Dodson v Information Commissioner, the Office of the Australian Information Commissioner
[2021] FedCFamC2G 337
•14 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dodson v Information Commissioner, The Office of the Australian Information Commissioner [2021] FedCFamC2G 337
File number(s): BRG 353 of 2020 Judgment of: JUDGE VASTA Date of judgment: 14 December 2021 Catchwords: ADMINISTRATIVE LAW – Judicial review – where Applicant alleges that her “privacy was breached” – where the Respondent declines to investigate – whether it was open to Respondent to accept that APP entity had a reasonable belief – whether it was open for the Respondent to accept that it was unreasonable or impracticable to obtain consent of the Applicant – application dismissed Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(1)
Privacy Act 1988 (Cth), s 16A
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of last submission/s: 29 November 2021 Date of hearing: In Chambers On The Papers Place: Brisbane Counsel for the Applicant: The Applicant upon making submissions on her own behalf Solicitor for the Respondent: Holding Redlich ORDERS
BRG 353 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LOREL ROBYN DODSON
ApplicantAND: INFORMATION COMMISSIONER, THE OFFICE OF THE AUSTRALIAN INFORMATION COMMISSIONER
Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
14 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application filed 21 June 2020 is dismissed.
2.The Applicant pay the Respondent’s costs of and incidental to the application fixed in the sum of $7,467.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION
On 26 May 2020, the Office of the Australian Information Commissioner (“the OAIC”) wrote to the Applicant, Lorel Dodson, telling her that he had decided to decline to investigate a complaint that the Applicant had made regarding her privacy being breached. On 21 June 2020, the Applicant asked this Court to order that the OAIC fully investigate her complaint.
It would seem to me that the only cause of action available to the Applicant was an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act”). Under this Act, the Court has jurisdiction to review a decision made by the OAIC.
However, the application must be based on one or more of the grounds enumerated in s 5(1) of the ADJR Act. The applicant is a self-represented litigant and has not particularised any ground of application. Nevertheless, it is in the interests of justice for me to consider the application as a whole.
History of the matter in this Court
The Applicant filed her application on 21 June 2020 as well as two affidavits. The matter came before His Honour Judge Jarrett (as His Honour then was), as a first court date, on 4 September 2020. On that date His Honour ordered that the OAIC file and serve a response and any affidavit material and any submissions by 4 PM on 23 September 2020.
His Honour ordered that the Applicant file and serve any further affidavit material and any submissions no later than 4 PM on 16 October 2020. His Honour adjourned the further hearing of the matter to a date to be fixed pending receipt of the submissions. The parties complied with these orders and filed their submissions accordingly.
Upon the elevation of His Honour to Division One of this Court, I “inherited” a number of His Honour’s matters in General Federal Law. Because this matter had not been before the Court in over 13 months, it was listed for mention on Monday, 29 November 2021. I asked the parties where the matter was situated and both parties told me that, in their submissions, they had asked for the matter to be dealt with “on the papers”. They both told me that they had been awaiting a decision.
I enquired of the parties why they had not made any approaches to the Chambers of His Honour to ascertain whether His Honour had acceded to the request in the submissions for the matter to be heard “on the papers” or whether the matter needed to have a further mention date in Court. The answers given to me were not satisfactory.
The fact is that His Honour no longer has a commission that would allow him to determine this matter. I asked the parties whether they wish to have a new hearing date given the change in presiding judicial officer, however they both asked that I decide the matter “on the papers”. I told them that the matter was reserved from that day (29 November 2021) and, given the circumstances, I would give them a judgement as soon as possible.
Background
There is a short background that needs to be understood to fully comprehend the submissions made by the Applicant. The Applicant had been a public servant for approximately 35 years (in two separate periods) before her resignation on 26 January 2018. She had been an employee of the Department of Human Services (“the DHS”) as that Department was known at the time.
The Applicant believes that she had no choice but to resign because she needed flexible working conditions to allow her to be home by a specified time each day to provide care for her son. The son of the Applicant suffered from severe mental health conditions and had ongoing suicidal ideation.
There had been a change in policy, by the Department, which meant that those work arrangements, which had been in place, were no longer able to be accommodated by DHS.
Before her resignation, the Applicant had, on three occasions, between September 2017 and November 2017, contacted Ms Renee Leon, the Secretary of the Department, asking her to show “some flexibility, compassion, some humanity to support a long term, loyal, mature age worker remain in the workforce as well as care for her adult child who has a severe medical condition”. On the information before me, the Applicant did not receive a reply from Ms Leon.
The Applicant did not attempt to contact Ms Leon after November 2017 and certainly not after her resignation. There is no evidence before me that the Applicant had any other communication with any member of DHS in which she expressed similar sentiments as those she had expressed earlier to Ms Leon.
The Email
To say that the Applicant was disappointed with the response (or non-response) from DHS, and Ms Leon in particular, would be an understatement. She was of the view that there was no true level of care by management for staff within DHS. The Applicant felt that she was forced to leave the workforce in a sudden way. Her plan had been to work for a further five years so that she could maximise her superannuation contributions in her final working years and set herself up for her eventual retirement.
The Applicant said that she had been speaking to a “health professional” and, at the suggestion of that health professional, she sent an email to Ms Leon, but also to the Minister for Human Services, who just happened to be her local Federal Member of Parliament.
The email, which was sent on 24 May 2020, had, in the subject line, the words “Too late”. The body of the email read as follows:
Dear Ms Leon
I am writing to you in regard my 3 previous emails of 28 September 2017, 3 November 2017 and 16 November 2017) in which I begged for your support to assist me to remain in the workforce.
It was very disappointing that you felt it was inappropriate to reply to me in person preferring to fob me off to HR, twice.
Your decision to do so was particularly distressing for me considering I had been a very loyal dedicated and exemplary public servant for a total of 35 years. The best way to manage staff is to support them but you failed to do so this time.
This was an opportunity to support the Government’s policy on retention of mature age people in the workforce, to maintain workforce participation for an older Australian. Instead, DHS chose to callously stick with an irrelevant policy when it should have lead by example.
You will be very proud to know that your management team showed absolutely no compassion or humanity. Every single one of them stuck to the inflexible hard line with ruthless precision.
Your uncompromising stance of start times and failure to do the decent thing means that I have been forced to resign – the alternatives being starve or work later while my son hanged himself (which would you choose?).
I have been relegated to a life on the poverty line, in the welfare queue instead of being a tax paying productive member of society.
I am not sending this email as sour grapes. I am just letting you know how DHS’s heartless bureaucratic machines destroys people’s lives.
Job well done, Ms Leon.
Lorel Dodson
24 May 2018.
The Aftermath of the Email
Upon reading the email, Ms Leon contacted the Queensland Police Service (QPS) and requested that they perform a welfare check on the Applicant. Two police officers conducted the welfare check.
Other events then followed, but they are not relevant to the determination of this matter.
The Applicant was not happy that the QPS came knocking on her door. She was of the view that the police could not have come to her home if it had not been for Ms Leon, on behalf of DHS, divulging, to the police, private information; that is, the name and address of the Applicant.
The Applicant was of the view that DHS had “breached her privacy”. The address of the applicant is “personal information” as that term is used in the Privacy Act 1988 (Cth) (“the Privacy Act”).
The Privacy Act allows for the disclosure of personal information by an Australian Privacy Principle entity (“the APP entity”) in a permitted general situation. DHS is an APP entity and so s 16A of the Privacy Act applies.
That section allows for the disclosure of personal information if:-
a.it is unreasonable or impracticable to obtain the individual’s consent to the disclosure; and
b.the APP entity reasonably believed that the disclosure was necessary to lessen or prevent a serious threat to the life, health or safety of any individual
The Applicant made a complaint to the OAIC. The OAIC is the correct and proper regulatory body to whom a complaint of a breach of privacy should be made. The Applicant made the complaint to the OAIC on 22 November 2018.
On 27 April 2020, the OAIC wrote to the Applicant and explained that, for a number of reasons, the Commissioner considered that DHS had not interfered with the privacy, as defined by the Privacy Act, of the Applicant. The letter explained that there was an intention to exercise the discretion to decline to investigate the complaint but, before a decision was made, the Applicant was invited to provide a response to this information.
On 9 May 2020, the Applicant wrote a nine page response to the OAIC. On 26 May 2020, the OAIC exercised their discretion to decline to investigate the complaint.
The Decision
The OAIC noted the submissions that the Applicant made to it which were summarised as follows:-
·DHS had failed to satisfy the requirements of s 16A and therefore it illegally disclosed the private information. This disclosure caused anxiety and embarrassment to the applicant.
·It was not “unreasonable or impracticable” to obtain the consent of the Applicant to disclose her personal information to QPS.
·Any claim by DHS that the Applicant was not contacted because DHS perceived that such contact would cause her distress was an unreasonable claim and a decision that no reasonable person “would arrive at”.
·DHS did not have ongoing communications with the Applicant and any claim by them to the contrary was false.
·An assessment as to whether the Applicant should be contacted was not made by anyone, let alone anyone qualified to make such an assessment.
·The decision to release the information to QPS was made by someone who did not have qualifications to make an assessment as to whether the disclosure should happen. The person who made the decision to release the information, did so without consulting any person in DHS who would know the Applicant or her circumstances and without attempting any contact with the Applicant.
·The Applicant believed that OAIC has simply accepted whatever submission DHS has made without verifying that submission.
The OAIC had regard to the provisions of s 16A of the Privacy Act. The OAIC concentrated on whether DHS reasonably believed that the disclosure was necessary to lessen or prevent a serious threat to the life, health or safety of any individual.
The OAIC accepted that there must be a reasonable basis for the belief and that it cannot be merely a “genuine or subjective” belief. The OAIC also accepted that it was the responsibility of DHS to be able to justify its reasonable belief.
The OAIC had information from DHS which advised that the employee who read the email had genuine concerns for the safety and welfare of the Applicant. This belief was based upon the distress and disappointment expressed in the email, the context surrounding the email (including the recent resignation of the Applicant) and statements in the email about how the processes of DHS “destroys people’s lives”.
The OAIC said that, despite the submissions by the Applicant, there was no legal requirement for an individual to have particular qualifications in forming the belief; the test is whether such a belief is reasonable and objectively so.
The OAIC concluded that the belief of the employee of DHS, and therefore of DHS, was a reasonable belief that a disclosure to QPS was necessary to lessen or prevent a threat of self-harm by the Applicant.
The OAIC then looked at whether it was “unreasonable or impracticable” to obtain consent from the Applicant before the disclosure was made. The OAIC accepted that DHS needed to outline a reason that it was “unreasonable or impracticable” to obtain the consent of the Applicant but noted that the considerations may include “the nature of, and potential consequences associated with, the serious threat; for example, the urgency of the situation and level of threatened harm may require collection, use or disclosure before it is possible to seek consent”.
The OAIC said that given the context of the email in question and the history between the Applicant and DHS, they accepted that the employee made a decision quickly within the parameters of the information available to them. Due to the limited time that the employee had to make such a decision, the OAIC accepted this urgency made it unreasonable or impracticable in the circumstances for DHS to obtain the consent of the Applicant prior to the disclosure.
The OAIC was of the view that DHS reasonably believed that disclosing limited personal information to QPS was reasonably necessary to prevent or lessen a serious threat of self-harm. The OAIC considered that it was unreasonable or impracticable for DHS to obtain the consent of the Applicant for this disclosure given the necessity for a decision to be made expeditiously.
For those reasons, the OAIC was satisfied that the actions of DHS were not an interference with the privacy of the Applicant. Given that level of satisfaction, the OAIC declined to investigate the complaint.
This Application
As previously noted, the Applicant has given no grounds for the application for review. Instead, she has given a large statement as to why she disagrees with the decision and why she believes that there has been a breach of s 16A of the Privacy Act.
Section 5 of the ADJR Act states that an order of review in respect of the decision must be on one or more of the grounds enumerated in that section. In her submissions, the Applicant asked the Court “to find that the OAIC did not exercise its power correctly because it failed to take relevant information into consideration and it made its decision without any actual facts or evidence and based its decision on incorrect information, distorted meanings and contradictions”.
The Applicant asked the Court to order OAIC to “conduct a full, fair and thorough investigation into the deliberate interference in my privacy and breach of my privacy by DHS on 24 May 2018”.
Without wanting to criticise the Applicant too harshly, it does not seem that she has grasped the idea of judicial review properly. In this case, it is the Court’s duty to review a decision. This is totally different to the Court entertaining an appeal from that decision.
I have treated the application (reinforced by the submissions) of the Applicant to be an application for review pursuant to s 5(1)(h) of the ADJR Act; that is, the Applicant contends “that there was no evidence or other material to justify the making of the decision”.
Section 5(3) states that such a ground shall not be taken to be made out unless:-
a.the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
b.the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist
The question for this Court is not whether the decision of the OAIC should have been made, but rather whether it could have been made. In other words, was the decision, made by the OAIC, one that was open to it?
The Contentions of the Applicant
The Applicant submitted very lengthy submissions in which she pointed out that she simply did not agree with the decision. In her submissions, she repeated sentences from the OAIC decision and commented on those sentences with words “I do not admit this”. The Applicant seems to believe that her simply “not admitting” a particular statement, means that that statement has no force, merit or justification.
The contentions of the Applicant are purely subjective. Her contention is that there is nothing in the email that was sent to Ms Leon that could lead to a reasonable belief that the disclosure was necessary to lessen or prevent a serious threat to the life, health or safety of the Applicant. Her submission truly is that if she (the Applicant) does not conclude that the email could lead someone else to have that belief, then the police notification cannot be reasonable.
Similarly with respect to whether it was “unreasonable or impracticable” to contact the Applicant, the Applicant gives evidence that she was at home all day and was easily able to be reached by telephone. Therefore, she submits, he could never be said that it was unreasonable or impracticable to contact her.
Analysis of the Email
The resolution to this application rests upon an objective appraisal of the email was sent to Ms Leon. That objective appraisal has to have regard to the context in which the email was sent.
The email is titled “Too Late” and begins with a statement that the Applicant had sent three previous emails, between six and eight months beforehand, in which she “begged” for the support of Ms Leon. The use of the word “begged” is an emotive term. The letter continued that the Applicant was disappointed that she was not replied to in person and “fobbed off” to HR.
The Applicant then said that this was distressing given her 35 years of loyal, dedicated and exemplary service. The Applicant told Ms Leon that she had “failed” to support her. The Applicant said that there was an opportunity for DHS but that they “callously” stuck within the relevant policy.
Sarcastically, the Applicant wrote that Ms Leon would be “very proud to know your management team showed absolutely no compassion or humanity”. The Applicant said that Ms Leon’s “uncompromising stance” gave her two options: starve or work. The Applicant then said that the latter option would cause her son to commit suicide.
The Applicant said that she had been “relegated to a life on the poverty line, in the welfare queue” and that she didn’t have “sour grapes” but was just letting Ms Leon know how “DHS’s heartless, bureaucratic machine destroys people’s lives”. Again sarcastically, the Applicant closes the mail with the line “Job well done, Ms Leon”.
Was it Open to find that the Belief was Reasonable?
The emotive language that was used by the Applicant in the email was, objectively, concerning. The title of the email connoted that it was “too late” for anything to be done. The email connoted that the Applicant was forced to resign and she would now starve. The only alternative to resigning and therefore starving, was to keep working which would inevitably lead to the death by suicide of the son of the Applicant. The email connoted that all of this was the fault of DHS who have acted callously with no compassion or humanity and has destroyed people’s lives.
Given all of those matters, it seems to me that it was well and truly open for the OAIC to conclude that the belief of DHS that they needed to lessen or prevent a serious threat to the life, health and safety of the Applicant was reasonable.
Was it open to find that it was Unreasonable and Impracticable to Obtain Consent?
The reason given as to why consent of the Applicant was not obtained was that DHS considered that the Applicant was suffering distress because of actions of DHS. If DHS were to contact the Applicant to enquire as to her welfare, DHS considered that such an action would cause further distress to the Applicant.
Once it was concluded that there was a serious threat to the life, health and safety of the applicant, it was deemed necessary, in those circumstances, to disclose the information to QPS so they could conduct a welfare check. Such a decision needed an immediate response.
Given those circumstances, it seems to me that it was well and truly open for the OAIC to conclude that it was unreasonable and impracticable for DHS to contact the Applicant before disclosing her address to QPS.
Conclusion
Having concluded that it was open for the OAIC to have made the decision that they made, s 5(3) legislates that the ground of this application “shall not be taken to be made out”.
I therefore dismiss the application with costs fixed in the 2020 scale sum of $7,467.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 14 December 2021
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