TDFM v Office of the Australian Information Commissioner
[2012] AATA 37
•25 January 2012
REASONS FOR INTERLOCUTORY DECISION [2012] AATA 37
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number(s) | 2011/5008 |
| Re | TDFM |
| APPLICANT | |
| And | OFFICE OF THE AUSTRALIAN INFORMATION COMMISSIONER |
| RESPONDENT |
DECISION
| Tribunal | Professor RM Creyke, Senior Member |
| Date | 25 January 2012 |
| Date of written reasons | 25 January 2012 |
| Place | Canberra |
The application is dismissed.
...........................[sgd].......................................
Professor RM Creyke, Senior Member
Catchwords
TRIBUNALS – PRACTICE & PROCEDURE - Privacy Act 1988 (Cth) – complaint regarding request for information under Freedom of Information Act 1982 (Cth) - whether complaint solely about refusal of compensation falls within s 52 – whether an ‘investigation of a complaint’ – meaning of ‘complaint’, ‘investigation’, ‘act or practice.’
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 42A
Privacy Act 1988 (Cth) ss 6, 13, 36, 40, 41, 52, 61
Cases
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452
Re Epifano and Privacy Commissioner [2010] AATA 489
Registrar of Titles (WA) v Franzon (1975) CLR 611 at 618
REASONS FOR DECISION
Professor RM Creyke, Senior Member
25 January 2012
On 16 December 2009, TDFM made a complaint to the Privacy Commissioner that the Australian Research Council (ARC) had breached his privacy.
On 31 March 2010, Mr Mark Hummerston, Assistant Privacy Commissioner, notified TDFM that he would investigate the matter in accordance with section 40(1) of the Privacy Act 1988 (Cth) (Act).
On 18 November 2011, following extensive consultation and negotiations between those involved, Mr Hummerston informed TDFM that he was closing the complaint under section 41(2)(a) of the Act because the matter had been dealt with appropriately.
On 23 November 2011, TDFM sought review by the Tribunal. The preliminary issue as to whether the Tribunal had jurisdiction to hear the application was heard in Canberra at an interlocutory hearing on 13 January 2012.
History
TDFM is an academic. In 2009, he was unsuccessful in his application to the ARC for a research fellowship. During the course of this matter TDFM’s contract with his former employer was not renewed. He has since acquired another similar position.
TDFM sought feedback as to the reasons he was unsuccessful, relying on the Freedom of Information Act 1982 (Cth) (FOI Act). That request was relayed by the ARC to his employer. Following that notification, TDFM’s supervisor at his place of work contacted him to suggest he withdraw his request.
On 16 December 2009, TDFM complained to the Privacy Commissioner that the ARC had breached his privacy by passing on information that he had made an FOI Act request to his employer, and to his supervisor. He sought an apology and compensation for the damage to his professional reputation and costs incidental to the claim for breach of his privacy.
The Office of the Privacy Commissioner investigated the complaint and formed the preliminary view that there had been a breach under the Act. As a consequence, on 18 August 2011, the ARC issued a written apology to TDFM, and informed him that they would offer training to their staff on their privacy obligations.
On 31 August 2011, TDFM approached the ARC ‘on an informal basis’, for compensation. On 6 September 2011 the Chief Executive Officer of the ARC declined to offer any compensation for the breach.
TDFM was not satisfied, and in correspondence with the Office of the Privacy Commissioner on 26 September 2011, he said he believed that the ARC should ‘repair the damages’ to his career.
On 7 October 2011, the Acting Director in the Compliance Section, Office of the Australian Information Commissioner,[1] contacted TDFM. The letter stated:
I am satisfied that the steps the ARC has taken adequately deal with the complaint. As such, I intend to recommend to the Assistant Privacy Commissioner that he close the complaint under section 41(2)(a) as having been adequately dealt with by the ARC.
TDFM was advised that if he disagreed with these steps he should provide reasons and supporting evidence to the Office of the Australian Information Commissioner on or before 21 October 2011.
[1] During the course of these proceedings, the Office of the Australian Information Commissioner was established. That has necessitated legislative changes to the authority of those making decisions under the Privacy Act 1988 (Cth) and the Freedom of Information Act 1982 (Cth). The Information Commissioner (defined in the Privacy Act 1988 (Cth) s 6(1) as the Information Commissioner appointed under the Australian Information Commissioner Act 2010 (Cth) ss 3A, 14), is able to exercise authority under both the Privacy Act 1988 (Cth) and the Freedom of Information Act 1982 (Cth) (Australian Information Commissioner Act 2010 (Cth) s10). The Information Commissioner, through his delegate, exercised that authority in responding to TDFM’s second complaints.
On 7 October 2011, TDFM responded disagreeing with the proposal to close the case. He provided reasons, including the significant number of hours he had spent on his complaint over the previous two years, the inadequacy of the apology, and what he said was evidence that his career had been jeopardised by the breach of his privacy. He also cited public interest grounds.
On 18 November 2011, Mr Hummerston responded, rejecting TDFM’s reasons. In relation to the claim for compensation he noted TDFM had ‘not substantiated that your losses are as a direct result of the interference of your privacy by the ARC. Therefore I do not consider that you are entitled to financial compensation in this matter’. He concluded that the complaint was closed for the reasons outlined in the letter of 7 October 2011 from the Office of the Information Commissioner.
He also advised that if TDFM considered ‘that the process which this Office used to make its decision was unfair’ he could seek judicial review of the matter by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth), or complain to the Ombudsman.
Legislation
The relevant legislation is the Privacy Act 1988 (Cth) (Act).
Issues
The sole issue is whether the Tribunal has jurisdiction under the Privacy Act 1988 (Cth) (Act) to consider the application by TDFM. It is that legislation which provides for a right of review by the Tribunal.[2]
[2] Administrative Appeals Tribunal Act 1975 (Cth) s 25.
Consideration
TDFM contended at the hearing that he made two complaints to the Office of the Privacy Commissioner: the first related to the initial matter involving the breach of privacy by the ARC; the second was a complaint against the decision of Mr Hummerston not to accede to his claim for compensation for what he claimed was the consequence of the breach of his privacy.
TDFM agreed that the action of Mr Hummerston, as Assistant Privacy Commissioner, in deciding not to investigate further the breach of privacy complaint under s 41(2)(a) of the Act because it had been dealt with adequately by the ARC, was correct and was not reviewable by the Tribunal.
In relation to his claim for compensation, the Office of the Information Commissioner,[3] in its letter of 18 November 2011, decided that TDFM was not entitled to financial compensation. TDFM submitted that this complaint came within the terms of section 52(1)(a) of the Act. Section 52(1) states: ‘After investigating a complaint, the Commissioner may (a) make a determination dismissing the complaint’.
[3] Act s 6(1).
TDFM’s submission is that he had made a ‘complaint’ in relation to his claim for compensation, that it had been ‘investigated’, and that a ‘determination’ was made by the Privacy Commissioner in the letter of 18 November 2011 to dismiss his complaint. Accordingly, he submitted, his complaint came within the terms of section 52. The correctness of TDFM’s submission requires a journey along a statutory trail.
Appeals to the Tribunal are provided for in sections 61, 95, 95A and 95AA of the Act. Sections 95 to 95AA concern privacy and health information and are not relevant. Section 61 is contained in Part V of the Act, which deals with ‘Investigations’. Section 61 is found in Division 4 of Part V, headed ‘Review and enforcement of determinations involving Commonwealth agencies’.
Section 61 provides that an application may be made to the Tribunal for review of:
61(a) a declaration of the kind referred to in subparagraph 52(1)(b)(iii) or subsection 52(3) that is included in a determination to which this Division applies; or
(b) a decision of the Commissioner refusing to include such a declaration in a determination to which this Division applies.
The ‘determination’ referred to is a ‘determination’ (that is, a decision) referred to in section 52. Section 52 is located in Division 2 of the Act which is headed ‘Determinations following investigation of complaints’. The ‘declaration’ referred to in section 61(a) is that a person is ‘entitled to a specified amount by way of compensation’.
Accordingly, section 61 provides that the Tribunal has jurisdiction to consider a complaint about a payment of compensation, but only if made under section 52(1)(b)(iii). That is the only provision relevant to TDFM’s complaint.
Section 52(1)(b)(iii) provides:
(1) After investigating a complaint, the Commissioner may:
(a) make a determination dismissing the complaint; or (b) find the complaint substantiated and make a determination that includes one or more of the following: …
(iii) a declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice the subject of the complaint …
Section 52 provides only for a ‘determination’ by the Commissioner made ‘after investigating a complaint’. The issue is whether the ‘determination’ is limited to a complaint about a breach of privacy or extends to a complaint about a related matter such as compensation.
Investigating a complaint
The term ‘investigating’ and the related noun, ‘investigation’ are not defined. Section 40 of the Act, however, is headed ‘Investigation’ and provides for the circumstances in which the Commissioner investigates a breach of privacy. Section 40 provides as follows:
(1)Subject to subsection (1A), the Commissioner shall investigate an act or practice if:
(a) the act or practice may be an interference with the privacy of an individual; and(b) a complaint about the act or practice has been made under section 36….
Accordingly, an investigation must be of an ‘act or practice’ which ‘may be an interference with the privacy of an individual’.
The words ‘act or practice’ are not defined. The meaning of the expression is provided by section 13 which appears in Part III headed ‘Information privacy, Division 1 – Interferences with privacy’. Section 13 is also headed ‘Interferences with the privacy’ and states, as relevant:
For the purposes of this Act, an act or practice is an interference with the privacy of an individual if the act or practice:
(a) in the case of an act or practice engaged in by an agency (whether or not the agency is also a file number recipient, credit reporting agency or credit provider)—breaches an Information Privacy Principle in relation to personal information that relates to the individual.
In other words, references in the Act to an ‘act or practice’ are references to acts or practices which breach privacy by releasing personal information relating to an individual contrary to the Principles in the Act.
The word ‘complaint’ is also not defined in the Act. The term is referred to, however, in Part V of the Act. Section 36, headed ‘complaints’ states, as relevant: ‘36(1) Subject to subsection (1A), an individual may complain to the Commissioner about an act or practice that may be an interference with the privacy of the individual’.
In its terms, section 36 refers to ‘an act or practice’ that may breach privacy; it does not refer to a complaint about a rejection of a request for compensation.
It can be assumed, unless the context otherwise dictates, that when the same expression is used in more than one part of an Act the expression has the same meaning wherever it appears.[4] So when ‘complaint’ is used in section 52, it has the same meaning as in section 36. Similarly, when ‘act or practice’ or ‘investigation’ or ’investigating’ is used, the term or expression has the meaning discerned from the sections earlier discussed. It follows that the meaning of ‘After investigating a complaint’ in section 52(1) refers only to an investigation of a complaint about a possible breach of privacy.
[4] Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 (Hodges J); Registrar of Titles (WA) v Franzon (1975) CLR 611 at 618 (Mason J).
The dismissal of the complaint by TDFM of his breach of privacy by Mr Hummerston under section 41(2)(a) did not result in a ‘determination’ (or decision) under section 52. Nor did the outcome follow an ‘investigation’. The first complaint made by TDFM about a breach of his privacy by the ARC, does not, therefore, fall within section 52. TDFM rightly conceded as much.
The next step in this interpretive journey is that section 52, in its terms, makes it plain that the declaration of entitlement to compensation in section 52(1)(b)(iii) is only ancillary to a formal decision that there has been a breach of privacy. There is no free-standing right to compensation. An award of compensation can only be made following a determination that there has been a breach of someone’s privacy following an investigation as referred to in section 52.
That finding is supported by the terms of section 52(1)(b)(iii) which states that a declaration of compensation is tied to ‘any loss or damage suffered by reason of the act or practice the subject of the complaint’ (section 52(1)(b)(iii)) (emphasis added). The right to compensation is dependent on a ‘determination’ that there has been a breach of privacy. As discussed, no such ‘determination’ was made in TDFM’s substantive claim of breach of privacy.
In those circumstances, as the complaint made by TDFM does not fall under section 52, the Tribunal has no jurisdiction under section 61 to review the matter[5]. The Tribunal finds, accordingly that it has no jurisdiction to consider TDFM’s complaint. The application is dismissed under section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
[5] A similar finding on comparable facts was made in Re Epifano and Privacy Commissioner [2010] AATA 489.
The Tribunal confirms the advice given to TDFM about his opportunities for further review by the Federal Court or the Ombudsman.
Date of Hearing 13 January 2012
Date of Decision 25 January 2012
Solicitor for the Applicant Self-Represented
Solicitor for the Respondent Louise McConnell
Counsel for the Respondent Justin Davidson
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