Poyton v Department of Education; Department of Education v Poyton - [2024] QCATA 78

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Poyton v Department of Education; Department of Education v Poyton [2024] QCATA 78

PARTIES:

DR CURTIS NICHOLAS POYTON

(appellant in APL 120 of 2023/respondent in APL 156 of 2023)

v

DEPARTMENT OF EDUCATION

(respondent in APL 120 of 2023/appellant in APL 156 of 2023)

APPLICATION NO/S:

APL 120 OF 2023 & APL 156 OF 2023

MATTER TYPE:

Appeals

DELIVERED ON:

2 September 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Rinaudo AM

ORDERS:

In proceeding number APL 120 of 2023:

1. The appeal is dismissed.

In proceeding number APL 156 of 2023

1. Pursuant to s 24(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision under review is set aside and remitted to the Information Commissioner for reconsideration.

CATCHWORDS:

ADMINISTRATIVE LAW — FREEDOM OF INFORMATION — REVIEW OF DECISIONS — OTHER STATES AND TERRITORIES — where the appellant applied for access to their personal information held by the Department of Education under the Information Privacy Act 2009 (Qld) — where the appellant provided, by email, an electronic and certified copy of their identity documentation — where the Department of Education refused the application as it did not comply with the application requirements of the Information Privacy Act 2009 (Qld) — where the decision of the Department of Education was upheld by the Information Commissioner — whether electronic copies of certified identity documentation satisfy the relevant application requirements under the Information Privacy Act 2009 (Qld)

Electronic Transactions (Queensland) Act 2001 (Qld), s 16

Information Privacy Act 2009 (Qld), s 43, s 44, s 53, s 61

Information Privacy Regulation 2009 (Qld), s 3

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Appellant:

Self-represented

Respondent:

Mr J Horton KC, counsel instructed by the Department of Education

REASONS FOR DECISION

History

The appellant made an application to obtain documents from the Department of Education (Department), that were created or amended between 21 February 2020 and 20 May 2022. The application had attached to it an electronic copy of his driver’s license which had been certified as a true copy on 1 April 2022.
On 24 May 2022, the Principal Information Officer with the Legal Services Department sent an email to the appellant in the following terms:
Thank you for your request for information. It has been allocated to me for processing and has been given the reference number 222032. There are just a couple of things that need to be resolved before your application will be compliant with the application requirements of the legislation. Firstly, while I note that you have provided an electronic copy of your identity documents, we require that you provide the actual physical piece of paper that was signed and stamped by the certifier. This can be provided by posting the certified copy of your license to: …
In response to that email the appellant wrote an email on 24 May 2022 at 5:34pm, which stated:
as a courtesy, I inform you and the Department of Education that I refuse to provide to the Department of Education physical copies of my identity documents in relation to my above mentioned application under the Information Privacy Act 2009 (Qld). Pursuant to the Information Privacy Act 2009 (Qld) s 53(6), and the Judicial Review Act 1991 (Qld) s 22(1), I believe that the Department of Education is required to, and respectfully request that the Department of Education, provide to me it’s written decision in relation to my above mentioned application, which I believe will be a decision to refuse my above mentioned, application under the Information Privacy Act 2009 (Qld), within a reasonable time period.
On 10 October 2022 at 3:44pm, the Department wrote to the appellant in the following terms:
If you make a new application for access to information held by the Department, you can comply with s 43(3)(a) of the Information Privacy Act 2009 (Qld) by providing a copy of your driver’s licence, passport or birth certificate that has been certified by a Justice of the Peace, lawyer, Notary Public or Commissioner for Declarations by mail to the following address: … Alternatively, if you are unable to get your identity document certified, you can attend our office in person and I can sight your original evidence of identity, or I can have a Teams meeting with you for you to present your evidence of identity.”
This appears to be in response to an email sent to the Department by the appellant on 29 September 2022 at 8:22am, which says:
To whom it may concern,
I enquire, if a person makes an application under the Information Privacy Act 2009 (Qld) to obtain a copy of their personal information held by the Department of Education, can this person provide evidence of their identity, to comply with the Information Privacy Act 2009 (Qld) s 43(3) in relation to this application, via the transmission of a certified copy of their driver’s license as a .pdf file via email to the Department of Education?
The appellant went on to ask that if the answer to that question was no, had it been the decision of the Department since 1 May 2022 that an electronic copy of the identity document would not be accepted.[1]
[1]Information Privacy Act 2009 (Qld) ss 43, 53(6) (IP Act).
On 12 December 2022, the Department wrote to the appellant stating that the purpose of the letter was to notify him regarding his application. The letter went on to say:
I have decided to refuse to deal with your application because despite being given a reasonable opportunity to make your application in a complying form your application does not comply with the application requirements of the Information Privacy Act 2009.
Reasons for the decision are set out in the letter, in particular, that the Department had notified the appellant on 24 May 2022 that the application did not comply with the Information Privacy Act 2009 (Qld) and requested that the appellant post a certified copy of the identification document to the departmental postal address. The letter noted that in an email dated 24 May 2022, the appellant refused to provide the Department of Education with a physical copy of the identification document.
At the request of the appellant on or about the 19 December 2022, an external review was undertaken in respect of the decision. The Information Commissioner provided that decision and reasons dated the 16 March 2023. At paragraph 47 of that decision, the Information Commissioner noted:

I am satisfied that it is appropriate and reasonable for the Department to have enacted a policy requiring production of the actual certified copy of evidence of identity to ensure that personal information is handled with care, and only released to the person to whom it relates, and for the Department to have applied that policy in the circumstances of this case. For the sake of clarity, I do not imply that all agencies must adopt this policy. I merely observe that it is reasonable for the department to have done so.
The Commissioner then went on to make findings as follows:
as required, consultation was undertaken with the applicant about the deficiency in his application and he was given a reasonable opportunity to respond; and
the application does not comply with all the relevant application requirements, as the provision of an electronic copy of a certified copy of the applicant’s evidence of identity does not satisfy the requirement to provide evidence of identity in the absence of the agency’s consent to receive it this way.
As required, consultation was undertaken with the appellant about the deficiency in his application and he was given a reasonable opportunity to respond; and the application does not comply with all relevant application requirements, as the provision of an electronic copy of a certified copy of the appellant’s evidence of identity does not satisfy the requirement to provide evidence of identity. In the absence of the agency’s consent to receive it this way. The decision of the Commissioner was that:
I find that the appellate applicant (the appellant) has applied for external review of the reviewable decision by the department. I set aside the deemed decision and find that the application does not comply with all relevant application requirements.

Applicable law

The legislation relevant to this application is s 53(1) of the IP Act, which applies if:[2]
(a)a person purports to make an access or amendment application for a document to an agency or Minister: and
(b)the application does not comply with all relevant application requirements for the application. The agency or Minister must then make reasonable efforts to contact the person within 15 business days after the purported application is received and inform the person how the application does not comply with a relevant application requirement.
[2]Information Privacy Act (n 1) s 53(2).
Further, s 53(3) states that an agency or Minister must not refuse to deal with an application because it does not comply with all relevant application requirements without first giving the appellant a reasonable opportunity to consult with a view to making an application in a form complying with all relevant application requirements.
It is noted at s 53(4) that:
the applicant is taken to have made an application under this Act if and when the application is made in a form complying with all relevant application requirements.
Further, s 53(6) says that “If, after giving the opportunity mentioned in subsection (3) and any consultation, an agency or Minister decides the application does not comply with all relevant application requirements, the agency or Minister must, within 10 business days after making the decision, give the appellant prescribed written notice of the decision.”
Section 61(1) of the IP Act states:
(1)     that an agency or Minister may refuse to deal with an access or amendment application under s 60 only if—
(a)     the agency or Minister has given the applicant a written notice—
(i)     stating an intention to refuse to deal with the application;…
(b)the agency or Minister has given the applicant a reasonable opportunity to consult with the agency or Minister;
(c)the agency or Minister has, as far as reasonably practical, given the applicant any information that would help the making of an application in a form that would remove the ground of refusal.
Information also relevant to this application is the Information Privacy Regulation 2009 (Qld) (IP Regulation), which states in s 3(1):
For sections 43(4) and 44(6) of the Act, the evidence of identity prescribed for a person is a document verifying the person's identity, including, for example— ….
(c) a driver’s license; ...
Section 3(2) of the IP Regulation notes that:
If a document under this section, other than a document mentioned in subsection (1)(e), is a copy of an original document, the document must be certified by a qualified witness as being a correct copy of the original document.
The Electronic Transactions (Queensland) Act 2001 (Qld) (ET Act) provides in s 16(2)(c), that the requirement to produce a document has been met if:
the person to whom the document is required to be produced consents to the production, by an electronic communication, of an electronic form of the document.

DISCUSSION

The appellant conceded, when addressing the Appeal Tribunal, that his purpose in making the application was to highlight the Department’s refusal to accept the electronic document. It appears that his motive was to make the point that, to simplify applications of this type, for the benefit of those seeking such information.
On the surface there is no apparent reason for the Department not to consent, pursuant to s 16(2)(c) of the ET Act. But in any event, they have not. It is clear then that the electronic document provided by the appellant rendered his application non-compliant.
The Department’s submission, which the Appeal Tribunal accepts is that as the appellant did not comply with the requirements of the application, that is, providing the required “evidence of identification for the applicant”, therefore, no application was made.
The Appeal Tribunal accepts the submission of the Department that the appellant’s application did not ever become compliant.3 Accordingly the Appeal Tribunal rejects the finding of the Information Commissioner that there was a deemed decision.
3Department’s submissions, [17].
The Appeal Tribunal rejects the appellant’s submission that “there was no evidence and intelligible justification for the respondent’s decision”. This flows from the Appeal Tribunal’s finding that there was no deemed decision as the application was non-compliant.
The Appeal Tribunal rejects the appellant’s submission that the Department failed to act in-line with other agencies. As the Appeal Tribunal has said, on the surface there does not appear to be any reason why the Department would not accept the appellant’s electronic documents, but the fact remains it does not. In the circumstances, it cannot be said that there is any error on the part of the Department.
The appellant submits that the Department applied a policy without regard to merits, in not accepting an electronic copy of the appellant’s document. The Appeal Tribunal also rejects this argument, having found that the appellant’s application was non-compliant.
The Appeal Tribunal accepts that the Department’s rejection of the appellant’s identification document does not give rise to a reasonable apprehension of bias.
Accordingly, the Appeal Tribunal finds for the Department in proceeding number APL 156 of 2023 and dismisses the appellant’s appeal in proceeding number APL 120 of 2023.
In proceeding APL 156 of 2023, the Appeal Tribunal finds that there was no deemed decision. The decision below is set aside. The appellant’s appeal in proceeding APL 120 of 2023 is dismissed.

Orders

In proceeding number APL 120 of 2023:
The appeal is dismissed.
In proceeding number APL 156 of 2023
Pursuant to s 24(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision under review is set aside and remitted to the Information Commissioner for reconsideration.