Ogawa v Australian Information Commissioner

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FEDERAL COURT OF AUSTRALIA

Ogawa v Australian Information Commissioner [2018] FCA 266

File number: QUD 916 of 2016
Judge: COLLIER J
Date of judgment: 9 March 2018
Catchwords: ADMINISTRATIVE LAW – application for review of a decision made under s 41(1)(a) of the Privacy Act 1988 (Cth) not to investigate an interference with the Applicant’s privacy – consideration of the application of National Privacy Principles 1,2,3, 4 and 10.1 by the decision-maker – consideration of whether the decision was reasonably open on the evidence
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Federal Court of Australia Act 1976 (Cth) s 37M

Privacy Act 1988 (Cth) ss 13A(1), 13A(1)(b)(ii), 36(1), 40(1), 41(1)(a), Sch 3

Cases cited:

Jones v Office of the Australian Information Commissioner [2014] FCA 285

Ogawa v Australian Information Commissioner [2015] FCA 152

Date of hearing: Determined on the papers
Date of last submissions: 5 May 2017 (First Respondent)
The Applicant and Second Respondent did not provide submissions.
Registry: Queensland
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 42
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the First Respondent: Mr P Venus of Holding Redlich

ORDERS

QUD 916 of 2016
BETWEEN:

MEGUMI OGAWA

Applicant
AND:

AUSTRALIAN INFORMATION COMMISSIONER

First Respondent

MICHELLE CALVIRD

Second Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

9 MARCH 2018

THE COURT ORDERS THAT:

1.The application filed 28 November 2016 be dismissed

2.The applicant pay the costs of the first respondent, such costs to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

COLLIER J:

Background

  1. This is an application for judicial review of a decision of a delegate of the Australian Information Commissioner (the Commissioner). The applicant has not indicated the mechanism under which the application is brought, though the remedies sought and the grounds of review raised suggest that it is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth), as has been assumed by the first respondent. In the decision dated 1 November 2016, the delegate declined to investigate Dr Ogawa’s complaint of an interference with the applicant’s privacy by the second respondent, Dr Michele Calvird, under s 41(1)(a) of the Privacy Act 1988 (Cth) (the Act). This decision was made on the basis that Dr Calvird was not in breach of the Act.

  2. The complaint related to events in 2008 and 2009. Dr Ogawa first made a complaint to the Commissioner about the second respondent on 2 December 2010. The first respondent declined to investigate the complaint. Dr Ogawa applied to this Court in relation to these events on 26 June 2013 and brought an application for judicial review against a number of respondents.

  3. In Ogawa v Australian Information Commissioner [2015] FCA 152 (the previous proceeding), Greenwood J set aside the decisions of the delegate to decline to investigate Dr Ogawa’s complaint against the second respondent…

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Details
Case
[2018] FCA 266
Decision Date

CaseChat Overview and Summary

Dr Ogawa brought an application for judicial review of a decision by the Australian Information Commissioner not to investigate a complaint about an alleged breach of privacy. The Privacy Act 1988 (Cth) provides a mechanism for the review of decisions of the Information Commissioner, including decisions not to investigate complaints about breaches of privacy. The court considered whether the Commissioner's decision not to investigate the complaint was valid, and whether it was reasonably open on the evidence. The court found that the decision was valid and gave effect to the statutory criteria. Dr Ogawa's grievances concerned various National Privacy Principles, including the collection and disclosure of personal information, and the accuracy of personal information. The court considered whether the Commissioner had validly exercised the discretion under s 41(1)(a) of the Privacy Act, and concluded that the decision was reasonably open on the evidence. The court found that Dr Calvird had not interfered with Dr Ogawa's privacy, as Dr Calvird had not breached the National Privacy Principles. The application for judicial review was dismissed, and the applicant was ordered to pay the costs of the Commissioner.
The court found that the Commissioner had validly exercised the discretion under s 41(1)(a) of the Privacy Act not to investigate the complaint. The decision was reasonably open on the evidence, and the Commissioner had considered the relevant National Privacy Principles. The court considered whether the collection and disclosure of personal information by Dr Calvird was within the scope of the consent given by Dr Ogawa, and whether Dr Calvird had taken reasonable steps to correct inaccurate information. The court found that Dr Calvird had not interfered with Dr Ogawa's privacy, and that the decision not to investigate the complaint was valid. The application for judicial review was dismissed, and the applicant was ordered to pay the costs of the Commissioner.

Orders

Orders of the court

1. The application filed 28 November 2016 be dismissed

2. The applicant pay the costs of the first respondent, such costs to be taxed if not otherwise agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The Commissioner re-examined Dr Ogawa’s complaint following the Court’s decision and again declined to investigate. Dr Ogawa filed the current application for judicial review on 28 November 2016 as a litigant in person. I made orders for the filing of submissions and other material at the first case management hearing. I determined that the matter should be decided on the papers, and also that the affidavit material adduced by the parties in the previous proceeding be relied upon in this proceeding. Dr Ogawa filed two affidavits on 6 and 8 February 2017 respectively, but did not otherwise participate by way of attending the only case management hearing or by filing submissions. The Commissioner filed an affidavit of Andrew Solomon, the Assistant Information Commissioner, and written submissions. Relevant Facts The factual background to the complaint set out by Greenwood J in the previous proceeding is as follows:11Dr Ogawa was charged in the District Court of Queensland with particular Commonwealth criminal offences in respect of conduct in April and May 2006. On 13 November 2008, Dr Ogawa was granted bail in relation to the charges. The bail undertakings she gave included undertakings in relation to psychiatric treatment to be undertaken by her. 12The undertakings relevant to the current proceeding were in these terms:5.On 18/12/2008 I shall attend the clinic of Dr Calvird, at Toowong Private Hospital, for assessment andi)thereafter take all medication and undertake all treatment prescribed or recommended by Dr Calvird;ii)thereafter attend all further appointments for treatment by Dr Calvird.…7.I shall provide a written authorisation for [Dr Calvird and other named health professionals] to notify the Commonwealth Director of Public Prosecutions of any failure by her [sic: me] to comply with the obligations in paragraph 4, 5 & 6 above.13On 13 November 2008, Dr Ogawa signed an authority directed to Dr Calvird in these terms:I hereby authorise Doctor Calvird to notify the Commonwealth Director of Public Prosecutions of any failure by me to comply with the following obligations:(a)On 18 December 2008, attend the clinic of Dr Calvird, at Toowong Private Hospital for assessment;(b)thereafter take all medication and undertake all treatment prescribed or recommended by Dr Calvird;(c)thereafter attend all further appointments for treatment by Dr Calvird.14On 20 February 2009, Ms Roberta Devereaux, the solicitor employed by the CDPP with carriage of the District Court criminal proceedings against Dr Ogawa, swore an affidavit which was filed in those proceedings. A copy of the affidavit was served on Dr Ogawa by email the same day. In her affidavit, Ms Devereaux said this:5.On the 5 February 2009 I received a telephone call from Dr Calvird, she told me and I verily believe the following:a)Dr Calvird asked me if Dr Ogawa had been remanded in custody. She said that Dr Ogawa had cancelled her last appointment on the 29 January as she had court and had not made another one. Dr Calvird said that she was conscious of the bail condition and wanted to know if the reason that she had not heard from her was because she was in custody. I told Dr Calvird that Dr Ogawa had not been remanded in custody.b)Dr Calvird said that she would chase Dr Ogawa up and check if she was going to continue treatment.6.On 10 February I telephoned Dr Calvird, she told me and I verily believe the following:a)I asked if she had made contact with the Dr Ogawa. She advised that she would check on Thursday if she had received any emails from Dr Ogawa and let me know if she did not make another appointment.b)Dr Calvird said that she was aware that Dr Ogawa was moving to Lismore and that she would be reducing the frequency of her appointments and that she would let me know what was happening.7.On 16 February I received a telephone message from Dr Calvird, she advised that Dr Ogawa had not rebooked an appointment with her and that she intended to email Dr Ogawa.8.On 17 February I telephoned Dr Calvird and she told me and I verily believe the following:a)an email had been sent yesterday and that no response had been received;b)Dr Ogawa has a mobile phone on which you cannot record messages;c)the last time she had seen Dr Ogawa was on 22 January 2009.15Dr Ogawa was concerned that the Ms Devereaux’s affidavit would be used in a possible breach of bail hearing. Dr Ogawa’s position was that the affidavit was incorrect, because she had not in fact received any email from Dr Calvird on 16 February. 16On 23 February 2009, Dr Ogawa sent by email to Dr Calvird a subpoena issued in the District Court of Queensland, requiring Dr Calvird to attend the District Court at Brisbane on a particular date “to give evidence and produce to the court for all emails that you sent to Dr Megumi Ogawa”. 17There followed a series of correspondence between Dr Ogawa and Dr Calvird’s legal representatives. In a letter to Dr Ogawa on 25 February 2009, Dr Calvird’s solicitor said this:In response to your complaint, my client advises me that the secretarial staff at Toowong Specialist Centre drafted an e-mail to you, on Dr Calvird’s behalf, during the early afternoon of Monday 16 February 2009. The staff member believed the e-mail was successfully sent to you, however it was only discovered the following day that it had not been transmitted. Dr Calvird was unaware of this when she informed Ms Devereaux of the Commonwealth Director of Public Prosecutions (“CDPP”), that she had not received a response from you.My client has now sent a letter to Ms Devereaux explaining the situation and specifically that you promptly replied to the e-mail once it was resent to you.18The solicitor’s letter to Dr Ogawa enclosed Dr Calvird’s letter to Ms Devereaux dated 23 February 2009. Dr Calvird’s letter was, relevantly, in these terms:Further to our discussion on February 17th, I would like to advise you that Dr Ogawa has responded to the email sent to her by my staff member. Dr Ogawa advised that she has had a psychiatrist arranged by NSW Health to see her. Dr Ogawa asked in her email if she could keep the possibility of making an appointment with me open at this stage.Secondly, I have been asked by Dr Ogawa to clarify some details. My staff member drafted an email to Dr Ogawa, on Monday February 16th. The staff member, to the best of her knowledge, thought that the email had been successfully sent through to Dr Ogawa. However, due to a problem with her computer, she was made aware only the following day that the email had not been sent though [sic]. At this stage, she resent the email to Dr Ogawa, and Dr Ogawa promptly replied. The content of this email has already been discussed in the first paragraph. When I spoke to you on Tuesday February 17th, I then said that I would check with my staff as to whether a response to the email had been received from Dr Ogawa. The staff checked, and there was no response, as the email from the Monday had not gone through. However, we were not aware of that at that point. Hence, I gave you the information that Dr Ogawa had not responded to the email, whereas unbeknown to us, Dr Ogawa had not received the email.Dr Ogawa has not made another appointment at this stage.19The secretarial “staff member” referred to in this letter was Ms Chatel Gordge. 20After a further series of email exchanges, Dr Calvird’s solicitor wrote to Dr Ogawa on 4 March 2009 enclosing a letter from Dr Calvird to Dr Ogawa dated 2 March 2009, in which Dr Calvird informed Dr Ogawa that Dr Calvird had, in the circumstances, terminated their doctor/patient relationship.21More than three years later, on 11 October 2012, Dr Ogawa wrote to the Chief Executive Officer of the TPH, making a “complaint against your hospital about the conduct of Dr Michele Calvird and Ms Chatel Gordge”, and seeking an apology. The TPH replied in a letter dated 17 October 2012 in this way:I understand from your email that you were a patient of Dr Michele Clavird [sic] between 18th December 2008 and February 2009. Our records indicate that you were not a patient of the Actual Hospital during this time. It is therefore assumed that you were an outpatient of Dr Calvert [sic] who you visited at the Toowong Specialist Centre. The Toowong Specialist Centre was located in one of the wings of the Hospital during 2008 and 2009. However, the Specialist Centre was not part of the Hospital but instead leased space from the Hospital. Further, the Toowong Specialist Centre closed in June 2012. As such, I am unable to progress an investigation into the matter that you raised. Nor can I speak on behalf of the Specialist Centre and offer you an apology.(Original emphasis.)Previous proceeding

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Relevantly, his Honour found:77In the delegate’s letter of 18 February 2011 (described earlier in these reasons) the delegate summarised the contentions put forward by Dr Ogawa in her response to the letter of 16 December 2010. The delegate’s summary covered each of the matters raised by Dr Ogawa in her response with the exception of the specific contention about the failure to consider whether the collection by Dr Calvird of information from Ms Devereaux was a breach of Dr Ogawa’s privacy. Contrary to the submissions put for the Commissioner, it does not appear on the available material that the delegate ever reached a state of satisfaction that the alleged collection of information by Dr Calvird fell within the terms of the applicant’s authority. Rather, it seems that the delegate never considered the issue. If the delegate had considered the issue, one might expect the delegate to have made some reference to NPP1, which sets out requirements in relation to an organisation’s collection of information (as opposed to NPP2 which relates only to the use and disclosure of information which has been collected). The delegate, however, limited her discussion of the applicable law to NPP2 and NPP3.(Original emphasis.)Decision of the Commissioner On 18 August 2015, the delegate wrote to the applicant that, in response to the Court’s decision, he had reviewed the complaint of 2 December 2010 and noted:… In the process of reviewing your complaint, I have considered the documentation that you lodged as part of your original complaint and subsequent correspondence between you and the OAIC, including the correspondence of 24 February 2009 from Dr Calvird’s legal representative which you provided to the OAIC on 2 January 2011 in support of your complaint, and your January 2011 statutory declaration emailed to the OAIC on 16 January 2011. The delegate summarised the allegations made by the applicant, the law and the view of the Commissioner. The delegate concluded that:As I am satisfied that Dr Calvird has met her obligations under the Privacy Act in terms of her collection and disclosure of your personal information and has not interfered with your privacy as alleged, I intend to decline to investigate your complaint under s41(1)(a).However, before I make a final decision, I invite you to provide a response to this letter, should you wish to do so. I would appreciate receiving your written response by 8 September 2015. If I do not hear from you by this date, I will make a decision based on the available information and close your complaint. (Emphasis omitted.) The applicant responded in a series of emails dated between 15 November 2015 and 27 November 2015. The content of those emails is discussed further below. On 28 March 2016, the delegate wrote another letter responding to each of the emails. He concluded:I would appreciate any further responses or information you may have in relation to the OAIC’s view, outlined in this letter and our letter of 18 August 2015, that there has not been an interference, by Dr Calvird, with your privacy as defined in the Privacy Act in this instance.I would appreciate receiving any response by 18 April 2016.(Emphasis omitted.)

Ratio Decidendi

Legal Principle Established

On balance, in the interests of justice and efficiency as required by s 37M of the Federal Court of Australia Act 1976 (Cth), and on the basis that the applicant has not disputed the submissions of the first respondent filed on 5 May 2017, I will assume that the applicant intended her case to be in the terms summarised by the first respondent in his submissions.Consideration In considering whether the first respondent has validly exercised the discretion under s 41(1)(a) of the Act, it is incumbent on the Court to consider the circumstances which informed the delegate’s state of satisfaction that Dr Calvird had not interfered with Dr Ogawa’s privacy (because Dr Calvird had not breached the NPPs). As Greenwood J explained in Ogawa v Australian Information Commissioner [2015] FCA 152 at [68], the decision of the delegate must be one which was reasonably open to him on the evidence before him. So far as I can ascertain from the emails from Dr Ogawa to the delegate sent between 30 July 2016 and 19 August 2016, Dr Ogawa’s grievances concerning the decision of the first respondent the subject of this application relate to various NPPs, namely NPP 1.4, 1.5, 2.1, 3, 4 and 10.1(a). However before turning to those grievances it is helpful to note the statement of the delegate in relation to NPP 1.1 and the material before him relevant to the making of the decision:Based on this information, it is reasonable to accept that Dr Calvird considered that the information about whether or not you were in custody was necessary for her to form an opinion about whether or not you had failed to meet your obligations as set out in your undertakings to the Court. You had consented to Dr Calvird informing the CDPP about any failure to attend future appointments for treatment. Collection of information about the possible circumstances which led your [sic] apparent failure to re-schedule your 29 January 2009 appointment is in my opinion clearly appropriate and relevant for that purpose.It is also reasonable to accept that Dr Calvird believed she was required to determine whether you simply chose to not reschedule your appointment (in other words, whether you failed to meet your obligations in accordance with your bail undertakings) or whether you were involuntarily prevented from rescheduling the appointment (in other words, due to no failure on your part). In relation to each NPP to which Dr Ogawa referred in her emails, materially the delegate stated, in his reasons, as follows:(1)In relation to NPP 1.4:The information before me indicates that the cancellation of your 20 January 2009 appointment was on the basis that you had to attend court, that Dr Calvird was aware you were on court bail, and that there was nearly a week between that day and the 5 February 2009 when Dr Calvird contacted the CDPP in which you made no attempt to contact Dr Calvird yourself to reschedule the appointment.The fact that you had not rescheduled your appointment by 5 February 2009 was reason enough for Dr Calvird, under the authority you had given her, which had been mandated by a court as part of your bail conditions, to be able to contact the CDPP directly to advise them of the situation in relation to your appointments with her and to seek information about whether this absence of rescheduling was outside your control because you were in custody.…Therefore, the collection of information about whether you were in custody, in the phone call to the CDPP on 5 February 2009, was a collection of that information from the most practicable source, and was within the implied consent you had given to Dr Calvird in relation to the collection and disclosure of your personal information.(2)In relation to NPP 1.5:I am satisfied that although Dr Calvird may not have specifically outlined to you that her assessment of you failing to attend future appointments may include collection of certain information from the CDPP in the context of your whereabouts, you were aware that Dr Calvird was required to make an assessment and therefore implicitly that they may require some collection of information from the CDPP to enable that assessment to be appropriately made. Given that, I find that Dr Calvird has taken reasonable steps through discussing with you on 18 December 2008, the circumstances in which she would need to inform the CDPP of non-attendance and therefore has not interfered with your privacy under NPP 1.5 in this instance.(3)In relation to NPP 2.1:The issue is whether the disclosure off information to the CDPP about when Dr Calvird last saw you, the reduction in your treatment sessions because of your move to Lismore, the fact that Dr Calvird had attempted to make contact with you to determine whether or not you intended to make further appointments, and the fact that you had a mobile phone on which messages cannot be recorded, fell within the scope of the consent you provided.The information disclosed by Dr Calvird to the CDPP relates to the cancellation of your appointment on 29 January 2009, and the absence of any rescheduling of that appointment and the context surrounding this. I am of the view that the disclosure of this limited set of information to the CDPP is within the terms of your consent as it appears that this information would be relevant to either assessing whether you had failed your bail condition, or notifying the CDPP that you may have failed your obligation to “undertake all treatment… recommended by Dr Calvird” or “undertake all treatment… recommended by Dr Calvird” or “attend all future appointments.”The information provided to the CDPP by Dr Calvird provided context around the cancellation of your 29 January 2009 appointment with Dr Calvird, and the absence of any rescheduling of that appointment. I am of the view that the scope of your written consent was sufficient to cover possible circumstances surrounding the likelihood of future non-attendance.(4)In relation to NPP 3:Your allegation of Dr Calvird disclosing false information about you appears to stem from a telephone conversation between the CDPP solicitor and Dr Calvird, during which Dr Calvird informed the CDPP solicitor that an email was sent on behalf of Dr Calvird to you on 16 February 2009 but you did not reply.A 25 February 2009 letter from Dr Calvird’s legal representative which you provided to the QAIC on 8 January 2011 in support of your complaint makes it clear that the email sent to you was not transmitted successfully. It is also clear that subsequent to the resending of the email to you on 17 February 2009, you responded promptly. As acknowledged by Dr Calvird, this information was not available to Dr Calvird at the time of her telephone conversation with the CDPP solicitor, and as a result, Dr Calvird disclosed information about you the CDPP which was inaccurate.In an attempt to remedy the matter, a letter was subsequently forwarded to the CDPP solicitor advising of Dr Calvird’s error. The QAIC accepts that Dr Calvird took reasonable steps to correct the information once she was aware of the inaccuracy.…Dr Calvird’s representative in her 25 February 2009 letter to you advised that the staff member who attempted to send the email to you presumed it had been successfully transmitted on 16 February 2009 and therefore that you had received it more or less instantaneously. For the purposes of NPP 3 it is sufficient that Dr Calvird confirmed with the staff member that the email had been sent and that the staff member, not being notified at that time that it was otherwise, presumed it had been.(5)In relation to NPP 4 the delegate made no comment.(6)In relation to NPP 10.1:The NPPs do not require that an individual give his or her consent to the collection of that individual’s personal information. However there is a general prohibition on the collection by an organisation of the sensitive information of an individual. One of a number of exceptions to that prohibition is where an individual has given consent to the collection of that information. …[I]nformation about whether or not an individual is held in custody could arguably fall within the ambit of criminal record information. However for the following reasons it is unnecessary for the OAIC to determine this issue.I am of the view that your consent authorising Dr Calvird to inform the CDPP about your failure to attend appointments, impliedly included consent to the passing of necessary information between Dr Calvird and the CDPP so that Dr Calvird could accurately inform the CDPP about your failure to attend for treatment. On this basis, I am of the view that there was implied consent by you to Dr Calvird’s collection of this information and that NPP 10.1 has not been breached.Consent is defined in the Act to mean express consent or implied consent. Implied consent can be reasonably inferred in the circumstances from the conduct of the individual and the organisation. Therefore, implied consent may not be documented in material evidence or records.You gave your express consent in writing authorising Dr Calvird to inform the CDPP about whether or not you failed to take all medicines and/or prescribed or recommended treatments, or failed to attend appointments for treatment.In the circumstances of your matter Dr Calvird needed to form an opinion about whether or not you had failed to comply with your bail undertakings (that is, failed to attend appointments for treatments with Dr Calvird and take medications and treatments prescribed or recommended by Dr Calvird). The information about whether or not you were remanded in custody was directly relevant to Dr Calvird forming an opinion about whether or not you “failed” to reschedule your appointment for treatment. It was given in the context of a discussion about whether or not there was some reason beyond your control which prevented you from rescheduling your appointment. The OAIC considers that it is reasonable for you to expect that in notifying the CDPP about whether or not you had complied with your bail conditions, it may have been necessary for Dr Calvird to collect certain information to assist in the formulation of her opinion to the CDPP.