CYL v YZA (No 2)

[2017] NSWCATAD 53

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CYL v YZA (No 2) [2017] NSWCATAD 53
Hearing dates:	31 January 2017
Date of orders:	17 February 2017
Decision date:	17 February 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P Durack SC, Senior Member
Decision:	(1) The reasons for decision dismissing the applicant’s substantive application in this matter, in the form issued to limited persons on 26 August 2016, are not to be released for publication and the disclosure of the reasons in that form is to be restricted to the persons referred to in the previous orders in this matter. (2) The names of the applicant and the respondent in this matter are not to be disclosed. (3) Other than the parties, no person is to be granted access to any documents in the Tribunal’s file in this matter without the consent of the parties or order of the Tribunal.
Catchwords:	PROCEDURE – restriction on publication of reasons – steps to anonymise the applicant - administrative review of conduct alleged to be in breach of the Privacy and Personal Information Protection Act 1998 (NSW) – sensitive information.
Legislation Cited:	Privacy and Personal Information Protection Act 1998 (NSW).
Category:	Procedural and other rulings
Parties:	CYL (Applicant) YZA (Respondent)
Representation:	Counsel: B Tronson (Respondent) Solicitors: CYL (Applicant in person) Thomson Geer (Respondent)
File Number(s):	2015/00383634 (previously 1510764)
Publication restriction:	The names of the Applicant and the Respondent in this matter are not to be disclosed.

REASONS FOR DECISION

1. These reasons are concerned with an application by the applicant that the reasons for my decision in a principal judgement in this matter issued to limited persons on 26 August 2016 not be published and that the disclosure of those reasons be restricted to the persons referred to in previous orders made by me in this matter.

2. This matter was concerned with an application for administrative review of the conduct of the respondent in which the applicant alleged that the respondent had acted in contravention of various information protection principles in the Privacy and Personal Information Protection Act 1998 (NSW). By the administrative review application, the applicant sought to uphold her privacy interest in personal information held by the respondent.

3. For reasons issued on 26 August 2016, I dismissed the application for administrative review. For present purposes, however, those reasons acknowledged that much of the information in issue held by the respondent was personal information about the applicant. I am satisfied that the personal information about the applicant relating to the dealings the applicant had with the respondent, which are at the core of this dispute, includes personally sensitive information. No-one contends otherwise. It is not common ground that it is confidential information and I am not in a position to determine such a question, nor am I asked to do so.

4. In the first instance, the reasons issued on 26 August 2016 were only issued to the applicant and to the legal representatives of the respondent and to the Secretary and General Counsel of the respondent. By subsequent orders, I permitted the reasons to be released to a few other persons within the respondent.

5. I have decided to uphold the application the subject of these reasons but at the same time to permit publication of reasons that are modified from those issued on 26 August 2016 by additional “anonymisation” steps: see Procedural Direction 9.

6. At the hearing on 31 January 2017, the applicant made it clear that her real concern was to avoid her being identified with the reasons issued on 26 August 2016 by readers amongst the public who may have some familiarity with the events connected to her case.

7. It is common ground that there should be steps taken directed at preserving the anonymity of the applicant. This is because the proceedings were brought in order to protect her personal information and aspects of the reasons issued on 26 August 2016 refer to some of this information.

8. The dispute that remains between the parties concerns only the extent to which this should occur. The respondent contends that the replacement of the applicant’s name with initials is sufficient – this being the only step that has been taken to date. The applicant disagrees and points to descriptions of her, events, timing and names of persons involved in the events, that would enable some persons to identify her as the applicant in the proceedings.

9. At the hearing, I discussed with the parties some additional steps that might be taken to allay the applicant’s concerns, which I was inclined to regard as reasonably based concerns.

10. I do regard her concerns as reasonably based. This is not only because of the nature of her personal information relating to her dealings with the respondent. It is also because I can see how the combination of a number matters revealed in the reasons would or may well lead some people to become aware of the applicant’s association with the personal information. This would include some people within the respondent, who it appeared would not be entitled to know the personal information.

11. One course was to replace the respondent’s name with initials and to anonymise the name of individuals within the respondent, or connected with the respondent for the purpose of these events, in order to ensure that the name of the respondent remained unknown. The applicant expressed her support for such a course, but she said it would also be necessary to change the initials used for her name because of other cases she had brought in the Tribunal.

12. The respondent did not agree with this approach but indicated that if it was to be followed it would be sufficient to change the initials used for the applicant, perhaps in conjunction with the non-disclosure of various paragraphs of the reasons. In this regard, there was some discussion at the hearing about the specific paragraphs that might be marked as not for publication. In response, the applicant indicated that such marking would need to be placed on many more paragraphs than the respondent had indicated.

13. I have decided to prefer the approach that the applicant supported. First, it is more likely to preserve her privacy. Second, it allows the reasons to be read by reference to the whole of the factual context described in the reasons and, therefore, better understood and of more utility. Third, and related to this second reason, if the respondent’s approach was adopted, I think more paragraphs would need to be kept undisclosed than indicated by the respondent. Fourthly, it is unwieldy and less practical to work through and conclusively assess all the paragraphs of the reasons - there is a much shorter and neater solution available. Finally, I do not see any substantial prejudice to the respondent from adopting this approach. The respondent did submit that it would lose the benefit of having a more memorable and useful guide and precedent available to it because it was named as a party. I do not agree. For the second reason I have just given, I think the reasons will be of greater potential utility. In any event, I regard this argument by the respondent as being of less weight than the need to take more stringent steps to protect the applicant’s privacy.

14. It seems to me that the best way to achieve the intended outcome of this decision is to make the orders set out below concerning the publication of the reasons issued on 26 August 2016, in the form that they were then in, and to order that the name of the respondent, as well as the applicant, is not to be published. This will leave the modified reasons free to be published without restriction.

15. The modified reasons will not include the reference I made to the question of publication of the reasons, or the orders I made about that subject, in the reasons issued on 26 August 2016.

16. During the hearing on 31 January 2017, the applicant raised a concern about public access to material in the Tribunal’s file that was her personal information or which may reveal her identity. The parties have indicated that each consents to an order concerning access to the Tribunal file in the terms set out in Order 3 below.

Orders

17. For the above reasons, I make the following orders:

1. The reasons for decision dismissing the applicant’s substantive application in this matter, in the form issued to limited persons on 26 August 2016, are not to be released for publication and the disclosure of the reasons in that form is restricted to the persons referred to in the previous orders in this matter.

2. The names of the applicant and the respondent in this matter are not to be published.

3. Other than the parties, no person is to be granted access to any documents in the Tribunal’s file in this matter without the consent of the parties or order of the Tribunal.

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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: 17 February 2017