DQW v Secretary, Department of Family and Community Services

NCAT Administrative and Equal Opportunity|2019-08-19

REASONS FOR DECISION

The applicant's application in Proceedings 2018/377223 is brought under the Privacy and Personal Information Protection Act 1998 (the PPIP Act). On 8 June 2018 the respondent made a decision on an application made by the applicant seeking all personal information held by the respondent about herself, her husband and children. The applicant sought an internal review of this decision.
The application in this Tribunal stated the grounds for review were: "Internal review and investigation regarding events concerning - collection, storage and use of my personal information - facs disclosing my personal and health information - ongoing harassment - accuracy of health information held by facs (sic) I was falsely recorded as being in the Voluntary Brighter Futures programme which instigated continuous false documentation and breach of privacy from 2011 to current."
The respondent submits that the application should be dismissed by the Tribunal under s 55 of the Civil and Administrative Tribunal Act 2013. The grounds for dismissal are said to be: 1. The application goes beyond the scope of the internal review decision and is outside the Tribunal's jurisdiction; 2. The application was filed before 60 days had passed since the internal review request was made on 15 November 2018 and the applicant therefore was not entitled to make the application under s 53(6) of the PPIPA Act; 3. Given the applicant's history of multiple previous attempts for access to essentially the same information, it is open to the Tribunal to find the application is vexatious; 4. The respondent had the discretion to refuse the application for internal review as it was outside of time and not competently made; 5. The application in terms of its request for a "full deletion" of all the records that she has received from the respondent, is misconceived and beyond the Tribunal's jurisdiction; 6. The application has a collateral purpose of seeking to rewrite or erase her family's history with the respondent.

Relevant legislation

Section 15 of the PPIP Act provides: "15 Alteration of personal information (1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information: (a) is accurate, and (b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading. (2) If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought. (3) If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency. (4) This section, and any provision of a privacy code of practice that relates to the requirements set out in this section, apply to public sector agencies despite section 25 of this Act and section 21 of the State Records Act 1998. (5) The Privacy Commissioner's guidelines under section 36 may make provision for or with respect to requests under this section, including the way in which such a request should be made and the time within which such a request should be dealt with. (6) In this section (and in any other provision of this Act in connection with the operation of this section), public sector agency includes a Minister and a Minister's personal staff."
Section 53 of the PPIP Act provides: "53 Internal review by public sector agencies (1) A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct. (1A) There is no entitlement under this section to the review of the conduct of a Minister (or a Minister's personal staff) in respect of a contravention of section 15 (Alteration of personal information). Note. Any such conduct can still be administratively reviewed by the Tribunal. See section 55 (1A). (2) The review is to be undertaken by the public sector agency concerned. (3) An application for such a review must: (a) be in writing, and (b) be addressed to the public sector agency concerned, and (c) specify an address in Australia to which a notice under subsection (8) may be sent, and (d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and (e) comply with such other requirements as may be prescribed by the regulations. (4) Except as provided by section 54 (3), the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practicable, a person: (a) who was not substantially involved in any matter relating to the conduct the subject of the application, and (b) who is an employee or officer of the agency, and (c) who is otherwise suitably qualified to deal with the matters raised by the application. (5) In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by: (a) the applicant, and (b) the Privacy Commissioner. (6) The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for an administrative review of the conduct concerned. (7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following: (a) take no further action on the matter, (b) make a formal apology to the applicant, (c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant), (d) provide undertakings that the conduct will not occur again, (e) implement administrative measures to ensure that the conduct will not occur again. (7A) A public sector agency may not pay monetary compensation under subsection (7) if: (a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and (b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and (c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate. (8) As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of: (a) the findings of the review (and the reasons for those findings), and (b) the action proposed to be taken by the agency (and the reasons for taking that action), and (c) the right of the person to have those findings, and the agency's proposed action, administratively reviewed by the Tribunal."
Section 55(1) provides that if a person who has made an application for internal review under section 53 is not satisfied with the findings of the review, or the action taken by the public sector agency in relation to the application, the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53: "55 Administrative review of conduct by Tribunal (1) If a person who has made an application for internal review under section 53 is not satisfied with: (a) the findings of the review, or (b) the action taken by the public sector agency in relation to the application, the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53. (1A) A person (the applicant) who is aggrieved by the conduct of a Minister (or a Minister's personal staff) constituting a contravention of section 15 (Alteration of personal information) may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct. (2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders: (a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct, (b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice, (c) an order requiring the performance of an information protection principle or a privacy code of practice, (d) an order requiring personal information that has been disclosed to be corrected by the public sector agency, (e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant, (f) an order requiring the public sector agency not to disclose personal information contained in a public register, (g) such ancillary orders as the Tribunal thinks appropriate. (3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997. (4) The Tribunal may make an order under subsection (2) (a) only if: (a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and (b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency. (4A) The Tribunal may not make an order under subsection (2) (a) if: (a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and (b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and (c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate. (5) If, in the course of an administrative review, the Tribunal is of the opinion that the chief executive officer or an employee of the public sector agency concerned has failed to exercise in good faith a function conferred or imposed on the officer or employee by or under this Act (including by or under a privacy code of practice), the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister (if any) for the public sector agency. (6) The Privacy Commissioner is to be notified by the Tribunal of any application for an administrative review. The Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to an administrative review. (7) The Information Commissioner is to be notified by the Tribunal of any application for a review under this section that concerns the provision of government information by an agency (within the meaning of the Government Information (Public Access) Act 2009). The Information Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to such a review."
Section 55 of the Civil and Administrative Tribunal Act 2013 provides: "55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure."

Ground 1- the application goes beyond the scope of the internal review decision

On 23 November 2017 the applicant emailed an application requesting information under s 14 of the PPIP Act. The application stated: "I request all records under community services and disability to ensure its accuracy. I [DQW] would like to be provided with pursuant s. 14 of the Privacy and Personal Information Protection Act a copy of all personal information held by FACS that relates to either myself… or any of my children [there follows a list of names and dates of birth] Including my husband [name provided] as well as correspondence with other departments and all records from FACS system to ensure that it is accurate. …"
On 8 June 2018 the respondent made a decision on the application as a result of which some material was released. The decision stated that the respondent had interpreted the application to include a request to access health information under the Health Records and Information Privacy Act 2002 (the HRIP Act).
On 25 October 2018 the applicant lodged a request for internal review. The application form stated that the conduct being complained about was: "Refuse access to personal information for the purpose of amendment. Conduct of agency staff of threats, as well as documenting and refusing to emend (sic) false, misleading and vexatious records."
On the same day the applicant emailed the respondent requesting an internal review under the HRIP Act and PPIP Act to amend "all misleading and false information" and requesting all information asked for under the HRIP Act. She included the paragraph from the original 2017 application as follows: "I request all records under community services and disability to ensure its accuracy. I [DQW] would like to be provided with pursuant s. 14 of the Privacy and Personal Information Protection Act a copy of all personal information held by FACS that relates to either myself… or any of my children [there follows a list of names and dates of birth] Including my husband [name provided] as well as correspondence with other departments and all records from FACS system to ensure that it is accurate. …"
On 15 November 2018 the applicant confirmed in response to a request from the respondent, that she was seeking an internal review of the access decision. The respondent treated the date of the application as being the date on which this was confirmed.
There followed numerous emails and phone calls between the applicant and respondent concerning the nature of the internal review.
A letter to the applicant was issued on 3 December 2018 and stated that the respondent had decided not to deal with all of the issues contained in the application. The letter lists those issues individually and the response to each. The respondent treated the various aspects of the internal review application as follows: 1. Collection, storage and use of the applicant's personal and health information which she became aware of after receiving information from the respondent under the GIPA Act in 2015 and 2016 - the application was not accepted as it was lodged after the 6 month period provided in s 53(3)(d); 2. The decision made on 8 June 2018 - An internal review decision would be issued in respect of this on 15 January 2019; 3. The accuracy of her personal and health information held by FACS - as the applicant had not made an application for amendment under s15 of the PPIP Act or cl 8 of Sch 1 of the HRIP Act, the respondent would not deal with this matter; 4. The disclosure of personal or health information by FACS - as no information was provided about what information was disclosed or to whom, the application was not accepted; 5. Other unspecified conduct - the other alleged conduct was not specified therefore would not be dealt with.
On 7 December 2018 the applicant filed an application for review with this Tribunal (the first Tribunal application).
On 19 March 2019 the internal review of the 8 June decision was completed and served on the applicant. As a result the applicant received additional material.
On 18 June 2019 the respondent filed submissions seeking summary dismissal of the first Tribunal application.
On 16 July 2019 the applicant filed a second application for review in this Tribunal (the second Tribunal application).
It appears from this chronology that in submitting that the first Tribunal application is outside the scope of the internal review, the respondent is referring to the portion of the application for internal review it determined it would deal with, as defined by it in its 3 December 2018 letter. This is limited to the review of the access decision of 8 June 2018.
The applicant submits that the first Tribunal application referred to the 8 June 2018 decision but in her internal review application and the first Tribunal application she also referred to additional conduct of the respondent that she wanted to be reviewed.
In KO and KP v Commissioner of Police, NSW Police (GD) [2005] NSWADTAP 56 at [14] it was held that: "The question of what is the scope of the application, reasonably construed, is one of fact … The key question is what facts and circumstances has the applicant referred to which might give rise to questions of compliance with the Information Protection Principles, and to identify the relevant Principles".
The Tribunal has jurisdiction under s.55(1) of the PPIP Act to review the conduct that was the subject of an application made under section 53.
The scope of the "conduct" must be determined using the applicant's description of the conduct in their review request, including any attachments to their application, any subsequent clarifying correspondence or discussions, and any description by the applicant of what the 'contraventions' might be (Department of Education and Training v GA (No.3) [2004] NSWADTAP 50; see also VZ v University of Newcastle [2011] NSWADT 245 at [17]).
The scope as defined by the respondent was determined unilaterally and was not reached by consent. The original application for internal review, however, remains within the Tribunal's jurisdiction, subject to what is said elsewhere in these reasons. Accordingly I do not accept that the first Tribunal application to this Tribunal is outside the scope of the internal review.

Ground 2 - the application was filed before 60 days had passed

The respondent submits that even if 25 October 2018 (the date of receipt) and not 17 November 2018 (the date of clarification) is accepted as the date of the request, 60 days had not passed before the applicant filed the first Tribunal application. The PPIP Act provides that an applicant who has applied for internal review may only commence proceedings in the Tribunal if: 1. they are not satisfied with the findings of the review, or the action taken by the agency in relation to the application (s 55(1); or 2. the internal review is not completed within 60 days from the day on which the application was received (s 53(6)).
The evidence indicates that at the time of filing in the Tribunal, the internal review was not completed, and 60 days had not yet passed. In my view the letter of 3 December 2018 constituted part of the findings of the internal review, however the entire internal review was not completed until the decision of 19 March 2019 was issued.
There may however be a question whether the letter of 3 December constituted "action taken in relation to the application" within the meaning of s 53 and entitled the applicant to file proceedings in the Tribunal.
A failure to accept a valid application is "action taken in relation to the application" (GA v NSW Police (GD) [2005] NSWADTAP 38). In that case the Appeal Panel said: "The scheme of the legislation does not clearly deal with the situation of a wrongly declined application. It would be a perverse outcome, in policy terms, if an agency could simply declare an application not to be an application, make no findings and thereby preclude the complainant from accessing the mechanism of external review given by s 55(1)… By taking a more flexible approach to the meaning of the terms 'action … in relation to the application' it allows for the possibility that the present kind of case could be entertained under s 55(1)(b). 26 We are inclined to modify the approach expressed in Y [ v Director-General, Department of Education and Training [2001] NSWADT 149] to allow for that possibility. But we would go no further. … 27 We do not interpret s 55(1)(b) to allow the possibility that any action taken by an agency in relation to a competent application could be put before the Tribunal by way of an application for external review. This would mean that applicants could try, for example, to have reviewed the process of investigation, as it is occurring; and any other agency 'action' or 'inaction' that they might decide to light upon."
Following the principles in this decision I consider that the letter on its own in the circumstances did not constitute action which could be the subject of an application to the Tribunal within the meaning of s 55(1). It was a preliminary step leading to the final decision and it did not preclude the applicant from seeking external review.
Accordingly the first Tribunal application was filed before the necessary pre-condition for external review existed. This pre-condition gives the Tribunal jurisdiction and there is no provision for the Tribunal to overrule it and accept an application in its absence. In my view the appropriate course of action is to dismiss those proceedings for lack of jurisdiction.

The second application

An internal review decision was issued by the respondent on 19 March 2019. On 16 July 2019 the applicant filed the second Tribunal application which is Proceedings 2019/234273. The applicant had received the respondent's submissions that her first application had been filed too early and this application was in response to the summary dismissal application. She requested an extension of time be granted for filing that application.
Any extension of time was opposed by the respondent as it submitted the applicant's case was not arguable. If an extension of time is not granted, the applicant will lose her opportunity to seek review.
In my view, however, it is relevant to consider the remaining grounds for summary dismissal in relation to the second Tribunal application, as it was filed in the knowledge of the grounds for summary dismissal relied on by the respondent.
I will consider the remaining grounds for dismissal in relation to the second application.

Ground 3 - The application is vexatious

The basis on which the application is said to be vexatious is that the applicant has requested the same information numerous times under the GIPA Act.
As this is an application for review of conduct under the PPIP Act, I am not satisfied that these constitute adequate grounds to dismiss the proceedings for being vexatious.

Ground 4 -the application for internal review was out of time and incompetent

It is no longer relevant to consider this ground given my findings with respect to Ground 2.

Ground 5 - in seeking deletion of all personal information the application is misconceived and beyond the Tribunal's jurisdiction

The Tribunal may dismiss proceedings if it considers that the proceedings are misconceived or lacking in substance (s 55(1)(b)). 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 …"
The second Tribunal application states it is "in response to the summary dismissal received 7 May 2019" and the applicant states she seeks orders (in order of preference) as follows: "1. Fully delete or dispose of all records referred to in all my correspondence and applications to the respondent. If the Tribunal cannot order this then: 2. An amendment of all my family and my records as requested in all my correspondence an applications to the respondent and as clarified in the material provided by me to the Tribunal. If the Tribunal cannot order this then: 3. A statement setting out what is false, misleading or inaccurate in my family and my records held by the respondent and that statement is to be added to all individual chapters, files, databases. 4. An apology from the respondent acknowledging the hurt and harm done to me and my family due to their refusal to amend records as requested, particularly handing on the false, misleading and inaccurate information contained in the respondent's files to third parties. 5. Exemption for 16A due to false and misleading information so the respondents file cannot be shared. The Crimes Act 1900 Division 2b 314 false accusations. 6. Any other order the Tribunal finds necessary."
The applicant submits that deletion of her personal information is sought because it is false and misleading. Section 15 of the PPIP Act provides that an agency must, on request, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that personal information is accurate, and relevant, up to date, complete and not misleading.
The Tribunal does not have jurisdiction to review conduct that was not the subject of the internal review application: see Department of Education & Training v GA (No. 3) [2004] NSWADTAP 50 at [7] and ZR v Department of Education and Training [2010] NSWADTAP 75 at [17].
In KO at [13] -[14], the Appeal Panel said: "…in our view, it is clear from the scheme of the Act, in particular ss 53 and 55, that the scope of the application for internal review, reasonably construed, provides the scope for the agency's examination of the application. Unless there is some widening of the application within the process which is accepted by the agency, the application for internal review, reasonably construed, sets the scope for the application for review of the conduct by the Tribunal…"
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.
The applicant's application under the PPIP Act to the respondent requested information for the purpose of ensuring that it was accurate. The applications for internal review complained that the respondent had "refuse[d] access to personal information for the purpose of amendment refusing to emend (sic) false, misleading and vexatious records" and asked the respondent to amend "all misleading and false information". The respondent advised her that as she had not made an application for amendment under s15 of the PPIP Act or cl 8 of Sch 1 of the HRIP Act, the respondent would not deal with the request for amendment.
The respondent states that the applicant has been offered numerous opportunities to identify the amendments she seeks but has not done so. The applicant maintained that she had identified the amendments she wanted. However during the hearing the only specific information the applicant identified was her family being documented as part of the Brighter Futures program operated by the respondent, which she stated was untrue. She maintained that she wanted all records about her family to be deleted as nothing in her file was true and correct.
The second Tribunal application in my view is misconceived and lacking in substance because it does not identify or relate to the conduct which is sought to be reviewed. The application seeks overarching orders for amendment or deletion, when the internal review sought, in part, access to information so that it could be checked for accuracy. Where it seeks amendment of all false and misleading information the application does not identify the information which is said to be false or misleading.
In the alternative the Tribunal is asked to make a statement of what information is false or misleading. This is not within the Tribunal's jurisdiction, as this does not relate to any conduct under review. The other orders are beyond the Tribunal's jurisdiction or depend on other findings being made.
In my view the application is misconceived and lacks substance for these reasons and should be dismissed. It is open to the applicant to make an application to the respondent for amendment of her personal information under s 15 of the PPIP Act or cl 8 of Sch 1 of the HRIP Act, specifying the nature of the amendments.

Ground 6 - the application has a collateral purpose

Although it is not strictly necessary, I will address this ground. The respondent submits that the proceedings are brought for a collateral purpose of erasing or rewriting her family's records with the respondent. As explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491: " Proceedings are vexatious … if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise."
In Williams v Spautz [1992] HCA 34; 174 CLR 509 the majority of the High Court (Mason CJ, Dawson, Toohey and McHugh JJ) held that an abuse of process will be present when: "…the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed … or some collateral advantage beyond what the law offers"'. [36]
The majority approved the statement of Slade LJ that: "a person alleging such an abuse must show that the predominant purpose of the other party in using the legal process has been one other than that for which it was designed." (at [42]).
The applicant disputes that she is trying to rewrite her family's history with the respondent. In my view there is insufficient evidence before the Tribunal to establish that her predominant purpose was to use the legal process for a collateral purpose. This ground has not been established.

Orders 1. Proceedings 2018/00377223 are dismissed. 2. An extension of time until 16 July 2019 is granted to file the application in Proceedings 2019/234/273. 3. Proceedings 2019/234/273 are 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: 21 October 2019

At a glance

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Judgment (11 paragraphs)

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Legislation Cited (3)

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Cited By (1)