VA v Director General, Premier's Department of NSW [2006] NSWADT 249

CITATION: VA v Director General, Premier's Department of NSW [2006] NSWADT 249

DIVISION: General Division

APPLICANT PARTIES: VA RESPONDENT Director General, Premier's Department of NSW

FILE NUMBER: 053442

HEARING DATES: 4/08/2006

SUBMISSIONS CLOSED: 08/04/2006

DATE OF DECISION: 08/21/2006

BEFORE: Handley R - Judicial Member

CATCHWORDS: Jurisdiction

MATTER FOR DECISION: Principal matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Privacy and Personal Information Protection Act 1998

Briscoe-Hough v Filipopoulos [2004] NSWADT 217 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 GR v Department of Housing (No 2) (GD) [2006] NSWADTAP 34 CASES CITED: Griffin v Commissioner of Police, NSW Police [2005] NSWADT 92 GV v Office of the Director of Public Prosecutions [2003] NSWADT 177 KO & anor v Commissioner of Police, NSW (GD) [2004] NSWADTAP 21 Macquarie University v FM [2005] NSWCA 192 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102

APPLICANT In person REPRESENTATION: RESPONDENT J McDonnell, solicitor

ORDERS: The proceedings are dismissed for lack of jurisdiction

REASONS FOR DECISION 1 VA claims that a member of staff of the Premier's Department of NSW ('the Department') contravened the Privacy & Personal Information Protection Act 1998 ('the PPIP Act') by disclosing personal information about VA to a television journalist. On an internal review, dated 1 December 2005, the Deputy Director General, Mr Alex Smith, was "unable to conclude that there was sufficient evidence to establish that the alleged conduct occurred". On 29 December 2005, VA applied to the Tribunal for a further review. The Department has asked the Tribunal to decide as a preliminary issue whether VA's application should be dismissed. Background 2 VA states that he suffers from a serious degenerative disease, as a result of which he is confined to a wheelchair and requires daily assistance at the beginning and end of the day to get in and out of bed, to dress, shower and apply pressure stockings. Following a decision by the Homecare Service of NSW to reduce the level of service provided to VA, VA contacted the Shadow Minister for Disability Services ('the Shadow Minister'). On 6 May 2005, the Shadow Minister asked the Special Minister of State, Minister for Ageing and Minister for Disability Services ('the Minister') a question without notice about VA's case in the Parliament. Following this, on Saturday 7 May 2005, reference was made to VA's case in an 8.00 am ABC news bulletin. That same morning, a television journalist working for a commercial channel telephoned VA asking if she might interview him. The journalist also contacted the Shadow Minister and arranged that he would also attend the interview at VA's home. 3 On arrival at VA's home, the journalist asked VA a number of questions that he perceived to be hostile, and then left after a short time. The Shadow Minister had not yet arrived because he had been delayed by a traffic accident. According to a Statutory Declaration by the Shadow Minister dated 20 April 2006, when he telephoned the journalist to tell her that he had been delayed and would be late for the interview, she told him she had already arrived at VA's home and was about to do a preliminary interview: "She proceeded to say a number of things about [VA] which she informed me had just been given to her during an 'off the record' interview from an undisclosed source." The journalist phoned the Shadow Minister shortly afterwards to say that, having spoken to her news editor, she was not going to pursue the story. 4 VA claims that the allegations about his conduct told to the Shadow Minister by the journalist are "grossly defamatory and absolutely untrue" (letter dated 13 July 2005). The Shadow Minister deduced from this telephone conversation with the journalist that the information supplied to the journalist came from the office of the Minister, it being a Saturday morning and there being "no other source of information available from the Government". 5 The Shadow Minister states that on the following Monday, his office made enquiries with a radio journalist "to see if she had been told anything similar". The journalist said she had made enquiries with the Government during Monday 9 May 2005 and told him "she had been given the same information about serious allegations against [VA]". As a result, she also was not interested in pursuing the story. 6 On 13 July 2005, VA wrote to the Director General of the Premier's Department seeking an internal review in relation to the alleged breach of his privacy as a result of the unauthorised disclosure of personal information. VA said he suffered personal distress and public embarrassment as a result of the disclosure and sought a public apology. On 13 September 2005, the Director General wrote to VA saying that his complaint had become inadvertently attached to other correspondence and had been misplaced until it came to light on 12 September 2005. He apologised for the delay and stated that he would expedite the internal review requested by VA. 7 The Deputy Director General, Mr Smith, completed his internal review on 1 December 2005. In his conclusion, Mr Smith said: "Accordingly, in view of the fact that: (i) [the television journalist] has not responded to requests with comments on [VA's] allegations; (ii) [the Shadow Minister] has not responded to requests with comments on [VA's] allegations; (iii) there is no evidence of the transmission of the material from DADHC [Department of Ageing, Disability and Home Care] to the Ministerial Office of the nature [sic] subject to complaint by [VA]; (iv) differences between [VA's] version of the nature of the unnamed source and that of the [Shadow Minister]; and (v) there are other organisations apart from DADHC and the Minister's Office who may have an issue with [VA] which could have resulted in that organisation or person being the unnamed source. I am unable to conclude there is sufficient evidence to establish that the alleged conduct occurred. If I had formed the view that there was sufficient evidence to establish that the alleged conduct had occurred I would have no hesitation in recommending an immediate apology to [VA]. However in the absence of sufficient evidence to establish this fact I propose that the Director General take no further action." 8 As stated above, the Department has asked the Tribunal to decide as a preliminary issue whether VA's application should be dismissed. The Tribunal held a hearing to discuss this issue with the parties on 4 August 2006. The Relevant Law 9 Part 5 of the PPIP Act provides for the review of certain conduct. The conduct to which Part 5 applies is set out in s 52 and includes relevantly: "(1)(a) the contravention by a public sector agency of an information privacy principle that applies to the agency" 10 Section 53(1) states that a person who is aggrieved by the conduct of a public sector agency can apply to the agency for a review of that conduct. The Tribunal's role, pursuant to s 55(1) of the PPIP Act, is to undertake a review of the conduct that was the subject of VA's application to the Department. Pursuant to s 55(2), the Tribunal may then decide not to take any action on the matter or to make any one or more of a series of orders. 11 Section 52(2) states that "conduct includes a reference to alleged conduct". The conduct alleged by VA is the disclosure of personal information to a television journalist. 12 The PPIP Act provides for the protection of personal information and the privacy of individuals. The Act contains a series of Information Protection Principles ('IPPs') which agencies are required to observe in their handling of personal information. In VA's case, the relevant IPPs appear to be those set out in ss 18 and 19, set out below. 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it. 19 Special restrictions on disclosure of personal information (1) A public sector agency must not disclose personal information relating to an individual's ethnic or racial origin, political opinions, religious or philosophical beliefs, trade union membership or sexual activities unless the disclosure is necessary to prevent a serious and imminent threat to the life or health of the individual concerned or another person. (2) ... 13 'Personal information' is broadly defined in s4 as meaning information or an opinion about an individual, including that forming part of a database. Section 4(4) provides that personal information is held by a public sector agency if, relevantly, the agency, or an employee of the agency in the course of their employment, is "in possession or control of the information". In Macquarie University v FM [2005] NSWCA 192 ('FM'), at paragraph 34, the NSW Court of Appeal held that: "[t]he natural and ordinary meaning of the words 'possession or control' does not ... extend to material held only in the mind of a person. Both words connote some form of physical object upon which or within which an information or opinion is recorded. A person is neither in 'possession', nor in 'control', of the contents of her or his mind." Submissions 14 The Department relies on two grounds in support of its application. First, it submits the Tribunal lacks jurisdiction because there is no evidence that the relevant personal information was either held by the agency – in this instance, referring to the Minister's office or the Department, or disclosed by the agency. A thorough investigation was carried out in the course of the internal review and no relevant personal information was identified. Consequently, there is no "conduct", as defined in s 52, before the Tribunal for review, and thus the Tribunal has nothing before it to enliven its jurisdiction. 15 The Department acknowledged that it is up to the agency to investigate the alleged conduct once a person has requested an internal review under s 53 of the PPIP Act: KO & anor v Commissioner of Police, NSW (GD) [2004] NSWADTAP 21, at par 41. However, while the PPIP Act does not state who has the onus of proof in such cases, "the applicant would ordinarily bear an initial or evidentiary burden so as to satisfy the Tribunal that it should make the orders or the kinds of orders sought by the applicant in the Proceedings": GV v Office of the Director of Public Prosecutions [2003] NSWADT 177, at par 37. 16 Secondly, the Department submits that the Tribunal should dismiss the proceedings under s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act') on the ground that they are lacking in substance. Section 73(5)(h) empowers the Tribunal to dismiss proceedings before it "if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance". The Department submits the proceedings are lacking in substance because there is no evidence to support the claim that the alleged conduct occurred. The only evidence put forward by VA is that of the Shadow Minister, who infers that the source of the information is likely to be someone in the Government. The Department submits that this cannot be considered evidence on which the Tribunal can rely to enable the matter to proceed. 17 VA maintains that a government employee released personal and defamatory information to a television journalist. He is not satisfied with Mr Smith's internal review because Mr Smith did not interview the journalist during the course of his investigation. If, during his investigation, Mr Smith did unknowingly speak to the person who disclosed the information, the person is unlikely to have admitted this. It will be impossible to establish the source of the leak without first speaking to the journalist. VA requested that the Tribunal subpoena the journalist and the Shadow Minister to appear and give evidence. He contends: "The only logical reason for negative and misleading information to be released to a journalist in this way would be to stop a story, which would have been critical of the government's decision to cease my Home Care Service." Discussion 18 On the day of the hearing in this matter, a Tribunal Appeal Panel published its decision in GR v Department of Housing (No 2) (GD) [2006] NSWADTAP 34. The facts of that case are not dissimilar to those alleged by VA, involving a media liaison officer employed by an agency providing oral information about the appellant to the producer of a morning talk-back radio show. There was affidavit evidence as to what information had been provided and as to the source of that information. However, there was no "form of physical object upon which or within which an information or opinion is recorded" (FM, at par 34). The Appeal Panel dismissed an appeal challenging the decision of the Tribunal to apply the decision in FM in determining the Tribunal had no jurisdiction to conduct the review requested by the appellant. 19 In VA's case, the internal review conducted by Mr Smith appears to have been thorough. VA criticises the investigation because Mr Smith did not interview the television journalist. However, I note that although Mr Smith wrote to the journalist on 16 September 2005 (by registered post) seeking information about the events in question, and again on 10 October 2005, no response was received. Mr Smith appended copies of those letters to his report. I have reviewed Mr Smith's report dated 1 December 2005 and I note that his investigation did reveal various documents relating to the complaints made by VA about the Home Care service and in response to questions raised by the Shadow Minister in Parliament. These comprise briefing notes to the Minister, correspondence and press briefing notes. None of these documents contain personal information about VA corresponding with that referred to by the television journalist in her phone conversation with the Shadow Minister. 20 I note that Mr Smith interviewed a media officer who believed he had briefed a journalist from the television channel in question on or about 7 May 2005. The media officer could not recall any documentation containing material of a kind raised in VA's complaint. He also could not recall using the language referred to by VA in any of the discussions he had with journalists who were interested in VA's case at about that time. 21 Mr Smith's investigation also reveals that in April 2005, a media officer employed by DADHC, in a conversation with a researcher for the same television channel, provided the researcher with general background information on VA. In this conversation: "It was explained though, that recruiting a carer that suited [VA's] very specific time requirements, and who was willing to work with him, due to his at times demanding behaviour, was proving difficult." 22 The media officer was advised verbally by the DADHC regional manager for Home Care that other contracted care workers had complained about VA's behaviour and attitude towards them, and that several carers had refused to work with VA. Mr Smith noted that the response to his enquiries from DADHC referred to four external care providers who had knowledge of VA and his requirements: "Each of those agencies appears to have an issue with [VA] or [VA] with these agencies." Mr Smith commented: "This would suggest that there are other sources that could be the 'unnamed source' referred to in [VA]'s complaint." 23 Having examined the material provided by the Department and considered the parties' submissions, I find there is no documentary evidence of the allegations about VA's conduct about which he complains. There is also no direct evidence about who was the source of the disclosure of these allegations to the television journalist. The only evidence is that of the Shadow Minister who inferred from what the television journalist said to him on the phone that the source of the journalist's information was a person in the Minister's office. 24 In my view, following the decision in FM, given that the only evidence is of a verbal disclosure, there being no documentary evidence of the material alleged to have been disclosed, the Department was not "in possession or control of the information". Thus, pursuant to s 4(4) and the decision in FM, the 'personal information' cannot be said to have been held by the agency and s 18 of the PPIP Act, which applies to an agency that "holds" personal information, does not apply. Thus, the Tribunal has no jurisdiction in relation to a complaint in relation to the alleged s 18 disclosure of personal information. 25 With regard to s 19 of the PPIP Act, in my view, there is insufficient evidence to establish that personal information relating to VA's sexual activities was disclosed by the agency. The only evidence is the Shadow Minister's statement as to his phone conversation with the television journalist from which he inferred a disclosure by a person in the Minister's office. There being no other evidence, and there being evidence of other outside agencies with knowledge of VA, I am not satisfied that there is sufficient evidence to establish 'conduct' or 'alleged conduct', as defined in s 52, that would empower the Tribunal to conduct a further review pursuant to s 55. Thus, the Tribunal has no jurisdiction in relation to the alleged s 19 disclosure of personal information. 26 Even if, in either case, the Tribunal had jurisdiction, I would be inclined to dismiss VA's application as 'lacking in substance' pursuant to s 73(5)(h) of the ADT Act. I note Barwick J's admonition in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, that the power of peremptory dismissal of proceedings is to be exercised cautiously and sparingly. 27 In Griffin v Commissioner of Police, NSW Police [2005] NSWADT 92, the Tribunal considered the application of the words 'lacking in substance' in a similar provision in s 111 of the Anti-Discrimination Act 1997. The Tribunal held, following the decision in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102, at 108-109, that 'lacking in substance' means "an untenable proposition in law or fact". 28 In Briscoe-Hough v Filipopoulos [2004] NSWADT 217, the Tribunal, while acknowledging (at par 9) that it "should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action", said (at par 10): "An application is appropriately described as being 'misconceived' or 'lacking in substance' if it can be demonstrated that there exists no factual basis for the allegations, or that the allegations lack merit." 29 The only evidence before the Tribunal that there was a disclosure of personal information by the Department is an inference drawn by the Shadow Minister. With due respect to the Shadow Minister, I am not satisfied that this is a sufficient factual basis to support the application brought by VA, especially in view of the fact that other external care providers could, presumably, also have provided information to the journalist. In my view, VA's application is sufficiently lacking in substance to warrant dismissal under s 73(5)(h). Decision The proceedings are dismissed for lack of jurisdiction.