FMH v Cumberland Council [2022] NSWCATAD 293

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FMH v Cumberland Council [2022] NSWCATAD 293 Hearing dates: 18 January 2022 Date of orders: 30 August 2022 Decision date: 30 August 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: A Christie, Senior Member Decision: (1) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the publication of the name of the applicant and any of the witnesses in these proceedings or reference to any information, picture or other material that identifies any of those persons or is likely to lead to the identification of any of those persons is prohibited. (2) Pursuant to s 64(1)(c) CAT Act the publication by other than the Applicant of the evidence and submissions of the parties filed with the Tribunal or otherwise served on either party in these proceedings (including the matters contained in such) is prohibited. (3) A further hearing in relation to the joined HRIP Act AR Application (i.e. the Health Case) and the Applicant's Application for Miscellaneous Matters dated 6 July 2022 is dispensed with under s 50 of the CAT Act. (4) The internal review decision of the Respondent is set aside. (5) Within 21 days of the Applicant providing their bank account (or other acceptable payment method) details to the Respondent, the Respondent is to pay the Applicant $12,500 as compensation for the harm and loss suffered by the Applicant as a result of the Conduct of Concern. (6) Within 21 days of the date of these Reasons for Decision the Respondent is to provide an unreserved formal written apology to the Applicant signed by the Mayor of Cumberland City Council addressing and apologising for the Respondent's breaches of IPPs 5,10, 11 and 12 and HPPs 4, 5, 10 and 11 in respect of the personal, health and IPP 12 restricted information of the Applicant, as identified in these Reasons for Decision, and for all harm, distress, loss and embarrassment caused to the Applicant resulting from such. (7) Within 21 days of the date of these Reasons for Decision the Respondent is to perform IPPs 5 and 12 and HPP 5 by: (a) for all copies (digital and hard copies) of the Personal and Health Information provided to each of the Witnesses, redacting from or retrieving all of the personal and health information which each Witness does not (or in the case of these proceedings no longer) require for their evidence. For example, all of the Personal and Health Information not referred to in their witness statement or reasonably required for them to give their evidence and all of the IPP 12 restricted information disclosed to all non-employee witnesses must be redacted from what was provided to them or retrieved by the Respondent and appropriate security safeguards are implemented to satisfy the Respondent that none of the Witnesses retain or have misused any of that information; (b) in relation to any personal and/or health information about the Applicant in the Personal and Health Information to be retained by the Witnesses (and any IPP 12 restricted information to be retained by the employee witnesses), implementing such administrative measures necessary to ensure that the Applicant's personal, health and/or IPP 12 restricted information is protected by taking such security safeguards as are reasonable in the circumstances against loss, unauthorised access, use, modification or disclosure and against all other misuse (which steps might include an appropriate confidentiality or non-disclosure agreement with each of the Witnesses); and (c) for all other and any future proceedings involving FMH, implementing such administrative measures necessary to ensure that FMH's IPP 12 restricted information is not disclosed except as permitted by IPP 12 and FMH's personal and/or health information used or disclosed in relation to any such proceedings is protected by taking such security safeguards as are reasonable in the circumstances against loss, unauthorised access, use, modification or disclosure and against all other misuse of that information (which includes use contrary to IPP 10 and HPP 10 and disclosure contrary to IPPs 11 and 12 and HPP 11). (8) Within 45 days of the date of these Reasons for Decisions the Respondent is to perform HPP 4 including by implementing such: (a) training, awareness raising and safeguards; and (b) administrative measures, necessary to ensure that in respect of health information about FMH collected by the Respondent relating to any internal or external administrative review and related proceedings the Respondent takes such steps as are reasonable in the circumstances to ensure that FMH is aware of the matters noted in HPP 4(1). (9) Within 45 days of the date of these Reasons for Decisions the Respondent is to perform HPP 10 and IPP 10, in relation to all health and/or personal information about FMH held by the Respondent as a result of or in relation to any administrative reviews or resulting proceedings, including by implementing such: (a) training, awareness raising and safeguards; and (b) administrative measures, necessary to ensure the Respondent will, having regard to the purpose for which FMH's health and/or personal information is collected, ensure that all of that health and/or personal information about FMH not reasonably required by any employee as a witness for the scope of their evidence is only used in compliance with, as relevant, HPP 10 or IPP 10. (10) Within 45 days of the date of these Reasons for Decisions the Respondent is to perform HPP 11 and IPP 11, in relation to all health and/or personal information about FMH held by the Respondent as a result of or in relation to any administrative reviews or resulting proceedings, including by implementing such: (a) training, awareness raising and safeguards; and (b) administrative measures, necessary to ensure the Respondent will, having regard to the purpose for which FMH's health and/or personal information is collected, ensure that all of that health and/or personal information about FMH not reasonably required by any non-employee as a witness for the scope of their evidence is only disclosed in compliance with, as relevant, HPP 11 or IPP 11. Catchwords: ADMINISTRATIVE REVIEW – Privacy and Personal Information Protection Act – IPPs 5, 10, 11 and 12 – Health Records Information Protection Act – HPPs 2, 4, 5, 6, 10 and 11 – s 25(b) PPIP Act and exemption from compliance with IPPs – HPPs 5(2), 10(2) and 11(2) and exemption from compliance with relevant HPPs – unsolicited information and holding of the information for the purposes of IPPs 10 and 11 and HPPs 10 and 11 – assessing the level of compensation appropriate for the exacerbation of existing psychological conditions and financial losses Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Health Records and Information Privacy Act 2002 Privacy Act 1988 (Cth) Privacy and Personal Information Protection Act 1998 Privacy (Tax File Number) Rule 2015 (Cth) State Records Act 1998 Cases Cited: AIN v Medical Council of New South Wales [2017] NSWCATAP 23 ALZ v Workcover NSW (No 2) [2014] NSWCATAD 122 AOZ v Rail Corporation NSW (No 2) [2015] NSWCATAP 179 APV v Department of Finance and Services [2016] NSWCATAD 168 CEU v University of Technology Sydney [2018] NSWCATAD 13 CJU v SafeWork NSW [2018] NSWCATAD 300 CPJ v The University of Newcastle [2017] NSWCATAD 350 DED v Randwick City Council [2017] NSWCATAD 327 Department of Education and Training v GA (No 3) [2004] NSWADTAP 50 Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 DRX v City of Canada Bay Council [2020] DTN v Commissioner of Police (No 3) [2020] NSWCATAP 73 (DTN No 3) at [105] DTN v Commissioner of Police (No 3) [2020] NSWCATAP 73 (DTN No 3) at [105] DTN v Commissioner of Police (No. 3) [2020] NSWATAP 73 DTN v Commissioner of Police [2022] NSWCATAD 134 EEC v Federation Council [2020] NSW CATAD 169 EMF v Cessnock City Council [2021] NSWCATAD 219 EQ v Office of the Australian Information Commissioner (Freedom of Information) [2016] AATA 785 EQH v Health Administration Corporation [2021] NSWCATAD 215 GR v Department of Housing [2003] NSWADT 268 Insurance and Care NSW v EEH [2021] NSWCATAP 350 JD v NSW Medical Board (No. 2) [2006] NSWADT 345 KT v Sydney Local Health Network [2011] NSWADT 171 March v Stramare (E and MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Nasr v State of New South Wales (2007) NSWCA 101 NK v Northern Sydney Central Coast Area Health Service (No. 2) [2011] NSWADT 81 Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4 RD v Department of Education and Training [2005] NSWADT 195 Ritson v Commissioner of Police [2022] NSWCATAP 223 State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 SW v Forests NSW [2006] NSWADT 74 WT v Auburn Council [2007] NSWADT 253 ZR v Department of Education and Training (GD) [2010] NSWADTAP 75 (ZR) Texts Cited: Nil Category: Principal judgment Parties: FMH (Applicant) Cumberland Council (Respondent) Representation: Solicitors: Applicant (Self-represented) Storey & Gough (Respondent) File Number(s): 2021/00205873 and 2021/00354501 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the publication of the name of the applicant in these proceedings or reference to any information, picture or other material that identifies any of those persons or is likely to lead to the identification of any of those persons is prohibited.