Skiba v Australian Information Commissioner

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FEDERAL COURT OF AUSTRALIA

Skiba v Australian Information Commissioner [2022] FCA 1171   

File number(s): NSD 327 of 2022
Judgment of: RARES J
Date of judgment: 9 September 2022
Catchwords: ADMINISTRATIVE LAW ­– privacy – access to personal information – application for judicial review of decision delegate of Information Commissioner not to investigate further act or practice complained of – where delegate satisfied act or practice complained of not interference with applicant’s privacy – where requested documents provided through administrative access – application dismissed  
Legislation: Privacy Act 1988 (Cth) s 41, Sch 1
Cases cited:

Knowles v Secretary, Department of Defence (2021) 287 FCR 348

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Privacy Commissioner v Telstra Corporation Ltd (2017) 249 FCR 24

Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 48
Date of hearing: 9 September 2022
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the Respondent: Ms K Nguyen of Holding Redlich

ORDERS

NSD 327 of 2022
BETWEEN:

ZOFIA SKIBA

Applicant
AND:

AUSTRALIAN INFORMATION COMMISSIONER

Respondent

ORDER MADE BY:

RARES J

DATE OF ORDER:

9 SEPTEMBER 2022

THE COURT ORDERS THAT:

1.The application be dismissed. 

2.The applicant pay the respondent’s costs. 

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


REASONS FOR JUDGMENT
(Revised from the transcript)

RARES J:

  1. The applicant, Zofia Skiba, seeks relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) or alternatively, under s 39B of the Judiciary Act 1903 (Cth), against the Australian Information Commissioner, in respect of a decision by a delegate of the Commissioner made on 12 April 2022. The delegate decided, pursuant to s 41(1)(a) of the Privacy Act 1988 (Cth), not to investigate an act or practice of which Ms Skiba complained further because the delegate was satisfied that the act or practice was not an interference with the privacy of Ms Skiba.

  2. On 24 May 2021, Ms Skiba complained to the Commissioner that the Department of Education, Skills and Employment had not addressed, in accordance with Australian Privacy Principle (APP) 12.1, her request, first made on 11 June 2020, for “access to all tax invoices that include my name and contain references to reimbursements received by APM from the Employment Fund General Account” (emphasis added).  APM is an acronym used by Serendipity (WA) Proprietary Limited trading as Advanced Personnel Management.  It was an employment service provider with whom Ms Skiba was registered. 

    Legislative context

  3. The Privacy Act provides in s 6(1) that:

    ·an APP entity means, relevantly, an agency and that an agency means, relevantly, a Department. 

    ·personal information means:

    information or an opinion about an identified individual, or an individual who is reasonably identifiable:

    (a) whether the information or opinion is true or not; and

    (b) whether the information or opinion is recorded in a material form or not.

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Details
Case
[2022] FCA 1171
Decision Date

CaseChat Overview and Summary

In the case of Skiba v Australian Information Commissioner, the applicant, Ms Skiba, sought judicial review of a decision by the delegate of the Australian Information Commissioner (the respondent) not to investigate further her complaint that the Department of the Prime Minister and Cabinet (the Department) had not complied with her request for personal information under the Privacy Act 1988 (Cth). Ms Skiba argued that the delegate had erred in assessing the Department's actions outside the requirements of the Privacy Act by considering information provided to her by administrative access rather than under the Act. The primary legal issue was whether the delegate had erred in her assessment of the Department's compliance with the Privacy Act by considering information provided through administrative access rather than under the Act.

The Federal Court considered whether the delegate had properly exercised her discretion under s 41(1)(a) of the Privacy Act not to investigate the complaint. The Court held that the delegate had not erred in her assessment of the Department's compliance with the Privacy Act. The Court found that the delegate had considered all relevant information, including the information provided to Ms Skiba through administrative access, and had made a decision based on that information. The Court held that the delegate was entitled to consider the information provided through administrative access and that it was not an error to do so. The Court also found that the delegate had properly exercised her discretion under s 41(1)(a) of the Privacy Act not to investigate the complaint.

The Court dismissed the application and ordered that the applicant pay the respondent's costs. The Court held that the delegate had not erred in her assessment of the Department's compliance with the Privacy Act and that the application for judicial review should be dismissed. The Court also held that the applicant should pay the respondent's costs of the application. The Court did not make any further orders.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 12 April 2022, the delegate made the decision under s 41(1)(a) of the Privacy Act not to investigate Ms Skiba’s complaint because she was satisfied that the act or practice complained about was not an interference with Ms Skiba’s privacy. The delegate referred to the preliminary view she had expressed on 4 March 2022 and Ms Skiba’s response. The delegate said that, based on the available information, the Department had not interfered with Ms Skiba’s privacy as defined in the Act. She stated:The 4 March 2022 email was the OAIC’s view of the complaint and intention to investigate the matter, and the OAIC will now make a decision under the Privacy Act in relation to your allegations and [the Department’s] obligations under APP 12. Please note that there is no requirement for [the Department] to make a decision under the Privacy Act, and we are assessing its compliance with APP 12.(emphasis added) The delegate found that the Department had advised the Commissioner that it had conducted a search of its records for the information that Ms Skiba had requested “and found no tax invoices which had both your name and contained references to reimbursements received by APM from the employment fund general account”. The delegate referred to the invoice created by Alffie but found that the Department did not have to provide Ms Skiba with a copy of it in response to her access request, as it did not fall within the specific description of invoices Ms Skiba had sought. The delegate found that the Department did not hold the personal information that Ms Skiba had requested to access and, therefore, was not required to provide her with information in relation to her access request, nor did it have any obligations under APP 12.1 to do so. The delegate was satisfied that the Department had met the requirements of APP 12, as it “has not refused you access to the personal information it holds that you requested, as it does not hold the personal information you requested”. The delegate found that the Department had responded to Ms Skiba’s request within 30 days, as required by APP 12.4, as construed in the decision of Snaden J in Knowles v Secretary, Department of Defence [2020] FCA 1328. She noted that because the Department did not hold the personal information Ms Skiba sought access, it was not required to provide her with it. The delegate found that the Department had no obligations in those circumstances under APP 12.4(b) and thus “cannot have interfered with your privacy by failing to provide you with access to information in the manner requested”. The delegate was satisfied that the Department had met the requirements of APP 12.4 for those reasons and concluded that she would not further investigate the complaint because she was satisfied that the act or practice complained about was not an interference with Ms Skiba’s privacy as defined in the Act. Ms Skiba’s submissions Ms Skiba complained in the originating application that the Commissioner erred within the meaning of s 5(1)(b) of the AD(JR) Act or committed a jurisdictional error by assessing the Department’s acts “outside” the requirements of the Privacy Act. Ms Skiba asserted that this followed because of the Department’s references to the provision of information to her by administrative access, rather than, as she claimed, in the manner that the Privacy Act required it to follow in accordance with her right to access under APP 12.1. In essence, Ms Skiba argued that the Commissioner:acted unlawfully assessing actions performed under an administrative arrangement against the APP 12 requirements. Accordingly, [the Commissioner] reached an unlawful decision regarding the Department’s compliance with the Privacy Act.

Ratio Decidendi

Legal Principle Established

Ms Skiba complained that the Commissioner did not take into account, first, how the Department had approached its search for the records that she had requested, secondly, that it had not done so under the Privacy Act and, thirdly, that the delegate, by reviewing the Department’s conduct under what Ms Skiba characterised as “administrative arrangements”, had gone beyond her functions under s 27(1) of the Privacy Act. Consideration In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, Brennan CJ, Toohey, McHugh and Gummow JJ said of persons such as the Departmental officers and the delegate:a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued [Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287]: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”(emphasis added, footnotes omitted) In Knowles v Secretary, Department of Defence (2021) 287 FCR 348 at 357–358 [52]–[53], Collier, Logan and Charlesworth JJ, in affirming the decision of Snaden J, held that under APP 12, an APP entity, such as the Department, had to respond to requests within 30 days but did not have to provide the information sought within that time period. Nonetheless, they held that any request had to be dealt with within a reasonable time. In Privacy Commissioner v Telstra Corporation Ltd (2017) 249 FCR 24 at 36 [63]–[64], Kenny and Edelman JJ, with whom Dowsett J agreed, held that “in every case it is necessary to consider whether each item of personal information requested, individually or in combination with other items, is about an individual”. They said that this was an evaluative exercise that depended upon the facts of each individual case.