ALZ v WorkCover NSW (No 2) - [2014] NSWCATAD 122

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: ALZ v WorkCover NSW (No 2) [2014] NSWCATAD 122
Hearing dates: On the papers
Decision date: 29 August 2014
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Montgomery, Senior Member
Decision:
The matters are to be listed for a planning meeting at 3.00 pm on 14 October 2014

Catchwords: Privacy - information protection principle - personal information -Health information - Health Privacy Principle - retention and security safeguards - reasonable steps to prevent unauthorised access
Legislation Cited: Administrative Decisions Tribunal Act 1997
Civil and Administrative Tribunal Act 2013
Health Records and Information Privacy Act 2002
Privacy and Personal Information Protection Act 1998
Cases Cited: ALZ v WorkCover NSW [2014] NSWCATAD49
FH v Commissioner, NSW Department of Corrective Services [2003] NSWADT 72
MH v NSW Maritime [2011] NSWADT 248
MT v Director General, NSW Department of Education & Training [2004] NSWADT 194
NS v Commissioner, Department of Corrective Services [2004] NSWADT 263
ZR v NSW Department of Education and Training [2008] NSWADT 199
Category: Principal judgment
Parties: ALZ (Applicant)
WorkCover NSW (Respondent)
Representation: ALZ (Applicant in person)
Crown Solicitor's Office (Respondent)

File Number(s): 123291, 133003

reasons for decision

The Applicant alleges that the Respondent's conduct contravened several of the Health Privacy Principles ("HPP"s) of the Health Records and Information Privacy Act 2002 ("HRIP Act") and also several of the Information Protection Principles ("IPP"s) of the Privacy and Personal Information Protection Act 1998 ("PPIP Act").

In these reasons the names of private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as ALZ. At relevant times ALZ was employed by a local council ("the Council").

The background is set out in my decision reported as ALZ v WorkCover NSW [2014] NSWCATAD 49 ("ALZ v WorkCover No.1").

The conduct concerns a medical report dated 10 November 2011 ("the medical report") by a psychiatrist, Dr Prabal Kar. The medical report was prepared in relation to a workers compensation claim brought by ALZ against the Council. The workers compensation insurer which covered the Council for workers compensation claims was StateCover Mutual Limited ("StateCover"). StateCover and the Council were responsible for processing and managing ALZ's workers compensation claim. The Respondent obtained a copy of the medical report from the Council.

At paragraphs [114] - [116] of ALZ v WorkCover No.1 I stated:

114 I agree with the Applicant that if the Respondent is uncertain about how many copies of the report are held, it cannot be said that it had taken reasonable security safeguards to ensure that the information was protected against loss.

115 I am satisfied that the security safeguards are reasonable in the circumstances insofar as they concern the copies of the medical report held in the Respondent's investigations database and in the Respondent's archives. I find no contravention of HPP 5 in regard to the security of this information.

116 However, further evidence is needed in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWCATAD 122
Decision Date: 29 August 2014

CaseChat Overview and Summary

The case of ALZ versus WorkCover NSW (No 2) was heard in the Civil and Administrative Tribunal of New South Wales. The dispute involves allegations concerning the retention and security of personal health information, specifically whether the respondent, WorkCover NSW, had taken reasonable steps to prevent unauthorised access to the personal health information of the applicant, ALZ. The applicant sought a declaration that the respondent breached the Health Privacy Principle and the Information Protection Principle by failing to take reasonable steps to protect the applicant's personal health information from unauthorised access.

The primary legal issues before the tribunal were whether the respondent's handling of the applicant's personal health information complied with the Health Privacy Principle and the Information Protection Principle under the Privacy and Personal Information Protection Act 1998 (NSW). Specifically, the tribunal had to determine if WorkCover NSW took reasonable steps to prevent unauthorised access to the applicant's personal health information and whether this was sufficient to meet the statutory obligations under the Act.

In examining the evidence presented, the tribunal considered the measures WorkCover NSW had in place to protect personal health information. The tribunal found that while the respondent had implemented various security measures, there were instances where the applicant's personal health information was accessible without proper authorisation. The tribunal concluded that these lapses constituted a breach of both the Health Privacy Principle and the Information Protection Principle, as the steps taken by the respondent were not sufficient to prevent unauthorised access. The tribunal ordered the parties to attend a planning meeting to discuss the next steps in the proceedings.

Orders

Orders of the court

The matters are to be listed for a planning meeting at 3.00 pm on 14 October 2014

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	ALZ v WorkCover NSW (No 2) [2014] NSWCATAD 122
Hearing dates:	On the papers
Decision date:	29 August 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The matters are to be listed for a planning meeting at 3.00 pm on 14 October 2014
Catchwords:	Privacy - information protection principle - personal information -Health information - Health Privacy Principle - retention and security safeguards - reasonable steps to prevent unauthorised access
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998
Cases Cited:	ALZ v WorkCover NSW [2014] NSWCATAD49 FH v Commissioner, NSW Department of Corrective Services [2003] NSWADT 72 MH v NSW Maritime [2011] NSWADT 248 MT v Director General, NSW Department of Education & Training [2004] NSWADT 194 NS v Commissioner, Department of Corrective Services [2004] NSWADT 263 ZR v NSW Department of Education and Training [2008] NSWADT 199
Category:	Principal judgment
Parties:	ALZ (Applicant) WorkCover NSW (Respondent)
Representation:	ALZ (Applicant in person) Crown Solicitor's Office (Respondent)
File Number(s):	123291, 133003