Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DLT v Justice Health and Forensic Mental Health Network [2018] NSWCATAD 180 Hearing dates: 30 July 2018 Date of orders: 09 August 2018 Decision date: 09 August 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior Member Decision: The application is dismissed. Catchwords: ADMINISTRATIVE LAW – privacy – health information – personal information - summary dismissal – whether conduct has been identified – evidence - application lacking in substance Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Health Records and Information Privacy Act 2002 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 NZ v Commissioner of Police, NSW Police (GD) [2006] NSWADTAP 57 JD v Director General, NSW Department of Health [2004] NSWADT 7 Category: Principal judgment Parties: DLT (Applicant) Justice Health and Forensic Mental Health Network (Respondent) Representation: Solicitors: DLT (Applicant by phone) Justice Health and Forensic Mental Health Network Legal (Respondent) File Number(s): 2018/164510 Publication restriction: Publication of the name of the applicant is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION 1. By an application filed on 18 May 2018 the applicant sought review by this Tribunal of conduct by the respondent under the Privacy and Personal Information Protection Act 1998 ("the PPIP Act") and the Health Records and Information Privacy Act 2002 ("the HRIP Act"). 2. The respondent has applied for the application to be summarily dismissed. The alleged conduct 1. The applicant described the conduct in his application to the respondent for internal review as "Disclosure of my personal information to AFP". The applicant is detained in Long Bay Hospital under the treatment of the respondent. 2. The respondent conducted an internal review and concluded that there had been no breach of the HRIP Act or the PPIP Act. Its investigation found that on or around 4 January 2016 the AFP telephoned the respondent and spoke to an Executive Assistant, referred to in the report as AS. The AFP requested the details of a staff member to whom they could send information concerning the applicant. AS advised the AFP to send the report to a medical officer, referred to as Dr AK. 3. Two redacted emails were referred to in the report and were relied on by both parties in these proceedings. An email dated 4 January 2016 from the AFP to the respondent began: "Further to our discussion could you advise the best option regarding dissemination of unclassified information to NSW Health regarding the abovementioned person of interest… I have been informed that the POI was transferred to NSW Health facility at Long Bay Hospital on 24/03/09. Awaiting your further advice." 1. A second email dated the same date stated: "As discussed please find attached information report for dissemination for your attention as outlined below." 1. The applicant relied upon a notation on his Progress /Clinical Notes dated 21 January 2016 which stated: "AFP from 4/1/16 re newspaper article letter receiving correspondence from patient calling Australian soldiers losers. AFP still considers him a threat given ongoing fixation in association with his mental illness." 1. The applicant submits: "If as the respondent claims the discussion was about the dissemination of the AFP information Report dated 23/12/2015 then why the AFP asked for advice further to the discussion? It is obvious the discussion was about my personal and health information and not about the dissemination of the AFP information report. This discussion and sharing information was between a Justice Health staff and an AFP staff, and the only way that the truth, the whole truth and nothing but the truth can come out is that the people involved get summoned and give evidence." 1. The respondent submits that there is no evidence to suggest that any information was disclosed by the respondent to the AFP. It submits that the phrases "Further to our discussion" and "as discussed" should be read in context and in that context they related only to the arrangements for sending the report to the respondent. The nature of the applications 1. A person who is aggrieved by conduct of a public sector agency to which the HRIP Act applies may seek a review of conduct which contravenes a Health Privacy Principle that applies to the agency under the provisions of Part 5 of the PPIP Act (s 21(1)(a) HRIP Act). 2. The applicant has claimed that the respondent's alleged conduct in disclosing his health information breached Health Privacy Principle 11 of the HRIP Act. That principle provides that an organisation that holds health information must not disclose the information for a purpose other than the purpose for which it was collected, unless one of the exemptions under the 12 headings listed in the principle applies. 3. "Health information" is defined in s 6 to mean: " (a) personal information that is information or an opinion about: (i) the physical or mental health or a disability (at any time) of an individual, or (ii) an individual's express wishes about the future provision of health services to him or her, or (iii) a health service provided, or to be provided, to an individual, or (b) other personal information collected to provide, or in providing, a health service, or (c) other personal information about an individual collected in connection with the donation, or intended donation, of an individual's body parts, organs or body substances, or (d) other personal information that is genetic information about an individual arising from a health service provided to the individual in a form that is or could be predictive of the health (at any time) of the individual or of a genetic relative of the individual, or (e) healthcare identifiers, but does not include health information, or a class of health information or health information contained in a class of documents, that is prescribed as exempt health information for the purposes of this Act generally or for the purposes of specified provisions of this Act." 1. The applicant also claimed that conduct of the respondent contravened s 18 of the PPIP Act which provides: "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." 1. "Personal information" is defined in s 4 of the PPIP Act as follows: "4 Definition of "personal information" (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual that is contained in a publicly available publication, (c) information about a witness who is included in a witness protection program under the Witness Protection Act 1995 or who is subject to other witness protection arrangements made under an Act, (d) information about an individual arising out of a warrant issued under the Telecommunications (Interception) Act 1979 of the Commonwealth, (e) information about an individual that is contained in a public interest disclosure within the meaning of the Public Interest Disclosures Act 1994, or that has been collected in the course of an investigation arising out of a public interest disclosure, (f) information about an individual arising out of, or in connection with, an authorised operation within the meaning of the Law Enforcement (Controlled Operations) Act 1997, (g) information about an individual arising out of a Royal Commission or Special Commission of Inquiry, (h) information about an individual arising out of a complaint made under Part 8A of the Police Act 1990, (i) information about an individual that is contained in Cabinet information or Executive Council information under the Government Information (Public Access) Act 2009, (j) information or an opinion about an individual's suitability for appointment or employment as a public sector official, (ja) information about an individual that is obtained about an individual under Chapter 8 (Adoption information) of the Adoption Act 2000, (k) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subsection." 1. Under s 55 of the PPIP Act, a person who has made an application for internal review under section 53 and is not satisfied with the findings of the review or the action taken by the public sector agency in relation to the application, may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application. The evidence 1. Apart from the emails referred to above, the respondent relied upon its internal review report. It did not file any statements of evidence by the persons referred to in the report. The respondent submits that there is no evidence that the alleged disclosure took place. 2. The applicant submitted that the internal review report conducted by the respondent contained only hearsay evidence relating to the communications between the respondent and the AFP, and none of the persons concerned had put on direct evidence. He also submitted that as he is in detention he is under a disadvantage in terms of obtaining supporting evidence and cannot issue summonses to the persons concerned. 3. The Tribunal is not bound by the rules of evidence, however it is also subject to the rules of natural justice (s 38(2) of the Civil and Administrative Tribunal Act 2013)("the Tribunal Act"). It would not be procedurally fair to allow the respondent to rely upon the findings of a report to show that the conduct did not occur, when neither the maker of the report or any of the persons who gave information for the report are available for cross-examination. 4. As outlined above, however, there is evidence of the correspondence and the notes which gave rise to the applicant's complaint. The applicant himself relied upon this evidence. 5. The applicant filed a copy of the AFP report with the Tribunal. Having compared the report to the Clinical notes, I conclude that the notes contain information which is also contained in the report. 6. I infer from the available evidence that: 1. the respondent was contacted by someone in the AFP; 2. The AFP requested assistance with identifying the person to whom they could send a report; 3. The AFP provided the report to the respondent; 4. The contact by the AFP and the contents of the report came to the knowledge of the medical officer who wrote the Clinical notes on 21 January 2016. 1. I do not agree with the applicant's submission that the words "Further to our discussion" and "as discussed" constitute evidence that there was a discussion in which the applicant's personal or health information was disclosed to the AFP. Summary dismissal 1. Section 52 of the HRIP Act provides: "52 Tribunal may dismiss frivolous etc complaints (1) If, at any stage of an inquiry into a complaint, the Tribunal is satisfied that the complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be dealt with, it may dismiss the complaint. (2) The Tribunal may dismiss a complaint if satisfied that the person does not wish to proceed with the complaint. (3) If the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry." Section 53 provides that nothing in section 52 limits the generality of the powers conferred on the Tribunal by Part 4 of the Tribunal Act. 1. Section 55 of the Tribunal Act , which is in Part 4 of that Act, provides: "55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, …" 1. In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, Barwick J warned that the power of peremptory dismissal of proceedings is to be exercised cautiously and sparingly. I have considered the nature of the issues relevant to the application for summary dismissal. Consideration 1. An application will be lacking in substance if it is based on "an untenable proposition of law or fact": State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 per Ormiston J. In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) noted: "This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Department of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50]." 1. The applicant must identify the conduct complained of, so that the Tribunal can review the conduct and determine whether it contravenes the HRIP or PPIP Act. This has been held in NZ v Commissioner of Police, NSW Police (GD) [2006] NSWADTAP 57, and JD v Director General, NSW Department of Health [2004] NSWADT 7, both cases concerning the PPIP Act. 2. In NZ, the applicant did not meet the threshold requirement of identifying any conduct which could potentially be in breach of the PPIP Act. The Appeal Panel held there was no basis on which she could request the Tribunal to issue summonses for the production of documents to shed light on that conduct. The applicant is responsible for identifying the conduct itself. 3. NZ bears some similarities to the present case, as the applicant has asked for summonses to be issued so that he can question witnesses and identify the conduct. He suspects that there was a disclosure of either health information or personal information by the respondent because there was evidence of contact. However a suspicion is not sufficient, and the available evidence does not allow such an inference to be reasonably drawn. It does not show that any personal or health information was disclosed by the respondent. Conclusion 1. Where the applicant is unable to identify the conduct which he alleges contravenes the privacy legislation, there is no basis on which the Tribunal can proceed to hear his application. It follows that the application is lacking in substance and should be dismissed. Orders 1. The application is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2018