KT v Sydney Local Health Network
[2011] NSWADT 171
•15 July 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: KT v Sydney Local Health Network [2011] NSWADT 171 Hearing dates: 20 April 2011 and 10 June 2011 Decision date: 15 July 2011 Jurisdiction: General Division Before: P H Molony, Judicial Member Decision: 1. The Tribunal determines not to take any action with respect to the matter.
2. Any application for costs, with supporting submissions, is be filed and served within 14 days of the publication of these reasons.
3. A any submissions in reply to be filed and served within a further 14 days.
4. Issue of costs then to be determined on the papers.
Catchwords: Personal Information and Privacy Protection - internal review - information as to suitability for employment as a public sector official - non-compliance reasonably contemplated Legislation Cited: Administrative Decisions Tribunal Act 1997
Privacy and Personal Information Protection Act 1998
Freedom of Information Act 1989
Government Information (Public Access) (Consequential Amendments and Repeal) Act 2009Cases Cited: British American Tobacco Australia Services Limited v Laurie [2011] HCA 2
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Department of Education & Training v PN [2009] NSWADTAP 66
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
GL v Department of Education & Training [2003] NSWADT 166
Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70
McGovern v Ku-ring-gai Council [2008] NSWCA
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507;
Murlan Consulting v Ku-ring-gai Municipal Council [2009] NSWCA 300
PN v Department of Education and Training (GD) [2010] NSWADTAP 59
Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342
Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78Category: Interlocutory applications Parties: KT (Applicant)
Sydney Local Health Network (Respondent)Representation: Counsel:
A Britt (Respondent)
KT (Applicant in person)
B Woolley, Legal Officer (Respondent)
File Number(s): 103229
REasons for decision
Introduction
On 16 July 2010 KT wrote to the Privacy Officer of the Sydney Local Health Network (the agency) seeking a review of conduct under the Privacy and Personal Information Protection Act 1998 (the PPIPA). The conduct he complained of was that -
Jackie Mills of Human resources, used and disclosed the following to Sicorp and Crown Solicitors:
1. Letter issued by Executive Director to me on 29/3/10 for a barring order.
2. Letter issued by Executive Director to me on 25/11/2008 for a barring order.
3. Letter issued by Executive Director to me on 13/11/2008.
4. Security incident Report issued 16/1/2009.
5. Letter issued by Di Peers on 9/2/2007.
6. The above information contains my personal information as per the definition of personal information.
7. RPAH did not alternate my personal information as per my request. I had previously requested them to altered my address and I found above letter 4.1 was sent to my previous address.
8. RPAH did not check the accuracy of personal information before use. (They used the old address although I informed them of changing this address).
On 24 September 2010 the internal review of conduct was completed. It dealt with the review on the basis that KT's request had raised three separate areas of conduct for consideration.
First, was the agency's conduct in using and then disclosing the documents number 1 to 5 in his request to SICorp and the Crown Solicitors Office (acting for SICorp). The disclosure was in the form of an affidavit sworn by Ms Mills and filed in proceedings brought in this Tribunal, under the Freedom of Information Act 1989 (FOI Act), by KT against SiCorp. The affidavit supported a claim for exemption made by SICorp (the agency's workers compensation scheme agent), relating to certain documents held by it, and sought by KT. The documents sought by KT were said to contain confidential material of the agency (exempt under Clause 13 of Sch 1 of the FOI Act), information affecting the operation of the agency (exempt under Clause 15 of Sch 1 of the FOI Act), and information containing the personal affairs of the agency's employees (exempt under Clause 6 of Sch 1 of the FOI Act).
The internal review found that the filing of that affidavit was concerned with this Tribunal's exercise of its judicial functions under the FOI Act, and that, as a result, the PIPP Act did not apply. This was so as s 6 provides that nothing in the PPIPA affects the manner in which a tribunal exercises its judicial functions.
Next the internal review found that, in the circumstances, the agency was exempted from compliance with the use and disclosure principles in sections 17 and 18 of the PIPP Act by virtue of s 25. That section provides-
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 ).
The review found that the documents were disclosed in lawful compliance with the FOI Act, which provides for third party consultations.
Finally, the internal review found that, in the circumstances, the agency was exempted from complying with the use and disclosure principles in sections 17 and 18 of the PIPP Act by clause 5 of the Privacy Code of Practice (Government Gazette No 81, 30 June 2000). This was made by the then Attorney General under s 31 of the PIPP Act on 28 June 2000. Privacy Codes of Practice may modify the application of the information protection principles in the Act to any agency: s 30. Clause 5 provides that -
A health public sector agency is not required to comply with sections 17, 18 or 19 if the information is provided to a person or used for the purposes of:
(a) complying with any risk management scheme operated by the agency; or
(b) obtaining legal advise or representation.
The internal review also considered that the provision of the affidavit with annexures by Ms Mills was undertaken by the agency "acting in compliance with its risk management scheme in the protection of its staff. Release of the documents sought from SiCorp by KT would pose "a real risk to the safety of RPAH employees" and breach the understanding of confidentiality under which it was provided to SiCorp.
The second and third areas of conduct identified by the internal review were those specified in points 7 and 8 of KT's internal review request. These concerned the agency's failure to alter his personal address (and sending a letter of 23 January 2010 to the wrong address) and its failure to check his address before using it. The internal review found that these allegations had been previously dealt with in an internal review dated 23 April 2010, and that KT had not exercised his right to seek an external review of that decision. The reviewer declined to review those allegations again.
KT then sought external review by an application filed with the Tribunal on 15 September 2011. The review hearing took place over two days on 20 April 2011 and 10 June 2011, following which I reserved my decision.
Before the hearing commenced the Tribunal heard and determined KT's application for review of SICorp's decision under the FOI Act. SICorp's claims for exemption under the FOI Act were substantially upheld.
Material before the Tribunal
In this case KT relied on the following evidence -
- His affidavit of 8 November 2010 with annexures. Paragraphs 36 to 74 inclusive, and paragraphs 77, 78 and 84 were struck out as irrelevant on the application of the agency.
- His statement of 17 December 2010 with annexures. Paragraphs 21, 22, and 23 of this statement were struck out as irrelevant on the application of the agency, as were the word "and 22" in paragraph 20.
- Letter from TMF to KT dated 11 November 2010. together with his reply dated 15 November 2010, and a photocopy of an enveloped from TMF addressed to him at the wring address.
The agency relied on the following evidence -
- The affidavit of Ms Mills filed in these proceedings dated 29 November 2010 with annexures.
- An interlocutory decision of the Government and Related Employees Tribunal dated 22 June 2009 striking out two appeals made by KT on PSD/688/08 and PSD/689/08 for want of jurisdiction.
- A bundle of documents consisting of KT's initial request for review under the PIPP Act dated 16 July 2010, the internal review decision dated 24 September 2010, an internal review decision dated 24 June 2010 with attachments, and the agency's Risk Management Program (SSW_PD2009_041).
In addition both parties made written submissions to which I have had regard.
Other Matters
The hearing of this review application took one and half days. It is a matter that would ordinarily have been completed in half a day. The proceeding was protracted by KT's persistent attempts to introduce, rely on, and cross-examine about matters, which fell outside the scope of the review.
The Tribunal's function on a review under s 55 of the PIPP Act is a "review of the conduct that was the subject of the application under section 53" i.e. the conduct which was the subject of the internal review application. The Tribunal's function is not to conduct a judicial review of the internal review decision, or to investigate and determine allegations of "fraudulent misrepresentation of the law" allegedly contained in the internal review. Similarly, it is not a forum for employment and associated industrial issues between the parties (which have been determined elsewhere) to be aired and rehashed.
These limits on the scope of the Tribunal's review of conduct under the PIPP Act are matters about which KT is well aware, having been advised of them in a number of cases, as well as in this case.
Despite this KT sought to lead a substantial body of evidence going to issues outside the scope of the review: much of which was struck out on the application of the agency. Throughout the hearing KT persistently sought to cross-examine on matters which I had ruled irrelevant. His refusal to comply with my rulings as to relevance substantially lengthened the hearing.
On the commencement of the second day of hearing Mr Britt, counsel for the agency, advised that the agency would not be relying on the affidavit of Charlotte Roberts, who had conducted the internal review, filed with the Tribunal. He sought to tender the request for internal review, the decision on internal review, and the internal review dated 24 June 2010 (which were annexed to her affidavit) as business records of the agency, and as relevant material to which the Tribunal should have regard. While the rules of evidence do not apply in the Tribunal (see s 73(2) Administrative Decisions Tribunal Act 1997 (the ADT Act), I saw no difficulty with proposed tender. There was no dispute as to the nature and contents of the documents, nor of their relevance.
I explained to KT that this meant that the agency did not intend to call Ms Roberts, but was seeking to tender the documents.
KT said that he was relying on another document attached to Ms Robert's affidavit (the Risk Management Program) as proof that the agency "fraudulently misrepresented the law." There then ensued some discussion following which the agency agreed to the tender of that documents as well. I admitted all four documents as a bundle. The agency then closed its case.
KT then sought to cross-examine Ms Roberts saying that he was relying on such cross-examination to "extract" relevant information from her. He claimed that not being allowed to do so was an injustice.
I pointed out to KT that I had explained to him that the agency was not seeking to rely on Ms Robert's affidavit and that it was for the agency to determine whom it called in its case. In any case, I note that Ms Roberts could give evidence concerning the conduct of the internal review, not the conduct that the Tribunal was reviewing.
KT then asked that I disqualify myself on the ground of bias. Not only did he allege bias as a result the agency not relying on Ms Robert's affidavit, but he also relied on decisions I had made in the past as demonstrating bias on my part. He went further and suggested that I had pre-determined the matter in collusion with the agency and the Office of Privacy Commissioner and the Tribunal's Registrar. When I challenged him on this, he reverted to a complaint that I "always accept" the view advanced by the agency.
Mr Britt for the agency opposed the request that I recuse myself, arguing that KT's application was a churlish response to what had just occurred. He submitted that there was no reasonable basis for an apprehension of bias.
I refused to disqualify myself on the ground of apprehended bias. The test as to whether there is a reasonable apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of the power being exercised: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507; Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342. The test requires two steps: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [8];
"First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits."
See also Murlan Consulting v Ku-ring-gai Municipal Council [2009] NSWCA 300 at [43].
In McGovern v Ku-ring-gai Council [2008] NSWCA 209 Spigelman CJ (with whom Campbell JA agreed) said:
"14 Although the Australian test for apprehended bias, as expressed in terms of two "mights", sets a low threshold, with respect to a pre-judgment case the identification of what constitutes a lack of 'impartiality' or of 'prejudice' in the mind of the decision-maker involves an issue of some specificity.
15 The test for pre-judgment in Australian law is, in my opinion, to the same effect as that identified by the Supreme Court of Canada in Old St Boniface RKTdents Association v Winnipeg (City) [1990] 3 SCR 1170 where, in the terminology of the majority judgment: the decision-maker must be "capable of being persuaded" (at 1197c); pre-judgment is of such an "extent" that contrary representations "would be futile" (at 1197d-e); statements said to constitute pre-judgment must be an "expression of final opinion ... which cannot be dislodged" (at 1197f); the position of the person must be "incapable of change" (at 1197g). The "incapable of persuasion" test was applied again in Save Richmond Farmland Society v Richmond [1990] 3 SCR 1213 at 1224g.
16 A similar approach has been adopted in Australia on pre-judgment issues in Jia Legeng where, in the joint judgment of Gleeson CJ and Gummow J, their Honours referred to a test of whether the decision-maker "is open to persuasion" (at [71] and [105]), or whether the "conclusion already formed [is] incapable of alteration, whatever evidence or arguments may be presented" (at [72]).
17 To similar effect are the observations of Hayne J, namely, that a decision-maker will apply his or her opinion "without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case" (at [185]). His Honour went on to refer to the test terms of whether "the evidence will be disregarded" (at [186])."
I did not accept that a fair-minded lay observer might reasonably apprehend that because the agency chose not to call Ms Roberts and not to rely on her affidavit, with the result that KT was unable to proceed with his contemplated cross-examination of her, that I might not bring an impartial mind to the matters requiring decision in this case. In my view, KT's recusal application arose as a result of the matter not proceeding as he had hoped, and his dissatisfaction with what had occurred.
More generally, KT alleged that previous decisions I had made demonstrated that I was biased against him. He did not refer to any specific decision I had made, but relied on a body of work associated with him to justify his submission.
It has been my lot, as a consequence of listing practices within the Tribunal, to sit on a number of cases brought by KT in which he has generally been unsuccessful. KT has appealed a number of those decisions. In Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39 Mason J said -
"It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party."
See also Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 86 per Brennan, Gaudron and McHugh JJ; [1991] HCA 3; and British American Tobacco Australia Services Limited v Laurie
[2011] HCA 2 per French CJ at [1] and per Gummow J at [71].
KT did not articulate how the previous decisions I have made demonstrated that I might not bring an impartial and independent mind to the determination of his present claim. The issue of whether or not the agency's conduct, as outlined in his internal review request, has breached any of the information protecting principles is not a matter I have considered before. The fact that I have heard other cases brought by KT, against the agency and others, and determined them adversely, as he perceives it, does not demonstrate that I am unable to bring an impartial and independent mind to the determination of his present claim. I have no doubt that KT would prefer it if some other judicial member of the Tribunal were to hear this application; but neither he, nor I, nor the agency, have control of the Tribunal's listing.
KT also alleged that, in collusion with the agency and the Privacy Commissioner and the Registrar, I had pre-determined his application. Other than assertions, he produced no evidence to support this contention. I pointed out to KT that his allegation was scandalous. I reject it. Such a scandalous and unsubstantiated allegation would not cause an informed lay observer to consider that I might not bring an impartial and independent mind to the determination of his present claim.
Mr Britt then applied for KT's comments about the Tribunal to be referred to the Supreme Court, when the review proceedings are completed, to be dealt with as a contempt of the Tribunal in accordance with s 131 of the Administrative Decisions Tribunal Act 1997 . KT said he welcomed such a referral. I will consider that issue once the proceedings are completed and these reasons published.
Consideration
The conduct in points 1 to 6 of the internal review request
SICorp acted as the agency's workers compensation scheme agent. KT had made a number of workers compensation claim against the agency. He later made a request under the FOI Act of SICorp for documents relating to those claims. Included among the documents responsive to his claim were certain documents provided to SICorp and its agents by the agency.
Ms Mill's gave evidence that when KT made his access application to SICorp, the agency was consulted as a third party in respect of his request. SICorp then claimed exemptions with respect to certain documents. When KT sought to review SICorp's decision under the FOI Act the agency was asked to provide an affidavit to support the claims of exemption, which Ms Mills did. The five documents that are the subject of KT's present complaint were annexed to her affidavit. They were:
- A. A letter to KT written by Di Peers, the Director, Corporate Services dated 9 February 2007 concerning the results of investigations of bullying and harassment in the workplace made against KT, when he was employed by the agency, by four separate staff members. The investigations found four of the five allegations substantiated. The letter advised of a decision to issue him with a formal first warning, unless he showed cause to the contrary.
- B. A baring order dated 13 November 2008 prohibiting KT from entering onto the premises of RPAH for 12 months as his "level of aggression shown towards Jackie Mills the manager of Human Resources" on 13 November 200 was unacceptable behaviour.
- C. A further baring order dated 23 November 2008 prohibiting KT from entering onto the premises of RPAH for 12 months on the same ground.
- D. A security incident report dated 26 January 2009 concerning KT being asked to leave the premises of RPAH in compliance with his barring order.
- E. A further baring order dated 29 March 2010 prohibiting KT from entering onto the premises of RPAH until 28 March 2011 on the ground that -
Since that Baring Notice was issued you there have been incidents where your behaviour towards staff of the Hospital and the Area health Service has continued to be inappropriate.
No compulsory process was used or threatened to obtain Ms Mill's, or the agency's, co-operation in the process of resisting KT's application under the FOI Act.
Do the documents contain personal information?
KT alleges that these documents contained his personal information within the meaning of the PIPP Act and that they were used by the agency and disclosed to SICorp and the Crown Solicitors Office in breach of s 17 and 18 of the Act.
I accept that each of the documents contain information and opinion concerning KT. They therefore contain personal information within the meaning of the definition in s 4(1) of the PIPP Act.
Is the information in document A exempt from the definition of personal information?
There is an issue as to whether or not the letter from Di Peers is exempt from the definition of personal information, on the basis that it contains information or an opinion about KT's employment as a public sector official: see s 4(3)(j).
The letter reports on investigations into allegations of bad conduct by KT, as an employee of a public sector agency (see (f)(i) in the definition of public sector official in s 4). It records a decision to give him a formal, first warning letter in the course of that employment. As such the letter contains information, or an opinion, about KT's employment as a public sector official, and is not personal information to which the PIPP Act applies. That information and opinion was created as part of a disciplinary process conducted by the agency with respect to KT in his role as an employee of the agency. It clearly went to his suitability for employment by the agency: GL v Department of Education & Training [2003] NSWADT 166 and Department of Education & Training v PN [2009] NSWADTAP 66. As a consequence the use and disclosure of the letter from Di Peers to SICorp, and to the Crown Solicitors Office, could not breach the IPP in s 18.
The non-disclosure principle and exemptions
Section 18 provides -
(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.
The PIPP Act, however, contains provisions that exempt agencies from compliance with some of the IPPs. One such provision is s 25 which provides -
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 Rec o rds Act 1998 ).
Additionally, since 1 July 2010, when the Government Information (Public Access) Act 2009 commenced, s 5 of the PIPP Act has provided -
(1) Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009 .
(2) In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency.
Before then, when the Freedom of Information Act 1989 applied, it provided -
(1) Nothing in this Act affects the operation of the Freedom of Information Act 1989 .
(2) In particular, this Act does not operate:
(a) to modify any exemption under the Freedom of Information Act 1989 , or
(b) to lessen any obligations under that Act in respect of a public sector agency.
The amendment was made by the Government Information (Public Access) (Consequential Amendments and Repeal) Act 2009 : Sch 2, 2.34, [2] and [3].
Clause 3 of Part 2 of Sch 3 of the GIPA Act contains transitional provisions. It provides -
(1) The FOI Act continues to apply (as if it had not been repealed) to and in respect of:
(a) an application under that Act for access to an agency's documents or a Minister's documents that was made or determined before the repeal of that Act, and
(b) any determination made in respect of any such application (whether made before or after the repeal of that Act).
(2) A provision of an Act amended by the Government Information (Public Access) (Consequential Amendments and Repeal ) Act 2009 has effect in relation to an application under the FOI Act referred to in subclause (1) as if the provision had not been amended by that Act.
The effect of those transitional provisions is, first, that KT's application under the FOI Act continued to be heard under that Act (despite its repeal) and, secondly, that, in considering the present review of conduct under the PIPP Act, s 5 of the PIPP Act in its form before amendment by the Government Information (Public Access) (Consequential Amendments and Repeal) Act 2009 applies.
Did s 25 apply to exempt the agency from complying with s 18 in the circumstances?
In PN v Department of Education and Training (GD) [2010] NSWADTAP 59 the Appeal Panel considered whether the disclosure of PN's personal information to the employers workers compensation insurer was 'lawfully authorised' (s 25(a)), or at least 'reasonably contemplated' (s 25(b)) by the workers compensation legislation. The Appeal Panel said -
54..., we do not think that the task required of the Tribunal in deciding whether or not s 25 is applicable requires it to go so far as to make a microscopic comparison of an alternative law to which an agency refers in justification. Section 25 is expressed in broad language. It is enough that 'non-compliance is reasonably contemplated' by the other law.
55 The Tribunal is called upon, as we see it, to consider the subject matter of the alternative law and ask itself, first, is this the kind of subject matter with which a relevant IPP is concerned in the circumstances of the case before it.
56 Necessarily, the workers compensation regime involves the management of personal information. Moreover, the workers compensation regime has detailed provisions allowing movements of information between a number of parties who have a business role in the management of workers' injuries and the determination of claims.
57 In our view, it is enough for s 25(b) to apply that the transactions in issue (here, one instance of indirect collection and otherwise disclosures) are of a type that is contemplated by the regime; and that they are genuinely undertaken for the purpose of the scheme. Whether something is 'reasonably contemplated' is a factual determination for the trial tribunal to make, only vulnerable to appeal as an error of law on narrow grounds, such as no evidentiary basis for the finding or because the finding is one no rational tribunal could make. This is clearly not a case of that kind.
58 If the Department has breached the guidelines or the statutory provisions in the way it carried out its obligations under the workers compensation regime, as PN's submissions suggest, those are matters to be dealt with through the complaints mechanisms that the workers compensation regime has. The breaches are not open to be litigated within the framework of the privacy legislation.
59 The Tribunal's task is simply to make a broad judgement as to whether s 25 applies. The protection given to an agency by s 25 is not lost simply because the agency has failed to comply, in some aspect of the detail, with a requirement of the other law.
60 If the strict view pressed by PN were to be adopted, privacy cases raising s 25 would give rise to a detailed collateral inquiry into whether the agency had strictly complied with the alternative regime. We do not think that the words of s 25 support such a conclusion, and engagement by the Tribunal in a collateral inquiry would defeat the evident purpose of s 25.
The FOI Act established a legislative regime whereby persons could seek access to government information held by agencies. Before information was released, it required that third parties whose personal affairs (s 31), business affairs (s 32) and research (s 33) might be disclosed, be consulted. It provided for third parties to seek external review if a decision was made to release such information over their objections. The FOI Act also provided for exemptions to be claimed, inter alia , on the basis that the information related to the personal affairs of persons (cl 6 of Sch 1), was obtained in confidence (cl 13 of Sch 1), or the release of which could be reasonably expected to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel (cl 16(a)(iii) of Sch 1).
In my opinion the provision by agency of Ms Mill's affidavit to SICorp and the Crown Solicitors Office (acting for SICorp), with attachments containing KT's personal information, to support claims of exemption for documents provided to SICorp by the agency, and the FOI Act, reasonably contemplated the resultant disclosure of KT's personal information. While SiCorp held the documents, it had received them from the agency in its role as scheme manager. The staff whose personal affairs would be disclosed, if KT's FOI application successful, were the staff of the agency. It was the agency whose operations might be detrimentally affected by release under the FOI Act. It was the agency that said it had obtained information in confidence, In those circumstances, in order to resist KT's FOI application, evidence going to those matters had to be provided by the agency. The FOI Act reasonably contemplated the release of KT's personal information going to those issues.
As a result, in those circumstances, the agency was exempted from compliance with IPP 18. I am reinforced in this conclusion by the provisions of s 5(1) of the PIPP Act which, for the purpose of this proceeding, provided that -
Nothing in this Act affects the operation of the Freedom of Information Act 1989 .
It follows that there was no breach of the disclosure principle in s 18 by the agency providing all that attachments to Ms Mill's affidavit to SICorp and the Crown Solicitors Office.
Was the use principle in HPP 17 breached?
KT also alleges that by using five documents attached to Ms Mill's affidavit the agency breached the use principle in s 17. This provides -
A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless:
(a) the individual to whom the information relates has consented to the use of the information for that other purpose, or
(b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or
(c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person.
The use KT complains of is the selection, within the agency, of the documents for disclosure to SiCorp, the Crown Solicitor and, ultimately, the Tribunal, for the purposes of proving the exemptions claimed in KT's FOI application. Whether this amounts to a separate use from the disclosure is a question. It is, however, one that it is not necessary to answer. This is so as it is clear that the use (if there was one) was reasonably contemplated by s 25(b) of the FOI Act. As a consequence, compliance with s 17 was not required.
Other matters
Both KT and the agency have made detailed submissions going to a number of other legal issues concerning the disclosure, which were relied on in the internal review. As I have concluded that s 25(b) of the PIPP Act applies in the circumstances, with the result that the use and disclosure principles do not apply, it unnecessary to consider those matters.
The conduct in points 7 and 8 of the internal review request
Point 7 concerns KT's allegation that the agency did not alter his personal information as he requested, and, as a result, that the order barring him from RPAH's premises was not sent to his correct address. The letter, containing the barring order dated 29 March 2010, was exhibit E to Ms Mill's affidavit filed in the SICorp proceedings. It was signed by the issuing security officer (Mr Hughes) and counter signed by a delegate of the Executive Director. There is no dispute that it was addressed to the address for KT shown on the letter.
Point 8 concerns an allegation that the agency did not check the accuracy of KT's address before using it, despite being notified of the change, in alleged breach of s 11.
An examination of the earlier internal review, dated 24 June 2010, demonstrates that on 23 April 2010 KT sought a review of conduct under the PIPP Act. Among the conduct complained of (see attachment A to that review) were allegations that on 30 March 2010:
...
2. Ross Hughes; security office of RPAH, disclosed my personal information to third party by sending a letter to the address ...In unlawful and without my consent.
That internal review found that, while KT had notified the medical records section of the agency of a change of his postal address, he had not otherwise advised the agency of his change of address. As the medical records department and non-clinical department do not exchange information in relation to patients, the barring notice was sent to KT's last known address. The internal review found that the barring notice was returned to the hospital sealed in its original envelope. As a result, that internal review found that KT's personal information had not been disclosed in breach of s 18. There was no breach of the obligation to ensure that the personal information it held about KT was accurate: s 11. That internal review decision advised KT of his rights to seek an external review of that decision.
KT did not do so. Instead on 16 July 2010 he made a further application for internal review that raised points 7 and 8.
The letter KT complains of in points 7 and 8 is the same letter as that which was considered in the internal review of 24 June 2010. His allegations that by sending the letter the agency wrongfully disclosed his personal information, and that the agency failed to check the accuracy of his personal information, have already been considered. Findings were made that the conduct did not breach the relevant IPPs.
In my view the decision taken - in response to his again raising the allegations in his internal review application of 16 July 2010 - not to again review the allegations, as they had already been the subject of an internal review, was the correct and preferable decision.
Part 5 of the PIPP Act makes specific provisions for the review of conduct by agencies allegedly in breach if the IPPs or of a Privacy Code of Practice. It provides in s 53(7) for the remedies available on internal review, and in s 55(2) for the remedies available to a successful applicant on external review. The procedure established by the Act requires a person aggrieved to seek an internal review of the conduct in writing (s 55(3)); that the review be conducted by a qualified person, not involved in the conduct, from within the agency (s 55(4)); and that the applicant be notified of the outcome of the review, among other things (s 55(7)).
Section 55 (1) then provides -
(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.
If KT was dissatisfied with the outcome of the internal review of 24 June 2010 the Act provided that he could seek external review. It did not provide for him to simply seek another internal review. If he had sought an external review, he would have been entitled to lead evidence relevant to the conduct complained of, even if it had not been considered by the internal review. Such is the nature of an external review. The Tribunal on external review considers the conduct afresh based on the evidence and material before it at the time of the hearing: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
The Act does not envisage the making of repeat requests for internal review with respect to the same conduct. There are sound reasons for it not doing so; ensuring that internal review are considered fully and thoroughly, and providing a defined conclusion to each step in the dispute resolution process established by the Ac. KT's attempt to air his grievances with respect to the letter advising him of the barring order by requesting a second internal review of the conduct is, in my opinion, an abuse of the processes established by the Act. It was properly rejected.
I note that both parties adduced evidence and made submissions going to the merits of conduct under review in points 7 and 8. Given the conclusions I have reached it is not necessary to consider them further.
Conclusion
As a result of the conclusions I have reached in this review of conduct under the PPIPA Act, the Tribunal determines not to take any action with respect to the matter.
Costs
Both parties forecast that they were contemplating making an application for costs. Costs are a matter that I consider can be readily determined on the papers without a hearing. As a result I propose to make directions that any application for costs be filed and served within 14 days of the publication of these reasons, with any submissions in reply to be filed and served within a further 14 days. I will then determine the costs issue on the papers.
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Decision last updated: 15 July 2011
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