ALQ June 2022 Privacy

Issue: June 2022

Privacy decisions

PPIPA exemptions for NSWPF disclosures to media outlets  

Access the decision: FBQ v Commissioner of Police [2022] NSWCATAD 110.

The applicant was charged with child sexual offences of which he was later acquitted.

The applicant alleged that NSW Police Force (NSWPF) contravened s. 18(1) of the Privacy and Personal Information Protection Act (PPIPA) when a NSWPF public relations officer disclosed his name to media outlets in response to inquiries regarding a court appearance in the criminal proceedings.

The Tribunal accepted the respondent's submissions that: the disclosure did not occur in connection with the exercise of 'administrative functions' by reference to the ordinary meaning of those words (s. 27). 

Rather, the disclosures were directed to assisting the media in their reporting of crime, were non-routine responses to lawful inquiries by third parties and occurred in connection with the exercise of the NSWPF's policing functions. It was also accepted that the s. 23(5)(a) exemption applied by reference to its ordinary meaning. The exemption provides that a public sector agency (including NSWPF) is not required to comply with s. 18(1) if the relevant disclosure is made 'in connection with proceedings for an offence'.

Significant damages award under the PPIPA

Access the decision: EPT v The Sydney Children's Hospital Network [2022] NSWCATAD 137.

The applicant was a former employee of the respondent. The respondent conceded that it breached s. 12(c) of the PPIPA by failing to ensure that staff members' personal information was protected against unauthorised access or use. The breach occurred when a security setting on the respondent's computer network enabled staff members to access files stored on other staff members' personal drives (including the applicant's).

The primary issues were whether the applicant suffered relevant harm 'because of' the respondent's contravening conduct for the purposes of s. 55(4)(b) and, if it did, the quantum of any compensatory damages to be ordered under s. 55(2)(a) of the PPIPA. 

The Tribunal found that the applicant, who had claimed $1.4m in compensation for various heads of damage, suffered psychological harm 'because of' the respondent's breach because it materially (but not solely) contributed to the harm he suffered. The Tribunal awarded $10,000 in damages, applying the well-established 'eggshell skull' rule to support an award for the full extent of the applicant's injury, notwithstanding that he suffered an unusually high level of damage due to a predisposition to mental health issues.

The Tribunal also found that the length of time taken by the respondent to make the decision under review contributed to the applicant's distress and appeared to take that into account as an aggravating factor in determining the quantum of damages.

Tribunal grants extension of time to make s. 59 application

Access the decision: EFB v Commissioner of Police, NSW Police Force [2022] NSWCATAD 99.

The applicant sought review of the respondent's conduct under PPIPA.  Under s58 of the Administrative Decisions Review Act 1997 (the ADR Act) an applicant whose administratively reviewable decision is the subject of an application for review has 28 days to supply a copy of any documents which will be relevant to the determination of the application by the Tribunal.

Three days after the expiry of the 28 day period, the respondent filed an application under s. 59 of the the ADR Act. Section 59 enables the respondent to apply for an order that they not be required to lodge a copy of a documents 'before the expiry of the period' specified by s. 58.

The respondent argued that they might suffer hardship ( under s. 58(3)) because the information was subject to an overriding public interest against disclosure, which was in issue in other proceedings.

The Tribunal applied s. 41 of Civil and Administrative Tribunal Act 2013, which empowers the Tribunal to extend the time to make an application under s. 59 of the ADR Act, even after the time for lodgement of documents has expired.  

Health Privacy Principle 11 and designated persons under the Mental Health Act 2007

Access the decision: EON v Mid North Coast Local Health District [2022] NSWCATAD 113.

The applicant sought administrative review of the respondent's conduct after the respondent disclosed EON's health information to his sister, EOS, who had been validly appointed as EON's 'designated carer' under the Mental Health Act 2007 (the MH Act).

The review was requested on the basis that the disclosure contravened HPP 11(1) because the disclosure was made for a secondary purpose that was contrary to the primary purpose for which the information was collected.

The Tribunal considered that the primary purpose of collecting the applicant's health information was directly related to the secondary purpose for which it was disclosed to EOS (that is, it coincided with the respondent's function of providing community health and mental health services to EON) and that the applicant would have reasonably expected that the respondent would have disclosed his health information to EOS (HPP 11(1)(b)).

The Tribunal also held that, as EOS was the applicant's designated person under the MH Act, the disclosures were permitted under s. 189 of the MH Act and therefore the exception in HPP 11(2)(b) to breaches of the Act was established.

If you have any questions about the contents of this newsletter, please contact john.mcdonnell@cso.nsw.gov.au.

Other decisions in this issue

Last updated:

16 Nov 2022

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