the HR Manager (Mr Schuurs) and Mr Schuurs had approved for him to be on the panel, he considered ALS had failed to appropriately manage the conflict of interest in relation to the selection process in that:
(i)He failed to fully disclose the extent and duration of his past relationship as well as his current friendship with DJM; and
(ii)There could also have been a lack of independence between Mr Nason (who ALS had selected to be the independent external member on the panel) and DJM. He said this was based on information provided in the witness statements that Mr Nason was ALS’s friend and as such had visited his private residence when DJM resided there. It was possible he said that DJM and Mr Nason had personal interaction outside the work environment.
Mr Ford advised he would not proceed to any formal disciplinary action but would instead caution ALS to ensure he was familiar with the Department’s code of conduct in relation to conflict of interest issues.
Subsequent to the investigation and the outcome the Applicants expressed through a number of forums their concerns about the manner in which the complaint was investigated and their treatment by the Department during the process. These included complaints to Mr Meyers and other departmental staff, a privacy and code of conduct complaint, workers compensation applications and complaints to the Ombudsman.
Do the privacy principles apply to the collection and disclosure of ALS and DJM’s personal information in the investigation?
The Department says that the claims should be dismissed because although conceding that the Applicant’s personal information was disclosed and collected, the disclosure and collection was justified within the provisions of the IPA.
The Department says that the IPA recognises that certain disclosure and use of a person’s personal information is exempt from actionable breach of the IPP’s and that the disclosure of the Applicant’s personal information was so exempt on two bases.
a) The CCC contention; and
b) The s 16 contention.
The CCC Contention
The Department says that the provisions of the IPA recognise that the disclosure and use of the Applicant’s personal information which occurred as a result of the Department dealing with the complaint under s 44 of the CCC Act was not subject to the application of the IPP’s.
Section 44 provides:
(2)A public official must deal with a complaint about, or involving, official misconduct in the way the public official considers most appropriate, subject to the commission’s monitoring role.
(3)If the public official is satisfied that–
(a)a complaint-
(i)is frivolous or vexatious; or
(ii)lacks substance or credibility; or
(b)dealing with the complaint would be an unjustifiable use of resources;
the public official may take no action or discontinue action taken to deal with the complaint.
The term ‘deal with’ is defined in Schedule 2 of the CCC Act as including–
(a)investigate the complaint, information or matter; and
(b)gather evidence for—
...
(ii)disciplinary proceedings; and
…
(e)take other action, including managerial action, to address the complaint in an appropriate way.
The Department says s 4 and s 5 of the IPA recognise that the obligations imposed under the IPA are subservient to certain other legislative provisions and s 44 of the CCC Act is one such provision.
4Act not intended to prevent other accessing or amendment of personal information
(1)This Act is not intended to prevent or discourage the giving of access to, or allowing the amendment of, documents otherwise than under this Act if the giving of access or the allowing of amendment can properly be done or is permitted or required to be done by law.
…
5Relationship with other Acts requiring access to or amendment of personal information
Without limiting section 4, this Act does not affect the operation of another Act, and chapter 3 does not affect the operation of an administrative scheme, whether or not under an Act, that—
(a)requires information about personal information in the possession, or under the control, of government to be made available to members of the community; or
(b)enables an individual to be given access to or to amend the individual’s personal information in the possession, or under the control, of government;
Whether or not on payment of a charge.
The Department says that pursuant to s 44(2) of the CCC Act once a complaint about official misconduct was made they were required to investigate the complaint[24] and that through the application of s 4 and s 5 of the IPA they were relieved in that investigation of compliance with the IPP’s.
[24]Department’s submissions dated 24 April 2014 at [20].
I do not accept the proposition that by virtue of s 4 and s 5 the disclosure and collection of the Applicant’s information in the investigation was not governed by the IPP’s.
I accept, as submitted by the Department, that the investigation of complaints of misconduct may necessarily involve the personal information of the persons complained about. I also accept that it would be undesirable if the investigation of complaints was hampered by the application of the privacy principles.
I consider however that the sections relied on by the Department as exempting the collection and the disclosure in this case from the application of the privacy principles do not have that effect.
What the Department did was collect from and disclose personal information of the Applicants to the witnesses interviewed in the investigation to obtain evidence of whether or not the allegations could be substantiated.
The argument of the Department involving s 4 and s 5 is in my view an attempt to fit this scenario into the words of those sections. I do not consider that was the intention of the legislature particularly when regard is had to the IPA in its entirety.
As submitted by the Applicants the IPA differentiates between types of activities involving the use of personal information in terms of ‘collection, storage, handling, accessing, amendment, management, transfer, use and disclosure’.[25]
[25]IPA s 6.
Sections 4 and 5 are confined to the interplay of the IPA with provisions in other legislation relating to the ‘access to’ and ‘amendment of’ a person's personal information. In this case the concern is around ‘collection and disclosure’ of ALS and DJM’s personal information. These concepts are not referred to in s 4 and s 5 but are specifically referred to in other provisions for example s 7 of the IPA which is headed ‘Relationship with other Acts prohibiting disclosure of information’. It provides:
(1)Chapter 3 (which concerns the entitlement for a person to obtain access to and amend their own ‘personal information’) overrides the provisions of other Acts prohibiting the disclosure of personal information.
(2)Other than as provided for in subsection (1), this Act is intended to operate subject to the provisions of other Acts relating to—
(a)the collection, storage, handling, accessing, amendment, management, transfer, and use of personal information; and
(b)the disclosure, within the meaning of section 23, of personal information.
The Department does not rely on s 7(2) as providing an exemption for disclosure of the personal information in this case.[26]
[26]It is noted that the Department does refer to s 7(2) as supporting their interpretation of s 5.
Section 4 is limited to the giving of access to or allowing amendments to documents (containing personal information). Here, the allegations principally concerned the verbal disclosure of personal information to witnesses.
Further, s 4 in my view is targeted at legislation which makes specific provision for permitting or requiring access to or amendment of documents containing information rather than the access being an incidental consequence of an activity (the investigation in this case) permitted or required by s 44 of the CCC Act.
The same can be said of s 5. The Department says there are two possible interpretations of s 5.
The wide interpretation being that the introductory words of the section can be read to provide for a general exclusion namely ‘the Act does not affect the operation of another Act …’.
I reject that submission. When read as a whole the qualifying words in subsection (a) and (b) apply to the words ‘the operation of another Act’.
If the legislature intended to provide generally that the IPA did not affect the provision of another Act, it could have made that plain by having a separate section that said that. It has not. It has provided limited qualifications as discussed.
Both parties made reference to decisions of the Victorian Civil and Administrative Tribunal which they say support their respective arguments in this regard.[27]
[27]Department’s submissions dated 24 April 2014 at [25]; and ALS and DJM submissions dated 8 May 2014 at [4].
The Department says that Victorian cases support the proposition that s 5 means the IPA operates subject to the provisions of other Acts. The Applicants say the cases support their argument that s 5 only operates to render negatory portions of the IPP's which otherwise inhibit the effective investigation of misconduct.
What both parties don’t point out is that the section in the Victorian legislation is much broader than s 5 (or any other exclusion provision in the IPA). Section 6(1) of the Information Privacy Act 2000 (Vic) provides ‘If a provision made by or under the Privacy Act is inconsistent with a provision made by or under any other Act, the other provision applies’.
Section 5 does not say that. Its specific exemption is limited by reference in (a) and (b) to provisions in other Acts that (relevantly)
(a)Requires, information about personal information in the possession, or under the control, of Government to be made available to members of the community; or
(b)…
The Department says that even on this narrower interpretation of s 5, the disclosure and collection of the personal information is exempted. I disagree.
In my view s 44 of the CCC Act does not require personal information to be made available to members of the community in the way those words are intended to operate in s 5.
I accept that s 44 requires the Department to ‘deal with’ the complaint which in turn can involve an investigation which in turn by its nature may involve disclosure of personal information to witnesses who happen to be members of the public. That scenario however falls short of legislation requiring personal information about personal information to be made available to members of the community.
The flavour of that section is mandatory access by the community to personal information which would otherwise be private, for example, information about a professional’s disciplinary record. This interpretation fits with the words in s 5 that the information is to be given ‘whether or not on payment of charge’.
There are other specific provisions in the IPA which facilitate the investigation of misconduct without the constraints of the application of the privacy principles. These provisions would be superfluous if the interpretation of s 5 as contended for by the Department was correct. For example,
· The combination of s 16 and Schedule 1(3) (which is dealt with in detail below) specifically excludes documents from the application of the privacy principles to the extent that the document contains personal information arising out of ‘a complaint, or an investigation of misconduct, under the CCC Act 2001’.
· The specific exclusion of the application of privacy principle 11 (which prohibits the disclosure by an agency of personal information) to the disclosure of the personal information if the agency is satisfied on reasonable grounds that the disclosure is necessary for the prevention, detection, investigation or remedying of seriously improper conduct by or for a law enforcement agency which includes the CCC.[28]
[28]IPA Schedule 3 – IPP-11.
The s 16 contention
The second limb to the Departments argument that there was legal justification for the disclosure of the Applicant’s personal information was put forward as 'the section 16 contention’.
The Department submitted[29] that the privacy principles did not apply to the complaint or any other document containing personal information of the Applicants arising out of that complaint because any such document was ‘a document to which the privacy principles do not apply’ within the meaning of that term in s 16.
[29]Department’s submissions at [26].
Section 15 defines ‘document’ as that term is used in IPA (other than in Chapter 3) as: ‘a document does not include a document to which the privacy principles do not apply’.
Section 16 defines ‘document to which the privacy principles do not apply’ as ‘a document mentioned in schedule 1’.
Relevantly Schedule 1(3)(b) includes:
A document to the extent it contains personal information arising out of a complaint, or an investigation of misconduct under the Crime and Misconduct Act 2001.
I accept (and the Applicants do not appear to dispute) that the complaint was one of misconduct as that term is defined in the CCC Act.[30]
[30]Department’s submissions at [28] - [34].
the Applicant’s submissions regarding the impact of s 16 are two fold:
a) A literal interpretation should not be applied as to do so would produce ‘absurd results’. For example if PP1 did not apply an agency in conducting an investigation could leak personal information in a way other than a way that was fair and lawful.[31]
[31]ALS and DJM’s submissions dated 28 April 2014 at [10].
I reject that submission and accept the Department’s submission that even if the IPP’s do not apply, the investigation of a complaint is not without constraint. There are other constraints on how the Department may investigate an allegation under the general law. It points out for example the provisions of the CCC Act, and Public Service Act 2008.
b) The Applicants say a preferable interpretation of s 16 is that those portions of the IPP’s which otherwise inhibit the effective investigation of misconduct are rendered nugatory. They say it should be interpreted so that ‘if the provisions of the IPPs and what is necessary for the effective investigation of misconduct under the CCC Act are in conflict, the agency is relieved of an obligation to comply with the IPPs to the extent of the conflict’.[32]
[32]Ibid at [11].
I reject this submission. I accept the Department’s submission that such an interpretation would result in uncertainty and confusion around the interpretation of what portions of the IPPs would inhibit an effective investigation in any given case. Further as I observe above, if it was Parliament’s intention that s 16 have this effect it could have drafted this section in such terms as has been done in the Victorian legislation.
I find that the privacy principles so far as they refer to a ‘document’ do not apply to any document to the extent that it contains information that arose as a result of the complaint.
It is only the documents associated with the investigation that are exempt from the application of the IPPs not any verbal exchange of information.
The question remains as to whether the s 16 contention applies to the complaint itself.
The Department says[33] it does include the complaint as the complaint was made in documentary form in an email from ‘Jenna Woods’.
[33]Department’s submissions in reply dated 8 May 2014 at [4].
The Applicants disagree. They say that s 16 can not apply to the complaint but only to documents that arose out of the complaint.
I prefer the argument of the Applicants. The email (whilst a document) contains personal information but the personal information in the email did not arise out of the complaint it forms part of the complaint.
I find that any document created in the investigation that came into existence subsequent to the complaint that contains personal information of the Applicants is not subject to the privacy principles.
Were the Privacy Principles Breached?
Before considering whether individual privacy principles were breached, there are three issues raised in the statements of claim which should be dealt with first as the findings in relation to those issues are determinative of whether certain individual privacy principles were breached.
These concern:
1. Whether the preliminary assessment of the complaint was inadequate;
2. Whether Contingent Events was bound by the IPA; and
3. Whether the Department through Contingent Events unnecessarily disclosed the Applicant’s sexual orientation and past relationship to a number of people.
The Preliminary Assessment
The Applicants make two allegations concerning the manner in which the Department dealt with the complaint before briefing Contingent Events.
(i) Upon receipt of the complaint, the Department (through Mr Meyers) forwarded the complaint to the CCC in breach of a requirement to conduct a preliminary assessment of the complaint pursuant to the Department’s Discipline Policy HR10/09 and its Discipline Guideline November 2009.
I accept the Department’s submission that the disciplinary policy itself does not require the Department to conduct a preliminary assessment. That document however refers to the Public Service Commission – Discipline Guidelines which do refer to the conduct of a ‘preliminary assessment’ as part of the procedure for managing potential disciplinary matters.[34] I accept the Department’s further submission that the guideline does not require a preliminary assessment where there is an allegation of possible official misconduct. Instead, the agency is required to notify the CCC. That is what Mr Meyers did in this case.
(ii) The Department failed to comply with its obligation under s 44 of the CCC Act to conduct a preliminary assessment of the complaint.
[34]Exhibit 2 – Statement of ALS dated 2 September 2013, Annexure 6.
The Department acknowledges that it had an obligation to conduct a further assessment of the complaint upon the referral from the CCC but it says that it did do that.
It is apparent from the evidence of Mr Gollen and Mr Meyers that a preliminary investigation did take place prior to the engagement of Contingent Events. The Applicants say that the investigation was inadequate.
At the hearing and in submissions the Applicants made much of this argument. They maintained that if the Department had conducted a proper preliminary investigation it would have determined that the complaint (or at least part of it) was frivolous and vexatious and there would have been no need to disclose personal information to Contingent Events and other people involved in the investigation.
When considering whether the Department failed in its obligation it is noted that s 44 only requires the Department to have conducted sufficient enquiry to be satisfied that the complaint was not frivolous, vexatious or lacked substance or credibility.[35]
[35]CCC Act s 44(3)(a) and (b).
Mr Gollen’s evidence was that he was given the responsibility of ‘making initial enquiries’ in relation to the four allegations.[36]
[36]Exhibit 5 at [14].
As noted earlier in these reasons Mr Gollen gathered documentation concerning DJM’s appointment and obtained DJM’s and ALS’s HR records. He was able to conclude from those enquires that there was some substance to the complaint namely the Applicants lived at the same address and had done so for sometime; DJM had been appointed to the position; ALS had been a member of (although not the chair of) the selection committee and ALS was the Department’s delegate who signed off on the appointment of DJM.
Having had those factual allegations substantiated I consider that Mr Gollen at that point could not have concluded that the complaint (insofar as it related to the allegations of the conflict of interest) lacked substance or credibility or was frivolous.
The Applicants say that with respect to the allegations concerning the use of government vehicles and ALS trolling gay bars, if Mr Gollen had checked the records he would have seen at this point that those allegations were clearly false and lacked substance and creditability.
Mr Gollen says he understood the vehicle running sheets and compliance check records were held in the Townsville office and he did not want to ask for them to be produced at the initial stage so as not to warn the Applicants of the impending inquiry. He did recommend that the records be gathered in conjunction with any further investigation.
A file note dated 1 December 2010 (subsequent to Contingent Events being engaged) records that Mr Gollen had a conversation with Sharon Simmes the Office of Fair Trading Manager Statewide Operations, concerning records of compliance checks and vehicle running logs.[37]
[37]Exhibit 2 – Statement of ALS dated 2 September 2013, Annexure ‘i’.
Mr Gollen says that Sharon Simmes told him that regarding compliance checks the database indicated ALS had only been involved in 11 of about 1300 compliance checks since 2006 and that none of those involved licensed premises.
In relation to the vehicle log she told him that ALS probably managed those logs and she did not know how up-to-date the database was.
The Applicants say that if Mr Gollen had made those enquiries before engaging Contingent Events he could have dismissed those parts of the complaint as vexatious and those allegations need not have been disclosed.
In response to this suggestion under cross-examination Mr Gollen said that as the vehicle logs were not up-to-date it was in any event better that those allegations be followed up by the external investigator. In relation to the compliance checks he said it is possible that if ALS had trawled gay bars as alleged then he would not have recorded that information. He considered that in view of the fact that his enquiries had revealed some factual basis for the complaint no part of the complaint should be dismissed as being without substance on the basis of the database entries. He considered it warranted further investigation.
It is true, as the Applicants, suggest that Mr Gollen only made preliminary enquiries rather than what could be regarded as an extensive investigation. I consider however that the Department (through Mr Gollen) made sufficient enquiry to be satisfied that the complaint did not lack substance or credibility. Mr Gollen found that at least in regard to the allegation of the conflict of interest that the complaint had a factual basis. In those circumstances I do not consider the Department breached any obligation that it had under s 44 to conduct a preliminary assessment before continuing with the investigation.
The Applicants say that a property titles search would have revealed that DJM was not a joint owner of the property where they resided. Mr Gollen did ascertain they resided at the same address. I do not consider in those circumstances that the Department breached any obligation they had to make preliminary enquiries in not undertaking a property search before engaging Contingent Events to fully investigate the complaint.
The Applicants also maintain that there had been six to seven complaints made by the same source of ‘Jenna Woods’ and because of that the Department should have been satisfied that the complaint was vexatious.
Mr Meyers evidence was that he was personally aware of at least one other complaint by ‘Jenna Woods’ about a liquor licensing officer which was also the subject of an investigation.
Mr Meyers’ evidence was that both complaints were taken seriously as they raised allegations of possible official misconduct. He said the fact that they were from the same source did not necessarily mean that they were vexatious and could be dismissed without further investigation.
Whilst I accept that the Department was aware that there were a number of complaints made by ‘Jenna Woods’ and as such may have alerted Mr Gollen and Mr Meyers to the possibility that they were vexatious, once some factual substance was found it was appropriate for further investigations to take place.
Was Contingent Events bound, and the Department’s consequent liability for Contingent Events
The collection and disclosure of information about which the Applicants complaint was done by Contingent Events. Contingent Events is not a party to these claims. The question must then be asked whether the Department can be held liable for the collection and disclosure by Contingent Events.
The IPA provides that:
·An agency such as the Department is to take all reasonable steps to ensure that a contracted service provider is required to comply with the Act.
·If they do require the service provider to comply then the service provider (‘the bound contractor’) must comply with the IPP’s as if they were the agency.
·If the service provider is not so required to comply then the agency is liable as if it were the bound contractor.[38]
[38]IPA s 35, s 36, s 37.
It is accepted that Contingent Events is a ‘service provider’ as defined by the IPA. The terms of reference under which Contingent Events were engaged do not expressly require Contingent Events to comply with the IPA.
Mr Gollen in oral evidence conceded that was the case and stated that he understood that it was not necessary to make provision for that because the IPP’s did not apply because there were investigating a complaint involving official misconduct.
The terms of reference do ask Contingent Events to:
· Consider the requirement of the CCC publication ‘Facing the Facts’;
· Ensure that the material information is treated sensitively and secured;
· Conduct the investigation in accordance with the Invasion of Privacy Act 1971; and
· Inform interviewees of the need for confidentiality.
These requirements fall short of requiring Contingent Events to comply with the IPA.
In those circumstances I find that Contingent Events was not ‘a bound’ contractor and the Department has the same obligations to comply that Contingent Events would have had if it had been bound.
The disclosure of ALS and DJM’s sexual orientation and history
The Applicants say the Department unnecessarily through Contingent Events disclosed their sexual orientation and past relationship to a wide group of people.
This concern and the Department’s response are a common feature in all of the alleged breaches of particular privacy principles.
The Applicants maintain it was not necessary in investigating the complaint to collect and disclose information about those parts of the allegations regarding their sexual orientation or past sexual relationship.
They say it was only necessary to put those allegations to the Applicants themselves as the other witnesses could have had no knowledge of the truth or otherwise of those matters.
They say the collection and disclosure of these allegations has caused them a great deal of hurt and humiliation (for which they claim compensation).
They say that before the investigation took place no person was aware of the personal information in respect of ALS’s sexual orientation or sexual history and no person was aware of the personal information in respect of DJM’s sexual history. It is accepted that the persons interviewed were aware of DJM’s sexual orientation.
The Department submits that it was necessary to fully investigate the allegations concerning ALS and DJM’s sexual orientation and a past sexual relationship between them because of the nature of the complaint.
They say that these aspects of the allegations were integral to the complaint. For example if the investigation of the allegation about ALS using a Government car to trawl gay bars for contacts removed the element of ‘trawl’, ‘gay’ and ‘contacts’ it would have removed the meaning of the complaint.
Further, they say that at the essence of the complaint of conflict of interest was that ALS had favoured DJM in the job selection and the use of the Government car because of their past intimate relationship. The extent of the conflict is effected by the level and categorisation of their relationship.
The Department says that from the perspective of the investigation it was not correct that only the Applicants could have given evidence regarding the allegations referencing their sexual orientation or sexual history.
The Department says this argument is justified by the simple fact that the witnesses confirmed DJM’s sexual orientation. They say the same questioning could have confirmed ALS’s sexual orientation. They did not know unless they asked the witnesses. They point out that Contingent Events interviewed both ALS and DJM a second time for the purpose of giving them the opportunity to comment on any evidence that the witnesses gave in that regard.
I accept the Department’s submission. Having reached the point that the complaint required investigation, the component regarding the sexual orientation of ALS and DJM and their past history could not have been left out of the investigation.
Contingent Events were given the task of gathering information to determine whether there was evidence to support the allegations. It was the essence of the complaint, particularly as regards to the allegation that ALS favoured DJM in the workplace.
It would not have been sufficient to only put these allegations to the Applicants. In this regard I note that neither ALS nor DJM in their first interview disclosed their past sexual history to the investigators. This confirmation only came from them in their second interviews. In his first interview ALS was asked:
And then obviously, the person has alleged that he was a former lover yourself? What is your relationship? Friends? Mates? Were you ever involved?
He answered:
DJM is a friend of mine. Currently, at this particular time … date and time … DJM is a friend of mine.
Further when answering questions about the possible identity of the complainant he said:
I can only guess or surmise or whatever you would like to call it, that the initial complaint in 2008 made reference to DJM being my partner, which he is not and was not. The second complaint makes reference to DJM being my partner which he is not and was not …
DJM said in his initial statement to the investigators:
ALS and I have been friends for a very long time. He is like an older brother to me. I have a long-term partner by the name of [X]. I have been with him since 12 May 2006. I have never been involved in any type of relationship with DJM in the time I have worked with the Department other then friendship/housemate.[39]
[39]Exhibit 7 – Statement of DJM dated 30 August 2013 Annexure A.
I also note the evidence of the Applicants at the hearing that they accepted the sexual element was an integral component of the complaint and that ALS’s sexual orientation was the common thread to all four of the components of the complaint.[40]
[40]Department’s Submission dated 24 April 2014 at [50].
The other principle concern of the Applicants is that the Department (through Contingent Events) should not have collected and disclosed the information concerning their sexuality and past relationship to the number of witnesses that it did.
The Applicants complain that their personal information was given to a wide range of people.[41] The people interviewed were the other members of the selection panel (Cheryl Black and Mr Nason), the HR officer at the time (Mr Schuurs) and the two other employees in the OFT in Townsville (Ms Morley and Mr Aivaliotis).
[41]Exhibit 2 – Statement of ALS dated 2 September 2013 at [14]; and Exhibit 7 – Statement of DJM dated 30 August 2013 at [18].
The Applicants say that there was no need for all of the allegations to be disclosed to Mr Schuurs. They say that he could only have given them information about what ALS had disclosed about his prior relationship with DJM and secondly whether due process was followed with the appointment.
The Department says it was unknown what information Mr Schuurs could give until he was asked particularly around whether ALS had disclosed his previous relationship with DJM. I accept that it was not unreasonable or unnecessary to disclose the allegations to Mr Schuurs in order to fully investigate the allegations. It was relevant to know whether ALS had disclosed any past intimate relationship with DJM. As it turned out Mr Schuurs evidence was that ‘if they had a relationship, I was never aware of it’.[42]
[42]Exhibit 3 – Attachment 20 at question 18.
As the HR Manager, he was able to give information about ALS having a government vehicle at his home. As noted by the Department this information given by Mr Schuurs was in ALS’s favour as his evidence supported ALS’s position that there was nothing untoward in him having a vehicle housed at home or giving lifts to DJM to and from work because he resided with ALS.
He was also able to give the investigators information about where records relating to compliance checks could be located.[43]
[43]Exhibit 3 – Statement of ALS dated 24 February, Attachment 20.
The Applicants also say that not all of the allegations should have been put to Mr Nason. Mr Nason was the external member on the selection panel. Not all of the allegations were in fact disclosed to Mr Nason. He was only told of the allegations concerning the conflict of interest that is appointing DJM when he was ALS’s former lover, flatmate and joint owner of property.[44]
[44]Ibid – Attachment 21.
The allegations concerning the use of government vehicles compliance checks were appropriately not put to Mr Nason.
Mr Nason was able to confirm that ALS and DJM resided together.
The Applicants also say it was unnecessary to make disclosure to Rachel Morley of any allegation other than the issue of whether staff were directed by ALS to ferry DJM to and from work as she was not employed at the time DJM was promoted.
As with the other Department employees all four allegations were put to her for comment.
Ms Morley was not in the office at the time of the selection of DJM but she had been employed in the Townsville office since 2008.
I accept the Department’s position that it was not unnecessary or unreasonable when investigating these allegations to consider that in such a small work environment as the Townsville office an employee who had been there for two years may have been able to comment on each of the allegations.
This information would of course have been hearsay but she may have been told information by others about the selection process, and whether DJM had been given favourable treatment. ALS and DJM in their second interview would have been able to comment on or correct this information.
As well as commenting on the use of the Government vehicle by ALS and DJM, Ms Morley was able to give evidence that she was not aware of ALS doing compliance checks as alleged.
Finally, it is relevant to note that in any disclosure of the personal information the allegations in the complaint were only put to the witnesses as allegations being investigated, not as factual information.
Were any IPP’s breached?
I will now consider whether the Department has breached particular privacy principles as alleged.
The Applicants say that the collection and disclosure of their private information breached the following privacy principles:
IPP1
IPP-1 (1)An agency must not collect personal information for inclusion in a document or generally available publication unless –
(a)the information is collected for a lawful purpose directly related to a function or activity of the agency; and
(b)the collection of the information is necessary to fulfil the purpose or is directly related to fulfilling the purpose.
The Applicants say that the Department breached this IPP because even if the information may have been collected for a lawful purpose (the investigation) it was not necessary to collect their personal information from William Nason, Cheryl Black, Costa Aivaliotis, Rachel Morley and Tim Schuurs.
The Department says it was not in breach of IPP-1 because of
(1) the CCC contention. As noted above I have rejected that argument and
(2) the IPP refers to collection of information for ‘inclusion in a document’ and because of s 16 the privacy principle does not apply.
I accept this argument. The IPP is directed against collection of information for inclusion in a “document” or “generally available publication”. Any document for which the Applicants personal information was collected and in which the information was to be included would be a document containing information which arose out of a complaint of misconduct. In light of the instruction to Contingent Events and the witnesses to keep the information confidential, the information was not collected for inclusion in a “generally available publication”. As such the principle does not apply.
(3) It was necessary to collect the information to fulfil the purpose of the investigation.
I find that for the reasons set out in paragraphs [121]-[149] above it was necessary to collect the personal information from all of the witnesses in order to properly investigate the subject matters of the complaint.
IPP3
IPP-3(1)This section applies to the collection by an agency of personal information for inclusion in a document or generally available publication.
(3)(a)(i)The agency must take all reasonable steps to ensure that the personal information collected is relevant to the purpose for which it is collected.
The Department says the IPP does not apply because of the CCC Act and s 16 contention arguments. I reject the CCC contention and accept the s 16 argument for the same reasons set out in paragraphs [153]-[154] above.
I also find for the reasons set out in paragraphs [121]-[149] above that personal information collected from all of the witnesses interviewed was relevant for the purpose for which it was collected namely the investigation to ascertain whether or not the complaint could be substantiated. I accept the Departments submission in this regard that it was necessary for the purposes of the investigation to determine the extent of the conflict of interest of ALS being a member of the selection panel. To this end the collection of the information in relation to the relationship between DJM and ALS was relevant to the investigation.
IPP-3(3)(b)The agency must take all reasonable steps to ensure that the extent to which the personal information is collected from the individual the subject of it, and the way the personal information is collected, are not an unreasonable intrusion into the personal affairs of the individual.
The Applicants say that the extent of the personal information collected by the Department was an unreasonable intrusion into the personal affairs of the individual.
This privacy principle only deals with the extent to which the information is collected from the individual the subject of it (my emphasis). It does not refer to the extent to which the information is collected from others. As such I find it was not breached by the Department as alleged.
IPP4
IPP-4(1)(b)An agency having control of a document containing personal information must ensure that if it is necessary for the document to be given to a person in connection with the provision of a service to the agency, the agency takes all reasonable steps to prevent unauthorised use or disclosure of the personal information by the person.
The Applicants say that the Department breached this principle in disclosing their personal information in the ‘Terms of Reference’ document given to Contingent Events.
They say it would not have been necessary to give that information to Contingent Events if the Department had conducted a proper preliminary assessment.
The Terms of Reference is a document that contains information arising out of the complaint of misconduct. As such I find that s 16 would exempt that document from the application of privacy principle 4.
For the reasons set out in paragraphs [121]-[149] above I find that following substantiation of the factual basis for at least part of the complaint it was necessary for the terms of reference to be given to Contingent Events for them to continue the investigation of the complaint. Whilst not binding Contingent Events to the privacy principles the terms of reference make it clear that contingent events was required to treat any information confidentially. I would therefore find in any event that the Department took all reasonable steps to prevent unauthorised use of disclosure of the information by Contingent Events.
The Applicants say that IPP-4(1)(b) was also breached in that the Department failed to take all reasonable steps to prevent the unnecessary and unauthorised use or disclosure of their personal information to the witnesses interviewed.
In this regard I have found that the Department took all reasonable steps to prevent unauthorised disclosure of the information by the witnesses in that Contingent Events were instructed to ensure confidentiality and potential witnesses were told in email to keep the matters confidential.
IPP8
IPP-8Before an agency uses personal information contained in a document under its control, the agency must take all reasonable steps to ensure that, having regard to the purpose for which the information is proposed to be used, the information is accurate, complete and up to date.
The Applicants say the Department failed to comply with this privacy principle before passing the personal information to Contingent Events.
The basis of the Applicant’s complaint in this regard is a reference to their allegation that the Department failed to undertake an appropriate preliminary assessment.
I do not consider that s 16 exemption applies to this allegation as the personal information was contained in the complaint document itself which I have found not to be a document to which s 16 applies.
As set out earlier in these reasons I have found that the Department did take reasonable steps in the circumstances to carryout a preliminary investigation before sending the complaint to Contingent Events to investigate. To the extent that the claim might relate to any disclosure by Contingent Events to the witnesses, I accept as pointed out by the Department that the point of the investigation was in fact to discover the accuracy of the personal information contained in the complaint. The Department conducted a preliminary assessment to determine that there was some factual basis for the complaint and appropriately continued the investigation.
IPP9
IPP-9(1)This section applies if an agency having control of a document containing personal information proposes to use the information for a particular purpose.
(2)The agency must use only the parts of the personal information that are directly relevant to fulfilling the particular purpose.
The Applicants say this privacy principle was breached in that the Department failed to ensure that only those parts of their personal information directly relevant to fulfilling the purpose of the investigation were disclosed to the witnesses.
To the extent the document referred to that the agency has control of is the email containing the complaint for the reasons set out above I reject the application of the s 16 exemption put forward by the Department. To the extent the allegation concerns any subsequent document (e.g. the terms of reference) then s 16 applies.
I find in any event that for the reasons set out in [121] – [149] above that all of the personal information was relevant to the purpose of the investigation namely to ascertain whether there was evidence to substantiate the complaint. The Applicants say that no thought was given by the Department to the limits of relevant information that each witness was able to provide. I reject this submission. It is apparent that the Department through Contingent Events did consider what information the witnesses could provide before disclosing the personal information – e.g. Mr Nason who was not an employee in the Department was only asked about allegations concerning the selection process in which he was involved.
Summary
I find that to the extent that they applied to the collection and disclosure of ALS and DJM’s personal information the privacy principles identified in the claims have not been breached by the Department.
As I have found that the complaints of ALS and DJM have not been substantiated it is unnecessary of me to make findings as to whether any compensation should be paid.
I order in both matters that the complaints are not substantiated.
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