Purrer v Information Commissioner

Case [2018] QSC 272

SUPREME COURT OF QUEENSLAND

CITATION:

Purrer v Information Commissioner [2018] QSC 272

PARTIES:

Joseph PURRER
(appellant)
v
INFORMATION COMMISSIONER
(respondent)

FILE NO:

SC No 8444 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2018

JUDGE:

Boddice J

ORDERS:

1.   I shall hear the parties as to the form of orders and costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where applicant made a privacy complaint – where the complaint related to OneSchool records – where complaint concerned the applicant’s personal information, as well as the personal information of others – whether there was an error of law in the respondent’s refusal to accept the applicant’s complaint

Information Privacy Act 2009 (Qld), s 168

George v Rockett (1990) 170 CLR 104, cited

COUNSEL:

The appellant was self-represented
S A McLeod for the respondent

SOLICITORS:

Office of the Information Commissioner for the respondent.

  1. BODDICE J: By application, filed 7 August 2018, Joseph Purrer makes application for a statutory order of review of the decision of the Respondent Information Commissioner, made on 11 July 2018, declining to accept the applicant’s privacy complaint under section 168(1)(c) of the Information Privacy Act 2009 (Qld) (“the Act”). 

  2. The grounds of review are that the respondent erred in law in interpreting the Act and in the application of the Act to the applicant’s complaint. However, at the hearing the applicant accepted his application was to be determined by a consideration of whether there was an error of law in the respondent’s refusal to accept the applicant’s complaint.

    Background

  3. The applicant is the parent of a child attending a secondary school under the control of the Department of Education and Training (“the department”).

  4. In the latter half of 2017, the applicant, as parent of his child, had contact with a law enforcement officer attached to the school, on a confidential basis.  Subsequent to that contact, the applicant discovered there was a record of that contact recorded in OneSchool, an Education Department Information Base. 

  5. After reviewing that record, the applicant sent email communications to the relevant school.  In response, the school indicated the record simply recorded a contact, not the content of the discussion in that contact.  That response was unacceptable to the applicant, who engaged in further email communications with the school and, subsequently, officers of the Department.

  6. The applicant requested the matter be referred to the Department’s Ethical Standards Unit, with respect to a breach of privacy and an allegation that records had been deliberately modified by staff at the relevant school.  The applicant also requested an audit be conducted of the information held on the particular information base. 

  7. After the Department advised the applicant that the complaint was not within the scope of matters to be considered by its Ethical Standards Unit, the applicant made a complaint to the respondent of a breach of privacy principles under the

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Purrer v Information Commissioner [2018] QSC 272
Case
[2018] QSC 272
Decision Date

CaseChat Overview and Summary

In the matter of Purrer v Information Commissioner, the applicant, a parent of a child attending a secondary school under the control of the Department of Education and Training, made a privacy complaint regarding the recording of a confidential contact with a law enforcement officer in the school's OneSchool database. The Information Commissioner declined to accept the applicant’s privacy complaint, leading the applicant to seek judicial review of the Commissioner's decision. The primary legal issue before the court was whether the Information Commissioner erred in law by refusing to accept the applicant's privacy complaint.

The court considered the scope and nature of the applicant's complaint, which involved multiple facets and multiple entities, including the Department, the school, and the Queensland Police Service. The court found that the complaint was not solely about the applicant's personal information but also involved the personal information of the applicant’s wife and son. Moreover, the complaint encompassed dissatisfaction with various services and conduct, which were not strictly privacy issues but rather administrative or operational concerns. The court held that the Information Privacy Act 2009 was not the appropriate mechanism to address these broader administrative and operational complaints. The Information Commissioner’s decision to decline the complaint was within the broad discretion provided by section 168(1)(c) of the Act, which allows for the refusal of complaints deemed frivolous, vexatious, misconceived, or lacking in substance. The court concluded that the Information Commissioner reasonably believed the complaint to be lacking in substance and did not find an error of law in the Commissioner's decision.

The court ordered that the parties be heard regarding the form of orders and costs.

Orders

Orders of the court

1. I shall hear the parties as to the form of orders and costs.

Background

Background to the litigation

The grounds of review are that the respondent erred in law in interpreting the Act and in the application of the Act to the applicant’s complaint. However, at the hearing the applicant accepted his application was to be determined by a consideration of whether there was an error of law in the respondent’s refusal to accept the applicant’s complaint.Background The applicant is the parent of a child attending a secondary school under the control of the Department of Education and Training (“the department”). In the latter half of 2017, the applicant, as parent of his child, had contact with a law enforcement officer attached to the school, on a confidential basis. Subsequent to that contact, the applicant discovered there was a record of that contact recorded in OneSchool, an Education Department Information Base. After reviewing that record, the applicant sent email communications to the relevant school. In response, the school indicated the record simply recorded a contact, not the content of the discussion in that contact. That response was unacceptable to the applicant, who engaged in further email communications with the school and, subsequently, officers of the Department. The applicant requested the matter be referred to the Department’s Ethical Standards Unit, with respect to a breach of privacy and an allegation that records had been deliberately modified by staff at the relevant school. The applicant also requested an audit be conducted of the information held on the particular information base. After the Department advised the applicant that the complaint was not within the scope of matters to be considered by its Ethical Standards Unit, the applicant made a complaint to the respondent of a breach of privacy principles under the Information Privacy Act 2009. Following receipt of that complaint, the respondent sought clarification of the nature and extent of the applicant’s complaint. In response, the applicant provided further and extensive information. By letter dated 11 July 2018, the respondent advised the privacy complaint against the Department was not accepted by the respondent.Decision In summary, the respondent gave the following reasons for the decision not to accept the applicant’s privacy complaint:·the complaint was multi-faceted and concerned dissatisfaction with a number of different officers, both within the department and other agencies, about different events and differing alleged breaches of the privacy principles;·the complaint concerned the applicant’s personal information, as well as the personal information of the applicant’s wife and son;·the complaint related to dissatisfaction with the services provided to the applicant’s son by his school and the Department in general, as well as dissatisfaction with the conduct of the Queensland Police Service and a particular school based police officer;·the concerns against the school and its staff were serious in nature. They included a failure to comply with their notification obligations as well as falsification of records and possible sexual harm to children. There was also concern in respect of the record management practices of the school and of the Department;·the complaint concerned, in some respects, the potential for improper access to a student’s departmental records as well as concerns as to the content of the Departmental records, including the motivations for the making of a record and the accuracy of records;·misconduct and/or breaches of codes of conduct are not able to be pursued through the privacy jurisdiction, nor were privacy principles able to oversight general administrative practices or general record keeping practices;·there were well established and effective mechanisms for contesting the quality of government records, through which the applicant could seek amendment of the records. That mechanism provided a right to seek both internal and external reviews, as well as potential recourse of review before the Queensland Civil & Administrative Tribunal; and,·not all dealings with personal information involve privacy issues and many of the applicant’s complaints related to incidents that were more appropriately dealt with under their respective legislative schemes.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

By letter dated 11 July 2018, the respondent advised the privacy complaint against the Department was not accepted by the respondent.Decision In summary, the respondent gave the following reasons for the decision not to accept the applicant’s privacy complaint:·the complaint was multi-faceted and concerned dissatisfaction with a number of different officers, both within the department and other agencies, about different events and differing alleged breaches of the privacy principles;·the complaint concerned the applicant’s personal information, as well as the personal information of the applicant’s wife and son;·the complaint related to dissatisfaction with the services provided to the applicant’s son by his school and the Department in general, as well as dissatisfaction with the conduct of the Queensland Police Service and a particular school based police officer;·the concerns against the school and its staff were serious in nature. They included a failure to comply with their notification obligations as well as falsification of records and possible sexual harm to children. There was also concern in respect of the record management practices of the school and of the Department;·the complaint concerned, in some respects, the potential for improper access to a student’s departmental records as well as concerns as to the content of the Departmental records, including the motivations for the making of a record and the accuracy of records;·misconduct and/or breaches of codes of conduct are not able to be pursued through the privacy jurisdiction, nor were privacy principles able to oversight general administrative practices or general record keeping practices;·there were well established and effective mechanisms for contesting the quality of government records, through which the applicant could seek amendment of the records. That mechanism provided a right to seek both internal and external reviews, as well as potential recourse of review before the Queensland Civil & Administrative Tribunal; and,·not all dealings with personal information involve privacy issues and many of the applicant’s complaints related to incidents that were more appropriately dealt with under their respective legislative schemes. The respondent stated, in dealing with the substance of the privacy complaint, that the Act was not the appropriate mechanism to pursue the applicant’s complaint in respect of the collection of information. Further, the applicant’s complaint did not involve any breaches of the Information Privacy Principles. First, the respondent was not persuaded the information entered into OneSchool, departed from the purpose of making of such records, which included the recording of information about communications relating to students. There was nothing in the complained of records concerning the applicant and his son, that did not fall into the category of communications connected to or relating to the son’s education at the school, or that supported a conclusion they were collected unlawfully. For that reason, the respondent did not accept the applicant’s complaint of a breach of Principle 1.

Ratio Decidendi

Legal Principle Established

Finally, the respondent submits that to the extent that the applicant’s outline of argument contains new allegations not part of the initial privacy complaint, they are not properly to be the subject of the application for statutory review, or are appropriately to be pursued through that the appropriate legislative scheme or against the appropriate agency.Consideration The Act provides a legislative scheme for the determination of privacy complaints by individuals about an act or practice of a relevant entity in relation to the individual’s personal information. That is a breach of the relevant entity’s obligations under the Act to comply with the privacy principles or an approval under section 157 of the Act.[1][1] Information Privacy Act 2009, s 164. The complaint, the subject of the application for an order for statutory review, was about an act or practise of a relevant entity. However, the complaint was not only in respect to the applicant’s personal information. It was a complaint in respect of the personal information of other individuals. To that extent, the complaint involved matters outside the definition of a privacy complaint under section 165 of the Act. Whilst the applicant submits that in those circumstances there was an obligation upon the respondent to give reasonable help to the complainant to put the complaint into written form,[2] a consideration of the material relied upon by the applicant, evidences compliance with that obligation. The respondent, on multiple occasions, sought to assist in a reasonable way, the applicant to ensure the complaint satisfied the requirements for a privacy complaint under section 166 of the Act. There is no substance to the applicant’s contention to the contrary.[2] Information Privacy Act 2009, s 166(2). Further, the respondent’s decision to decline to accept the complaint pursuant to section 168(1)(c) of the Act was made in accordance with a proper application of the Act, and of the Principles. No error of law has been established in the making of that determination. Section 168(1)(c) gives the respondent a broad discretion to decline to deal with the whole or part of a privacy complaint, if the respondent “reasonably believes the complaint or part, is frivolous, vexatious, misconceived or lacking in substance”. Nothing in the applicant’s complaint raises a proper basis to call into question the respondent’s belief to that effect, or the reasonableness of that belief. A reasonable belief does not require proof of the existence of the subject matter. In George v Rockett,[3] the High Court stated:“The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.”[3] (1990) 170 CLR 104 at 116.