DMI v Commissioner of Police, NSW Police Force; DMJ v Commissioner of Police, NSW Police Force

[2018] NSWCATAD 284

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DMI v Commissioner of Police, NSW Police Force; DMJ v Commissioner of Police, NSW Police Force [2018] NSWCATAD 284
Hearing dates:	On the papers
Date of orders:	07 December 2018
Decision date:	07 December 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	K Ransome, Senior Member
Decision:	File 2018/00188127 The application is dismissed.  File 2018/00188134 The application is dismissed.
Catchwords:	ADMINSITRATIVE LAW – administrative review – privacy – access to personal and health information – whether request for internal review prerequisite to tribunal jurisdiction
Legislation Cited:	Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998
Cases Cited:	CWS v NSW Department of Education [2017] NSWCATAD 287 KT v Sydney South West Area Health Services [2010] NSWADT 94
Category:	Principal judgment
Parties:	DMJ (Applicant in matter 2018/00188127) DMI (Applicant in matter 2018/00188134) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Solicitors: DMJ (Self Represented) (Applicant) DMI (Self Represented) (Applicant) Office of General Counsel, NSW Police Force (Respondent)
File Number(s):	2018/00188134; 2018/00188127

REASONS FOR DECISION

1. The applicants in these matters are husband and wife. They have each made applications concerning an incident which occurred in September 2017 when NSW police entered and searched their property. For the sake of convenience and cost, their applications have been dealt with together. Their names have been anonymised so as to preserve the privacy of their personal affairs.

2. In letters dated 8 May 2018 the applicants requested access under the Privacy and Personal Information Protection Act 1998 (the PPIP Act) and the Health Records and Information Privacy Act 2002 (the HRIP Act) to copies held by the respondent of their personal and health information. The access request was acknowledged by the respondent on 14 May 2018.

3. On 18 June 2018, the applicants made applications to the Tribunal seeking review of what is described as the “deemed refusal” by the respondent of their requests for access to their personal and health information. The respondent seeks dismissal of those applications on the basis that the Tribunal has no jurisdiction to deal with them as the applicants have failed to first seek internal review of the respondent’s decision.

The relevant law

4. The HRIP Act regulates "health information" through Health Privacy Principles (HPPs). The PPIP Act regulates general personal information (other than health information) through Information Protection Principles (IPPs). Of relevance to these applications are IPP 7 and HPP 7 which provide that a public sector agency that holds personal information or health 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.

5. Part 5 of the PPIP Act applies to review of certain conduct by public sector agencies, including the contravention of a HPP or an IPP that applies to the agency. An aggrieved person can apply under s 53 of the PPIP Act for an internal review of the conduct complained of, for example, the contravention of a HPP or IPP. There are certain time limits and other requirements for making an internal review application (s 53(3) PPIP Act).

6. Section 55(1) of the PPIP Act provides that a person who has made an application for internal review and is not satisfied with the findings of the review or the action taken by the agency in relation to the application may apply to the Tribunal under the Administrative Decisions Review Act 1997 (the ADR Act) for administrative review of the conduct that was the subject of the internal review application.

The applicants’ position

7. It is not in dispute that the applicants have not sought internal review under s 53 of any conduct of the respondent.

8. The applicants describe the decision that was made by the respondent on their requests for access to her personal and health records as being a “deemed refusal”. The applicants submit that they have not made a complaint about the conduct of an agency under s 21 of the HRIP Act but have sought administrative review of the respondent’s refusal to deal with their access requests (the “deemed refusal”). They submit that, in this case, an internal review was not required to enliven the Tribunal’s jurisdiction.

9. The applicants state the Tribunal’s jurisdiction is found in s 22 of the HRIP Act which provides:

22 Government Information (Public Access) Act 2009 not affected

(1)   Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009.

(2)   In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency.

(3)   Without limiting the generality of subsection (1), the provisions of the Government Information (Public Access) Act 2009 and the Privacy and Personal Information Protection Act 1998 that impose conditions or limitations (however expressed) with respect to any matter referred to in HPP 6 (Information about health information held by organisations), HPP 7 (Access to health information) or HPP 8 (Amendment of health information) are not affected by this Act, and those provisions continue to apply in relation to any such matter as if those provisions were part of this Act.

10. The applicants submit that, by virtue of s 22, the Tribunal’s jurisdiction to review the respondent’s “deemed refusal” is consistent with and/or is given by the Government Information (Public Access) Act 2009 (the GIPA Act). The applicants state that the GIPA Act does not require an internal review as a prerequisite to review by the Tribunal of a “deemed refusal”.

11. Furthermore, as I understand it, the applicants submit that the “deemed refusal” falls within the general review powers of the Tribunal under the ADR Act. The applicants also submit that the Tribunal should not take an overly technical approach to its interpretation of the relevant legislation.

12. While the applicant’s submissions have been carefully thought through, they do not in fact accord with the position under the HRIP and PIPP Acts. While each of the applicants has made an access application and no decision has in fact been made on those applications, these Acts do not make provision for a “deemed refusal” of an application or review of that “deemed refusal”.

13. The applicants have misunderstood the purpose of the references to the GIPA Act in s 22 of the HRIP Act (see also s 5 of the PIPP Act which contains a similar provision). In relation to the applicant’s submissions concerning the applicability of the GIPA Act, the relevant provisions in the HRIP and PIPP Acts act to preserve a person’s rights to access government information under the GIPA Act. A person could, therefore, make access applications under the GIPA Act, the HRIP Act and PPIP Act in relation the same information (see KT v Sydney South West Area Health Services [2010] NSWADT 94). This does not mean that GIPA Act provisions (such as that concerning a “deemed refusal”) are incorporated into those other Acts.

14. The applicants also misunderstand the nature of the HRIP and PIPP Acts and the reference to “conduct”. Section 52 of the PIPP Act sets out the conduct which can be reviewed. In this case the conduct which could be reviewed is the failure of the respondent to provide the applicants with access to their personal and health information in contravention of IPP 7 and HPP 7. There are, however, certain preconditions to the exercise by the Tribunal of jurisdiction to review such a decision.

15. While the Tribunal is exercising its administrative review jurisdiction under the ADR Act in an administrative review under s 55 of the PIPP Act, the internal review provision of that Act is excluded in a review of a decision under the PIPP Act. As was confirmed by the Tribunal in CWS v NSW Department of Education [2017] NSWCATAD 287 at [15], an application for internal review under s 53 of the PPIP Act is a pre-condition to an administrative review by the Tribunal under s 55 of that Act.

16. Despite the submissions of the applicants that the Tribunal should not be overly technical in its interpretation of the relevant legislation, is not open to the Tribunal to interpret these provisions other than in accordance with their plain meaning.

17. The Tribunal has no jurisdiction to deal with these applications because the applicants have not applied for an internal review in respect of that conduct.

Orders

File 2018/00188127

1. The application is dismissed.

File 2018/00188134

1. The application is dismissed.

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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: 07 December 2018