DTN v Commissioner of Police

[2021] NSWCATAD 240

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DTN v Commissioner of Police [2021] NSWCATAD 240

Hearing dates:

31 March 2021

Date of orders:

16 August 2021

Decision date:

16 August 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

1. The decision made by the Respondent on 26 May 2020 in proceedings 178374 is affirmed and I decide to take no further action.

2. The decision made by the Respondent on 26 May 2020 in proceedings 178388 is affirmed and I decide to take no further action.

Catchwords:

PRIVACY – accuracy of personal information – personal information – health information – s4(3)(j) Privacy and Personal Information Act 1998 – s5(3)(m) Health Records and Information Privacy Act 2002

Legislation Cited:

Administrative Decisions Review Act 1997

Health Records and Information Privacy Act 2002 (NSW)

Privacy and Personal Information Act 1998 (NSW)

Cases Cited:

ACO v Department of Education and Training (2012) NSWADT 79

AF v Health Quest & Another [2011] NSWADT 99

AF v Health Quest (GD) (2009) NSWADTAP 42

AF v Minister for Health; Minister for Health v AF [2002] NSWADTAP 16

AHC v Fire Rescue New South Wales [2012] NSWADT 258

Department of Education and Training v PN [2006] NSWADTAP 66

DPD v Far West Local Health District [2020] NSWCATAD 141

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

EY v Department of Corrective Services (GD) [2009] NSWADTAP

QN & Ors v Commissioner of Fire Brigades [2011] NSWADT 125

Y v Department of Education and Training [2001] NSWADT 149

Category:

Principal judgment

Parties:

DTN - Applicant
Commissioner of Police - Respondent

Representation:

Solicitors:
Ms C Tipene - Respondent

File Number(s):

2020/178374 2020/178388

Publication restriction:

An order pursuant to s64(1)(a) Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure of the name of (DTN).

Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1. The Applicant (DTN) has lodged two applications with the Tribunal on 12 June 2020, seeking a review of the conduct of the Respondent pursuant to s55 of the Privacy and Personal Information Act 1998 (NSW) (PPIP Act).

2. DTN applied to the NSW Police Force on 6 March 2020 and 16 March 2020, requesting two internal reviews of conduct by the Respondent under s53 of the PPIP Act. The conduct of the Respondent which was the subject of an internal review included the following:

1. (a)   proceedings 2020/178374 - the accuracy of the contents of a document entitled ‘FTC Unit Recommendation’ report authored by a Case Officer of the NSW Police Force Fitness to Continue Unit, Renee Bennett, dated 15 February 2012 (“the Document”) and

2. (b)   proceedings 2020/178388 - the accuracy of the contents of a document ‘Independent Medical Consultation Referral’ by Annette Sailing dated 8 April 2011 (“the Referral”).

3. The Respondent on 26 May 2020, after concluding the internal review of its decisions, decided that the conduct complained of by DTN is exempt from the PPIP Act for the reason that it comes within s4(3)(j) of that Act.

Factual Background

4. DTN commenced employment with the NSW Police Force as a Police Officer in about August 1995.

5. On 28 August 2007, DTN sustained a workplace injury. His last day on duty was 3 July 2008.

6. On or about 8 April 2011, DTN was referred to an independent medical consultation. The document referring DTN to the medical examiner is the subject of this application.

7. On or about 9 April 2012, DTN was medically discharged from the NSW Police Force.

8. On or about 18 February 2020, MetLife Insurance provided DTN with a copy of the Document and the Referral which he alleges contains health information or personal information which has prompted this application for review.

9. DTN contends that the Respondent has engaged in conduct that falsely states the nature of his injury to include memory loss and a psychotic illness. He seeks the Respondent to correct this information under the PPIP and HRIP Acts.

The Document and the Referral

10. DTN in proceedings (178374) seeks a review of the Respondent’s conduct on the following grounds:

… the report (page 1) falsely states my ‘Nature of Injury’ as including ‘Psychotic Illness’ and ‘Memory Loss’. I do not suffer from either ailment and nowhere contained in the (Document) is medical opinion stating that I do.

NSWPF have declined my application for internal review in respect to the (Document) and rely upon 5(3)(M) HRIPA and 4(3)(J) PPIPA to do so.

11. DTN in proceedings (178388) seeks a review of the Respondent’s conduct on the following grounds:

… I have recently discovered that … M/s Saling provided the same false information to a Dr George via an ‘Independent Medical Consultation Referral’ dated 08.04.2011.

The Issue

12. The issue for determination is whether the Respondent has appropriately applied s4(3)(j) of the PPIP Act and s5(3)(m) of the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act) to information such that the Respondent concluded that it is not required to comply with the accuracy principle set out in s16 of the PPIP Act and Schedule 1 of clause 9 of the HRIP Act.

Relevant Legislation

13. A person who is aggrieved by the conduct of a public sector agency (concerning a breach of their privacy under the PPIP Act) can apply for an Internal Review of the conduct concerning the alleged breach. Section 53 of the PPIP Act relevantly provides in respect of the Internal Review Process, the following:

53 Internal review by public sector agencies

(1)   A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.

(1A)   There is no entitlement under this section to the review of the conduct of a Minister (or a Minister’s personal staff) in respect of a contravention of section 15 (Alteration of personal information).

Note. Any such conduct can still be administratively reviewed by the Tribunal. See section 55 (1A).

(2)   The review is to be undertaken by the public sector agency concerned.

(3)   An application for such a review must:

(a)   be in writing, and

(b)   be addressed to the public sector agency concerned, and

(c)   specify an address in Australia to which a notice under subsection (8) may be sent, and

(d)   be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and

(e)   comply with such other requirements as may be prescribed by the regulations.

14. The primary legislation which applies to these proceedings is the PPIP Act and the HRIP Act.

15. S16 of the PPIP Act provides:

16 AGENCY MUST CHECK ACCURACY OF PERSONAL INFORMATION BEFORE USE 

A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

16. Clause 9 of Schedule 1 of the HRIP Act provides an obligation on an organisation holding Health Information, which is ‘personal information’, in the same terms as s16 PPIP Act.

17. Relevantly, ‘personal information’ is defined in s4 of the PPIP Act and s5 of the HRIP Act. The definitions are identical and include a number of exceptions as follows:

Section 4 of the PPIP Act provides:

1. Definition of ‘personal information’

2. … personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can be reasonably ascertained from the information or opinion.

…

1. Personal information does not include any of the following -

…

(j)   information or an opinion about an individual’s suitability for appointment or employment as a public sector official;

Section 5 of the HRIP Act provides:

1. Definition of ‘personal information’

2. … personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can be reasonably ascertained from the information or opinion.

…

1. Personal information does not include any of the following -

…

(n)   information or an opinion about an individual’s suitability for appointment or employment as a public sector official:

…

18. The Respondent submits that the Document and the Referral (“the Information”) do not fall within the definition of ‘personal information’ on the basis that the Information is exempt under s4(3)(j) of the PPIP Act and s5(3)(n) of the HRIP Act because it contained information or an opinion about his suitability for employment.

19. In written submissions the Respondent relies upon the decisions in QN & Ors v Commissioner of Fire Brigades [2011] NSWADT 125; AF v Health Quest (GD) (2009) NSWADTAP 42. The Respondent submits that the Tribunal’s approach in relation to the application of s4(3)(j) of the PPIP Act is relevant in relation to the interpretation of s5(3)(n) HRIP Act, which submissions I accept. In DPD v Far West Local Health District [2020] NSWCATAD 141 at [81], this Tribunal found that the accepted purpose for the 4(3)(j) of the PPIP Act exemption ‘was broadly to enable the assessment of prospective and current employee competencies and their suitability, to be conducted in a manner not constrained by the IPPs.’ In my view, given the construction of 5(3)(m) of the HRIP Act, that section should be interpreted in the same way.

20. In EY v Department of Corrective Services (GD) [2009] NSWADTAP 25 at [39] the Tribunal found that there is nothing in the words used in s4(3)(j) to support a limitation that the Act does not go beyond assessing an application for first-time employment by a public sector official. Indeed the construction of the words used in that exception includes an assessment of the ongoing suitability of current public sector officials to perform their roles. The Appeal Panel in AF v Minister for Health; Minister for Health v AF [2002] NSWADTAP 16 at [55] found that the interpretation of s4(3)(j) of the PPIP Act should not be confined to the issue of an individual’s termination of employment. I adopt the reasoning of these decisions.

Did NSW Police Force collect personal information about DTN?

21. The information, or context of information which is alleged to be about an individual’s suitability for appointment or employment, must demonstrate that the individual’s suitability is a live issue and that the individual’s competence for employment is assessed (see AF v Health Quest & Another [2011] NSWADT 99 at [41]). In Y v Department of Education and Training [2001] NSWADT 149 at [36] the Tribunal said:

The information … must contain within it language which indicates to an objective observer that the information canvasses the aptitude and competence of the employee with respect to their current or prospective employment (and can embrace such matters as co-operativeness, ability to work effectively as part of a team and interpersonal skills) … It would be an unusual case where the exclusion would apply outside … recruitment, promotion, discipline or involuntary retirement.

22. The context to be considered is the context ‘in which the information was collected, stored, used or disclosed by the agency’ (see AHC v Fire Rescue New South Wales [2012] NSWADT 258 at [34]).

23. In ACO v Department of Education and Training (2012) NSWADT 79, the Tribunal found that medical assessments are within the scope of s4(3)(j) of the PPIP Act:

The context in which those comments were made is that of the referral. Unlike the situation in AF, here the referral raised for consideration questions going directly to ACO’s suitability for the employment as a teacher. The referral first sought advice on ACO’s ‘ability to perform the inherent requirements of a classroom teaching position.’ It squarely raised the issue that ‘[ACO’s] ability to interact with students is so restrictive that DET is struggling to support the ongoing employment of [ACO].’ That was the context in which the information about ACO was raised; one of seeking a medical assessment of his suitability for continued employment as a teacher.

24. Both the content and the context of the Information is equally important in determining whether s 4(3)(j) of the PPIP Act applies (Y v Department of Education and Training at [33]). They are not mutually exclusive when examining the application of s 4(3)(j) of the PPIP Act (- see Department of Education and Training v PN [2006] NSWADTAP 66 and OD v Department of Education and Training). I find that the same reasoning should be adopted when applying s 5(3)(m) of the HRIP Act.

25. The PPIP Act provides that a person who is not satisfied with the findings of an Internal Review or the action taken by the agency, may apply to the Tribunal for an administrative review (s55(1) PPIP Act). Following administrative review, a number of actions are available to the Tribunal under s 55 (2) including to take no action on the matter.

26. Section 55 relevantly provides:

55 Administrative review of conduct by Tribunal

(1)   If a person who has made an application for internal review under section 53 is not satisfied with:

(a)   the findings of the review, or

(b)   the action taken by the public sector agency in relation to the application,

the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53.

(1A) A person (the applicant) who is aggrieved by the conduct of a Minister (or a Minister’s personal staff) constituting a contravention of section 15 (Alteration of personal information) may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct.

(2)   On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:

(a)   subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b)   an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

(c)   an order requiring the performance of an information protection principle or a privacy code of practice,

(d)   an order requiring personal information that has been disclosed to be corrected by the public sector agency,

(e)   an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,

(f)   an order requiring the public sector agency not to disclose personal information contained in a public register,

(g)   such ancillary orders as the Tribunal thinks appropriate.

(3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997.

Administrative review before the Tribunal

27. The application for review was lodged on 12 June 2020 which was within the 28 day period provided by s 55 of the Administrative Decisions Review Act 1997 (the ADR Act).

28. The ADR Act provides, at s 63:

63   Determination of administrative review by Tribunal

(1)   In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)   any relevant factual material,

(b)   any applicable written or unwritten law.

(2)   For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3)   In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)   to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision, or

(c)   set aside the decision and make a new decision in substitution for the decision.

29. The Tribunal is required to make a fresh determination with respect to the DTN’s application. It is however an administrative review of the conduct (as alleged within scope) and the findings of the respondent following that review. It is a merits review.

30. The Tribunal’s function on review under section 63 of the Administrative Decisions Review Act 1997 (the ADR Act) is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Findings and conclusion about proceedings - 178374

31. DTN contends that the provisions of s16 of the PPIP Act and clause 9 of Schedule 1 of the HRIP Act apply in relation to the conduct of the respondent’s holding and use of the Information.

32. I have reviewed the contents of the Document which is found at page 3 of the s58 bundle. The document is dated 15 February 2012. It contains a number of references on its face which I conclude is a document that has been prepared as a recommendation by the Fitness to Continue department of the respondent (FTC) concerning DTN’s medical discharge from the NSW Police Force.

33. At the beginning of the document, reference is made to the ‘issue’ as being:

Submission of the below mentioned officer to be considered for medical discharge. These considerations/recommendations are to be made in line with Death and Disability Insurance Scheme.

[my emphasis]

34. Under the heading “Background to Rehabilitation”, reference is made to:

For a complete history of the rehabilitation process and return to work attempts please refer to the Injury Management Report…

35. Under the heading “Treating Medical Advice” reference is made to “Current Restrictions to Work” and “Work Capacity” findings made by medical practitioners in that regard.

36. Similarly, under the heading “Independent Medical Advice” findings are made and opinions proffered in relation to DTN’s work capacity and current work restrictions.

37. I find that the content of the information collected and contained in the Document relates to DTN’s fitness to continue working. I also find that the context in which the information relates has been stored by the Respondent to assess the ability of DTN to continue in his employment specifically from a medical perspective.

38. I, therefore, find that the information falls within the exceptions as found in s4(3)(j) of the PPIP Act and s5(3)(m) of the HRIP Act.

39. The information is not personal information nor is it health information for the purposes of the PPIP and HRIP Acts respectively.

Findings and conclusion about proceedings - 178388

40. In this application, DTN seeks similar relief in relation to the Referral which is found at page 8 of the s58 documents.

41. The Referral includes the following references which DTN contends are inaccurate:

‘Diagnosis: Psychotic Illness …’

‘admitted to psychiatric unit of Blacktown Hospital…’

‘in an agitated state’

‘somatisation’

42. On reviewing the Referral, I note the following:

‘As per the New South Wales Police Standard Operating Procedures for the use of the Independent Medical Expert Panel, we request that you contact the officer’s treating doctor and/or specialist regarding: - the officer’s fitness for duty … the officer’s fitness for other jobs prior to making a determination on the adequacy of the return to work plan’. [my emphasis]

43. Under the heading ‘Rehabilitation Processes’ reference is made to various medical opinions concerning DTN’s health and his fitness to return to work.

44. At the conclusion of the Referral, question 4. Reads:

‘What is the officer’s current capacity for work? If the officer is currently unfit, do you believe the officer has a capacity to return to work

45. The penultimate paragraph reads:

‘…

The primary goal of Injury Management is to return the employee to their pre-injury duties through the process of providing suitable duties and graded return to work programs.

…’

46. I am satisfied that the content of the Referral directly relates to an assessment of DTN’s fitness and ability to continue in his employment, or, his fitness to undertake other employment with the New South Wales Police Force.

47. I am satisfied that the Referral was stored on DTN’s Injury management file (page 9 - s58 documents). There is no evidence contrary to a finding that the only use of the file is related to DTN’s employment.

48. I, therefore, find that the Referral clearly falls within the exceptions as found in s4(3)(j) of the PPIP Act and s5(3)(m) of the HRIP Act.

49. The information is not personal information nor is it health information for the purposes of the PPIP and HRIP Acts respectively.

ORDER

1. The decision made by the Respondent on 26 May 2020 in proceedings 178374 is affirmed and I decide to take no further action.

2. The decision made by the Respondent on 26 May 2020 in proceedings 178388 is affirmed and I decide to take no further action.

**********

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: 16 August 2021