Eok v Northern Beaches Council

Case •

[2021] NSWCATAD 297

•

15 October 2021

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: EOK v Northern Beaches Council [2021] NSWCATAD 297
Hearing dates: 1 July 2021; submissions closed 21 July 2021
Date of orders: 15 October 2021
Decision date: 15 October 2021
Jurisdiction:Administrative and Equal Opportunity Division
Before: L Pearson, Principal Member
Decision:

(1) Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 no action will be taken in this matter.

(2) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 disclosure to the applicant of the material redacted from paragraphs 6, 7, 21, 23, 24, 28 and 30 and footnote 2 of the Written Closing Submissions of the Respondent filed on 6 July 2021 is prohibited.

(3) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 publication of the Affidavit affirmed by EOK’s Mother 13 July 2021, para 3 Respondent’s Reply submissions filed 21 July 2021, and the document annexed as TR-1 to submissions filed by the applicant on 4 May 2021, is prohibited.

Catchwords:

ADMINISTRATIVE LAW – privacy – alleged delay in providing access to information – disclosure of personal information – whether contravention of information protection principles – whether non-compliance otherwise permitted – whether action should be taken

Legislation Cited:

Children (Education and Care Services) National Law (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Education and Care Services National Regulations 2011

Government Information (Public Access) Act 2009 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

AFC v Sydney Children’s Hospital Specialty Network (Randwick and Westmead) [2012] NSWADT 189

AFU v Sydney Local Health District [2012] NSWADT 197

AJD v Royal Prince Alfred Hospital [2014] NSWCATAD 125

APV v Department of Finance and Services [2016] NSWCATAD 168

Bettington v Commissioner of Police [2021] NSWCATAP 110

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520

CCM v Western Sydney University (No 4) [2018] NSWCATAD 283

CCM v Western Sydney University [2019] NSWCATAP 103

CJU v Northern Sydney Local Health District [2019] NSWCATAD 236

CLT v Department of Education and Communities (No 2) [2016] NSWCATAD 124

CPJ v University of Newcastle [2017] NSWCATAD 350

DQN v University of Sydney [2019] NSWCATAD 266

DRX v City of Canada Bay Council [2020] NSWCATAD 26

ECR v Public Guardian [2021] NSWCATAD 141

FM v Vice Chancellor, Macquarie University [2003] NSWADT 78

JS v Snowy River Shire Council (No 2) [2009] NSWADT 210

KT v Sydney South West Area Health Services [2010] NSWADT 94

MT v Director General NSW Department of Education & Training [2004] NSWADT 194

Nasr v State of New South Wales [2007] NSWCA 101

Plaintiff A and B v Bird; Plaintiff C v Bird; Plaintiff D v Bird [2020] NSWSC 1379

State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69

Category:Principal judgment
Parties: EOK (Applicant)
Northern Beaches Council (Respondent)
Representation:

Counsel:
R Withana (Respondent)

Solicitors:
Applicant (Self represented)
Colin Biggers & Paisley Lawyers (Respondent)
File Number(s): 2021/00015987
Publication restriction:

1. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 disclosure to anyone other than the respondent or its legal representatives of the following documents is prohibited:
(1) paras 3, 4, 5 and 6 of the Affidavit of Melissa Messina affirmed 12 April 2021 and exhibit NBC-4, other than that part of the document at pp 4-5 of NBC-4 providing details of “Contact 2” at p 2 of that document;
(2) paras 6 and 11-18 of the respondent’s Confidential submissions filed 21 April 2021;
(3) affidavit of Chris Wilson affirmed 12 April 2021 and exhibit NBC-3 (387 pages) [noting that the respondent is not relying on that affidavit];
(4) information identifying or providing contact or other details of the persons identified as EOKC, EOKT and EOKP in the documents lodged with the Tribunal or received in evidence in relation to the proceedings;
(5) the material redacted from paragraphs 6, 7, 21, 23, 24, 28 and 30 and footnote 2 of the Written Closing Submissions of the respondent filed on 6 July 2021.

2. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of the following is prohibited:
(1) matters contained in pp 364-367 of exhibit NBC-1 to the affidavit of Chris Wilson affirmed 12 April 2021;
(2) the Affidavit affirmed by EOK’s Mother 13 July 2021;
(3) para 3 Respondent’s Reply submissions filed 21 July 2021;
(4) document annexed as TR-1 to submissions filed by applicant on 4 May 2021.

3. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act disclosure of the submissions made in private and the record of that part of the proceedings conducted in private on 1 July 2021 to any person other than the respondent or its legal representatives is prohibited.

4. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 publication or broadcast of the name of the applicant or his child is prohibited.

5. Pursuant to s 64(1)(b) of the Civil and Administrative Tribunal Act 2013 publication of those paragraphs of these reasons identified as [NOT FOR PUBLICATION] is prohibited. That material is not to be released to either the applicant or the public.

REASONS FOR DECISION

  1. On 12 October 2020 EOK requested a review under s 53 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act) of conduct by staff of a child care centre operated by the respondent Northern Beaches Council (the Child Care Centre).

  2. EOK stated that the staff had refused to provide him with information about his daughter’s progress at the Child Care Centre. After an initial phone call they had contacted his ex wife to advise her that he had called, which was a breach of his privacy. After he phoned back to speak to the Director, his lawyer received an email from his ex wife’s lawyer, demonstrating that his conversation had been communicated to her. He was dissatisfied about the way in which the Director had spoken to him. After he was able to secure a meeting with the Child Care Centre staff he requested access to Educa, the online learning platform used at the centre, and discovered a PDF document uploaded by his former partner; he requested that the document be removed, and it was, however it had been available for over 12 months to Child Care Centre staff.

  3. EOK stated that he and his ex wife had been involved in a family law dispute since January 2019, an emotionally and financially devastating process. The effect of the conduct of the Director of the Child Care Centre left him feeling like a criminal. After more than 12 months of fighting he was finally able to speak to his child’s teachers, which is his right as a father, only to have the Director deny him that opportunity based on hearsay by his former partner.

  4. EOK requested that the Director apologise to him, for staff at the Child Care Centre to receive training on ensuring privacy and professional communication with parents, and an award of damages.

Internal review decision

  1. The internal review decision was made by Mr Chris Wilson, Manager Information Management for the Council. Mr Wilson found that the staff who had limited knowledge of court orders had acted appropriately in seeking to clarify information relating to a child for whom both parents had parental responsibility. He concluded that EOK was refused the information on the first phone call as he was not listed on the enrolment form for the Child, and the Director had needed to verify with a third party that he was in fact the Child’s father; and since it was verified, he had been given access to information and had a meeting with a teacher. Mr Wilson stated that the release of the information to EOK appeared to have been delayed for a period of approximately 15 days. The extent of the release of EOK’s personal information was contained in the answer to one of the questions put to staff and was limited to informing the third party that EOK had called and asking if EOK was the Child’s father.

  2. Mr Wilson concluded that in initially refusing to give EOK information about his daughter and denying his request to speak with her teacher, staff members acted appropriately: while information was initially withheld, the reason was justified in the circumstances and the information was later released, and there was no breach. Mr Wilson concluded that in disclosing EOK’s name and the fact that he had contacted the centre, his privacy was breached; and while the staff acted out of a duty of care to the Child, the disclosure was not authorised.

  3. Mr Wilson stated that the Executive Manager Children’s Services and Manager Early Learning Centres had drafted a policy regarding actions that need to be taken when dealing with separated parents including access to children. The policy would provide guidance to staff and would be accompanied by training to ensure centre staff understand their obligations. As Council’s Privacy Officer, he would attend staff meetings on an ongoing basis to ensure that privacy awareness is maintained. Those actions would minimise the risk of any further breach of the type the subject of the review.

Application to the Tribunal

  1. On 19 January 2021 EOK applied under s 55 of the PPIP Act to the Tribunal for review of the conduct, stating that the situation had caused a significant personal, emotional and financial burden. He requested an apology from the Director of the Child Care Centre and the management of the respondent’s Children’s Services; that all Child Care Centre staff receive training; and expenses for his time and advice, and damages.

  2. The matter was listed for hearing on 1 July 2021. Technical issues with the AVL connection prevented completion of oral closing submissions on that date, and the parties provided written submissions after the hearing.

  3. An order was made at the case conference on 3 March 2021 under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) prohibiting publication of the name of the applicant or his child. The applicant’s name has been anonymised as “EOK” in the proceedings.

  4. The documents provided by the Council identify EOK’s daughter, his ex wife, and his parents. In the open version of the respondent’s evidence certain material has been redacted, including by replacing the names of those persons with “EOKC”, “EOKT” and “EOKP”. As discussed below, at the hearing the Council made an application for orders under s 64 of the NCAT Act in respect of certain evidence and submissions filed on a confidential basis with the Tribunal. Included in the orders made under s 64 of the NCAT Act at the hearing on 1 July 2021 was an order prohibiting the publication or disclosure of information identifying or providing details of the persons identified as EOKC, EOKT and EOKP in the Council’s evidence. For ease of understanding, these reasons refer to EOK’s daughter as the Child; to his former partner as the Ex Wife; and to EOK’s mother as EOK’s Mother.

Evidence

  1. EOK provided written submissions on 4 May 2021, which included a statement of the factual background, and annexures (ex A1). The annexures included a District Court judgment on appeal from a decision of the Local Court concerning an alleged assault and the issue of an AVO (the District Court judgment) (TR-1); telephone records (TR-2); email messages (TR-3, TR-4, TR-5); and his response to Mr Wilson’s internal review report (TR-7).

  2. EOK provided further written submissions after the hearing on 13 July 2021, and an affidavit affirmed on 13 July 2021 by EOK’s Mother.

  3. The respondent Council relied on the following affidavit evidence:

  1. Affidavit Chris Wilson, Manager Information Management, affirmed 12 April 2021, with exhibit NBC-1 (ex R1) (Wilson Affidavit 1);

  2. Affidavit Melissa Messina, Executive Manager Children’s Services, affirmed 12 April 2021, with exhibit NBC-2 (ex R2) (Messina Affidavit 1);

  3. Affidavit Melissa Messina affirmed 12 April 2021, with exhibit NBC-4 (ex R4) (Messina Affidavit 2);

  4. Affidavit Melissa Messina affirmed 30 June 2021, with exhibit NBC-5 (ex R3) (Messina Affidavit 3).

  1. The Council filed, but did not rely on, an affidavit affirmed by Chris Wilson dated 12 April 2021 with confidential exhibit NBC-3 (Wilson Affidavit 2).

  2. Oral evidence was provided by Mr Wilson and Ms Messina.

  3. The Council’s submissions in reply were filed 15 June 2021. Closing submissions after the hearing were filed 6 July 2021, and reply submissions on 21 July 2021.

Confidentiality orders

  1. The Tribunal held part of the hearing on 1 July 2021 in private, pursuant to s 49 of the NCAT Act, to hear the Council’s application for orders under s 64 of the NCAT Act relating to certain parts of the documents exhibited to Ms Messina’s affidavits, and parts of the Council’s written submissions. Wilson Affidavit 2, and its annexure NBC-3, was not pressed. Orders were made on 1 July 2021 under s 64 of the NCAT Act to prohibit or restrict publication and disclosure of certain material provided to the Tribunal, with reasons to be provided later. Further orders are now made in relation to material provided to the Tribunal in the closing written submissions provided after the hearing.

  2. The reasons for those orders are as follows.

  3. Section 49(1) of the NCAT Act provides that a hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise. Section 49(2) provides that the Tribunal may order that a hearing be conducted wholly or partly in private “if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason”.

  4. Section 64 of the NCAT Act provides:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders—

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4) For the purposes of this section, 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.

  1. Sections 49 and 64 of the NCAT Act reflect the proposition that the fundamental principles of open justice and procedural fairness should not readily be displaced: Bettington v Commissioner of Police [2021] NSWCATAP 110 at [41]. There must be good reasons for an order to be made under s 64, in particular where the effect of the order is to restrict or prohibit access by a party to the proceedings to material in evidence before the Tribunal: ECR v Public Guardian [2021] NSWCATAD 141 at [19]. In State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 the Appeal Panel of the former Administrative Decisions Tribunal stated at [81] the considerations relevant to determination of whether an order pursuant to the equivalent of s 64 should be made:

81. …(a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.

  1. The matter before the Tribunal concerns conduct alleged to have breached one or more of the information protection principles in the PPIP Act. To disclose the name of the applicant would likely exacerbate the effect of any such breaches, if found to have occurred. To disclose the name or any identifying information concerning the applicant would likely lead to the identification of third parties, including a child, none of whom are parties to or participants in these proceedings: CJU v Northern Sydney Local Health District [2019] NSWCATAD 236 at [37]. The Tribunal was satisfied that it was desirable and appropriate that the order under s 64(1)(a) of the NCAT Act prohibiting disclosure of the names of the applicant and his child be made.

  2. The issues in the proceedings relate to the applicant’s request for access to information about his daughter, and disclosures to his ex wife, in a context of contested family law proceedings, and where as discussed below there have been allegations made of assault and the issue of an AVO. The information the subject of the application for orders under s 64 includes information that is sensitive and personal to the applicant’s ex wife. Disclosure of that information may be a breach of her privacy, in circumstances where she is not a party to the proceedings and has not consented to the disclosure of that information either to the applicant or to the public generally, and could not reasonably have known that the information she provided to the Child Care Centre would be disclosed to the applicant or the public generally.

  3. The Tribunal considered the information for which the Council was seeking orders under s 64(1)(d) of the NCAT Act, which would restrict EOK’s access to all the material in evidence before the Tribunal. The Tribunal clarified in the confidential session the extent to which that material was relevant to, and was required for, an adequate consideration by the Tribunal of the issues to be determined in the proceedings. The Tribunal was satisfied, having regard to EOK’s written submissions on the substantive issues, that he was aware of the substance, if not precise details, of what he asserted are unfounded allegations made against him; and he has responded in his submissions. The Tribunal was satisfied that it would be unable to assess adequately the conduct of the Council without having access to the material the subject of the Council’s application, and that it was desirable to make orders under s 64(1)(c) and (d) of the NCAT Act in the terms ordered at the hearing on 1 July 2021.

  4. The Council’s closing submissions filed on 6 July 2021 as served on the applicant included redactions at paras 6, 7, 21, 23, 24, 28 and 30 and footnote 2. The Council sought an order under s 64(1)(d) of the NCAT Act in respect of that material, on the basis that those parts of the submissions quote from relevant parts of the affidavit of Ms Messina and its associated exhibit NBC-4 (ex R4), which are the subject of the orders made on 1 July 2021. EOK opposed the making of any further confidentiality orders, submitting that such a late request did not afford him procedural fairness. The Tribunal has considered the unredacted version of the Council’s closing submissions as filed with the Tribunal, and concludes that insofar as those redacted parts of the submissions refer to evidence already subject to an order under s 64(1)(d), it is desirable that a further order be made under s 64(1)(d) of the NCAT Act.

  1. The Council’s closing submissions in reply filed 21 July 2021 requested the making of further orders under s 64 of the NCAT Act, in order to preserve confidentiality of EOK, the Child and his Mother, in relation to the affidavit affirmed by EOK’s Mother on 13 July 2021 and other documents annexed to his submissions filed on 4 May 2021. The Tribunal is satisfied that to do so is consistent with the orders already made in relation to material that identifies or could identify the applicant and other persons, and it is desirable that those further orders are made.

  2. A further order has been made under s 64 of the NCAT Act to prohibit publication of those parts of these reasons for decision in which evidence and material the subject of orders under s 64 is discussed, identified as “NOT FOR PUBLICATION”.

Issues

  1. The issues for determination are:

  1. Whether there was excessive delay in the Child Care Centre staff providing information about the Child to EOK, in breach of s 14 of the PPIP Act;

  2. Whether the notifications to EOK’s ex wife that he had contacted the Child Care Centre was a breach of s 18 of the PPIP Act;

  3. If either breach is established, whether and if so what action should be taken under s 55(2) of the PPIP Act.

Legislation

  1. The Tribunal has jurisdiction under s 55 of the PPIP Act to administratively review conduct that was the subject of an application for review under s 53 of that Act:

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.

…

(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.

  1. The task of the Tribunal is to review the conduct complained of, and not the findings made in the internal review determination, and to determine whether or not that conduct was conduct that amounted to a breach of one or more of the information privacy principles in Part 2 Div 1 of the PPIP Act. Neither party bears an onus of proof: DQN v University of Sydney [2019] NSWCATAD 266.

  2. The scope of the review is limited to the conduct alleged in the internal review request to be in breach of those principles. The outcome of the Tribunal’s review is as stated in s 55(2) of the PPIP Act, that is, to decide not to take any action on the matter, or to make any one or more of the orders specified in paras (a)-(g).

  3. The information protection principles relate to “personal information”, a term defined in s 4 of the PPIP Act:

4 Definition of “personal information”

(1) In this Act, 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 reasonably be ascertained from the information or opinion.

…

(4) For the purposes of this Act, personal information is held by a public sector agency if—

(a) the agency is in possession or control of the information, or

(b) the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement, or

(c) the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998.

(5) For the purposes of this Act, personal information is not collected by a public sector agency if the receipt of the information by the agency is unsolicited.

  1. The relevant information protection principles are those provided in sections 14 and 18 of the PPIP Act:

14 Access to personal information held by agencies

A public sector agency that holds personal 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.

…

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.

  1. Section 12, on which the Council relies, provides:

12 Retention and security of personal information

A public sector agency that holds personal information must ensure—

(a) that the information is kept for no longer than is necessary for the purposes for which the information may lawfully be used, and

(b) that the information is disposed of securely and in accordance with any requirements for the retention and disposal of personal information, and

(c) that the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse, and

(d) that, if it is necessary for the information to be given to a person in connection with the provision of a service to the agency, everything reasonably within the power of the agency is done to prevent unauthorised use or disclosure of the information.

  1. The Council also relies on s 25 of the PPIP Act:

25 Exemptions where non-compliance is lawfully authorised or required

A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if—

(a) the agency is lawfully authorised or required not to comply with the principle concerned, or

(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

  1. EOK relies on cl 160 of the Education and Care Services National Regulations 2011, which provides:

160 Child enrolment records to be kept by approved provider and family day care educator

(1) The approved provider of an education and care service must ensure that an enrolment record is kept that includes the information set out in subregulation (3) for each child enrolled at the education and care service.

…

(3) An enrolment record must include the following information for each child—

(a) the full name, date of birth and address of the child;

(b) the name, address and contact details of—

(i) each known parent of the child; and

(ii) any person who is to be notified of an emergency involving the child if any parent of the child cannot be immediately contacted; and

(iii) any person who is an authorised nominee; and

Note—

Authorised nominee means a person who has been given permission by a parent or family member to collect the child from the education and care service or the family day care educator. See section 170(5) of the Law.

(iv) any person who is authorised to consent to medical treatment of, or to authorise administration of medication to, the child; and

(v) any person who is authorised to authorise an educator to take the child outside the education and care service premises;

(c) details of any court orders, parenting orders or parenting plans provided to the approved provider relating to powers, duties, responsibilities or authorities of any person in relation to the child or access to the child;

(d) details of any other court orders provided to the approved provider relating to the child’s residence or the child’s contact with a parent or other person;

…

(4) In this regulation—

parenting order means a parenting order within the meaning of section 64B(1) of the Family Law Act 1975 of the Commonwealth;

parenting plan means a parenting plan within the meaning of section 63C(1) of the Family Law Act 1975 of the Commonwealth, and includes a registered parenting plan within the meaning of section 63C(6) of that Act.

Whether there was a breach of any information protection principle under the PPIP Act

Applicant’s case

  1. EOK contends that in delaying provision of information about his daughter, and in disclosing to his former partner that he had contacted the Child Care Centre, there had been a breach of his privacy. He contends that the future actions proposed by the Council are not sufficient to compensate him for the significant emotional, psychological and financial trauma suffered, which has been further compounded by the Council’s reliance on child protection as a rationale for their actions. He seeks a public apology and compensation.

  2. EOK states that the Council has relied on hearsay from his former partner, that the Council’s rationale for breaching his privacy is untrue, that it has denied him his parental rights, that it has failed to verify information, and it has treated him judgmentally and with disdain.

  3. EOK summarised the background:

  1. His daughter has been enrolled at the Child Care Centre since around 1 April 2019;

  2. He has been involved in an ongoing family law dispute in relation to custody and parenting arrangements for his daughter;

  3. On 19 July 2019 an AVO was made against him, the terms of which did not prevent him from having contact with or seeing his ex wife or child. That AVO and related charges were dismissed in the District Court in September 2020;

  4. On 7 July 2020 he called the Child Care Centre and requested information about his daughter’s learning and development;

  5. On 8 July 2020 he received an email from his ex wife’s legal representative stating that they were instructed that he had contacted the Child Care Centre and the Ex Wife had been alerted through the staff;

  6. On 9 July 2020 he called the Child Care Centre and spoke to Ms Ovidia Fasciani, the Director of the Child Care Centre;

  7. On 9 July 2020 he received an email from his ex wife’s representative stating they were instructed the Ex Wife had received a phone call from Ms Fasciani notifying her that he had rung again and insisted on an in person appointment;

  8. On 8 July 2020 he called Ms Melissa Messina, who returned his call and told him there were legal issues that needed clarification before the Child Care Centre could provide information, that all parents had to arrange phone interviews due to COVID-19, and that it was not her practice to take sides;

  9. On 10 July 2020 he received an email from his ex wife’s personal email address, which included the statement “Being persistent and making allegations about the childcare staff isn’t helping either”;

  10. On 13 July 2020 he received an email advising that the Child Care Centre would respond to his request and asking him to provide copies of any court orders pertaining to access to his daughter’s information. He did not provide copies of court orders as the orders in place did not deny him access to his child’s information and as her father he had a right to access information about his child when there were no orders preventing that;

  11. On 13 August 2020 he was sent an email invitation to access the online educational platform Educa. That was the first point of access in regards to any educational content relating to his daughter;

  12. On 17 August 2020 his daughter’s information was provided to him at a zoom conference, also attended by his mother. During the conference he informed the Council that he had custody of the Child on Wednesdays and every weekend, and he requested a copy of his child’s attendance statement which was provided to him on 26 August 2020;

  13. At the conference he asked Ms Fasciani to apologise for the way in which she had spoken to him and for breaching his privacy.

  1. EOK submitted that:

  1. His child’s information was provided to him on 13 August 2020, 37 days after his first phone call, and not 15 days as asserted by the Council;

  2. The breach of privacy was the disclosure to his ex wife of his attempts to seek his child’s information and the contents of his communications, with no purpose other than to report to her what he had said;

  3. The only evidence the Council had was verbal information provided by his ex wife, and the Council made no attempt to verify that information on the enrolment of his daughter which they had a professional obligation to do;

  4. There is no evidence of a history of domestic abuse, the only evidence the Council had was verbal information by his ex wife, and the Council made no attempt to verify that information on the enrolment of the Child;

  5. Information that there was an AVO against him was provided verbally by his ex wife, and the Council made no attempt to verify the validity of the claim, and the findings of guilt and the AVO were set aside in September 2020;

  6. It was unreasonable for the Council to form an opinion that the AVO imposed conditions on his contact with the Child without any information other than the verbal information from his ex wife;

  7. The Council was required to take steps to confirm all relevant parenting orders had been provided and considered, and did so only reactively after his contact and not proactively as required under cl 160(3)(d) of the Education and Care Services National Regulations 2011;

  8. Council staff called his ex wife on three occasions and reported the content of his communications, and no inquiry was made as contended for him to verify his identity;

  9. There was no attempt to verify his identity and he had no opportunity to do so.

  1. EOK stated that on 6 October 2020 he requested a copy of the Child’s enrolment form, and on 14 October 2020 he was advised he would need to lodge an access application to obtain a copy. He did not do so as that felt like a repeat of the Council’s denial of information about his daughter.

Respondent’s case

  1. The Council’s summary of the background did not dispute the factual matters summarised at [40](1), (2), (4), (8), (10), and (12).

  2. The Council submitted that:

  1. at the time of EOK’s contact on 7 July 2020 the Council was aware there was an ongoing family law dispute involving the Child, but was unclear as to the details;

  2. around 8 July 2020 the Council disclosed to the Ex Wife the fact that EOK had made a request for the Child’s information;

  3. a copy of court orders was provided to the Child Care Centre by EOK’s Ex Wife on 9 July 2020. Those orders did not contain any restrictions on EOK’s access to his child’s information however there was a letter from the Ex Wife’s solicitor to EOK’s solicitors dated 17 December 2019 concerning restricted access to the Child’s information;

  4. around that time the Council became aware that EOK had been crossed off the Child’s enrolment form as an emergency contact;

  5. on 29 July 2020 the Council emailed EOK confirming he could be provided with the Child’s information;

  6. on 4 August 2020 the Council emailed proposed times to EOK for the teleconference.

  1. In relation to EOK’s request for a copy of the enrolment form, the Council’s position is that it could not be provided as it contained personal information about the Ex Wife, and the non-provision of that form was not included in the internal review application made on 12 October 2020. A redacted version of the form is included at Messina Affidavit 1 NBC-2, pp 59-60. During the hearing the Council agreed to provide a further copy of the enrolment form to EOK, providing the details of Emergency Contact 2 at p 2 which had previously been redacted.

  2. The Council submitted that:

  1. The information about the Child was provided to EOK within 15 days after his request on 7 July 2020, and there was no breach of his privacy because:

  1. there was no obligation on the Council to provide that information pursuant to s 14 of the PPIP Act as the information was not “personal information” about EOK;

  2. the period of 15 days was not an “excessive delay” within the meaning of s 14 of the PPIP Act, in circumstances where there were apprehensions perceived (rightly or wrongly) that EOK had a history of domestic abuse, there was an AVO against him, there was a concern that the AVO imposed conditions on EOK’s contact with the Child, and there was a basis for uncertainty surrounding his status particularly as he was struck off as an emergency contact;

  3. the Council was required to take steps to confirm all relevant parenting orders had been provided and considered;

  4. in the alternative, if there was “excessive delay”, sections 12 and 25 of the PPIP Act provide specific exemptions from obligations under the PPIP Act;

  5. under s 12(c) of the PPIP Act the Council had an obligation to protect personal information from unlawful access and disclosure, and the actions taken by the staff to confirm that EOK was entitled to receive the information were consistent with that obligation; and

  6. the Council owed a duty of care to the Child, which imposed an obligation to take all reasonable steps to prevent her from reasonably foreseeable harm, and it was consistent with that duty of care that the Council take steps to verify the status of EOK as able to access her information and confirm whether any AVO or court order ought to prevent that.

  1. In relation to the disclosure to EOK’s Ex Wife of information as to the identity of EOK and the fact that he had contacted the Child Care Centre to arrange a conference with the Child’s teacher, the Council submits:

  1. There were reasonable grounds under s 18(1)(c) of the PPIP Act to believe that the disclosure was necessary, because of the uncertainty as to EOK’s parenting status, there was a potential AVO, and EOK may have been domestically violent;

  2. Section 18(1)(b) of the PPIP Act applied as it was reasonably likely that as EOK co-parented his child with his ex wife, the fact that he had contacted the Child Care Centre to arrange a meeting with teachers would be notified to his ex wife, and he was reasonably likely to be aware that the disclosure would be made in the circumstances;

  3. The Council’s privacy policies, and the NSW Department of Education Privacy Code, applied to require the Council to collaborate with parents and guardians before disclosing information in relation to a child, and consideration of the circumstances necessary to promote and maintain a safe environment.

  1. As discussed below, in its closing submissions the Council relied on s 18(1)(a) of the PPIP Act, submitting that the purpose for which information was disclosed to the Ex Wife was directly related to the purpose for which EOK gave that information to the Child Care Centre, namely that he wanted to speak to the Child’s teacher, and that the Council had no reason to believe that EOK would object to its disclosure.

Discussion and findings

  1. The central issues of fact relevant in this matter are:

  1. What information was EOK requesting when he contacted the Child Care Centre in July 2020;

  2. What information concerning the Child’s parents, including any court orders made in relation to the Child, was available to and considered by staff at the Child Care Centre at the time of the Child’s enrolment in April 2019 and at the relevant dates in July 2020;

  3. What information was disclosed to EOK’s Ex Wife after EOK’s telephone conversations with Child Care Centre staff on 7 and 9 July 2020.

Information held by the Council

  1. Evidence as to the collection and storage of information by the Council in connection with the Child Care Centre was provided by Ms Messina and Mr Wilson.

  2. In Messina Affidavit 1 Ms Messina stated that she is the Executive Manager Children’s Services at the Council, having worked at the Council and its predecessor Warringah Council since 2011. Her role is to manage long day care centres, pre-schools, vacation care services, family day care and occasional care, and one of her duties is to ensure compliance with relevant policies and procedures in relation to the services for which she is responsible.

  3. Ms Messina stated that the Child’s file is stored on the Council’s online document management system called “Trim”, and is referred to as a “container”. Emails received are saved to a particular child’s container via Trim. In Messina Affidavit 3 Ms Messina stated that the groups of staff who have access to the Child’s file are Child Services Management (being staff employed at the executive level, which includes herself and the Manager Early Learning Centres); the staff employed at the Child Care Centre; and the Council’s in-house legal team.

  4. Ms Messina stated that pp 1-190 of exhibit NBC-2 to her affidavit is a complete copy of the Child’s file at the Child Care Centre that was stored on the Child Care Centre’s database as at 8 March 2021.

  5. In Messina Affidavit 1 Ms Messina explained that the “Timeline” document, at p 166 of NBC-2, was created in around July 2020 to keep records of each discussion with EOK and/or concerning the Child. The document was linked to the Council’s internal management system, and the linked document circulated to the Director of the Child Care Centre, Manager Early Learning Centres, Executive Manager Children’s Services, and Director Community and Belonging. Each time a staff member received a call in relation to the Child a note was made on that document. Ms Messina believed that all discussions concerning the Child were recorded by the persons who had access to the Child’s file, namely those persons listed at p 147 NBC-2.

  6. In Messina Affidavit 3 Ms Messina stated that not all persons employed at the Child Care Centre had access to the Timeline, access being restricted to the persons identified at para 7 of Messina Affidavit 3. Those persons could create entries in the Timeline, including by recording information provided to them by a person who did not have access to the Timeline.

  7. In oral evidence Ms Messina was asked whether the Child Care Centre staff were aware of the court orders relating to the Child. Ms Messina stated that she understood there were a number of court orders. She could not say which orders might have been handed over when the Child was enrolled. Ms Messina was referred to an email she sent to EOK’s Ex Wife on 13 July 2020 (NBC-2, p 43) which states that “if it assists, we can enrol [the Child] in another of Council’s child care centres”, and was asked if she had seen the court orders at that time. Ms Messina said perhaps not, because there had been the conversation only at the end of the previous week. It looked as though there were attachments to the email. Ms Messina clarified in re-examination that that email was in response to being forwarded a copy of the court orders. She accepted that the orders seemed to be about there being access to either parent; she was not sure if she had the latest orders.

  8. In his affidavit of 12 April 2021 (ex R1) Mr Wilson outlined his duties as the Council’s Manager Information Management, and the steps he took in responding to the internal review request. His role as Manager Information Management includes being Council’s Privacy Officer and having responsibility for records access under the Government Information (Public Access) Act 2009 and subpoenas. Mr Wilson stated that he did not access the Child’s file at the Child Care Centre, and was provided with emails from relevant staff. He was provided with a link to the Timeline on 13 October 2020. He reviewed the audit trail for the document on the Council’s system and extracted a copy of the Timeline as at 22 December 2020 as he reviewed the audit trail. A copy of that document is at pp 26-50 of his exhibit NBC-1. He stated that there is nothing in that document to cause him to consider it is materially inaccurate.

  9. Mr Wilson stated that at the time he made the decision on the internal review he was aware that an AVO had been issued by the Ex Wife against EOK, as it was referred to in the Timeline. He did not request or review the AVO as he determined it was not relevant to the internal review. Mr Wilson stated that he was unable to speak to Ovidia Fasciani, the Director of the Child Care Centre, as she was on leave during the decision making period and has since retired. In his investigation for the internal review he asked questions of the Manager of the Child Care Centre and Ms Messina. In investigating what the Child Care Centre staff knew in relation to the family law dispute, he accessed the Timeline, had a discussion with the Council’s Legal Counsel, and had an email from the Child Care Centre Manager. He asked the Child Care Centre Manager and Ms Messina why EOK had been crossed off as Emergency Contact 2 from the Child’s enrolment form, and the Manager responded on 10 December 2020 that EOK’s ex wife had crossed it out before giving the form to the Child Care Centre.

  10. Mr Wilson stated that since the internal review decision, between 22 February 2021 to date further privacy training was being rolled out so that all staff at each of the Council’s child care centres are partaking in online privacy courses, and he has had a meeting with the management group for children services and the child care centres and made a presentation and discussed privacy issues. He stated that the Council is also in the process of drafting a new policy for staff in relation to children who have separated parents or guardians.

  11. In oral evidence Mr Wilson stated that he considered his internal review report to be factual. He calculated the 15 day period from the timeline provided by the Child Care Centre staff.

  12. The Council submits that the Tribunal should accept the evidence provided in the documents, in particular the Timeline, which are contemporaneous records of the respondent which record conversations and correspondence between individuals that occurred at the time.

  13. EOK took issue with the Council’s submission that the cross examination of Ms Messina and Mr Wilson did not detract from that evidence, submitting that neither had further investigated the accuracy of information in the Timeline. He maintained that it took 41 days for him to be provided the information, rather than the 15 days stated in the internal review and the 35 days in Messina Affidavit 1. EOK also took issue with the absence of any evidence from Ms Ovidia Fasciani, Director of the Child Care Centre at the time.

  14. The Tribunal accepts the evidence of Ms Messina in Messina Affidavit 1 as to the Council’s practice for management and storage of documents, information concerning a child in day care and access to that information. The Tribunal accepts her evidence as to the creation and maintenance of, and access to, the Timeline relating to the Child from July 2020. The Tribunal accepts that the documents in evidence from the Child’s file and the Timeline are contemporaneous records, and in the case of the Timeline incorporate information provided by relevant persons employed at the Child Care Centre at the relevant times. The Tribunal is satisfied that those documents can be relied upon for the purpose of understanding what conversations and other communications took place, including those involving Ms Fasciani, and what documents were accessible at the relevant times, which informs the conduct of staff at the Child Care Centre at those times.

  15. Whether or not Mr Wilson accessed the Child’s file or investigated the accuracy of what is recorded in the Timeline in the course of undertaking the internal review is not relevant to the consideration required under s 55 of the PPIP Act of the conduct itself at the time that it occurred. Further, while EOK’s concerns include the way in which he asserts he was treated by and spoken to by Ms Fasciani, which he described as having been dismissive and disdainful, that is not within the scope of the Tribunal’s consideration of the Council’s conduct in terms of its obligations under the PPIP Act.

EOK’s contact with the Child Care Centre

  1. There is no dispute that EOK made telephone calls to the Child Care Centre on 7 July 2020 and on 9 July 2020, and that on 8 and 9 July 2020 Ovidia Fasciani telephoned the Ex Wife to inform her of the calls.

  2. As to the content of the telephone calls made by EOK, and what may have been disclosed to the Ex Wife, the file notes and extracts from the Timeline record the following:

  1. A file note (p 38, NBC-2) made by a staff member who answered the call on 7 July 2020 records that EOK stated his name and asked to speak to Ovidia; she advised that Ovidia was not in and asked whether he would like to speak to the authorised supervisor/educational leader and he said yes; that person was not able to speak at that time, and it was suggested that he speak to Ovidia the next day. EOK put her on hold, then asked to speak to one of the Child’s teachers directly with regards to making an appointment to speak to them further, and she advised him to speak to Ovidia tomorrow. The Tribunal notes that the same information is recorded in the Timeline;

  2. The Timeline records (p 166 NBC-2) an entry by Ms Fasciani that on 8 July 2020 on arrival at work she was informed of the phone call from EOK on 7 July 2020 and to be prepared for the call she contacted the Ex Wife to inform her of the call;

  3. A file note by Ms Fasciani dated 9 July 2020 (p 39, NBC-2) states that EOK asked if he could make an appointment to speak to one of the Child’s teachers in regards to her education. She stated “I’m sorry I am unable to do [sic] make an appointment”, and when asked why said “I have been advised against this”. EOK said that by court regulations he has a right to his child’s education. She then called the Ex Wife and reported the phone call.

  1. Those documents do not suggest that there was any doubt at the time as to who EOK was, or that he was the father of the Child. That is contrary to the responses Mr Wilson received in conducting his internal review, where it appears that he was told by at least one staff member that the concern was to verify that EOK was in fact the Child’s father. Based on what is recorded in the contemporaneous records, in preference to information provided to Mr Wilson by another person some months later, the Tribunal finds that at the time EOK made his phone calls to the Child Care Centre, the issue was not whether he was the Child’s father, but rather whether there was any restriction on his ability to access information concerning the Child.

  2. The Tribunal finds that on 7 and 9 July 2020 EOK was requesting an opportunity to speak to someone about his daughter’s education and development at the Child Care Centre. The file notes and Timeline entries are consistent with EOK’s statement (ex A1) at [16] that on 7 July 2020 he requested information about his child’s learning and development: as an involved father, and as a teacher he has a particular interest in education especially as it pertains to his daughter. That is also supported by the record of the telephone conversation on 9 July 2020 in which EOK requested an appointment to speak to one of the Child’s teachers in regards to her education.

  3. The Timeline records that on 8 July 2020 EOK was informed by Ms Messina that no parents were allowed at that time into the centre and that parents were having phone interviews; and that EOK stated that he was never told that.

  4. The Timeline records provide limited information as to what was disclosed to the Ex Wife in the phone calls to her by Ms Messina on 8 July 2020 and 9 July 2020. For the call on 8 July 2020 it stated “to inform her of the latest call”, and for the call on 9 July 2020, it stated she “reported this phone call”.

  5. The Timeline records details of calls by the Ex Wife on 8 July 2020:

  1. [NOT FOR PUBLICATION]

  2. [NOT FOR PUBLICATION]

  3. [NOT FOR PUBLICATION]

  1. The record in the Timeline as to what the Ex Wife said to the Child Care Centre staff on 8 July 2020 is relevant to how the Child Care Centre staff responded to EOK’s request for access to information about the Child’s education. That record does not detract from the proposition that what was disclosed to the Ex Wife was that EOK had called and was asking about access to the Child’s educational information. It is also consistent with the emails sent by the Ex Wife’s lawyer to EOK’s lawyer (copied to the Independent Childrens Lawyer and EOK’s Mother) on 8 and 9 July 2021, annexed as TR-3 and TR-4 to EOK’s submissions (ex A1). The latter states “We are instructed our client received a phone call from Ovidia from [Child Care Centre] today notifying her that your client rang again today and insisted on an in person appointment”.

  2. The Tribunal finds that in the phone calls from Ms Fasciani to the Ex Wife on 8 and 9 July 2020 she disclosed that EOK had called and was requesting to speak to the Child’s teacher.

Documents on the Child’s file

  1. As noted above, pp 1-190 of NBC-2 are documents from the Child’s file as annexed to Messina Affidavit 1. The Child’s enrolment form is at pp 59-60 of NBC-2. That form includes details of EOK’s Ex Wife and EOK as the Child’s parents. A section of the form headed “Family Status” provides as alternatives “both parents at home”, “sole parent”, shared custody”, and “other”. None of those boxes are marked, and that part of the form has the handwritten word “pending”. Emergency Contact 1 is EOK’s Ex Wife. Emergency Contact 2 records EOK’s details, crossed out by hand. Emergency Contact 3 is a third unrelated party.

  2. [NOT FOR PUBLICATION]

  3. [NOT FOR PUBLICATION]

  4. The documents in exhibit NBC-2 to Messina Affidavit 1 include the following parenting orders concerning the Child:

  1. Orders dated 5 April 2019 (pp 148-156), which discharge earlier orders made on 13 February 2019, and which provide that the Child spend time with her father on each Wednesday from 10.00am-6.30pm and from 10.00am each Saturday to 4.00pm Sunday, with changeover arrangements specified to be through the Ex Wife and either of EOK’s parents at identified locations;

  2. Interim Consent Orders dated 16 October 2019 (NBC-2, pp21-23), in which the extant parenting orders dated 5 April 2019 were discharged, and which include an order that the Child live with the Ex Wife and that she spend time with EOK each Wednesday from 10.00am-6.30pm, from 10.00am Saturday to 4.00pm Sunday, and as agreed; and that for the purpose of the weekly Saturday night that the Child spends time with EOK she must sleep overnight at his parents’ address; with changeover arrangements specified between EOK’s Ex Wife and either of his parents;

  3. Parenting Orders dated 3 December 2019 (NBC-2 pp 50-55).

  1. The latter orders do not include any orders relating to the periods in which EOK has access to the Child, other than a notation that the paternal grandparents ensure the internal staircase in their home is safe and secure for the Child, and that EOK will not attend changeovers without the Ex Wife’s written consent.

  2. At pp 47-48 of NBC-2 is a copy of a letter from the Ex Wife’s lawyer to EOK’s lawyer and the Independent Childrens Lawyer dated 17 December 2019 referring to the orders made on 3 December 2019, and stating her understanding that the Court had made orders about the Ex Wife providing information to EOK about the Child’s childcare, orders which did not appear on the sealed orders on the portal. Those orders were for the Ex Wife to pass on to EOK information about the Child’s child care, being a history of her attendance, any progress reports that are sent to the Ex Wife, and any information published on the centre’s private website about the Child, and for the Ex Wife to provide to EOK monthly records of the Child’s attendance at the end of each month. The lawyer records that EOK’s lawyer consented to the Ex Wife’s wording on her minute of order (which was crossed out) and the Ex Wife agreed to send attendance records at the end of each month. The lawyer asked whether the parties agreed that those orders were made, and whether a joint approach should be made to have the orders included.

  3. The documents in evidence do not indicate what the outcome of that request was. That there was some arrangement that the Ex Wife would forward information from the Child Care Centre to EOK is supported by the extract from the email from the Ex Wife to EOK (ex A1, TR-5) in which she states “I have agreed to send you reports and even if the orders are not in place, I am happy to do so and this is the best I can do to include you”.

  4. The Tribunal is satisfied that the copy of the orders dated 3 December 2019 and the letter of 17 December 2019 in the Child’s file were sent to Ms Fasciani by the Ex Wife by email on 9 July 2020 (p 43-4 NBC-2). That email shows three attachments, one being “Orders dated 3 December 2019”, and two unnamed PDF documents. That the letter dated 17 December 2019 was attached is confirmed by Ms Messina’s email in reply to the Ex Wife thanking her for the information sent to Ms Fasciani, and asking for advice as to whether there was an outcome of the letter dated 17 December 2019 in relation to any court orders relating to access to the Child’s education and care (p 43, ex NBC-2). The documents in evidence do not record any response to that request.

  5. It is not clear from the evidence what documents relating to parenting orders were available at or accessible by staff at the Child Care Centre at the time of EOK’s phone calls on 7 and 9 July 2020. EOK is recorded in the Timeline as having referred in the call to Ovidia on 9 July 2020 to his rights as the Child’s father “by court regulations”. The Timeline also records that on 8 July 2020 when talking to EOK Ms Messina undertook to “go through the information on Monday and the Orders and come back to him with an update”, and that on that date, when Ms Fasciani, Ms Messina and the Child Care Centre Director discussed EOK’s call, “we then looked into the court order papers where it did not indicate anything about [EOK] not being allowed to find out about [the Child] and her time in childcare”.

  6. The Council concedes that it was acting on verbal information provided by the Ex Wife. Given that the orders of 3 December 2019 and the letter dated 17 December 2019 were not provided to the Child Care Centre until the Ex Wife emailed them to Ms Fasciani on 9 July 2020, the only orders that could have been accessible to staff with access to the Child’s file as at 8 July 2020 were the earlier orders made in April and October 2019, both of which confirmed that the Child was with EOK on Wednesday and each weekend, and neither of which referred to access to information about the Child.

  7. At pp 44-46 of NBC-2 there is a copy of an AVO dated 19 July 2019, specifying that EOK not assault or threaten, or stalk harass or intimidate the Ex Wife or destroy or damage any of her property, and that he not approach or be in the company of the Ex Wife for at least 12 hours after drinking alcohol. There is no express reference in the email communications as to how and when that document came to be in the Child’s file. The Tribunal considers it likely that it was one of the three attachments to the email sent to Ms Fasciani by the Ex Wife on 9 July 2020. That is consistent with the statement by EOK (ex A1, para [38(e)]) that information concerning the AVO was provided to the Child Care Centre verbally by his ex wife, which resulted in the “dismissive and disdainful” responses to him in his attempts to seek information about his daughter, and that “when the AVO was furnished post my contact, the Respondent would have learned that it did not prevent me from contact with either my ex-wife or my daughter”.

  1. It is not in dispute that EOK appealed to the District Court, and the AVO and the findings of guilt were set aside in September 2020.

  2. It is not in dispute that EOK declined a request to provide further information to the Child Care Centre. The Timeline includes an email from EOK on 10 July 2020 to Ms Messina in which he stated that he wanted “to build continuity between the educators and myself with regards to [the Child]’s education”. Ms Messina responded that “we are seeking further advice”, and asked him to supply “any Court orders pertaining to accessing [the Child]’s education and care”. EOK does not dispute that he did not do so. In an email to Ms Messina on 17 July 2020 EOK stated “As her father, who under current court orders cares for [the Child] three days a week, and has shared parental responsibility, it is not incumbent on me to provide an order from the courts to this end.”

  3. In her email of 29 July 2020 to EOK responding to that email, Ms Messina asked him to confirm whether there were any further orders in addition to those dated 16 October 2019 and 3 December 2019, “in particular any court order that may make provision for parental responsibility including shared parental responsibility”; confirmed that EOK was listed on the enrolment form as the Child’s father; and stated that on the basis there were no further orders, “we are happy to set up a time convenient for you to speak” with the Child’s teacher, by telephone. Ms Messina apologised if EOK “felt that we were not supportive of the role you play as [the Child]’s father”, and stated that Ms Fasciani “was under the impression that all information supplied to you was to be done through [the Child]’s mother, hence why Ovidia spoke with her for clarification and documentation”.

  4. The Tribunal finds that as at the date of EOK’s telephone calls on 7 and 9 July 2020 requesting to speak to the Child’s educators, the following information was available to the 7 individuals identified as persons entitled to view the Child’s file (Messina Affidavit 1, p 147), and entitled to access the Timeline:

  1. The April 2019 enrolment form, on which EOK was identified as the father of the Child, but on which his details as an emergency contact had been crossed out;

  2. Other documents relating to the enrolment of the Child completed by the Ex Wife, including financial information;

  3. [NOT FOR PUBLICATION];

  4. [NOT FOR PUBLICATION].

  1. The Timeline records additional information provided to Ms Fasciani in telephone calls by the Ex Wife on 8 July 2020, referred to above at [71].

Access to information

  1. The Timeline records:

  1. On 10 July 2020 Ms Messina emailed EOK to advise that “we are seeking further advice and will get back to shortly”, and asked him to send any court orders pertaining to accessing the Child’s education and care. By that date the Child Care Centre had received copies of the parenting orders and the AVO sent by the Ex Wife, including the letter of 17 December 2019;

  2. In her affidavit of 30 June 2021 (ex R3) Ms Messina stated that on around 29 July 2020 she received advice from the Council’s in house lawyer, and following that she emailed EOK to confirm he would be provided with the Child’s information by way of teleconference with her teacher, who was known as Bandi. She then instructed Ms Clancy, Ms Fasciani’s manager, to speak with Ms Fasciani to discuss the proposed meeting with Bandi and to arrange a mutually suitable time with Bandi and EOK;

  3. Ms Fasciani and Bandi did not next work together until 3 August 2020, and on 4 August Ms Fasciani provided EOK with proposed dates and times;

  4. Those times were not convenient for EOK because of his work commitments, and on 11 August 2020 Ms Fasciani emailed further dates and times. The invitation to access Educa was sent on 13 August 2020, and the teleconference between EOK and the Child’s teacher, and other Child Care Centre staff was held on 17 August 2020.

  1. The Tribunal finds that the date on which EOK first requested access to the Child’s information was 7 July 2020. He was provided with the link to Educa on 13 August 2020, some 37 days later, and the teleconference was held on 17 August 2020, some 42 days later.

Section 14 PPIP Act

  1. Section 14 of the PPIP Act provides that a public sector agency that holds personal information must, at the request of the individual to whom the information relates, provide the individual with access to the information.

  2. The Council submits that information about the Child’s early education at the Child Care Centre is not “personal information” of EOK, and that any entitlement as her father to access information about the Child does not arise under the PPIP Act. On that basis, the Council submits that any failure or delay in providing the information is not within the scope of the PPIP Act.

  3. EOK submits that as the Child’s father he had a right to access information about his child when there were no orders preventing that, and that there was excessive delay before the Council provided him with access to Educa on 13 August 2020.

  4. Section 4 defines “personal information” as “information or an opinion …about an individual whose identity is apparent…”. The information to which EOK was seeking access was information about his child’s education, that is, information about the Child.

  5. The Tribunal has in previous decisions considered circumstances in which information about a child may be information “about” the parent.

  6. In DRX v City of Canada Bay Council [2020] NSWCATAD 26 the parents of a child enrolled at a council operated day care centre, who were involved in family law proceedings, had an arrangement as to payment of fees and invoices were sent separately to each parent. The respondent Council conceded that it had breached the PPIP Act by disclosing to DRX’s ex husband that she had failed to pay invoices and that the child had been absent from childcare for 6 days in April 2018: correspondence attaching the unpaid invoices revealed information about DRX which contained personal information, being that she had not paid invoices, and details of whether or not her daughter had been present at the centre on a particular day was information considered by the respondent about DRX, and was therefore personal information. The respondent in that matter had apologised to DRX and undertaken a review of policy and training; the Tribunal was not satisfied that DRX had established any financial loss because of the breach, and ordered payment of $500 for distress caused by the breach.

  7. Other decisions of the Tribunal have considered health or medical information. In AFC v Sydney Children’s Hospital Specialty Network (Randwick and Westmead) [2012] NSWADT 189 notes made by nurses in a patient’s medical records about the father of that patient were found to be both “health information” about the patient, and “personal information” about the father. In AJD v Royal Prince Alfred Hospital [2014] NSWCATAD 125 information about a mother’s serious chronic illness which was recorded on her children’s medical records was found to be health information about both the mother and her children, on the basis that to the extent that an individual’s information was collected in providing a health service to the child, that information could also be the health information of the child.

  8. The Tribunal is not satisfied that information about the Child’s education and development at the Child Care Centre was information or an opinion about EOK. That is in contrast with a situation where health information about one person might have bearing on health matters for another, or where information such as that at issue in DRX might have bearing on another person’s financial liabilities or responsibilities. The information was information about the Child, and EOK was not “the individual to whom the information relates”. The Tribunal accepts that EOK, as the Child’s father, and as a parent who was regularly responsible for her care, had an interest in knowing about how his child was progressing at the Child Care Centre. However there could be no breach of s 14 of the PPIP Act if access to that information was not provided to EOK.

  9. Further, even if that conclusion is incorrect, for the reasons that follow the Tribunal is not satisfied that there was any “excessive delay” in providing access to the information requested in the form of access to Educa and the discussion with the Child’s teacher.

  10. The Council submits that the 15 day period between EOK’s first request to his speaking with the Child’s educator was not “excessive delay”, in circumstances where there were apprehensions perceived (whether rightly or wrongly) that EOK had a history of domestic abuse, there was an AVO against him, there was concern that the AVO imposed conditions on EOK’s contact with the Child, and there was uncertainty as to his status, including as he was struck off as an emergency contact.

  11. EOK submits that the delay was for a longer period than accepted by the Council, and that the Council should not have acted on verbal information provided by his ex wife in forming the opinion that there may have been concerns as to whether there were restrictions on his contact with the Child, and he was only provided the information after he took it higher and made a complaint.

  12. In determining whether a delay is “excessive”, the circumstances are relevant: what might be a reasonable delay in an ordinary application may be excessive in others, for example in accessing information required urgently to enable a decision to be made about medical treatment: KT v Sydney South West Area Health Services [2010] NSWADT 94. In some circumstances the volume of information sought or the complexity of its retrieval may be relevant: AFU v Sydney Local Health District [2012] NSWADT 197.

  13. EOK submits that the Council had an obligation, as soon as they knew when the Child was enrolled that court orders were in place, to seek details of the relevant court orders, and that the failure to do so had given rise to a significant breach of privacy.

  14. Clause 106(3) of the Education and Care Services National Regulations 2011 requires the operator of a child care centre to include in a child’s enrolment record “details of any court orders, parenting orders or parenting plans…” or “any other court orders… relating to the child’s contact with a parent…” provided to the approved provider. The Tribunal notes that it does not in terms require a provider to obtain copies of such orders. However, in order to discharge its obligations for the safety, health and wellbeing of children in its care, including in accordance with s 51(1)(a) of the Children (Education and Care Services) National Law (NSW), it could reasonably be expected that a provider of childcare services who was aware of issues concerning the family would ensure that it requested copies of any relevant and ongoing orders.

  15. In the present circumstances the Child Care Centre was informed at the time of enrolment of the Child that the family status of the Child was “pending”; and that EOK was her father, but was not an emergency contact. It likely had a copy of the April 2019 orders under which EOK had care of the Child three days a week. By 9 July 2020 the Child Care Centre had access to subsequent parenting orders under which EOK had care of the Child three days a week, and the AVO, which while still in force did not restrict his access to the Child. The Child Care Centre also had the letter of 17 December 2019, which indicated that there may have been orders as to EOK having information about the Child’s childcare.

  16. The evidence demonstrates a degree of confusion among senior staff of the Child Care Centre as to the position as at 9 July 2020.

  17. [NOT FOR PUBLICATION]

  18. On 29 July 2020 Ms Messina informed EOK that the centre would set up a time for him to speak to the Child’s educator, and 13 August 2020 for him to be provided with access to Educa.

  19. The question is whether the period between EOK’s first request on 7 July 2020 to 13 August 2020 when he was given access to Educa was an excessive delay. There was clearly uncertainty among the Child Care Centre staff as to how to proceed even after 9 July 2020 when the Ex Wife had provided the then current court orders. Those documents included the letter of 17 December 2019, in respect of which Ms Messina had sought clarification from the Ex Wife. EOK did not respond to the request on 10 July 2020 that he provide any documents that might assist in confirming his position that he was entitled to speak to the Child’s educators, and on 17 July 2020 he advised Ms Messina that he would not do so.

  20. Having regard to the information available at the time of the Child’s enrolment, and the uncertainty as to the position in July 2020, the Tribunal is satisfied that it was reasonable for the Child Care Centre staff to be cautious, including by seeking legal advice from the Council’s in house lawyer. EOK had refused to provide any additional documents. The matter was not urgent in the sense described in KT v Sydney South West Area Health Services [2010] NSWADT 94. The Tribunal is not satisfied that any delay in providing access to the Child’s education information was excessive.

  21. The Tribunal concludes that there was no breach of the information protection principle in s 14 of the PPIP Act.

Disclosure of EOK’s personal information

  1. The Council concedes that there was a disclosure of personal information about EOK in the telephone calls to his ex wife on 8 and 9 July 2020, being disclosure to her of his identity and the fact that he had contacted the Child Care Centre to arrange to speak to the Child’s educators.

  2. The documents in evidence confirm that in telephone calls to the Ex Wife on 8 and 9 July 2020 Ms Fasciani disclosed that EOK had called the Child Care Centre and was requesting to speak to the Child’s teacher. That was a “disclosure”, that is, making known to a person information that the person to whom disclosure was made did not previously know: Nasr v State of New South Wales [2007] NSWCA 101 at [127].

  3. In written submissions filed on 21 April 2021 the Council submitted that the exceptions in s 18(1)(b) or (c) of the PPIP Act apply to the disclosure:

  1. section 18(1)(c) applies because the staff believed on reasonable grounds that the disclosure was necessary, in circumstances where it was perceived that there was uncertainty over the parenting status of EOK, there was a potential AVO, and EOK may have been domestically violent; and

  2. section 18(1)(b) applies because it was reasonably likely that as EOK co-parents the Child with his ex wife, the fact that he had contacted the Child Care Centre to arrange a meeting with teachers about the Child would be notified to his ex wife.

  1. In submissions filed on 6 July 2021, the Council relied on the exceptions in s 18(1)(a) and (b) of the PPIP Act. Section 18(1)(a) applies where the disclosure is directly related to the purpose for which the information was collected, and the agency has no reason to believe that the individual concerned would object to the disclosure. The Council submits that the disclosure to the Ex Wife was made to clarify whether in fact EOK’s request could be facilitated and there was therefore a direct nexus between the disclosure of the information to the third party and the purpose for which that information was provided to the Child Care Centre. The Council submits that the information was a prosaic request to meet with the Child’s teacher, and as such the Council had no reason to believe that the individual concerned would object to the disclosure. EOK did not expressly state that his request should not be communicated to the Ex Wife.

  2. EOK submits that even if (which he does not concede) the disclosure was made to clarify whether his request could be facilitated and there was a direct nexus between the disclosure of his personal information to his ex wife and the purpose for which the information was provided, the Council has not explained why there was a need to do that on three occasions: the cause of any uncertainty was the information provided by his ex wife to the staff and they failed to exercise their professional responsibility to verify the validity of the information, resulting in a breach of his privacy. The Council’s policies on Delivery and Collection of Children, Access and Security, and on Enrolment and Orientation, as required by cl 168 of the Education and Care Services National Regulations 2011 made it incumbent on them to seek details of relevant court orders. If the uncertainty of the situation justified the contact with his ex wife, that negated the proposition that his request was prosaic.

  3. EOK submitted that s 18(1)(b) does not apply, as the staff were aware of the status of his ex wife and himself as co-parents and he therefore had no expectation, given that his status as the Child’s father was not established, that any information he provided to the staff would be disclosed to his ex wife. He submits that it is incongruous for the Council to rely on s 18(1)(b) as an exception given that their own evidence attests to the uncertainty of his status as his daughter’s father and therefore any co-parenting arrangement being in place.

  4. EOK submitted that s 18(1)(c) does not apply, given the lack of verifying information, as his request was for an interview with his child’s teacher, and there was no evidence to suggest that he was a threat to the life or health of his daughter. The Council had no supporting information to validate any such belief given there was no documentation to support it, and that when the document was produced it confirmed that the belief was unreasonable and ungrounded.

Section 18(1)(a)

  1. The exception in s 18(1)(a) of the PPIP Act requires first that the disclosure of personal information be “directly related” to the purpose for which the information was collected, which includes information provided to or obtained by the agency: MT v Director General NSW Department of Education & Training [2004] NSWADT 194. In the context of the documents provided at enrolment, the Child Care Centre had some basis for uncertainty as to whether or not access to information about the Child was restricted, and it may be that to inform the Ex Wife that EOK had called and that he was asking for access to the Child’s education information was for a purpose directly related to the purpose of the provision of care and education services to the Child.

  2. However, in the context of the information known to the Child Care Centre as to the family circumstances, and in the absence of any indication in the Timeline that EOK was given notice that the staff would contact the Ex Wife, the Tribunal is not persuaded that the Child Care Centre staff had no reason to believe that EOK would object to the disclosure: CCM v Western Sydney University (No 4) [2018] NSWCATAD 283.

  3. The exception in s 18(1)(a) is not established.

Section 18(1)(b)

  1. There is no indication in the evidence that Ms Fasciani told EOK when she spoke to him that she would contact the Ex Wife. The question is accordingly whether he was reasonably likely to have been aware that information of the kind that he provided “is usually disclosed to” the person to whom it was disclosed.

  2. The Tribunal does not agree with the Council that it was reasonably likely that EOK as the father and co-parent of the Child was, or should have been, aware that the information that he had contacted the Child Care Centre might be disclosed to the Ex Wife because they had joint responsibility for the Child, and parent-teacher conferences can usually take place with both parents. The family circumstances were, as discussed above, different to that expectation. While the information provided at enrolment made it clear that EOK was the father of the Child, there was uncertainty as to whether EOK could properly access information about the Child. The Tribunal has found that it was reasonable for the Child Care Centre staff to be cautious before arranging for EOK to speak to the Child’s educator. However, that does not mean that EOK was reasonably likely to have been aware the information he provided was “usually disclosed” to the other parent of his child.

  1. The exception in s 18(1)(b) is not established.

Section 18(1)(c)

  1. It is not clear whether the Council is still relying on the exception in s 18(1)(c) of the PPIP Act. For completeness, the Tribunal is not satisfied that it would apply. While the Tribunal has found that it was reasonable for the Child Care Centre staff to be cautious, including by seeking legal advice, the Tribunal is not persuaded that there were reasonable grounds for any belief that disclosure was necessary to prevent or lessen a “serious or imminent threat” to the life or health of any individual, including the Child.

  2. Any perceived threat must be both serious, and imminent, that is, likely to occur at any moment or impending: FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 at [56]. EOK was asking only for information, and to speak to someone about his child’s education, at a time when no parent was permitted to access the Child Care Centre and all interviews were being conducted by telephone.

  3. The Tribunal is not satisfied that there were reasonable grounds for any belief that there was any serious or imminent threat to the life or health of any individual. The exception in s 18(1)(c) of the PPIP Act is not established.

Section 25

  1. The Council relies in the alternative on the exception to the non-disclosure obligation in s 18 contained in s 25(b) of the PPIP Act, which provides that an agency is not required to comply with the obligation in s 18 if “non-compliance is otherwise permitted …under any Act or any other law…”.

  2. The Council relied on its general duty of care to the Child, which it submits imposes a paramount and non-delegable obligation to take all reasonable steps to prevent the Child suffering reasonably foreseeable harm: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. In the context of the knowledge of the Council at the time, irrespective of whether it was correct, it was reasonable for the staff to have perceived a likelihood that some form of harm might flow from the request to obtain the Child’s information. The Council submits it was within the scope of that duty of care that it take further steps to verify the status of EOK as able to access the information, or confirm whether any AVO or court order ought to prevent him obtaining the information.

  3. EOK submits that the Council has acted on the basis of allegations made verbally against him by his ex wife which are false and untested, and the Child Care Centre staff had no legal or valid grounds such as in the form of court orders or an AVO to underpin any concerns they had that he was properly entitled to receive the information he requested. He submits that the Council had not sought court orders on enrolment as required under the Regulation, and that the family law orders that had been made, and the initial AVO which has since been dismissed did not prevent him from parenting his child. EOK referred to the Child Care Centre policy on Governance, Confidentiality and Privacy which states that “legal information and custody arrangements are collected, via the enrolment form, and court orders and AVOs, because it is required to be under the Education and Care Services National Regulations”, and submitted that the Council did not adhere to that policy which demonstrated a careless disregard of statutory duties. EOK could not understand how Ms Messina, as stated in cross examination, could not work out the meaning of any orders provided by the Ex Wife.

  4. Section 25 of the PPIP Act is expressed in broad language, and the words “otherwise permitted (or is necessarily implied or reasonably contemplated)” are extremely broad: JS v Snowy River Shire Council (No 2) [2009] NSWADT 210 at [53]. Common law principles, including the duty of care on which the Council relies, fall within the scope of the expression “any other law” in s 25(b): CCM v Western Sydney University [2019] NSWCATAP 103 at [65]. The Child Care Centre owed a duty of care to the Child: Plaintiff A and B v Bird; Plaintiff C v Bird; Plaintiff D v Bird [2020] NSWSC 1379. That common law duty to take reasonable steps to prevent injury or harm to the child is consistent with the obligation under s 51(1)(a) of the Children (Education and Care Services) National Law (NSW) that an approved provider operate its services in such a way that ensures “the safety, health and wellbeing of children being educated and cared for” by the service.

  5. The Tribunal is satisfied that in circumstances where it was unclear whether EOK should have access to information about the Child, the steps taken by the Child Care Centre to check the status, including making inquiries of the Ex Wife, and requesting EOK to provide any court orders that he may have, were reasonable steps to clarify the position. The Tribunal is satisfied that any non-compliance with s 18 was otherwise permitted in accordance with those common law and statutory duties.

Whether, and if so, what action should be taken under s 55(2) of the PPIP Act

  1. The Tribunal concludes that there was no breach of s 14 of the PPIP Act, and that to the extent that there were disclosures of personal information, the Council was, by s 25(b) of the PPIP Act, not required to comply with the information protection principle in s 18 of the PPIP Act.

  2. Section 55(2) allows the Tribunal to make “any one or more” of the orders specified, or decide not to take any action on the matter. The Tribunal’s power to make orders may not be limited to circumstances where one or more of the privacy principles have been breached: CLT v Department of Education and Communities (No 2) [2016] NSWCATAD 124. While the Tribunal is not satisfied that there was a breach of either s 14 or s 18 of the PPIP Act, in case that conclusion is not correct the Tribunal has considered whether, and if so what, action should be taken under s 55(2) of the PPIP Act.

  3. In his closing submissions as to the orders that should be made EOK requested that the Tribunal award the maximum damages applicable, and order a written and unqualified apology; that staff be briefed on the provision of that apology; and that the application and its outcome be written up as a case study to the Local Government Children’s Services Managers Group and published in the Local Government Children’s Services Association Communique (or similar).

  4. Under s 55(2)(a) of the PPIP Act the Tribunal may order a respondent to pay damages by way of compensation “for any loss or damage suffered because of the conduct”. There must be a connection between the loss or harm claimed and the agency’s contravention or disclosure as defined in s 52(1) of the PPIP Act, and the applicant bears the onus of establishing the causal link between the breach and the damage allegedly suffered: APV v Department of Finance and Services [2016] NSWCATAD 168; DRX v City of Canada Bay Council [2020] NSWCATAD 26. The applicant must also take reasonable steps to minimise the loss or damage attributable to a relevant contravention of the PPIP Act, and the onus is on the agency to show that the applicant has not taken reasonable steps: CPJ v University of Newcastle [2017] NSWCATAD 350.

  5. The applicable principles were summarised in DRX v City of Canada Bay Council [2020] NSWCATAD 26 at [24]:

(1) the applicant has a responsibility to place material before the Tribunal in support of such a claim. The agency must have the opportunity to test that material: GR v Director-General, Department of Housing (GD)[2004] NSWADTAP 26 at [38];

(2) there is no entitlement to claim any loss for reputational damage unless that loss is financial: CPJ v The University of Newcastle [2017] NSWCATAD 350 at [30];

(3) damages may be awarded for distress in the absence of independent evidence of psychological harm, where there was acceptance from the submissions and material filed by the applicant, and an assessment of the applicant when she participated in the main appeal hearing, that she has suffered emotional distress and harm, along the lines that she has asserted, because of the aspect of the conduct of respondent in relation to which there was a finding of contravention: AOZ v Rail Corporation NSW (No 2) [2015] NSWCATAP 179 at [20] and [30];

(4) an award of damages for distress should be at the lower end of the scale because of the absence of evidence as to the consequential impact of the distress upon the applicant, and determined the amount should be $1,000: CJU v SafeWork NSW [2018] NSWCATAD 300 at [135], [138];

(5) the award of statutory damages in PPIPA matters remains a discretionary one. The discretion not to make an award of compensation has been exercised where the Tribunal has been satisfied that the applicant has already been granted an award of damages in respect to the disclosure of the personal information: JD v Director General, NSW Department of Health (No 2) [2007] NSWADT 256 at [27];

(6) ordinarily where a breach is demonstrated, some sanction should be applied to the agency, unless it can be shown that there it has responded in an adequate way already to the problem identified, and no order therefore is needed: Vice-Chancellor Macquarie University v FM (No 2) (GD) [2004] NSWADTAP 37 at [54].

  1. EOK submits that he has not and will not be providing evidence to establish a causal link between the breach of privacy and damages suffered. In the course of his family law dispute he has spent in excess of $150,000 in legal fees, and he has chosen to represent himself in these proceedings as he cannot afford further legal expenses. He has not and will not seek evidence to demonstrate psychological harm and emotional distress as he has to consider the impact on the family law matter. He has not attended a psychologist and relies on an affidavit affirmed by his mother on 13 July 2021.

  2. EOK submits that even if he has not demonstrated the relevant causal nexus the Tribunal should in the exercise of its discretion make an award of damages, on the basis that the Council breached his privacy, did not use the mechanisms required under the Education and Care Services National regulation or its own policies, contacted his ex wife on three occasions disclosing the content of his conversation with Ms Fasciani, not to verify his identity as claimed in the internal review, and the Council’s affidavit evidence. EOK acknowledges that the Council has taken steps since the internal review decision to update its policy and procedures, although that did not occur until shortly before the Tribunal hearing.

  3. The affidavit affirmed by EOK’s Mother on 13 July 2021 is expressed to be provided to the Tribunal in her role as mother and grandmother, and not as expert evidence. In that affidavit the Mother describes the family law proceedings between EOK and his ex wife and her observations of the strain and distress caused by the Ex Wife’s allegations. She states her belief that the actions of the Child Care Centre in breaching EOK’s privacy have impacted on EOK’s psychological and emotional wellbeing, and she has noticed a distinct deterioration of his coping mechanisms after he attempted to make contact with the centre. She heard the conversation between Ms Fasciani and her son in early July, and described that she heard “the incredibly rude and disrespectful way” that she spoke to EOK. She believes the response to the privacy breach has further contributed to EOK’s emotional and psychological distress.

  4. The Tribunal acknowledges that the Mother is, based on the curriculum vitae provided with the affidavit, a respected professional in her profession, and that she has provided her opinions based on her concern for, and observations of, her son. However she is not a psychologist or medical professional, and the Tribunal does not place weight on the affidavit as evidence of any psychological harm suffered by EOK.

  5. The Tribunal concludes that EOK has not discharged the evidentiary onus he bears to produce evidence to establish any causal link between any breach of privacy and the financial or psychological harm he claims to have suffered.

  6. The steps taken by the Council in response to the allegations of privacy breaches are summarised by Mr Wilson in Wilson Affidavit 1. Mr Wilson states that his recommendations for proposed action in the internal review decision include the drafting of a policy to give guidance to centre staff regarding actions that need to be taken when dealing with separated parents, including access to children; training to ensure centre staff understand their obligations including the process for dealing with the personal information of parents and children; attendance by him as Council’s Privacy Officer at staff meetings to provide support to complement the policy and associated training; and direction of requests for information to Council’s access to information team where necessary.

  7. Mr Wilson stated that since February 2021 further privacy training is being rolled out for all staff at each of the Council’s child care centres, who are undertaking online training courses; and he has had a meeting with the management group for children’s services and the childcare centres with a presentation and discussion about privacy issues. The Council is also in the process of drafting a new policy for staff in relation to children who have separated parents and/or guardians.

  8. EOK acknowledges that the Council has taken steps since the internal review decision to update its policies and procedures, although commenting that this did not occur until 10 June 2021, shortly before the Tribunal hearing.

  9. The Tribunal has noted above a degree of confusion among the Child Care Centre staff as to what parenting or other orders may have been in effect as at July 2020 and how to determine if EOK’s request for access to his Child’s information should be accommodated. The staff had to request copies of any relevant orders from the Child’s parents. The Tribunal accepts that the Council has, in the steps identified by Mr Wilson, acknowledged a need for improvement in its procedures and policies, and for additional training for staff to ensure that they meet their obligations under the PPIP Act.

  10. As to the submission that an apology should be ordered, the Tribunal notes the terms in which an apology has already been provided. The Timeline records that during her conversation with EOK on 8 July 2020, after EOK said he “felt he was spoken to rudely”, and would need a support person for an interview “as he now feels intimidated”, Ms Messina said she “apologised if he was made to feel that way”. Ms Messina in Messina Affidavit 1 states that in her conversation with EOK he said he had “been spoken to rudely and feel disrespected by Ovidia”, and after telling him he could have a phone interview with the Child’s teachers, as standard practice given the COVID-19 restrictions, she said “I apologise about the way you have been treated”. That evidence was not contested in cross examination. The Timeline records that on 17 August 2020 at the teleconference between EOK and centre staff and educators Ms Fasciani said she was sorry if she made him “feel that way”. Those notes record that EOK and his Mother regarded that as a conditional apology. The Tribunal is of the view that an apology has been provided to EOK by both Ms Fasciani for his having felt he was spoken to rudely, and by Ms Messina, and no further apology is warranted.

  11. The Tribunal concludes that in the context where the Council has identified the need for and taken steps to provide policy guidance and training for its staff and where an apology was provided at the relevant time, even if a breach of the applicable information protection principles had been established, no further action is required under s 55(2) of the PPIP Act.

Conclusion

  1. The Tribunal has concluded that there was no breach of either s 14 or s 18 of the PPIP Act. The Council has taken appropriate steps to update its policy and procedures and provide training for staff on privacy issues, in particular in managing situations involving separated parents of the children in its care. The Council has apologised to the applicant. The Tribunal decides not to take any action on the matter.

  2. The Tribunal orders:

  1. Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 no action will be taken in this matter.

  2. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 disclosure to the applicant of the material redacted from paragraphs 6, 7, 21, 23, 24, 28 and 30 and footnote 2 of the Written Closing Submissions of the Respondent filed on 6 July 2021 is prohibited.

  3. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 publication of the Affidavit affirmed by EOK’s Mother 13 July 2021, para 3 Respondent’s Reply submissions filed 21 July 2021, and the document annexed as TR-1 to submissions filed by the applicant on 4 May 2021, is prohibited.

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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: 15 October 2021

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