JS v Snowy River Shire Council

[2010] NSWADT 247

CITATION:	JS v Snowy River Shire Council [2010] NSWADT 247
DIVISION:	General Division
PARTIES:	APPLICANT JS RESPONDENT Snowy River Shire Council
FILE NUMBER:	093225
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	19 July 2010
DATE OF DECISION:	20 October 2010
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Privacy - information protection principle - disclosure to third party
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998
CASES CITED:	JD v NSW Medical Board (No.2) [2006] NSWADT 345 NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61 RD v Department of Education and Training [2005] NSWADT 195
REPRESENTATION:	APPLICANT In person RESPONDENT A Bradbury, solicitor
ORDERS:	In accordance with section 55(2) of the Privacy and Personal Information Protection Act 1998 the Tribunal determines to take no further action on the matter.

REASONS FOR DECISION

1 In these reasons the names of all private individuals have been anonymised so as to preserve the privacy of their personal affairs. The applicant is referred to as JS. I have also limited my discussion of the evidence in order to avoid the possibility that the identities of individuals might be revealed.

2 JS has identified complaints under the Privacy and Personal Information Act 1998 (“the Privacy Act”) and has sought review of certain conduct by employees of the Snowy River Shire Council (“the Council”). She complains that a copy of a Deed of Release between herself, another individual and the Council was provided to a third party in breach of the Privacy Act. The Deed of Release was wrongly produced to the Cooma Local Court in purported response to a subpoena.

3 JS asserted that the Deed of Release was a confidential document and was not to be disclosed to any person without the written consent of each of the parties. She did not give her consent for the document to be released to any other party.

4 The alleged breach is said to have occurred on 19 April 2007. JS stated that she first became aware of the Council's alleged conduct on 7 October 2008. She sought an internal review by an application dated 20 January 2009.

5 The internal review concluded that the provision of the Deed of Release to the Court was in breach of section 18 of the Privacy Act. However, it found that the nature of the breach is one that can quite properly be described as a technical breach which has not resulted in any financial loss or psychological or physical harm to JS.

6 The Council decided that the following action should be taken in relation to JS’s application:

1. A direction was to be given to relevant Council staff to remind them of the precautions that should be taken in the circumstances in which the Deed of Release was disclosed.
2. A formal apology should be extended to JS for the disclosure of the Deed of Release.
3. Otherwise no further action was to be taken in relation to the application.

7 JS was dissatisfied with the outcome of the review and she applied to the Tribunal for external review of the conduct that was the subject of the application. JS asserts that she has suffered financial loss as a result of the breach.

8 The parties agreed for the matter to be determined on the papers without the need for hearing.

9 I am satisfied on the basis of the material before me that the Council disclosed a copy of the Deed of Release in breach of section 18 of the Privacy Act.

Applicable legislation

10 Section 55 of the Privacy Act and section 37 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) give the Tribunal jurisdiction to review the conduct that is the subject matter of the complaints.

11 Section 63 of the ADT Act provides:

63 Determination of review by Tribunal
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

12 Section 18 of the Privacy Act provides:

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.

13 Section 55 of the Privacy Act provides:

55 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 Tribunal for a review 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,
…
(4) The Tribunal may make an order under subsection (2)(a) only if:
(a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and
(b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.

JS’s case.

14 JS relies on her own evidence and a psychological report (“the White Report”) dated 19 April 2010 prepared for the purposes of these proceedings by Ross White, Psychologist.

15 JS believes that the Deed of Release was intentionally released by the Council to cause mischief, harm and character assassination to her husband and herself. She has claimed the sum of $3,290.20 which she asserts is the financial loss she has incurred because of the conduct of the Council. She has particularised her claim as follows:

Consultation with Ross White and cost of the White Report $465.00
Travel expenses to attend treatment $138.60
Future treatment costs $1,800.00.
Future travel expenses to attend treatment $831.60:
Application fee paid to the Tribunal $55.00.
Total amount claimed $3,290.20.

The White Report

16 JS relies on the White Report as support for her claim that she has suffered financial loss and psychological ham as a result of the release of the disclosure of the Deed of Release. The contents of the report are significant to the outcome of this matter and it is set out in full below with the exception that details that might identify JS have been deleted. The White Report states:

Not for publication

17 JS has not provided any other evidence in support of her assertion that the disclosure of a copy of the Deed of Release in breach of section 18 of the Privacy Act caused her harm. JS has not provided any evidence to support her assertion that the Council had intentionally disclosed the Deed of Release in order to cause her harm.

The Council’s case.

18 The Council relies on the statements by:

(a) Ms Wendy Nixon, employee of the Council; and
(b) Mr Brian Donnelly, the Registrar of the Cooma Local Court.

19 These statements give evidence as to the circumstances in which the Deed of Release was disclosed. As far as Mr Donnelly is aware, the only person who actually inspected the Deed of Release was JS’s husband and an officer of the Cooma Local Court. Ms Nixon’s evidence is that the Local Court Magistrate rejected her application that access to the document to be restricted.

20 Mr Bradbury also provided detailed written submissions in support of the Council’s case. In essence, he asserts that JS has not suffered any financial or psychological harm as the result of the disclosure.

21 He concedes that the White Report concludes that JS is "suffering from acute anxiety, depression and phobias” and lists a number of factors that have contributed to this diagnosis. However, he submits that none of the factors relates to the breach that is the subject of the application before the Tribunal.

22 The Council accepts that there has been a breach of the Privacy Act but says that the breach was of a technical nature and that JS did not and could not reasonably have suffered financial or psychological harm as the result of the breach.

23 The Council submits that there is no evidence that any person other than JS’s husband and Mr Donnelly had seen the Deed of Release as a result of the disclosure and that the issues of concern to JS could not have arisen from the disclosure of the limited personal information contained in the document.

24 The Council submits that the following matters indicate that JS has not suffered any financial or psychologica1 harm as the result of the disclosure of the Deed of Release:

(a) Nowhere in his report does Mr White attribute JS’s 'acute anxiety, depression and phobias' to the disclosure of the Deed of Release. It is clear from the White report that JS's condition is the result of her relationship with her neighbours - not from the Council's disclosure of the Deed of Release.
(b) There is no evidence that JS has received any medical treatment for her alleged psychological condition other than for the purpose of obtaining evidence (in the form of a report from Mr White) to support her current application to the Tribunal.
(c) As already noted, the Deed of Release in fact disclosed little personal information.
(d) Having regard to the content of the Deed of Release and that the only evidence of disclosure is that to an officer of the Local Court who himself had obligations of confidentiality, no person could reasonably have suffered any harm, whether financial or psychological, as the result of what was a purely technical breach of the Privacy Act.

25 In the circumstances, the Council submits that the appropriate order is that the Tribunal should take no further action on the matter.

Discussion.

26 Section 55(4)(b) of the Privacy Act provides that the Tribunal may make an order requiring that the Council pay JS damages only if the Tribunal is satisfied that she has suffered financial loss, or psychological or physical harm, because of the conduct of the Council.

27 In the case of JD v NSW Medical Board (No.2) [2006] NSWADT 345 I considered a number of authorities and concluded at paragraphs [53] – [54]

53 The authorities suggest that the use of the expression ‘psychological harm’ in section 55(4) of the Privacy Act is intended to encompass a situation where an individual suffers some impairment of their mental states and processes. In this matter, JD has suffered from depression and anxiety. In my view, depression and anxiety fall within the scope of the expression.

54 It is therefore necessary to determine whether JD has suffered that ‘psychological harm’ because of the Board’s conduct and if so whether an award of damages is warranted. It is also necessary to determine whether JD has suffered financial loss because of the Board’s conduct and if so whether an award of damages is warranted for that loss.

28 In the case of RD v Department of Education and Training [2005] NSWADT 195 the Tribunal's President considered that an applicant who had become very anxious and depressed had suffered 'psychological harm".

29 The award of statutory damages in Privacy Act matters remains a discretionary one even where a causal link sufficient to satisfy section 55(4) has been established: NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61 at paragraphs [23].

30 The evidence before me in this matter strongly suggests that JS has suffered some impairment of her mental states and processes in that she has become very anxious and depressed. However, in my view it is improbable that her anxiety and depression is because of the conduct of the Council. I am therefore not satisfied that she has established that the requirements of section 55(4)(b) of the Privacy Act have been met.

31 If I am wrong on that point, I would nevertheless decline to exercise my discretion in her favour. In my view, the appropriate outcome is that which was proposed by the internal review determination. It is my understanding that the steps that were proposed have been carried out. No further action is warranted and I therefore determine to take no further action on the matter.

Order
In accordance with section 55(2) of the Privacy and Personal Information Protection Act 1998 the Tribunal determines to take no further action on the matter.