ALQ March 2023 Privacy

Issue: March 2023

Privacy

Privacy Commissioner granted leave to be joined as a defendant;

Commissioner of Police v DVT [2023] NSWSC 108

The Privacy Commissioner exercised her right of participation pursuant to s. 55(6) of the Privacy and Personal Information Protection Act 1998 (PPIP Act) in proceedings in the Appeal Panel of the NSW Civil and Administrative Tribunal (NCAT). The plaintiff sought leave to appeal the Appeal Panel’s decision to the Supreme Court.

The Privacy Commissioner sought leave to intervene in those appeal proceedings to provide submissions with respect to a discrete issue of statutory interpretation (being, whether s. 20(5) of the PPIP Act picked up s. 60(1)(a) of the GIPA Act such that an agency could refuse to provide an individual access to their personal information under s. 14 of the PPIP Act if doing so would require an unreasonable and substantial diversion of the agency’s resources).

The Privacy Commissioner submitted that it would be appropriate to join her as a defendant to the proceedings pursuant to rr. 6.24 and 6.27 of the Uniform Civil Procedures Rules 2005, having regard to her statutory role, involvement in the Appeal Panel proceedings, the wider implications of the Court’s decision on the scope of s. 20(5) of the PPIP Act and the absence of a contradictor with respect to the submissions made on behalf of the plaintiff.

The Court held it would be appropriate to join the Privacy Commissioner to the proceedings as the Court is likely to be assisted by the Privacy Commissioner’s intervention.

Parents may not have requisite parental responsibility to request and be provided access to their child’s health information

FCZ v Illawarra Shoalhaven Local Health District [2023] NSWCATAP 71

The appellant applied for access to her daughter’s medical record under cl. 7 of Sch. 1 to the Health Records and Information Privacy Act 2002 (“the HRIP Act”) and was refused access. On administrative review, the Tribunal found that the respondent had not breached cl. 7 as the appellant was not the individual to whom the information related or her daughter’s authorised representative and, in the alternative, her daughter’s health information was subject to an overriding public interest against disclosure.

The appellant appealed and contended the Tribunal erred on 13 grounds. She contended that: there was a reasonable apprehension of bias arising from the Tribunal’s references to Family Court judgment in its reasons; she had been denied procedural fairness; the Tribunal did not have the power to interpret the Family Court judgment; the Tribunal had misconstrued and/or misapplied various terms and provisions of the HRIP Act; and, the Tribunal made various errors of fact and took into account irrelevant considerations in finding that there was an overriding public interest against disclosure in her having access to her daughter’s health information.

The respondent submitted that the appellant should not be granted leave to appeal and that the other appeal grounds should be dismissed. The Appeal Panel dismissed the appellant’s appeal and refused to grant her leave to appeal.

Provision of a settlement deed to an agency’s insurer to pay settlement monies does not require the collection purposes of the different types of personal information in the deed to be analysed

BVV v Commissioner of Police [2023] NSWCATAP 6

At first instance, the Tribunal: refused the appellant’s application for an adjournment to obtain legal advice in relation to summonsed documents evidencing his consent to the respondent providing a settlement deed to the respondent’s insurer that had been in his possession prior to commencing the proceedings; refused the appellant’s application for the Tribunal member to disqualify herself on the basis that the respondent had previously briefed her as counsel from 2012 to 2017; and, determined that the respondent had not breached s. 18(1) of the PPIP Act in providing the settlement deed executed by the appellant and respondent to the respondent’s insurer so that the appellant could receive the settlement monies specified in the deed. The appellant appealed the Tribunal’s decisions.

The appellant contended that: there was a reasonable apprehension of bias arising from the Tribunal member hearing the matter; the Tribunal had failed to exercise jurisdiction in relation to his second application for disqualification (that the Tribunal had not promptly provided its reasons for refusing his first application) and his objection to the general access orders made in relation to summonsed documents; he had been denied procedural fairness, based on the cumulative effect of 7 factors; the Tribunal had misapplied s. 18(1)(a) of the PPIP Act by not considering the different types of personal information in the deed; and, the Tribunal had provided inadequate reasons for rejecting his submissions.

The respondent contended that there was no error in the Tribunal’s decisions. The Appeal Panel was not satisfied that the appeal raised any questions of law and ultimately dismissed the appeal on that basis.

Disclosure of personal information in response to a request to access the Births, Deaths and Marriages Register

Kelloway v Registrar of Births Deaths and Marriages [2023] NSWCATAD 34

The applicant sought administrative review of the disclosure of her birth certificate by the Registrar of Births, Deaths and Marriages to a solicitor acting for her estranged uncle so that her uncle could establish that she was her mother’s daughter in order to commence proceedings in a Peruvian court to invalidate property transfers. The applicant contended that the Registrar had breached the PPIP Act in doing so.

The applicant submitted that the Registrar’s disclosure breached, inter alia, ss. 12(c), 17, 18 and 19(2) of the PPIP Act. Moreover, as the Register is a “public register” for the purposes of the PPIP Act, the Tribunal should consider whether the Registrar had complied with its policy for providing access to the Register and whether the applicant’s uncle’s solicitor had provided an adequate reason for access.

The Registrar submitted that the provisions in the Births, Deaths and Marriages Registration Act 1995 (BDMR Act), which governed access to the Register, reasonably contemplated non-compliance with s. 18 and s. 17 (to the extent that there had been an antecedent use) and, therefore, the exemption in s. 25 of the PPIP Act was enlivened. The Registrar also submitted that there could be no breach of s. 19(2) of the PPIP Act when there was no disclosure outside NSW by the Registrar and there could be no breach of s. 12(c) from the mere disclosure of the applicant’s birth certificate to her uncle’s solicitor.

Having regard to the conduct complained of in the email correspondence sent by the applicant to the Registrar and the Tribunal’s finding that the Register is a “public register” for the purposes of the PPIP Act, the Tribunal held that it could only consider whether there had been a disclosure of personal information kept in a public register, and not whether ss. 12(c) and 17 of the PPIP Act had been breached. The Tribunal found that that s. 19(2) of the PPIP Act did not apply for the reasons advanced by the Registrar and that s. 18(1) of the PPIP Act, informed by the requirements of the BDMR Act, had been breached. The Tribunal set aside the Registrar’s decision. The Tribunal’s decision is being appealed.

Other decisions in this issue

Last updated:

26 May 2023