CEU v Ombudsman - [2017] NSWCATAD 267

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CEU v Ombudsman [2017] NSWCATAD 267
Hearing dates: On the papers
Date of orders: 31 August 2017
Decision date: 31 August 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Ludlow, Senior Member
Decision:
1. The respondent has breached s18 of the Privacy and Personal information Protection Act 1998.
2. The Tribunal determines, pursuant to s 55(2) of the PPIP Act, to take no further action on the matter.
Catchwords: ADMINISTRATIVE LAW – privacy – alleged breach of ss 17 and 18(1) of the Privacy and Personal Information Protection Act 1998 – investigative agency exemption under s 24(1) – whether agency had no reason to believe individual would object to disclosure
Legislation Cited: Privacy and Personal Information Protection Act 1998
Cases Cited: MT v Director General, NSW Department of Education & Training [2004] NSWADT 194
NR and NP v Roads and Traffic Authority [2004] NSWADT 276
Category: Principal judgment
Parties: CEU (Applicant)
NSW Ombudsman (Respondent)
Representation: Solicitors:
Applicant self-represented
NSW Ombudsman’s Office Legal (Respondent)

File Number(s): 2017/00010926

reasons for decision

The applicant claims that the respondent breached ss 17 and 18 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act) by disclosing her name and email address to the University of Technology Sydney.
I have determined that the respondent’s conduct breached s 18 of the PPIP Act but did not breach s 17.
The application has been determined in the absence of a hearing pursuant to an order made by the Tribunal on 18 July 2017.
Section 18 of the PPIP Act provides:

18 Limits on disclosure of personal information
(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:
(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or
(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or
(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.”

“Personal information” is defined in s 4 to mean:

“information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about…

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: [2017] NSWCATAD 267
Decision Date: 31 August 2017

CaseChat Overview and Summary

The case of CEU v Ombudsman involves a dispute regarding the alleged breach of privacy provisions under the Privacy and Personal Information Protection Act 1998. The respondent, the Ombudsman, is accused of breaching sections 17 and 18(1) of the Act in relation to the handling of personal information. The complainant, CEU, argued that the Ombudsman had improperly disclosed personal information in violation of the statutory privacy protections. The matter was heard by the Administrative Appeals Tribunal, which was tasked with determining whether the Ombudsman's actions were justified under the investigative agency exemption provided by section 24(1) of the Act.

The primary legal issue before the Tribunal was whether the Ombudsman's disclosure of personal information was justified under the investigative agency exemption in section 24(1) of the Privacy and Personal Information Protection Act 1998. This exemption permits an agency to disclose personal information if it reasonably believes the individual would not object to the disclosure. The Tribunal had to assess whether the Ombudsman had a reasonable belief that the individual would not object to the disclosure, given the circumstances of the case. Furthermore, the Tribunal examined whether the Ombudsman adhered to the conditions stipulated in the Act for such disclosures.

In its reasoning, the Tribunal found that the Ombudsman had indeed breached section 18 of the Privacy and Personal Information Protection Act 1998. The Tribunal concluded that the Ombudsman did not have a reasonable belief that the individual would not object to the disclosure of their personal information. The Tribunal held that the exemption under section 24(1) was not applicable, as the Ombudsman failed to meet the necessary criteria for such a disclosure. Consequently, the Tribunal determined that the Ombudsman had violated the statutory privacy protections.

The Tribunal, pursuant to section 55(2) of the Privacy and Personal Information Protection Act 1998, decided to take no further action on the matter. This decision was based on the conclusion that the breach had already been established, and further action was not necessary. The Tribunal's ruling highlights the importance of agencies adhering to privacy laws and the stringent requirements for invoking exemptions under the Act.

Orders

Orders of the court

1. The respondent has breached s18 of the Privacy and Personal information Protection Act 1998.

2. The Tribunal determines, pursuant to s 55(2) of the PPIP Act, to take no further action on the matter.

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:	CEU v Ombudsman [2017] NSWCATAD 267
Hearing dates:	On the papers
Date of orders:	31 August 2017
Decision date:	31 August 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	1. The respondent has breached s18 of the Privacy and Personal information Protection Act 1998. 2. The Tribunal determines, pursuant to s 55(2) of the PPIP Act, to take no further action on the matter.
Catchwords:	ADMINISTRATIVE LAW – privacy – alleged breach of ss 17 and 18(1) of the Privacy and Personal Information Protection Act 1998 – investigative agency exemption under s 24(1) – whether agency had no reason to believe individual would object to disclosure
Legislation Cited:	Privacy and Personal Information Protection Act 1998
Cases Cited:	MT v Director General, NSW Department of Education & Training [2004] NSWADT 194 NR and NP v Roads and Traffic Authority [2004] NSWADT 276
Category:	Principal judgment
Parties:	CEU (Applicant) NSW Ombudsman (Respondent)
Representation:	Solicitors: Applicant self-represented NSW Ombudsman’s Office Legal (Respondent)
File Number(s):	2017/00010926