JL v Queensland Police Service
[2014] QCAT 623
•25 November 2014
| CITATION: | JL v Queensland Police Service [2014] QCAT 623 |
| PARTIES: | JL (Applicant) |
| v | |
| Queensland Police Service (Respondent) |
| APPLICATION NUMBER: | OCL060-13 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 2 June 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan |
| DELIVERED ON: | 25 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The complaint that Queensland Police Service breached Privacy Principles 1, 3 and 4 is not substantiated and is dismissed. 2. The complaint that Queensland Police Service breached Privacy Principle 10 is substantiated. 3. In the event Queensland Police Service have any original medical records of JL in its possession they must return them to the place from which they were seized pursuant to the warrants of execution. 4. The use of JL medical records and Dr SA’s report in disciplinary proceedings and assessment for fitness for duty was an interference with JL privacy and Queensland Police Service should not repeat that act unless the use is otherwise authorised by law 5. The Tribunal prohibits the publication of any information that may enable JL to be identified. 6. The miscellaneous application filed by JL to delay the decision is dismissed. 7. The miscellaneous application filed by JL to adduce fresh evidence is dismissed. |
| CATCHWORDS: | INFORMATION PRIVACY ACT – where applicants medical records seized under warrants of execution – whether privacy principles breached in the collection of the records – whether validity of warrants could be considered – whether privacy principle breached in use of records for purposes other then criminal proceedings Information Privacy Act 2009 (Qld), s 3, s 27, s 164, s 174, s 176, s 178, Schedule 1 ASIC v Rich [2005] NSWSC 62 |
APPEARANCES:
| APPLICANT: | Mr Peter Davis QC instructed by Russo Lawyers |
| RESPONDENT: | Ms Susan Anderson of counsel instructed by Queensland Police Service |
REASONS FOR DECISION
JL is a serving police officer. On an evening in March 2010 whilst off duty she crashed her motor vehicle into a pole. JL admitted to taking prescription drugs and drinking alcohol prior to driving the car. She was subsequently charged with driving under the influence. JL’s medical records were seized by Queensland Police Service (‘QPS’) pursuant to warrants of execution for use in the criminal proceedings.
The criminal proceedings were ultimately dismissed. Subsequently, disciplinary action taken against her which had been put on hold pending the criminal proceeding was continued. JL was also made the subject of an internal process to determine whether she was a fit and proper person to be a police officer.
The medical records seized as part of the criminal proceedings process were used in both the disciplinary action and the determination of her fitness to perform duties as a police officer.
JL maintained that QPS had breached the privacy principles enshrined in the Information Privacy Act 2009 (Qld) (‘IPA’) in its collection, storage and use of her medical records.
She lodged a privacy complaint with the Office of Information Commission. The complaint was not resolved through mediation and was referred to QCAT in August 2013 pursuant to s 176 of the IPA.
JL has asked QCAT to make orders that QPS have breached certain privacy principles and that she is entitled to consequential orders including the return of her medical records and compensation.
The Legislative Scheme
One object of the IPA is to provide for the fair collection and handling in the public sector environment of personal information.[1] This object is achieved by requiring public service agencies to comply with privacy principles set out in Schedule 1 to the IPA when dealing with an individual’s personal information.[2]
[1]IPA s 3(1)(a).
[2]IPA s 27.
The IPA makes provision for an individual to make complaints to the Information Commissioner if they consider an agency has dealt with their personal information in a way that breaches the privacy principles.[3]
[3]IPA s 164.
The privacy complaint may be referred to QCAT to hear and determine if it is not resolved through mediation and the complainant requests the referral.[4]
[4]IPA s 174, s 176(1).
Once referred, QCAT exercises its original jurisdiction to hear and decide the complaint.[5]
[5]IPA, s 176(2).
The IPA provides for the orders that QCAT can make including relevantly:
a) An order that the complaint (or part thereof) has been substantiated together with certain consequential orders including payment of compensation up to $100,000.[6]
b) An order that the complaint has been substantiated but that no further action will be taken;
c) An order that the complaint (or part thereof) has not been substantiated together with an order that the complaint or part is dismissed.[7]
[6]IPA, s 178(a)(i)-(v).
[7]IPA, s 178(b) and (c).
Factual background to the seizure and use of the medical records
Following the motor vehicle accident JL was taken to Hospital A. Blood tests taken confirmed JL advice to police and ambulance officers who attended at the scene that she had taken prescription medication and had drunk alcohol before driving her car.
She was subsequently charged with driving under the influence under the Transport Operations (Road Use Management) Act 1995 (Qld).[8]
[8]Section 79(1)(e).
A complaint of misconduct against JL was lodged by Assistant Commissioner Wilson on 8 March 2010 in relation to her conduct involving the accident. The complaint was referred to the Crime and Misconduct Commission (now the Crime and Corruption Commission). The complaint was categorised as police misconduct and referred back to QPS for investigation.[9]
[9]See respondent’s submissions 17 February 2014 – Part B 1 Compass Summary Report 10 February 2014; and CMC Matters Assessed Report page 1-3 17 October 2013.
Police prosecutors in preparing the prosecution of the criminal charges arranged for a warrant of execution to be issued to obtain JL’s medical records from Hospital A. They also obtained two further warrants to gain access to other medical records of JL held at two medical centres. QPS prosecutors became aware JL intended to raise a defence of sane automatism, that is, because of the drugs and alcohol she had consumed the act of driving was not a voluntary act. To respond to the defence they briefed a forensic medical expert (Dr SA) to provide a report on whether JL’s level of intoxication from the prescription medication and alcohol was such as to deprive her of her conscious will. They considered it necessary that JL’s medical history form part of the brief.
The following warrants were obtained by Senior Constable Matt Page:
a) Search warrant dated 30 September 2010 for Hospital A (‘Warrant 1’). Senior Constable Page collected documents pursuant to the warrant;
b) Search warrant dated 23 June 2011 for AB Doctors (‘Warrant 2’). Sergeant John Zanco executed that warrant;[10]
c) Search warrant dated 23 June 2011 for CD Doctors (‘Warrant 3’). Sergeant Zanco executed that warrant and obtained further medical reports.[11]
[10]Affidavit of John Robert Zanco - Exhibit 5.
[11]Affidavit of John Robert Zanco - Exhibit 5.
Senior Constable Page and Sergeant Zanco gave the seized documents to the police prosecutor. The records were then given to Dr SA who prepared a report. The report was relied on by both the QPS and JL in the criminal proceedings. The Magistrate found that the defence of automatism was successfully raised by JL and not sufficiently rebutted by QPS. The charge of driving under the influence was dismissed.
The QPS proceeded with disciplinary charges against JL, relying in part on the medical records and Dr SA’s report.
The medical records and Dr SA’s report were also used in an investigation under the Police Service Administration Act 1990 (Qld) (‘PSAA’)[12] to determine whether JL was medically fit to continue her duties as a police officer.
[12]PSAA s 8.30.
It is not disputed that JL’s medical records are personal information and that QPS is an agency within the meaning of the IPA and as such is required to comply with the privacy principles.
The issues for determination in these proceedings are:
a) Whether the QPS have breached the privacy principles as alleged.
b) If so, whether JL is entitled to the consequential orders sought.
The Onus of Proof
The onus is on JL to prove the breach of the IPA. It is accepted by both parties that the applicable test is the balance of probabilities. QPS say that the more onerous ‘Briginshaw test’ is applicable.[13]
[13]Briginshaw v Briginshaw (1938) 60 CLR 336.
The IPA does not provide any guidance as to the appropriate test. Each case should be considered according to its facts to determine whether the Briginshaw principles should apply.
I agree with JL’s position that as a matter of course the Briginshaw test would not apply to a claim of breach of the privacy principles.
In this case I agree with the JL that the gravity of the consequences flowing to QPS from the findings of fact (namely liability to pay compensation) are not such as to warrant the higher test.
Miscellaneous Applications
JL has filed three miscellaneous applications since the hearing in June. I will deal with those applications before addressing the substantive issues in this application.
Application for Non-Publication Order
JL has applied for orders pursuant to s 66(1) of the QCAT Act that:
1.the decision not be published, or in the alternative
2.prohibiting the publication of any information that may enable her to be identified.
A non-publication order of this kind can be made only if the Tribunal considers it necessary to avoid interfering with the proper administration of justice, offending public decency or morality, avoiding the publication of confidential information or endangering the physical or mental health or safety of a person.[14]
[14]QCAT Act s 66(2).
JL applies for the order on the basis that the substantive application regarding allegations of breach of privacy provisions has come about because of her distress caused by the collection and use of her private medical records. She says any publication of the details is not in the public interest.
QPS did not oppose the application.
I accept JL’s submission that in circumstances where her application is based on a concern about the exposure of her personal medical information it would not, without good reason, be in the interests of justice to publish material which would identify her and her medical history.
It is not however necessary or in the public interest to prohibit publication of the decision. The jurisprudence around breaches of the IPA is limited. It is in the public interest that Tribunal decisions dealing with interpretation of this legislation should be available to the public to access.
As such I refuse the application that the decision not be published but I will order that the publication of any information that may enable JL to be identified is prohibited.
The application to delay the decision
JL has applied to the Tribunal to delay the decision in these proceedings until a decision is made by the Supreme Court concerning an action by Queensland Police Union of Employees regarding derivative use of material obtained under a search warrant.
QPS made no submission in relation to this application but do point out that prior to this matter being heard QPS applied to adjourn these proceedings pending the outcome of that Supreme Court matter. JL opposed the adjournment and I determined the matter would proceed.
No details have been provided as to the nature of the Supreme Court proceedings other than it concerns the use of material obtained under a warrant. There is no indication that it concerns the IPA in any way.
These proceedings have now been heard and can be finalised. I am not satisfied that there is any purpose to be served in delaying the delivery of this decision. That application for miscellaneous matters is dismissed.
Application to adduce fresh evidence
JL has asked the Tribunal to accept what she considers to be new evidence prior to final determination of this matter. This evidence is exhibited to her affidavit dated 10 November 2014. Both parties have referred this Tribunal to the AAT decision of Gomez v Commonwealth of Australia[15] in which Senior Member Ballard sets out the test for receipt of new evidence:
… Fresh evidence should be admitted only when it is so material that the interests of justice require it, and the evidence if believed would probably affect the result, and further that the evidence could not by reasonable diligence have been discovered before …
[15][1988] AATA 64.
The evidence sought to be adduced is exhibited to JL’s affidavit as follows:
(i) Documents prepared or gathered in response to a ministerial request about the use of documentation seized pursuant to the three search warrants. This bundle of documents is exhibit LJ24 to JL affidavit.
They consist of:
· A copy of her ministerial complaint regarding the use of her medical records.
· QPS internal documents facilitating a response to the ministerial.
· The draft reply to the ministerial complaint advising that copies of JL’s medical records were destroyed ‘as per policy’.
· Follow-up internal emails seeking confirmation as to the information in the draft reply.
JL says that this is new evidence should be admitted ‘because it would probably affect the result of these proceedings’ particularly as to whether the use of her medical records was in breach of privacy principle 10.
QPS say the documents were in the possession of JL legal representative prior to the hearing and such were available at the hearing and in any event would have no effect on the outcome of the matter.
On the basis of QPS submissions I am not satisfied that the documents were not available at the time of the hearing. As will become apparent later in these reasons I have, without reference to this material, made a determination that privacy principle 10 has been breached. As such, the documents in any event do not have any effect on the outcome.
I would not therefore admit the contents of LJ24 on that basis.
JL seeks to also adduce the documents in LJ24 in order to raise a complaint that privacy principle 5 has been breached. A possible breach of privacy principle 5 was not part of her complaint to the Privacy Information Commissioner.
JL says that LJ24 provides evidence of false and misleading information being given concerning QPS’s control of her medical records which would constitute a breach of IPP5.
Even if I was minded to allow the expansion of her complaint in this manner I am not satisfied that the evidence she proposes to rely on would in any way support a complaint of a breach of privacy principle 5. The purpose of that privacy principle is to ensure that the agency which has control of a document containing personal information must take all reasonable steps to ensure that an individual can ascertain:
· Whether the agency has control of such a document;
· The information contained in the document;
· The main purpose that the information is used for; and
· How a person may go about accessing the document.
Even if it were found that QPS’s statement about the documents was misleading it would not constitute a breach of PP5. The application to adduce the evidence on that basis is refused.
JL also seeks to adduce this evidence as it is ‘in the interests of justice’. JL has been put on notice that a complaint has been made against her regarding an affidavit ‘she prepared with respect to QCAT proceedings’.[16] There is no obvious connection between the complaint regarding the content of her affidavit and LJ24 documents. Further even if there was I cannot discern any relevance to her complaint about breaches of the privacy principles which are the subject of these proceedings. Her application to adduce LJ24 on that basis is also dismissed.
(ii) The mediation agreement with the Hospital B and Health Service dealing with the disclosure to QPS of her health records. This is exhibited at LJ26.
[16]See Affidavit of JL dated 29 May 2014 LJ25.
I accept QPS’s submission that this evidence should not be allowed on two basis namely it was available to JL at the time of the hearing and in any event it does not go the question of whether the collection by QPS of the material was unfair or unlawful which is the subject of her application.
(iii) Documentation from the registrar and manager of the JP Branch confirming the JP who issued the warrant went outside his powers in issuing the warrant authorising structural damage.
These documents were available at the time of the hearing. Further, for reasons that will become apparent, this documentation would have no bearing on the outcome of these proceedings.
JL’s application to adduce new evidence is dismissed.
The Claim
JL claims QPS have breached four privacy principles:
a) PP1(2) and PP3 in relation to the collection of her medical records.
b) PP4 in relation to the storage of her medical records.
c) PP10 in relation the use of her medical records in the disciplinary action and an investigation into her fitness for duty.
The Collection of the Records
IPP1(2)An agency must not collect personal information in a way that is unfair or unlawful.
(a) was the collection unlawful?
JL says that all three warrants used as authority to seize her medical records were invalid for various reasons. She says this means the QPS have collected her records in a way that is ‘unlawful’. She says that even if the warrants are valid the collection was unlawful for other reasons and was done in a way that was unfair.
JL has made a number of submissions as to irregularities with the warrants on which to base her submission that the collection of the records was unlawful and unfair.
It is my view that it is not an appropriate use of QCAT’s jurisdiction in assessing complaints for breach of privacy principles to make findings as to the validity of search warrants. This is particularly so where the warrants were issued by authorised officers, were unchallenged in the criminal proceedings and the seized evidence was relied on in the proceedings for which they were issued. Those criminal proceedings were the appropriate forum for testing their validity.
If this view is incorrect and it is appropriate for this Tribunal to make orders about the validity or otherwise of the warrants, I am not in any event convinced that any finding now that the warrants were invalid would mean that the collection of the material at the time was done in a way that was ‘unlawful’.
The focus of IPP1 is on the way the information was collected. The records were collected by police officers acting pursuant to an apparently valid warrant of execution. This is not an ‘unlawful’ means of collection. It would be wrong to subsequently find that the police officers were acting in a way that was unlawful for the purposes of privacy regulations because the warrants were subsequently found to be invalid because of a failure to comply with certain technical requirements of the issuing of the warrant.
I note that JL argues that even if the warrants were valid the collection pursuant to the warrants was in any event unlawful because of various other reasons and those arguments are dealt with below.
In the event that this interpretation is incorrect and a subsequent determination by QCAT as to the validity of warrants would impact on the lawfulness of the collection of the material I will address the individual arguments about the validity of each warrant and the alleged unlawfulness of the collection process.
Hospital A Warrant – Warrant Number 1
JL contends this warrant is invalid because the application for the warrant was not sworn on oath.
The Police Powers and Responsibilities Act 2000 (Qld) (‘PPRA’) sets out the formal requirements for applications for the issue of warrants.
Section 150(5)(a) provides that an application must ‘be sworn and state the grounds for which the warrant is sought’.
JL says the application for Warrant Number 1 was not sworn.
JL obtained a copy of an application for the warrant through a formal request for information to QPS.
The copy of the application obtained[17] is signed by Senior Constable Matt Page and dated 30 September 2010 but it is not sworn.
[17]Exhibit 1 (JL affidavit 29 May 2014) Exhibit LJ1.
The search warrant issued as a consequence of that application was issued by Magistrate Wilki out of the Southport Magistrates Court.
The warrant reads ‘I GA Wilki a Magistrate after hearing a sworn application by Senior Constable Matt Page …’
It is signed by Magistrate Wilki and dated 30 September 2010.[18]
[18]Ibid Exhibit LJ2.
Senior Constable Page took part in a QPS directed interview about the issue of the warrants.[19] He also provided an affidavit in these proceedings and gave oral evidence about whether the application for the warrant was sworn.
[19]Exhibit 3 (Transcript).
In his directed interview with Inspector Christopher John Hobbs on 10 January 2013 he said, when asked about the warrant and the application for the warrant:
· The warrant was obtained on 30 September to obtain medical records in relation to the incident of the crash.
· He remembered taking the application and warrant to the Southport Magistrates Court and having the Magistrate issue it.
· He could not now find the copy of the application.
· He believed any copy of the application would be with the Magistrate who issued it.
· There was definitely an application. He believed the Magistrate would never have issued the warrant unless there was a sworn application.
In his affidavit of 16 March 2014 Senior Constable Page said:[20]
· On 30 September 2010 he took the search warrant application and the search warrant to the Southport Magistrates Court.
· Both the search warrant application and the search warrant were signed and sworn before Magistrate Wilki.
[20]Exhibit 4 paras 7 and 8.
At the hearing Senior Constable Page gave oral evidence and was cross-examined.
In cross-examination:
· He said he did not have any physical memory of swearing the application but he could only assume that as Magistrate Wilki had signed the search warrant he would not have done so without an application for it having been sworn.
· He was asked about the copy of the application obtained by JL under the FOI request which document was signed by him and dated 30 September 2010 but not sworn. The document was Exhibit LJ1 to JL’ affidavit.
· He said that Exhibit LJ1 was not the copy of the application he took to the Magistrates Court on 30 September. He explained that when the FOI application was made by JL he was asked to produce all of the documents relevant to the warrant. He could not find the original sworn application. The only ‘copy’ of the application he had was a draft copy he had kept on his server file. He said that he printed off the copy, signed it and backdated it to 30 September.
It was not until Senior Constable Page gave this oral evidence at the hearing that QPS offered an explanation as to why LJ1 was not sworn. JL says I should reject his evidence. JL says that I should find on the balance of probabilities that the application for the warrant was not sworn.
At the time Senior Constable Page applied for the warrant he was an inexperienced officer. He said it was the first time he had applied for a warrant. With the benefit of hindsight he accepts that his decision to print out and back date the application was regrettable. There is little doubt that such a course of action was not appropriate however I found his evidence to be credible.
A warrant was issued by Magistrate Wilki. Senior Constable Page cannot recall swearing the application but assumes he must have. The fact that he subsequently produced another copy which was not sworn and the sworn copy cannot be located does not mean a sworn application was never made for the warrant. The document could be lost.
I am not satisfied that the application for a warrant was not sworn and as such the challenge to the validity of the 30 September warrant is not made out.
JL submits that even if the warrant was valid, the collection of the records pursuant to the warrant was unlawful because the warrant authorised QPS to seize evidence at a particular place (Hospital A) but QPS officers in fact obtained documents from Hospital B Information Access Unit. The collection she says was unauthorised and therefore unlawful.
It is not the case that the officer simply attended in person and seized documents from a different address from that identified in the warrant. QPS said there was a reason why the documents came from the Hospital B address and that the original source of the documents was Hospital A.
Senior Constable Page did not physically attend at Hospital A or Hospital B.
Senior Constable Page said having obtained the warrant, he was asked by the Health Information Manager for Hospital A to send the warrant to Hospital B legal unit.[21] The certified copies of the medical records were then sent to him by registered post from the legal unit.
[21]Exhibits 3 and 4.
QPS explain the process in its written submissions. Hospital A is administered by Hospital B. Constable Page was asked to send the warrant through to the legal unit of the CG Health Services which has responsibility for dealing with search warrants on behalf of CG Health (which is located at Hospital B).
The legal unit then obtained the documents from Hospital A and sent certified copies to Senior Constable Page by registered post.
The factual accuracy of this explanation was not challenged by JL.
In circumstances where the documents ultimately came from the place named in the warrant (Hospital A) the fact that they came through a second source because of an administrative arrangement, does not in my view make the collection of those documents ‘unlawful’ for the purposes of the IPA.
It is one thing for a location other than the location specified in the warrant to be searched. It is another thing for material at the warrant location to be released under the warrant by an authorised third party (as happened here). The collection of the medical records under the Warrant 1 was not ‘unlawful’.
The AB Doctors and CD Doctors Warrants (Warrants 2 and 3)
JL submits that these two warrants issued on 23 June are invalid for three reasons:
a) The applications for the warrants failed to state the occupier details.
Both applications incorrectly stated that ‘no previous search warrant issued in the previous year that relates to the person or place’. (Warrant 1 had been issued.)
b) Both warrants exceeded the powers of the issuing officer (a Justice of the Peace).
JL relies on s 150(5) of the PPRA which provides relevantly that:
An application under this section must –
(b)include information required under the responsibilities code about any search warrants issued within the previous year in relation to –
(ii)(A) the place or a person suspected of being involved in the commission of the offence or suspected offence to which the applicant relates.
She also relies on the provisions of s 3 of the Police Responsibilities Code which sets out additional requirements for search warrant applications[22] and provides relevantly:
[22]Schedule 9 – PPR Regulation 2012.
3 (1)An application for a search warrant under section 150 of the Act must state the following:
(a)the applicant’s name, rank, registered number and station;
(b)a description of the place to be searched;
(c)for an occupied place, the name of the occupier of the place, if known;
…
(h)for each search warrant issued in the previous year in relation to the place or a person suspected of being involved in the commission of the offence or suspected offence, or the confiscation related activity, to which the application relates –
(i)when and where the warrant was issued; and
(ii)the type of offence or confiscation related activity to which the warrant related; and
(iii)whether anything was seized under the warrant or a proceeding was started after a search.
It is accepted that the applications for Warrants 2 and 3 did not provide ‘occupier details’ nor did they refer to the issue of Warrant Number 1. The applications therefore did not comply with s 3 of the PPR Code or s 150(5)(b) of the PPRA.
JL submits that these irregularities with the applications rendered the warrants invalid. She said it is well established that strict compliance with statutory conditions governing the issue of search warrants is required.[23]
[23]Applicant’s outline of submissions 5 May 2014 [19].
JL refers to the High Court case of George v Rockett[24] in support of this submission. The High Court said:
To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.
[24](1990) 70 CLR 104.
JL says that the failure to give details of the previous warrant is a matter of substance because in exercising a discretion whether to issue the warrant it is important for the justice to know whether a search warrant has already been issued in relation to the person and whether evidence has been seized.
The QPS accept that a strict approach is generally taken with regard to compliance with statutes containing search warrant provisions.[25] It contends however, that it does not follow that every defect in the warrant application will necessarily mean that a warrant issued on the basis of that application is invalid.
[25]Respondent’s outline of submissions filed 6 January 2014 [33]; and Respondent’s reply [22].
QPS say the question of invalidity turns on the principles of statutory construction as set out by the High Court in Project Blue Sky v Australian Broadcasting Authority[26] namely whether it was the intention of the legislature that a statutory requirement be mandatory rather than only directory.
[26][1998] HCA 28.
QPS have referred the Tribunal to a Supreme Court decision of Justice Holmes in Wright & Anor v Queensland Police Service & Ors[27] where the court considered the effect of non-compliance with statutory requirements on the validity of a warrant. Her Honour said:[28]
There remains for consideration the question of how non-compliance with s 73 (as to stating brief particulars of the offence) and s 451 (as to the state of mind necessary to justify application by telephone) affects the validity of the warrant …
In determining whether the respective requirements are mandatory one must turn to the principles of statutory construction set out in Project Blue Sky v Australian Broadcasting Authority and ask "whether it was a purpose of the legislation that an act done in breach of the provision should be invalid".
[27][2002] QSC 046.
[28][34].
QPS also refer to the Federal Court decision of Hart v Commissioner of Australian Federal Police[29] in which the full court made a finding as to the appropriate approach to the construction of statutes that authorise the search of premises and the seizure of things from them. At [64] to [65] the Court said:
The construction of statutes authorising the search of premises and the seizure of things from them begins with the ordinary meaning of the words considered according to their context and the legislative purpose. …
The purpose of search and seizure provisions is to provide for the gathering of information to determine whether offences have been committed and to facilitate proof of them. … Recognition of that purpose may yield a construction of the legislative words that is not necessarily narrowly defined. Remaining ambiguity or doubt whether of meaning or application will, in accordance with authority, be resolved in favour of the rights and freedoms of the subject.
[29](2002) 124 FLR 384.
QPS say that when considering whether a particular requirement is mandatory or directive I should have regard to s 151 of the PPRA which sets out when a warrant can be issued
151Issue of search warrant
The issuer may issue a search warrant only if (my emphasis) satisfied there are reasonable grounds for suspecting the evidence or property mentioned in section 150(1) (evidence of the commission of an offence)—
(a)is at the place; or
(b)is likely to be taken to the place within the next 72 hours.
QPS say only those requirements set out in s 150(5) or s 3 of the Code which go to the requirements of s 151 (that is to be satisfied as to the location of the evidence of commission of the offence) would be mandatory.[30]
[30]Respondents outline of submissions dated 6 January 2014 [36].
This argument is not inconsistent with the findings of the High Court in George v Rocket.
In that case the warrant in question was issued pursuant to s 679 of the Criminal Code (Q) which provided:
If it appears to a justice, on complaint made on oath, that there are reasonable grounds for suspecting that there is in any house … (evidence of a commission of an offence) he may issue his warrant …
The Court in considering the validity of the warrant said (at 110):
The search warrant thus authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property.
…
In construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.
The Court decided the conditions had not been fulfilled because the sworn complaint did not contain sufficient information to satisfy the Magistrate that there were reasonable grounds for the requisite suspicion and belief and therefore the warrant was invalid.
In this case the ‘conditions’ for the issue of the warrant, as set out in s 151 of the PPRA, are that the issuer must be satisfied that there are reasonable grounds for suspecting the evidence (of commission of an offence) is at the place or likely to be at the place within the next 72 hours.
Section 151 does not make compliance with s 150(5) (the requirements for the application for the warrant) a condition of the lawful issue of a warrant.
The appropriate question to ask then in determining whether a breach of a requirement renders the warrant invalid is whether the irregularity in the application had the potential to affect the justices’ ability to reach the requisite level of satisfaction that there were reasonable grounds for suspecting evidence of a commission of an offence was at the place.
Both applications for Warrants 2 and 3[31] stated the place to be searched, and that the places were medical centres, that the evidence was in relation to an offence of driving under the influence and that the medical records were to be obtained to ‘negate a medical defence’.
[31]Exhibit 1 (Affidavit of JL dated 29 May 2014) Exhibits LJ3 and LJ5.
In these circumstances I do not consider the failure to state the occupiers details would impact on the justices ability to reach the level of satisfaction required and as such did not result in a failure to fulfil conditions required for the lawful issue of the warrant.
The misrepresentation about any previous warrants is more concerning. JL says the false statement potentially affected the exercise of the justices discretion as to whether to issue the warrant.
The QPS say that the requirement complained about does not apply because s 150(6) of PPRA provides that the requirement to disclose information about previous warrants only applies to:
a) information kept within a register that the police officer may inspect; and
b) information the police officer otherwise knows.
It submits that because the second and third applications were made not on the ground to prove the offence but to negate the defence of automatism, the information captured in these later warrants was not on a register and not known to the police officer.[32]
[32]Respondent’s reply [41].
I am not sure that I follow the logic of this argument. For a start the ‘information required’ is about the previous warrant (30 September) not the subsequent warrants and in any event as Senior Constable Page applied for all three warrants one would assume he had the requisite knowledge about the previous warrant. I find therefore that s 3(b) does apply.
The difference in the grounds for the issue of Warrant 1 on the one hand and 2 and 3 on the other hand however does bear on whether the provision of that information would have impacted on the justices ability to be satisfied that the evidence was at the respective places and therefore affect the exercise of his discretion to issue the warrant. The fact that medical records had been obtained from the hospital where JL was admitted after the accident would not in my view have a substantial impact on whether evidence to negate the defence would be at other medical centres where JL had been treated.
I do not consider the failure to comply with s 150(5) and s 3(b) of the Code meant the conditions for the issue of the warrant had not been fulfilled.
If it is necessary to do so I find that the irregularities in the applications for Warrants 2 and 3 did not affect the validity of the warrants subsequently issued and as such the use of the warrants to collect the information was not an ‘unlawful collection’ for the purposes of privacy principle 1.
JL says that even if the irregularities in the applications did not invalidate the warrants then the warrants themselves went beyond the power of the issuing justices (JPs) and were therefore invalid in that:
· The warrants purported to authorise the executing officers to do things that might cause structural damage.
It is correct that the warrants:
· Were issued by a Justice of the Peace;
· Authorised the executing officers to do things that might cause structural damage namely ‘gave power to remove wall or ceiling linings or floors and of a building, or panels of a vehicle, to search for evidence of the commission of an offence’.[33]
[33]Exhibit 1 (Affidavit of JL dated 29 May 2014) Exhibits LJ3 and LJ5.
Section 157(3) of the PPRA provides that power to do anything at the relevant place that may cause structural damage to a building, may be exercised only if the warrant is issued by a Supreme Court judge.
I accept the argument of QPS that the fact that the warrant authorised the exercise of a power which may have caused structural damage did not in itself invalidate the warrant.
The QPS in this argument rely on the Court of Appeal decision in Bensted v Edwards.[34]
[34][2003] QCA 145.
In that case warrants were issued by a Justice of the Peace beyond the power of the Justice of the Peace in that they purported to allow structural damage. The Court said:
These defects invalidating one part of both warrants and misdescribing portions of the earlier warrant did not result in any conduct by the executing officers which exceeded the authorisation the Justice could and did grant. The property that was seized on each occasion was lawfully taken under an appropriate authorisation. The inclusion by oversight of other and irrelevant authorisation did not make the conduct of the police officers unlawful.
In this case the executing officer did not purport to exercise the unlawful authority. If they had done so then the exercise of that power would have been arguably unlawful. In the circumstances the inclusion of that power in the warrant did not make the warrant invalid and collection of the evidence unlawful.
JL says further that even if the warrants are valid the collection of her medical records in reliance on Warrants 2 and 3 was ‘unlawful’ because the AB Doctors doctors warrant (Warrant 2) was executed at CD Doctors and the CD Doctors warrant (Warrant 3) was executed at AB Doctors.
In reply QPS relied on an affidavit of Sergeant John Zanco who executed these warrants. He produced[35] extracts from his police notebooks which recorded that Warrants 2 and 3 were executed at the correct addresses. I accept Sergeant Zanco’s unchallenged evidence and find that the challenge to the lawfulness of the collection on this basis is unfounded.
[35]Exhibit 6.
Lastly JL challenges the lawfulness of the collection of the information on the basis that the executing officers collected her entire medical files which included medical records not relevant to the commission of the offence of driving under the influence.
Warrants 2 and 3 authorised police officers to seize ‘medical records of JL’. The collection of the medical file did not exceed the authority provided for. In those circumstances the collection was not unlawful.
In summary I find that the collection of JL records was not done in a way that was unlawful and therefore not in breach of privacy principle 1 on that basis.
(b) was the collection unfair?
JL submits that even if the collection was lawful it was ‘unfair’ and therefore still in breach of privacy principle 1.
The term ‘unfair’ is not defined in the IPA.
QPS make reference to ‘guidelines’ issued by the Office of the Australian Information Commissioner and guidelines issued by the Queensland Privacy Commissioner.[36] The guidelines are issued to assist government agencies in interpreting the legislation.
[36]Respondent’s outline of submissions dated 6 January 2014 [16]-[17].
The guidelines in referring to ‘fair collection’ say that:
Information may be collected unfairly where it is obtained by trickery, misrepresentation, deception or under duress. It may also be seen as being unfairly obtained where it was collected in circumstances in which the individual would not have ordinarily given up their information had they known they had a choice not to provide it.[37]
[37]Applicant’s outline of submissions dated 5 May 2014 [26].
Applying this criteria the collection was not unfair. There was no deception, misrepresentation or duress involved. Also, as the documents were given up pursuant to a warrant there was no choice but to provide the documents.
I accept JL’s submission however that the guideline is only that and could not limit or define what the legislation means.
I also accept as she submits that in deciding whether the collection was ‘unfair’ a common sense consideration should be given to all of the circumstances of the case.
The dictionary definition of the term is also relevant. The Oxford online dictionary defines ‘unfair’ as ‘not based on or behaving according to the principles of equality and justice’.[38]
[38]
JL says the collection was ‘unfair’ because:
(i) the method of collection was the most intrusive option available to QPS. She says they could have issued a subpoena to collect the information.[39]
[39]Respondent’s reply [37].
Even if that option was available (QPS say it wasn’t) I do not consider that in choosing the option to issue a warrant means the collection was unfair. A subpoena, as QPS points out, is still an intrusive method of collection of documents.
(ii) QPS failed to comply with important procedural safe guards, that is, Warrants 2 and 3 failed to state that a previous warrant had been issued, did not include occupier details and permissibly authorised actions that might cause structural damage.
As indicated above I find the failure to provide occupier details or to advise the issuing justices of the prior warrant was unlikely to have impacted on the justices level of satisfaction that the evidence which related to JL’s defence to the charges was at the place the warrant was executed. Further, the executing officers did not engage in any activity which may have caused structural damage. In those circumstances I do not consider that any procedural irregularities with the warrant meant that the collection was unfair.
(iii) QPS chose to collect documents of the broadest possible scope rather than to make reasonable efforts to limit its collection to those documents of actual relevance.
JL says that both Warrants 2 and 3 identified the offence committed on 5 March 2010 and then listed ‘medical records for JL’ as the evidence to be seized under the warrant and that the officers unnecessarily seized her whole medical file which dated back to 1999 and 2002 respectively.
QPS say that the collection of the medical records was not ‘unfair’.
It says the medical records were sought in order to negate the defence of automatism which they had been advised JL intended to raise in defence of the charge.
It explains[40] that where such a defence is raised the prosecution bears the onus of proving that the acts complained of were the conscious acts of the accused. It says QPS prosecutors sought access to JL’s medical records to brief a forensic medical expert (Dr SA) to report on whether her level of intoxication from prescription medication and alcohol was such as to deprive her of her conscious will.
[40]Respondent’s outline of submissions 6 January 2014 [52], 16.
I accept that it is not unreasonable for QPS prosecutors to seek access to JL’s medical records to obtain expert evidence to negate the defence. Whilst documents provided by the doctors in response were ultimately found to be not relevant it does not make the collection unfair. The evidence sought in Warrants 2 and 3 was not to prove the offence which was the object of Warrant 1. QPS obtained JL’s medical history to discharge its onus of negating the defence. The medical records may have provided evidence that JL (from previous incidents) had knowledge of the consequences of taking the prescription medication.
In summary I find that the collection of JL’s medical records under the authority of the warrants is not unfair or unlawful. The complaint that privacy principle 1 has been breached is not substantiated.
Unreasonable Intrusion
IPP3(3)The agency must take all reasonable steps to ensure that-
…
(b)the extent to which personal information is collected from the individual the subject of it, and the way personal information is collected, are not an unreasonable intrusion into the personal affairs of the individual.
JL says that for the same reasons that she considered the collection of her personal information ‘unfair’ the collection was an unreasonable intrusion into her personal affairs.
I accept QPS’s submission that the collection of JL’s medical records was not in the circumstances an ‘unreasonable intrusion’.
It was not unreasonable in prosecuting the driving under the influence to collect JL’s medical records from the hospital to which she was admitted on the night of the incident. As set out above I do not find the use of a warrant (as opposed to a subpoena unfair or unreasonable).
I also accept as indicated above that in the circumstances where the prosecution bore the onus of rebutting the defence of automatism and showing that JL’s actions were voluntary it was not an unreasonable intrusion for the prosecution to seek access to her medical records (using Warrants 2 and 3). I accept that it was not unreasonable to consider that an assessment of JL’s medical history was necessary to be in a position to argue that JL had voluntarily ingested the intoxicating substances with knowledge of their affect.
I find that the complaint that PP3 has been breached has not been substantiated.
Inadequate Storage and Security
IPP4(1)An agency having control of a document containing personal information must ensure that—
(a)the document is protected against—
(i)loss; and
(ii)unauthorised access, use, modification or disclosure; and
(iii)any other misuse; and
Protection must include the security safeguards adequate to provide the level of protection that can reasonably be expected to be provided.
JL says QPS breached IPP4. She says it did not comply with certain safeguards set out in the PPRA which applied to the records seized and as such QPS could not be said to have provided the level of protection that could reasonably have been expected.
This submission (for the most part) is based on the argument that the medical records are a ‘relevant thing’ for the purposes of the PPRA.[41]
[41]Part 3, Division 1 – Requirements when dealing with a relevant thing.
Section 687 of the PPRA provides that:
The object of this part of the Act is to ensure as far as practicable a ‘relevant thing’
(a)is retained by the police service only for as long as is ‘reasonably necessary’; and
(b)is handled in an efficient, safe and accountable way.
The PPRA provides in effect that as soon as the reason for keeping the thing ends the commission must facilitate its lawful disposal or return to its owner or person who had the lawful possession of it before it came into possession of the police service.[42]
[42]Section 688(1), (2), (4)(b).
QPS say they have not breached IPP4 as alleged on this basis because the copies of the medical records in their possession are not ‘a relevant thing’ for the purposes of the PPRA and in any event JL has provided no particulars or evidence to support the complaint.
Section 686 of the PPRA refers to a ‘relevant thing’ as ‘a thing that is lawfully in the possession of the police service … because it was seized by a police officer’.
JL says her medical records are ‘relevant things’ because they were seized by police officers under the purported authority of the search warrants.
QPS say that the original medical records when seized were a ‘relevant thing’ but the originals were returned after copies were made and accordingly the copies in the possession of QPS are not relevant things and the provisions of the PPRA does not apply to them.[43]
[43]Respondents reply [48]-[51].
QPS say in any event JL has provided no particulars of the complaint and no evidence to support the contention that adequate security safeguards were not in place.
The only evidence produced as to what happened to the records is from the police officers who executed the warrants. Senior Constable Page said in relation to Warrant 1 that he received certified copies in the mail and delivered those documents to police prosecutions.[44] Sergeant Zanco, in relation to Warrants 2 and 3 says after seizing the records (he doesn’t say whether the records were copies or originals) he provided them to the police prosecutors.[45]
[44]Exhibit 4 [12].
[45]Ibid [5].
I accept that any original medical records that were seized should have been returned in accordance with s 688 following the completion of the criminal proceedings.
I also accept that any copies taken by QPS are not ‘relevant things’ for the purposes of the PPRA and therefore the safeguards in that Act do not apply to those documents.
The QPS say that even if documents were to be returned under s 688 they were required to keep copies of the medical records under the terms of the Public Records Act 2002 (Qld) (‘PRA’).
The PRA defines ‘record’ relevantly as:
recorded information created or received by an entity in the transaction of business or the conduct of affairs that provides evidence of the business or affairs and includes –
(a)anything on which there is writing
A ‘public record’ is defined as including a record received by a public authority in the exercise of its statutory, administrative or other public responsibilities or for a related purpose.[46]
[46]Public Records Act 2002 (Qld) s 6.
I accept that any copies of the medical records would be ‘public records’ and that in accordance with the PRA those records belong to QPS and they could not be disposed of otherwise in accordance with the Act.[47] Therefore, the fact that the records (copies) have been treated as official records would not in itself amount to a breach of PP4.
[47]PRA s 9, s 13.
In circumstances where the representative of QPS has submitted in writing to the Tribunal that the original records are not in the possession of QPS[48] and in the absence of any evidence to the contrary or to support any argument that the security of the documents that are in the possession of QPS is otherwise at risk I am not satisfied that QPS did not provide the level of protection to JL medical records that it could reasonably have been expected to have provided. The complaint that IPP4 has been breached is not made out.
The Use of Personal Information
[48]Respondents reply [51].
IPP10 – Limits on use of personal information provides relevantly
(1)An agency having control of a document containing personal information that was obtained for a particular purpose must not use the information for another purpose unless—
(a)the individual the subject of the personal information has expressly or impliedly agreed to the use of the information for the other purpose; or
(b)the agency is satisfied on reasonable grounds that use of the information for the other purpose is necessary to lessen or prevent a serious threat to the life, health, safety or welfare of an individual, or to public health, safety or welfare; or
(c)use of the information for the other purpose is authorised or required under a law; or
(d)the agency is satisfied on reasonable grounds that use of the information for the other purpose is necessary for 1 or more of the following by or for a law enforcement agency—
(i)the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of laws imposing penalties or sanctions;
(ii)the enforcement of laws relating to the confiscation of the proceeds of crime;
(iii)the protection of the public revenue;
(iv)the prevention, detection, investigation or remedying of seriously improper conduct;
(v)the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal; or
(e)the other purpose is directly related to the purpose for which the information was obtained …
(2)If the agency uses the personal information under subsection (1)(d), the agency must include with the document a note of the use.
JL says QPS have breached privacy principle 10 in making use of her medical records and Dr SA’s report for purposes other than the criminal proceedings, namely:
(i) For the purposes of disciplinary proceedings; and
(ii) For the purpose of considering or assessing her fitness for duty under s 8.3 of the PSAA.
Were the medical records obtained for a particular purpose but used for another purpose?
In its written submissions QPS conceded that the use of JL’ medical records in assessing her fitness and in the disciplinary proceedings amounted to a use of the records for a purpose other than that for which the personal information was originally collect.[49]
[49]Respondent’s submissions 6 January 2014 [71] and [73]; and Respondent’s submissions in reply [57].
QPS said however that the use for the other purposes was authorised by privacy principle 10.
QPS adopted a different position at the hearing.
Counsel for QPS referred the Tribunal to the case of ASIC v Rich[50] in which Austin J at [270] said:
Reason and common sense suggest that a single investigation of a set of facts for suspected criminal and civil contraventions will often be the most efficacious way of gathering information to determine whether offences have been committed, while also determining whether civil contraventions have been committed. Therefore it is consistent with the purposes of the search and seizure provisions, as defined in Hart's case at [65], to allow the seized materials to be used in such an investigation. The contrary view would entail splitting up the components of the investigation in a necessarily artificial way, at least in cases where (as here) there are civil and criminal provisions covering much the same subject area.
[50][2005] NSWSC 62.
QPS submitted that this approach should be applied when interpreting the privacy principles and in doing so the ‘purpose’ for which the medical records were collected was the investigation of the events that occurred on 5 March 2010. They say there was one investigation which had the criminal component and the misconduct component. The use of the records was therefore for only one purpose.
I do not accept that argument. The medical records were collected under the authority of the warrants the purpose of which was to obtain evidence in relation to the criminal offence of driving under the influence.
It may well be that the records were relevant to and useful in the disciplinary proceedings and assessing JL fitness for work but I am not convinced that those procedures can be included in the ‘purpose’ for which the documents were collected.
This does not mean that the common sense approach to the use of personal information obtained, as outlined in the ASIC case, cannot be applied in the enforcement of the privacy principles.
The exceptions to the prohibition against using the information for any purpose other than the original purpose for which it was obtained cater for that approach.
I find (as originally conceded by QPS) that QPS used the medical records for purposes other than the criminal proceeding being the purpose for which they were collected.
Do the secondary uses fall within the exceptions?
(1) The use of the records to assess JL’ fitness to work:
QPS say that this use was authorised under IPP10(1)(c) which provides that the personal information can be used for another purpose if the ‘use of the information for the other purpose is authorised or required under a law’.
QPS say the use was authorised under the following provisions of the PSAA:
· Under s 4.8(1) the police commissioner is ‘responsible for the efficient and proper administration, management and function of the police service in accordance with law’ including responsibility for termination of employment of members of the police force.[51]
· Section 4.8(3) authorises the commissioner to do or cause to be done, all such lawful acts and things as the commissioner considers to be necessary or convenient for the efficient and proper discharge of the prescribed authority.
· Section 8.3 authorises the commissioner to direct an officer to attend a medical examination when the commissioner suspects on reasonable grounds that the officer is, by reason of physical or mental incapacity, incapable of performing duties of office. The officers employment may be terminated depending on the results of the medical examination.[52]
[51]PSAA s 4.8(2)(a).
[52]PSAA s 8.3(3).
QPS say the Commissioner was authorised through a combination of these provisions to access JL medical records and Dr SA’s report for a ‘determination of a reasonable suspicion that JL may be incapable of performing her duties’.
QPS say the fact that JL was charged with driving under the influence put the Commissioner on notice that there may be grounds for considering she was unfit for duty (under s 8.3) and the medical records were used for the purpose of ‘a determination by the Commissioner’s delegate of a reasonable suspicion that JL may be incapable of performing her duties’.
I reject the submission that this is a use authorised by privacy principle 10(1)(c) for the following reasons:
· I consider any statutory authorisation or requirement to use personal information for a purpose other than that for which it was collected would need to be expressed in more specific terms then via the circuitous route suggested by the QPS. Section 4.8(3) is a general provision which in my view would not override the specific prohibition in privacy principle 10.
· As submitted by JL s 4.8(3) allows the Commission to do ‘all such lawful acts or things …’. The use of the information for a secondary purpose is specifically prohibited by privacy principle 10 and therefore not ‘lawful’.
I am not satisfied the Commissioner or his delegate was authorised by s 4.8(3) to make use of JL personal information in the medical records and Dr SA’s report to assess her fitness for duty.
The use of JL’ medical records for the purposes of the disciplinary action
QPS say that any use of JL medical records in the disciplinary action taken against her was not in breach of privacy principle 10 because such use was authorised under privacy principle 10(d) which provides that the information could be used for a secondary purpose if:
The agency is satisfied on reasonable grounds that the use of the information for the other purpose is necessary for one or more of the following by or for a law enforcement agency –
(i)the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of laws imposing penalties or sanctions;
…
(iv)the prevention, detection, investigation or remedying of seriously improper conduct.
QPS say that on 8 March 2010 a complaint was made and notified under the PSAA against JL regarding the drink driving incident. The complaint was assessed by the CMC as misconduct and was referred back to QPS for investigation. This investigation was halted to await the outcome of the criminal proceedings.
Following the close of the criminal proceedings the investigation continued. QPS submit that the investigation could have resulted in the imposition of a sanction against JL (10(d)(i)) and it was an investigation of seriously improper conduct (10(d)(iv)).
QPS submitted that access to the medical records was necessary because although JL successfully raised the defence of automatism in the criminal proceedings, the onus of proof is lower in disciplinary proceedings and the records were relevant for the purpose of determining for disciplinary purposes whether, on the balance of probabilities, JL consciously drove her vehicle whilst under the influence of an intoxicating substance.
JL submitted that QPS had failed to establish that there were reasonable grounds to be satisfied that the records were necessary for the misconduct investigation.
I accept JL’ argument put forward by her counsel at the hearing that in order to come within the exemption in 10(d) QPS had to establish that it was ‘satisfied on reasonable grounds that the use of the information for the other purpose was necessary for the investigation’.
It is not for the Tribunal to come to a view of whether the records were necessary (c.f 10(c) where the question is whether the information for the other purpose was authorised or required by law). It is for QPS to convince the Tribunal that they were satisfied that the use of the information was necessary and on what grounds it was so. It is then for the Tribunal to consider whether such grounds were reasonable.
QPS have provided no evidence that the appropriate person was satisfied and on what grounds.
It is not sufficient for submissions to be made that the medical records were necessary without any evidence in support of that submission. It is not a finding that should be inferred. It is for the QPS to establish that they fall within the exemption permitting the use of the personal information. They have failed to discharge that onus.
In those circumstances I find that QPS did breach privacy principle 10 in that they were in control of a document (medical records and Dr SA’s report) obtained for criminal proceedings and used that information for other purposes.
Consequential Orders
JL seeks the following consequential orders upon substantiation of her complaint:
· A finding that the conduct of QPS was an interference with her privacy and that QPS must not repeat the conduct.
· QPS deliver up to her all copies of the health documents that are in its possession or control and must not retain any copies of those documents (whether in electronic format or otherwise).
· QPS pay her $100,000 by way of compensation.
· QPS reimburse JL for all expenses reasonably incurred in the connection with the making of the complaint.
QCAT’s jurisdiction to make consequential orders is set out in s 178 of the IPA which empowers the Tribunal to make if appropriate an order in accordance with the following:
(i)that an act or practice of the respondent is an interference with the privacy of the complainant for the complaint and that the respondent must not repeat or continue the act or practice;
(ii)that the respondent must engage in a stated reasonable act or practice to compensate for loss or damage suffered by the complainant;
(iii)that the respondent must apologise to the complainant for the interference with the privacy of the complainant;
(iv)that the respondent must make stated amendments of documents it holds;
(v)that the complainant is entitled to a stated amount, of not more than $100,000, to compensate the complainant for loss or damage suffered by the complainant because of the act or practice complained of, including for any injury to the complainant’s feelings or humiliation suffered by the complainant.
QPS say that even if the complaint is substantiated no consequential orders should be made because:
(i) The medical records are ‘public records’ under the PRA and cannot be delivered up as requested.
(ii) JL has provided no evidence of any loss, damage or expenses incurred and as such no compensation or award for expenses should be made.
Findings on consequential orders
· IPA Section 178(1)
I find that the act of QPS in using JL medical records for the purpose of the disciplinary proceedings and assessing her fitness for duty were acts in interference with her privacy and that the action should not be repeated unless otherwise authorised by law.
· Return of records.
JL does not indicate which particular power in IPA s 178 could be relied on to make the order to return the medical records, but arguably it could be made under s 178(a)(ii).[53]
[53]Under IPA s 178(a)(ii) The Tribunal can order that the respondent must engage in a stated reasonable act or practice to compensate for loss or damage suffered by the complainant.
QPS say that copies of the documents obtained have been taken and in fact were required to be taken and cannot be given to JL because of the provisions of the PRA.
They submit that:
· Pursuant to s 7 of the PRA QPS were required to make and keep full and accurate records of its activities. Further that once copies of the medical records were made those records became public records pursuant to s 6 of the PPA.
· Section 9 of the PRA provides that if a public record is a record of the State or a State instrumentality, ownership of the record vests in the State.
· Once the public record is made, s 13 of the PRA prohibits the disposal of the record to JL. It provides:
A person must not dispose of a public record unless the record is disposed of under—
(a)an authority given by the archivist; or
(b)other legal authority, justification or excuse.
I am not satisfied that even if I could order the delivery up of all copies of her medical records to JL, it would be appropriate to do so because of the provisions of the PRA .
Accordingly in relation to the return of the records I order that in the event that QPS have any original records that they be returned to the persons from whom they were seized but I do not make any orders with respect to any copies of the records held by QPS.
Compensation
JL seeks an order that QPS pay her $100,000 by way of compensation. In the particulars for her claim she stated that she reserved the right to further particularise her claim for compensation and reimbursement of expenses if the privacy complaint was substantiated. Subsequently JL filed her affidavit after being directed to do so by the Tribunal.
In her affidavit,[54] she particularised her claim as:
· She was concerned that her private medical records were used for many different purposes.
· As a result of QPS’s conduct her relationship with her doctors had broken down and she had lost confidence in being able to make private disclosure to her doctors.
· The whole process had caused her a lot of distress, humiliation and embarrassment.
· It was a great worry to her that QPS claimed they were unable to return the records. She was concerned that they intended to use her records for some other purpose in the future.
· She wanted QPS to compensate her for the harm it had done, and for the expenses it which she had been put and would like a chance to calculate those expenses if QCAT accepted her privacy complaint.
[54]Exhibit 1 (Affidavit of JL dated 29 May 2014).
I refused JL’ request to elaborate on her loss in oral evidence. I found she had been given the opportunity to put in evidence to support the compensation and expenses claim and I had made no orders about splitting the claim into two separate hearings for substantiation and for compensation.
Counsel for JL submitted that there was in any event evidence on the record from JL that she has been hurt and humiliated by the actions of QPS in breaching the privacy principles and an award of ‘general damages’ should be made to compensate her.
QCAT has power to order JL be paid an amount of money to compensate her for loss or damage suffered as a result of the breach of privacy principle 10 in using her medical records and Dr SA’s report in disciplinary proceedings and in the fitness for work investigation.[55]
[55]IPA s 178(a)(v).
This compensation could include compensation for injury to her feelings or humiliation suffered.[56]
[56]Ibid.
JL has provided no evidence of economic loss. She did not lose her job with QPS as a consequence of the disciplinary or fitness investigations. Any compensation must therefore be for injury to her feelings and humiliation suffered. Her evidence does not particularise the cause or the details of her humiliation and embarrassment other than to say that because of QPS’s conduct her relationship with her doctors has broken down.
Counsel for JL has referred the Tribunal to authorities where awards of general damages for non-economic loss in breach of privacy cases have been made.[57]
[57]Rummery v Federal Privacy Commissioner and Anor [2004] AATA 1221; C v Commonwealth Agency [2005] PrivCmrA 3; ‘BO’ and AeroCare Pty Ltd [2014] ALCmr 32; I v Major Wholesalers [2003] PrivCmrA 7.
The decision of Rummery v Federal Privacy Commissioner and Anor[58] is one in which useful observations are made by the Administrative Appeals Tribunal (AAT) as to the principles to be applied in making an award of damages for noneconomic loss caused by a breach of privacy principles.
[58][2004] AATA 1221.
In that case the AAT referred to the Federal Court decision of Hall v ANA Sheiban Pty Ltd[59] which dealt with an assessment of compensation under the Sex Discriminations Act 1984 (Cth). The AAT was of the view that the same principles were applicable to the compensation awards under the privacy legislation namely:
a) Where a complaint is substantiated and a loss or damage is suffered, the legislation contemplates some form of redress in the ordinary course;
b) Awards should be restrained but not minimal;
c) In measuring compensation the principles of damages applied in tort law will assist, although the ultimately guide is the words of the statute;
d) In an appropriate case, aggravated damages may be awarded;
e) Compensation should be assessed having regard to the complainants reaction and not to the perceived reaction of the majority of the community or of a reasonable person in similar circumstances.
[59](1989) 20 FCR 217.
I agree that those principles are applicable in any assessment of compensation under s 178. I am not satisfied on the evidence in this case however that an award of general damages is warranted.
I have found that the collection and storage by QPS of JL medical records did not breach the privacy principles. The breach was in relation to the use of the records for secondary purposes.
I am not surprised that JL has found the disciplinary proceedings and the fitness for work investigation distressing and humiliating. I am not satisfied on the evidence however that the cause was the use of the medical records and Dr SA’s report in these other proceedings.
The disciplinary proceedings involved a number of complaints and the drink driving incident was not found to be substantiated. The process would have occurred with or without access to her medical records.
The assessment of her fitness for work would apparently also have proceeded without access to her medical records or the report of Dr SA. The letter from Assistant Commissioner Pointing to JL’s lawyers providing information as to what records were relied on in informing the suspicion[60] provides that:
With reference to the medical documentation being relied upon, I can confirm that my suspicion has been formed in part by the reports including those from Dr Moses and Professor Menkies as assumed by you in the above mentioned letter.
I can also advise that the statement from Dr SA, forensic medical officer tendered to the Magistrates Court at Southport has been considered when forming the requisite suspicion.
[60]Exhibit 1 (Affidavit of JL dated 29 May 2014) LJ22.
The suspicion therefore that gave rise to the fitness for purpose investigation may well have been enlivened without reference to the medical records and Dr SA’s report as complained about by JL. The suspicion was formed on the basis of documents obtained by JL namely the reports of Dr Moses and Dr Menkies.
I am not satisfied that her distress in not being able to confide in doctors is caused by the secondary use of the records. In the absence of any detailed evidence from JL I would infer that this distress resulted from the records being handed over by her doctors in the first place.
In summary, I am not satisfied on the evidence available that any hurt or humiliation suffered by JL is readily attributable to the complaint substantiated. It is not appropriate therefore to order any monetary compensation. JL has provided no evidence or particulars of expenses incurred and as such I do not make any orders in that regard.
I make the following orders:
1. The complaint that Queensland Police Service breached Privacy Principles 1, 3 and 4 is not substantiated and is dismissed.
2. The complaint that Queensland Police Service breached Privacy Principle 10 is substantiated.
3. In the event Queensland Police Service have any original medical records of JL in its possession they must return them to the place from which they were seized pursuant to the warrants of execution.
4. The use of JL medical records and Dr SA’s report in disciplinary proceedings and assessment for fitness for duty was an interference with JL privacy and Queensland Police Service should not repeat that act unless the use is otherwise authorised by law
5. The Tribunal prohibits the publication of any information that may enable JL to be identified.
6. The miscellaneous application filed by JL to delay the decision is dismissed.
7. The miscellaneous application filed by JL to adduce fresh evidence is dismissed.
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