BG v Department of Community Services [2008] NSWADT 71

CITATION: BG v Department of Community Services [2008] NSWADT 71

DIVISION: General Division

APPLICANT BG PARTIES: RESPONDENT Department of Community Services

FILE NUMBER: 073236

HEARING DATES: 25 February 2008

SUBMISSIONS CLOSED: 25 February 2008

DATE OF DECISION: 6 March 2008

BEFORE: Handley R - Judicial Member

CATCHWORDS: Privacy - information protection principle - disclosure to third party

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Children and Young Persons (Care and Protection) Act 1998 Privacy and Personal Information Protection Act 1998

CASES CITED: N/A

APPLICANT S Burnett, solicitor REPRESENTATION: RESPONDENT D Wells, solicitor

ORDERS: The Tribunal determines not to take any action on the matter.

REASONS FOR DECISION 1 BG claims the NSW Department of Community Services ('DOCS') contravened her right to privacy under the Privacy and Personal Information Protection Act 1998 ('the PPIP Act') by disclosing personal information it had obtained about her to a third party. Background 2 At a meeting at DOCS' Dubbo Community Service Centre on 31 July 2006, when DOCS officers asked BG's brother ("X') and sister in law ('Y') about a potential carer for their son ('Z'), X nominated BG. DOCS, without notifying BG or confirming that she was prepared to act as a carer, undertook a check of her criminal history. BG alleges that when DOCS officers visited X and Y's house at around this time, the officers disclosed to Y that BG would not be suitable as a carer for Z because she has a criminal history. 3 In a letter dated 4 August 2006, Tina Toomey, a DOCS caseworker, and Noreen Loudon, DOCS' Casework Manager in Dubbo, wrote to Y as follows: "Thank you for nominating [BG] as a possible carer for [Z]. As was discussed at the meeting with you and [X] on 31 July 2006, it is necessary to complete a number of assessments on any person nominated. These assessments include a working with Children's Check, a Criminal History check, and a placement assessment. The Department's preliminary assessments confirmed that [BG] does not qualify as an appropriate person to care for [Z], therefore further assessments will not be undertaken." 4 By letter dated 21 December 2006, a solicitor from the Western NSW Community Legal Centre Inc, acting on behalf of BG, complained to DOCS of a breach of BG's privacy. Rhonda Gleeson, DOCS' Manager of Client Services in Dubbo, responded by letter dated 28 January 2007. She stated: "Although there is no specific legal requirement, it is our practice to inform prospective carers when seeking a criminal check. It seems this did not occur in this case and was an oversight due to lack of experience. I apologise to [BG] that this oversight occurred. However, the Manager and Caseworker are adamant that no information in relation to the Criminal Record Check was relayed to [X and Y]." 5 On 4 May 2007, BG sought an internal review of DOCS' conduct. She complained that DOCS had breached her privacy by undertaking a check of her criminal history without her consent and by disclosing to Y that BG had a criminal record. BG said the disclosure caused her embarrassment and public humiliation. BG sought a full apology, an examination and overhaul of relevant DOCS policies and practices, cultural awareness training for all DOCS staff, and damages in an amount of $40,000. 6 By letter dated 6 July 2007, DOCS notified BG of the outcome of the internal review. The review found that DOCS did not use BG's personal information to inform its recommendations about Z's foster care placement. It also found no evidence to suggest that DOCS had disclosed BG's personal information to another person. BG's lack of suitability for the carer placement arose from where BG lived – in the Dubbo area - rather than any aspect of BG's ability to provide care. This was because Z needed to be placed outside the Dubbo area. 7 On 3 August 2007, BG filed an application for review of this decision with the Tribunal. The Applicant's Evidence 8 The Applicant's evidence comprised evidence from Y and BG. Both provided statements and gave evidence at the hearing. 9 Y, who is BG's sister in law, provided statements dated 4 December 2007 and 31 January 2008. In her statements, Y said she was aware that BG had previously been a carer for other members of their family and she wanted BG to be appointed as the carer for her son Z because she trusted BG. Y said she had nominated BG as carer for her son in about June 2006, prior to the meeting at the Dubbo Community Services Centre on about 31 July 2006. Around that time, two DOCS officers, Tina Toomey and Roslyn Lorimer, came to Y's house. Y stated that during the course of their conversation, Y told the DOCS officers that she wanted BG to be Z's carer. Ms Toomey said words to the effect of, "[BG] is not suitable. She has a criminal record and is not registered with the Department." Y said she was surprised by this information and upset because she wanted BG to be Z's carer. 10 Y said she had a clear recollection of Ms Toomey attending her house on a couple of occasions in the company of Ms Lorimer. Ms Lorimer also attended her house on at least two occasions in the company of Neil Goodwin. Y said she remembered Ms Lorimer attending her house "on a number of occasions after 8 June 2006 and [she] also contacted me by telephone". 11 In cross-examination, Y said Ms Lorimer's visits to her house included a visit after 31 July 2006 in relation to Z, whom DOCS had removed from her care. Y agreed she held a degree of ill feeling towards Mr Lorimer and other DOCS officers. 12 BG provided a statement dated 23 November 2007. She said she is an active member of the Aboriginal community in Dubbo. In early August 2006, as she walking along a street in Dubbo, her brother X and sister in law Y, who were driving by, pulled over and told her that DOCS had said BG could not be a carer for Z because of her criminal record. They showed BG a copy of the letter Y had received from DOCS dated 4 August 2006. 13 BG said she was angry and upset by this. To BG's knowledge, Y had not previously known that BG had a criminal record, and BG was upset because she was not in a position to look after Z. After reading the letter, BG tried to phone Ms Toomey but, after being put on hold for a while, BG hung up and went immediately to DOCS' offices in Dubbo to speak to Ms Toomey. BG met with Ms Toomey and another gentleman whose name BG is unable to remember. BG stated that during the course of this meeting, Ms Toomey told BG that she could not look after Z because of her criminal record. 14 In cross-examination, BG said she was not aware that DOCS was making a criminal history check on her. It made her "really wild" that DOCS did this without her consent. BG acknowledged that she has seen nothing from DOCS showing that she has a criminal record. The Respondent's Evidence 15 The Respondent provided statements from four witnesses, all of whom gave oral evidence at the hearing. 16 Tina Toomey provided statements dated 10 December 2007 and 13 February 2008. Ms Toomey said she has been a caseworker for DOCS in Dubbo for almost three years. She was formerly in the Child Protection Team and is now in the Out of Home Care Team. Ms Toomey said she began to case manage Z in July 2006. She and her manager, Noreen Loudon, had a care plan meeting with X and Y at Dubbo Community Services Centre at 1 pm on 31 July 2006 to discuss long term placement options for Z. During this meeting, X nominated his sister BG as a carer for Z. X was advised that various checks, including a criminal history check, would need to be conducted before BG could be considered a placement option for Z. Ms Toomey produced a record of this meeting to confirm the date and the advice given that these checks would need to be conducted. 17 On 4 August 2006, Ms Toomey sent Y a letter informing her that the Department's preliminary assessments confirmed that BG did not qualify as an appropriate carer for Z. Ms Toomey said that apart from the meeting on 31 July 2006 and the letter dated 4 August 2006, she had no other contact with Y during July and August 2006. 18 Ms Toomey said that BG came into the Community Service Centre to see her with the letter dated 4 August 2006 addressed to Y. Ms Toomey spoke with BG in the presence of another caseworker, Robert McKechnie. At the meeting, Ms Toomey told BG that it would not be good for Z to be placed with BG because Z had been involved in criminal activity and it would be best for Z not to be in Dubbo. Ms Toomey said at no time did she state that BG could not care for Z because of her criminal record. Ms Toomey did not circulate details of BG's criminal record to BG's family and has never conveyed any details of this record to anyone outside DOCS. 19 In cross-examination, Ms Toomey agreed that she had a busy caseload in 2006. However, she recollects all her visits to Y's house and agreed that she had visited the house once with Ms Lorimer, there being a departmental requirement that a second person must always attend. Ms Toomey did not make a record of this visit because she was not the "primary worker", meaning that she was not the caseworker handling the matter at that time. She became the primary worker on 26 July 2006. Ms Toomey denied that she disclosed to Y that BG had a criminal record. Ms Toomey said she did not write to BG telling her that a criminal history check would be made because she was not required to do so. 20 Roslyn Lorimer provided a statement dated 17 December 2007. Ms Lorimer is a caseworker with DOCS in Dubbo. She was initially in the Child Protection Team until May 2006, when she moved to the Out of Home Care Team. On 3 December 2007, Ms Lorimer moved to the Regional Foster Care Support Team. 21 Ms Lorimer said she was involved with Y and her family for a period of 15 months, concluding on 5 June 2006. Her final involvement with Y was in preparing the Care Application for Z. Ms Lorimer has had no further involvement with Y since serving her with the Care Application on 5 June 2006. This was the last occasion on which she visited Y's house. Ms Lorimer went to Y's house with an Aboriginal caseworker to serve the Care Application. Y became very upset and aggressive and would not accept service of the envelope, which contained 40 or 50 pages of documents. The Aboriginal caseworker put the envelope on the ground within the boundaries of the house. Y picked up the envelope and threw it at Ms Lorimer, hitting her on the back of the head. After this, it was decided Ms Lorimer would have no further contact with Y and Ms Lorimer moved to the Out of Home Care Team. 22 Ms Lorimer said the only occasion she visited Y's house with Ms Toomey was on 1 April 2005, but on that occasion they talked with Y from the footpath in front of her house and did not enter the house. Ms Lorimer said that as of 5 June 2006, to the best of her knowledge there was no proposal for BG to be a carer for Z. The casework file shows that a request for a criminal history check was made to the police on 31 July 2006, with a response being received on 1 August 2006. 23 Rhonda Gleeson provided a statement dated 10 December 2007. At the relevant time in 2006, Ms Gleeson was DOCS' Manager of Client Services in Dubbo. She is currently the Chief Executive Officer of McKillop Rural Community Services in Dubbo. Ms Gleeson said she has checked the DOCS client system and paper file. The records show that Ms Lorimer made home visits to Y's house with other caseworkers on a number of occasions between 20 July 2005 and 5 June 2006, when Ms Lorimer went to serve court papers. There is no record of Ms Lorimer visiting Y's house with Ms Toomey. 24 In cross-examination, Ms Gleeson said the practice followed is for the primary caseworker to make a record of each visit. She was unable to provide absolute confirmation that no other visits had been made by Ms Lorimer after 5 June 2006. 25 With regard to her letter to BG dated 28 January 2007, in response to the complaint made on behalf of BG by the Western NSW Community Legal Centre, Ms Gleeson said, although it is not required, it is departmental practice to inform prospective carers that a criminal history check will be undertaken. In most cases where families nominate other family members, there will have been discussion in the family about this. DOCS would normally contact the person nominated and also ask whether the person is prepared to be a carer. This did not happen in BG's case due to an oversight. In BG's case, the fact that her home was not a suitable location for Z's placement was an important consideration and taken into account in determining the outcome of the assessment. 26 Noreen Loudon provided a statement dated 7 December 2007. She is DOCS' Casework Manager for Child Protection in Dubbo. Ms Loudon denied that she or any person in her presence relayed BG's criminal record to any person outside DOCS. She ensures that caseworkers she supervises are aware of the requirements of confidentiality. 27 Ms Loudon said in the period from 1 July to 31 August 2006, she had no contact with either X or Y other than at the meeting she and Ms Toomey had with them at Dubbo Community Services Centre on 31 July 2006. At that meeting, Ms Loudon and Ms Toomey discussed options for the placement of Z. X said he would like Z cared for by his sister, BG. Ms Loudon said she informed both X and Y that BG would need to be assessed as to her suitability as a carer for Z, involving various checks, including a criminal history check, an interview and a placement assessment. 28 In cross-examination, Ms Loudon said she was not in a position to know of every visit made to Y's house. She acknowledged that BG was not notified that a criminal history check was being undertaken. Ms Loudon said that where BG resided was part of the assessment of her suitability to be a carer for Z. The reason for her not being considered suitable was because she lived in Dubbo and DOCS wanted Z cared for outside Dubbo. The Applicant's Submissions 29 Ms Burnett, for BG, submitted that on or about 31 July 2006, a DOCS officer, Ms Toomey, disclosed to Y that BG has a criminal record without BG's knowledge or consent. The disclosure was in breach of section 18 of the PPIP Act (limits on disclosure of personal information) and also in breach of section 12 (retention and security of personal information). Moreover, the information was used for a purpose other than that for which it was collected, thereby breaching section 17. 30 As a result of the disclosure, BG suffered humiliation. DOCS acknowledges that the information was obtained without BG's knowledge or consent. Ms Burnett noted conflicting evidence from DOCS as to whether its general practice is to notify a person that a criminal check is being made. If Ms Toomey was unaware of a general practice to notify the person, then it is not surprising that she did not follow this. She was an inexperienced officer. 31 Ms Burnett identified various discrepancies in the evidence presented by the Respondent's witnesses. For example, the departmental records referred to by Ms Gleeson do not record the visit that Ms Lorimer says she made to Y's home with Ms Toomey on 1 April 2005. However, I note that not all the discrepancies identified by Ms Burnett are correct – for example, the records do not appear to show, as claimed in her written submissions, that Ms Lorimer attended Y's house in 2007. Nor, in her second statement, does Ms Toomey say that Ms Lorimer visited Y's house on a number of occasions after 8 June 2006. Ms Burnett contends it can be inferred that there were further visits to Y's house not recorded in the DOCS client system. Ms Gleeson acknowledged that she could not testify that the records are complete. Given the busy caseload of DOCS workers, Ms Burnett said it should also be inferred that the disclosure was made in the course of a visit to Y's house. 32 Ms Burnett also contends that DOCS' responses to BG's complaint that it did not use BG's personal information to inform its assessment of whether BG was an appropriate carer for Z, also contain discrepancies. DOCS's letter to Y dated 4 August 2006 is not consistent with DOCS' letter to the Western NSW Community Legal Centre dated 28 January 2007 and DOCS' letter to Ms Burnett dated 16 October 2007, which states that BG's personal information was a consideration in making the decision concerning Z's placement. 33 Ms Burnett said the disclosure of BG's criminal history caused BG embarrassment and humiliation in circumstances where she is an active and public member of the Aboriginal community in Dubbo. The Respondent's Submissions 34 Mr Wells, for DOCS, noted that the letter dated 4 August 2006 did not state that BG has a criminal record. He suggested that it was unlikely that Y, having been a de facto relationship with X for approximately 15 years (as BG said in her statement), would not know of BG's criminal record. 35 Mr Wells noted that under section 248(1)(b) of Children and Young Persons (Care and Protection) Act 1998, the Director-General of DOCS is empowered to direct the NSW Police to furnish information relating to the safety, welfare and well-being of a particular child or young person. This information was required to assess the suitability of BG as a prospective carer for Z. There was no obligation on DOCS to advise BG that such a check was being undertaken. Section 248(5) provides that a "provision of an Act or law that prohibits or restricts the disclosure of information does not prevent the furnishing of information (or affect a duty to furnish information) under this section". Thus, the PPIP Act has no application to the collection of information under section 248. 36 Mr Wells said the evidence of Ms Toomey, Ms Lorimer and Ms Loudon does not support Y's allegation that a meeting took place at her home around 31 July 2006 at which Ms Toomey informed her that BG was not suitable as a potential carer for Z because she has a criminal record. Ms Lorimer stated that her last visit to Y's house was on 5 June 2006 when Y threw the envelope of court papers at her. Neither Ms Lorimer nor Ms Toomey has any recollection of a later visit. Mr Wells said the process of removing children from their parents is difficult for both the parents and the DOCS officers concerned. 37 Mr Wells said the geographical location of a prospective carer is part of the preliminary assessment. The only inconsistency in the DOCS officers' evidence concerned whether it was standard departmental practice to notify a person nominated as a prospective carer that a criminal history check would be made. At the time of these events in June/July 2006, Ms Toomey was a relatively inexperienced officer, and this may have led to her not notifying BG that she was making a criminal history check. Mr Wells noted that no documents had been produced to even imply that BG has a criminal record. 38 In summary, the Respondent submits that the visit at which the alleged disclosure was made did not occur and the application should be dismissed. Discussion 39 Having reviewed the evidence provided by the parties, I am not satisfied, on the balance of probabilities, that a meeting at Y's house, as alleged by Y, took place in late July 2006. Both Ms Toomey and Ms Lorimer, the second officer who Y states was at the meeting, have given evidence to the contrary, and DOCS' client system does not record this. I accept that DOCS' client system is probably imperfect in so far as the accuracy of its records are dependent on input from the officers involved in a particular case. Nevertheless, given Ms Lorimer's account of her visit to serve court papers on 5 June 2006, she is likely to have a clear recollection of her visits to Y's house at around that time. I therefore find that Ms Lorimer did not visit Y's house after 5 June 2006. 40 As the Respondent has acknowledged, the removal of a child from its parents is difficult for all concerned, but particularly stressful for the parents. Ms Lorimer's evidence is that she had contact with Y over a period of 15 months concluding on 5 June 2006. Ms Toomey became the 'primary worker' in the matter on 26 July 2006. A 'Care Plan' meeting took place at DOCS' Community Service Centre in Dubbo on 31 July 2006 at 1 pm between Ms Toomey and Ms Loudon, and X and Y. I accept that at that meeting either X or Y suggested BG as a prospective carer for Z. This accords with the DOCS record attached to Ms Toomey's statement dated 13 February 2008. DOCS' record of the meeting confirms that X and Y were advised that a placement assessment of BG, including a criminal history check, would be undertaken. 41 DOCS acknowledges that it did not contact BG to inform her that she had been nominated as a prospective carer for BG, to ask whether she would be prepared to undertake that role, and to advise her that a placement assessment would be undertaken, including a criminal history check. While there is no legal obligation on DOCS to do so, Ms Gleeson's evidence is that this is general departmental practice. It appears either that Ms Toomey was not aware of this practice, or neglected to follow the practice. She was a relatively inexperienced officer of some 18 months standing at the relevant time. 42 While I accept that in many families there will have been discussion with a family member before that person is nominated as a prospective carer, in my view, it is important that DOCS also contacts the nominated person to discuss the nomination and what will follow. It is understandable that a person may be upset on discovering that DOCS is undertaking a placement assessment, including a criminal history check, without their knowledge. 43 With regard to the letter from Ms Toomey and Ms Loudon to Y dated 4 August 2006, set out in par 3 above, in my view the letter is ambiguous as to the reason for the nominated carer – BG - not qualifying as an appropriate person. The first paragraph refers to a number of assessments being undertaken on any person nominated, including "a working with Children's Check, a Criminal History check and a placement assessment". The second paragraph states that DOCS' preliminary assessments confirm that BG does not qualify as an appropriate person to care for Z. There is no indication as to what "preliminary assessments" comprise, and the specific reference to a criminal history check in the previous paragraph suggests that the outcome of the criminal history check could be the reason for deciding that the nominee is not an appropriate person. Thus, in my view, the wording of the letter is ambiguous, and could have been misinterpreted. 44 I am not satisfied that Ms Toomey disclosed to Y that BG has a criminal record. The only evidence of this is that of Y, which is not supported by the evidence of Ms Toomey, Ms Lorimer or Ms Loudon, the three DOCS officers who had contact with Y in June/July 2006. In my view, it is more likely that Y misinterpreted the letter dated 4 August 2006 against the background of the meeting dated 31 July 2006 and such knowledge as either X or Y had of BG's background. 45 Having found that there was no meeting and no disclosure as alleged by the Applicant, it follows that I am not satisfied that there was a breach of the provisions of the PPIP Act identified by the Applicant. Section 18 of the PPIP Act proscribes the disclosure of information unless certain conditions are satisfied. Since I have found there was no disclosure to Y has alleged, section 18 does not apply. Section 12 provides limits on the retention of personal information and requires that the security of the information be maintained. In my view, the facts do not establish any breach of this section. Subject to limited exceptions, section 17 proscribes the use of personal information other than for the purpose for which it was collected. Again, I am not satisfied that the facts establish a breach of this section. Order In conclusion, the Applicant having failed to establish a breach of the PPIP Act by the Respondent, the Tribunal determines not to take any action on the matter.