DTN v Commissioner of Police

NCAT Administrative and Equal Opportunity|2022-08-08

Background Facts

The Applicant commenced employment with the Respondent as a police officer in about August 1995.
On 28 August 2007 the Applicant sustained a physical workplace injury (a serious foot injury). The Applicant's last day on duty was 3 July 2008.
Between August 2007 and April 2012 a number of doctors and medical experts including neurologists, psychiatrists, occupational physicians, rheumatologists and pain specialists were engaged by the Respondent and the Applicant in the course of assessing the Applicant's injury.
In August 2008 the Applicant admitted himself to Nepean Hospital and was transferred to Cumberland Hospital having suffered an adverse reaction to the drug Amitriptyline, also known as Endep. The Applicant says that the hospital records describe the reason for his admission as being a brief reactive psychosis related to the use of that drug. Those records are not in the s 58 documents and are not before the Tribunal. However, the Respondent acknowledged in their decision on the internal review: I note your voluntary admission to Nepean Hospital was caused by a prescription medication induced psychosis.
In December 2008 the Applicant was referred by his then treating doctor, Dr Norm Southern, a sports medicine specialist, to a Psychiatrist, Dr Pusic for "further assessment and management".
The Applicant says that the only reason why the possibility that he may have been experiencing psychological issues was raised during the course of the Respondent's assessment of his condition was because of false information which his then partner had provided to his treating doctor at the time without his knowledge. This appears to be consistent with Dr Southern's surgery consultation notes made in 2016, a number of years after the Applicant's discharge, which stated that: In retrospect, the need for psychiatric assessment was borne of [the Applicant's then partner's] allegations at that time.
It is also consistent with the contents of the report dated 9 May 2011 provided by Dr George referred to below.

Events giving rise to the creation of the Conduct Document

In July 2010 the Applicant attended Blacktown Local Area Command (LAC) to seek advice about concerns he had as to the welfare of his partner who had threatened suicide. The Applicant was advised to inform the psychiatric team at Blacktown Hospital. The Applicant attended Blacktown Hospital for that purpose. He was advised they would look into the matter and would telephone him the next day to advise a course of action. He left the hospital and the next day was informed that, as he did not live in the geographical boundaries of Blacktown Hopsital, he would need to report his concerns to Pialla Psychiatric Ward at Nepean Hospital.
Injury Management were advised by Blacktown LAC that the Applicant had attended and were incorrectly advised by the LAC that the Applicant had been transported by Blacktown Police to the mental health team at Bungarrabie House where he was seen and discharged in the care of the Penrith Mental Health Team. Injury Management then disseminated this information to various doctors and the Applicant's worker's compensation insurer.
In May 2011, the Applicant on becoming aware of this, raised a complaint that the information which had been provided to those persons was incorrect in a number of respects.
It was these events which gave rise to the preparation by Ms Sailing of the Conduct Document on 25 May 2011.
The Conduct Document commences: Issue [The Applicant] raised a complaint of inaccurate medical information being provided by Injury Management to a number of parties.
It then notes that Injury Management had been advised by LAC that the Applicant had presented to Blacktown LAC on 14 April and was later admitted to hospital that day. It notes, further, that as part of "the normal process" Injury Management disseminated the information regarding the Applicant's presentation at Blacktown LAC and admission to Blacktown hospital to the insurer to include in a psychiatric referral with Dr Wilson and to the Nominated Treating Doctor, Dr Southern. The memorandum notes that, however, it had recently become apparent that the information provided to Injury Management was only partially correct and that, after being advised of the incorrect information, Injury Management alerted Dr George, an independent psychiatrist with whom the Applicant had a scheduled appointment, that the background information provided about the Applicant's admission to Blacktown Hospital was inaccurate. It also outlines the steps Injury Management had taken to deal with the Applicant's complaint and further steps proposed to be taken including to provide Dr Southern, the insurer and Dr Wilson with the "correct version of events that occurred in relation to [the Applicant's] attendance to Blacktown Hospital".

Steps taken by the Respondent to address the Applicant's complaint the subject of the Conduct Document

By letter dated 23 September 2011 the Applicant was advised by the Respondent that, as a result of his complaint, the Respondent had amended his health records and written to the doctors and the insurer to whom the incorrect information as to his admission to Blacktown Hospital had been provided asking them also to amend their records to reflect that the Applicant did not attend Blacktown Hospital for the purposes of treatment for himself and was not admitted into that facility or discharged in the care of the Penrith Mental Health team.

Material on the Respondent's file at the date of the Conduct Document

As at 25 May 2011, the date of preparing the Conduct Document, the Respondent held on file a large number of different medical reports and other documents concerning the Applicant, including the following: 1. An 11 page report of Dr R Whittaker, a consultant Rheumatologist and assessor of permanent impairment of the spine, upper limb and lower limb, dated 3 December 2008 in response to a referral from the Applicant's worker's compensation insurer. In response to a question: "In your opinion, are there any psychological factors that contribute to the claimant's condition?" Dr Whittaker states "[t]here may well be psychological or psychiatric factors contributing to his current condition…". He later concludes that the Applicant requires further assessment which is outside the expertise of a Rheumatologist. It should be noted that this report also notes: I note that the Endep was ceased because [the Applicant] developed various psychological symptoms with agitation, anger and indeed he was scheduled for three days in late August 2008… Since ceasing Endep, these feelings have not subsided.
The Applicant's evidence at the hearing was that the reference in Dr Whittaker's 3 December 2008 report to "these feelings have not subsided" contained a typographical error and should have read "these feelings have subsided". No issue was taken with that by the Respondent and I accept the Applicant's evidence in that regard. 1. A letter of referral dated 6 December 2008 from Dr Norm Southern to Dr Pusic, which states: Thank you for seeing [the Applicant] whom I believe is suffering obsessive compulsive disorder. … I believe that the symptoms of which he is now complaining are a part of his obsessive compulsive disorder. 1. A report dated 15 October 2010 from Dr Phillip O'Rourke, a Psychiatrist, to the Applicant's worker's compensation insurer which concludes: In my opinion there are no psychological conditions [the Applicant] is experiencing relating to his work or physical injury. … [The Applicant's] psychological condition does not prevent him from returning to work. 1. A report dated 9 May 2011 from Dr Graham George, also a Psychiatrist, to Ms Sailing in response to her request that he perform a psychiatric assessment of the Applicant. That report noted that the Applicant had provided Dr George with a statutory declaration from his previous partner which identified errors with what she had told Dr Southern or with Dr Southern's understanding of what she had told him. That report concludes: I have not diagnosed a psychiatric disorder.
The Applicant attached to his August 2022 submissions a referral from Dr Southern to a neurologist in 2009 and a report from Dr Pusic in 2009. There is no evidence that these documents were in the Respondent's files at the date of the Conduct Document and so I do not consider it appropriate to have regard to those documents.

Parties' submissions

The Respondent's submissions refer to the PPIP Act and the IPPs. Given that I have concluded above that the relevant information is health information, I take the Respondent's submissions to be submissions as to the analogous HPPs.
The Applicant's principal complaint is that each of the First to Fourth Statements is false or misleading, so I propose first to consider HPP9 which relates to accuracy of health information.

HPP9

The Respondent submits the First, Second Third and Fourth Statements were included in the "Background" section of the Conduct Document, so as to provide context to the Respondent holding information about the Applicant's apparent admission to Blacktown Hospital. The Respondent submits the inclusion of the information was reasonable in those circumstances.
The Respondent notes the basis for the Applicant's injury remained a live issue as at the date of the Conduct Document and submits the Conduct Document makes no findings in relation to the final cause of the Applicant's injury, but simply indicates that "investigations" had been undertaken and there was a "possibility" of a psychological factor having a role.
The Respondent submits the comments were accurate as at 25 May 2011, in circumstances where available medical evidence discussed the possibility that there was a psychological component to the Applicant's injury.
While the Respondent was not in a position to put on evidence as to the actual steps which were taken by the author of the Conduct Document, who is no longer in the Respondent's employment, the Respondent submits that it did take steps which were reasonable in the circumstances and having regard to the purpose for which the information was to be used, to ensure the information was accurate.
On that basis, the Respondent submits there has been no breach of HPP9.

Consideration

First, I accept the Respondent's submission that the relevant date to test the accuracy of the Conduct Document is the date of the document, namely 25 May 2011.
As to the First Statement, it is correct that by his letter dated 3 December 2008 Dr Whittaker stated that "there may well be psychological or psychiatric factors contributing to his current condition". However, I do not consider it is completely accurate to say that this doctor "raised" that possibility, as his statement was in response to a direct question asking him to address that possibility. Dr Whittaker is a Rheumatologist and noted, himself, that further assessment was required which was outside his area of expertise.
As to the Second Statement, by his 6 December 2008 letter, Dr Southern stated that he believed the symptoms which the Applicant was complaining about, namely the Applicant's foot pain, were "a part of his obsessive compulsive disorder". I accept that it was, therefore, accurate to state that Dr Southern "also raised his concerns regarding [the Applicant]'s foot pain having a psychological basis". There are no other documents in the s 58 documents which refer to Dr Southern expressing a different view as to the Applicant's diagnosis between 6 December 2008 and the date of the Conduct Document. As I have already indicated, as there is no evidence that it was contained within the Respondent's files at the time of the Conduct Document I do not consider it appropriate to have regard to the referral from Dr Southern to a neurologist which was attached to the Applicant's submissions.
However, even if the First and Second Statements are strictly accurate so far as they go, when those statements (made by a Rheumatologist and a Sports Medicine Physician respectively) are taken together with the balance of the material in the Background section of the Conduct Document, without more, I agree with the Applicant that they are, in light of the other far more recent reports from two qualified Psychiatrists which were also on the Respondent's file, misleading. Those later reports include a report addressed to the author of the Conduct Document by a Psychiatrist a matter of two weeks before the Conduct Document was authored and both reports indicate that in their authors' expert views the Applicant was not suffering from a psychological condition. No reference is made in the Conduct Document to the existence of these reports.
As to the Third Statement, I understood the Respondent to accept the Applicant's evidence that he did not return to see Dr Pusic in 2011 for treatment, but rather to access the files which had been made available to him through Dr Pusic. However, their submission was that, on the basis of the material in the Respondent's files at the time of authoring the document, the author was entitled to assume that this statement was accurate. The Respondent pointed the Tribunal to: 1. A referral to Dr Tim Anderson dated 9 April 2010 by the author of the Conduct Document which states: He has been assessed by a Psychiatrist - Dr Pusic, however has not been back to see him, and Dr Pusic has not responded to our request for a report; 1. Dr George's 9 May 2011 report which states: He was referred to Dr Pusic (psychiatrist) on two occasions. The first occasion was some time ago and recently, he saw him in January 2011 and this allowed him to gain access to records as well.
The 9 April 2010 referral is authored by the same person who authored the Conduct Document, so it is not open to the Respondent to rely upon that document as a basis for the author assuming the accuracy of the Third Statement. The Respondent has offered no support for the statement being made by that person on 9 April 2010 as being accurate. In any event, it does not provide any support for a belief that the Applicant returned to Dr Pusic in 2011 for treatment.
The excerpt in Dr George's report which the Respondent relies on is contained in a section of the report which, while it is not abundantly clear, appears to be a summary of what the Applicant told Dr George when he presented to him for his review.
While the addition of the words "as well" might support an inference that the the author understood that the Applicant went to see Dr Pusic again in 2011 "for treatment" as well as to obtain access to the records he had sought, the statement is ,nonetheless, inaccurate and there is no evidence of any steps taken by the author to confirm its accuracy.
As to the Fourth Statement, it is not in dispute that the Respondent was admitted to Cumberland Hospital because of an adverse reaction to the drug Endep and that he was in hospital for 3 days. The Applicant says that he admitted himself to hospital and that the hospital kept him for 3 days so that they could perform an assessment before discharging him. There are no admission or discharge notes for Cumberland Hospital contained in the s 58 documents. The Respondent points to a note on the Applicant's personnel file noting that the Respondent had received information that the Applicant had been admitted to Cumberland Hospital. The note is undated but appears from its content to have been created on 24 August 2008. That note, relevantly, states: Information from Cumberland Hospital is that [the Applicant's] admission status is that of a voluntary admission; however he would not be released until he is assessed by the Cumberland Hospital psychiatric team on Monday the 25 August 2008.
The Applicant in his most recent submission says that the Respondent now has access to the admission and discharge notes form Cumberland Hospital which have been obtained under summons in another set of proceedings between the parties. I do not consider it is appropriate to have regard to that material (which is not before the Tribunal in any event) as the relevant question is what information was available to the author of the Conduct Document at the relevant time.
However, nothing turns on that as I do not consider the Respondent has pointed me to any material which would support the accuracy of the words in the Fourth Statement "due to his past history of mental illness for which he had been admitted to Cumberland Hospital". The 24 August 2008 note that the Respondent took the Tribunal to does not support that statement. There were no documents on the Respondent's file which reported the Applicant as having a mental illness or a past history of mental illness. Further, the Respondent has acknowledged in their decision on the internal review: I note your voluntary admission to Nepean Hospital was caused by a prescription medication induced psychosis.
While it is correct that, as at the date of the creation of the Conduct Document, there had been no final conclusion drawn as to the cause of the pain the Applicant was suffering, as at the date of the Conduct Document there were recent reports from two psychiatrists who dismissed the possibility that psychological conditions were the cause of his pain. I accept the Applicant's submission that the inclusion of each of the First, Second, Third and Fourth Statements without reference to those other opinions or some other qualification is misleading.
I do not accept the submission which I understood the Respondent to make that, having regard to the purpose for which the information was proposed to be used, namely for the management of a complaint by the Applicant (rather than determining the reasons for the Applicant's medical discharge), the Respondent was required to take less care to ensure the accuracy of the information. While in the context of complaint management, the information was to be shared with the Manager and General Manager of Injury Management and the Commander of Workforce Safety each of whom may have been involved in determining the basis for the Applicant's medical discharge and they may have been misled in that regard by the contents of this document even if it was strictly prepared for a different purpose.
While there is no evidence as to the steps which were taken to ensure the accuracy of these Statements, it is clear that the author could have referred to the existence of the two recent psychiatric reports which were unquestionably available to her and could have taken greater care in ensuring the accuracy of the Third and Fourth Statements. For example, as to the Third Statement, she could have indicated that it was not clear from the Respondent's files whether the Applicant saw Dr Pusic for treatment in 2011. The Fourth Statement is also plainly poorly drafted. The Respondent submits that it is accurate because it indicated investigations had been undertaken and there remained a possibility that psychological factors may have played a role. However, the Fourth Statement goes further than that. It is a positive statement that the Applicant had a past history of mental illness which was not true and not supported by the material in the Respondent's files.
The obligation imposed by HPP 9 is to not use information without taking such steps as are reasonable in the circumstances to ensure that the information is accurate, up to date, complete and not misleading.
I find that the Respondent has breached HPP 9 in relation to each of the First to Fourth Statements because it has used the information without taking such steps as are reasonable to ensure that they are accurate, complete and not misleading.

Other HPPs: collection, security, use and disclosure of the relevant information

The Respondent submits the Applicant has not provided any particulars as to the specific conduct associated with the collection, use, disclosure and security of his personal information which forms part of his complaint and submits no breach of the collection, use, disclosure and security HPPs has been made out. The Applicant has made some brief submissions in relation to the potential disclosure of the information which I address below. However, I agree with the Respondent for the reasons which follow that no breach of the collection, use, disclosure and security HPPs has been made out in relation to the relevant information in the Conduct Document.
HPP 3 requires that health information about an individual must only be collected from that individual unless it is unreasonable or impracticable to do so.
The Respondent submits that there is no evidence to suggest the information collected for inclusion in the "Background" section to the Conduct Document was collected inappropriately (it was information drawn from medical reports and other documents obtained by the Respondent in the course managing the Applicant's medical discharge from the NSWPF). The information was collected with the Applicant's consent.
I agree with the Respondent that it was appropriate to draw information as to the Applicant's medical condition from the medical reports that it had obtained as to his condition. It would have been unreasonable or impracticable to seek this information in the circumstances directly from the Applicant. While I do not consider that the Respondent took adequate steps to ensure the accuracy of the information it included in the Conduct Document and could, for that purpose, have sought confirmation as to the accuracy of the information from the Applicant, that is, in my view, a breach of HPP 9 as I have indicated above, not HPP 3.
HPP 5 requires an organisation to ensure that health information is protected by reasonable security safeguards against loss, unauthorised access, use modification or disclosure and other misuse. The Applicant did not make any submission in relation to retention and security of the relevant information and there is no basis, on the evidence before the Tribunal, for a finding of a breach of HPP 5.
HPP 10 provides limits on the use which may be made within an organisation of health information. It provides that health information must not be used for a purpose (secondary purpose) other than the purpose for which it was collected unless, relevantly, the individual consents or the secondary purpose is related to the primary purpose and the individual would reasonably expect the organisation to use the information for the secondary purpose. Again, the Applicant made no submission directly addressing HPP 10. I note that the information in the Conduct Document was used for a secondary purpose, namely to seek advice as to how best to respond to the Applicant's complaint as to the dissemination of inaccurate health information. However, I consider that the secondary purpose is directly related to the primary purpose of its collection (namely to identify how to manage the Applicant's return to work or medical discharge) and I consider that the Applicant would reasonably expect the Respondent to use the information for that secondary purpose. As such, I find that there has been, on the basis of the material before the Tribunal, no breach of HPP10 in respect of the relevant information.
HPP 11 provides that, unless certain exceptions apply, an organisation must not disclose health information for a purpose other than the primary purpose.
While the document may have been circulated internally at least to the persons identified, there is no evidence that it has been provided to anyone external to the Respondent, other than possibly to the Applicant's solicitors at his request.
The Applicant in his most recent submissions complains that before the Conduct Document was created the same information in the Conduct Document was disclosed to a doctor, Dr Wilson, who documented it in a report which was then disseminated to a number of parties including his worker's compensation insurers. However, that is not an issue which is before me in these proceedings. The question which I need to determine in these proceedings is whether the information in the Conduct Document was disclosed contrary to HPP 11. There is no evidence in the material before the Tribunal that the Conduct Document was disclosed to an external party. Accordingly, I do not consider that a breach of HPP 11 has been made out.

Appropriate orders

It falls then to consider the appropriate orders I should make in light of the findings I have made as to the Respondent's breaches of HPP 9.

Powers of the Tribunal

Part 5 of the PPIP Act (ss 52-55) relates to internal and external review of conduct of a public sector agency that is alleged to be in breach of a HPP.
Section 53(7) provides that, following completion of an internal review the public sector agency 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.
Section 55(2) of the PPIP Act provides that on reviewing the conduct of a public sector agency the Tribunal may decide not to take any action on the matter, or it may make 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.
As the Tribunal stands in the shoes of the agency, the actions and remedies available to the agency under s 53(7) are also available to the Tribunal: DTN v Commissioner of Police [2020] NSWCATAP 73 at [94].

Parties' submissions

The Respondent has provided to the Tribunal a copy of the Conduct Document which has now been annotated in accordance with the orders made by Senior Member Christie in the Decision in the Related Proceedings. The Conduct Document in the Respondent's files has now been annotated with the words: This report/document does not relate to the injury which resulted in [the Applicant's] medical discharge from the NSWPF in 2012. This annotation has been made in accordance with the decision in DTN v Commissioner of Police [2022] NSWCATAD 134.
The Applicant submits, and I agree, that this annotation does not address the false and misleading information in the Conduct Document, however, does not press for a different annotation to be made to the Conduct Document.
The Applicant seeks an apology and an order for damages.
I asked the Respondent at the hearing what their submissions as to appropriate remedies would be should I find a breach of the HPPs as their written submissions did not address that possibility. The Respondent submitted that in light of the annotation noted, there is no need for a further annotation to be made to the Conduct Document. As to damages, they submitted that damages at the "lower end of the spectrum", "closer to $1000" would be appropriate.

Consideration

The Applicant says, and I accept, that he has suffered significant embarrassment and distress because people within the NSWPF have seen the false and misleading information in the Conduct Document and, therefore, can be assumed to have understood it to be true. The Applicant says that there is nothing that can be done to "undo" that, which is why he doesn't press for another annotation to the document.
The letter from Dr van Niekerk attached to the Applicant's submissions states: This document [the Conduct Document], and what is described in it as having occurred, have caused [the Applicant] psychological distress and harm and had a considerable negative impact upon his wellbeing.
I consider that in the circumstances of this case it is appropriate that a letter should be issued from the Respondent to the Applicant acknowledging the breaches of HPP 9 identified in these reasons and providing an unreserved apology for the distress and embarrassment caused to the Applicant as a result of those breaches.
The relevant authorities as to when it is appropriate to make an order for damages by way of compensation for loss or damage suffered by reason of a breach of the HPPs are set out in the Decision in the Related Proceedings at [33] to [40] and the principles were also summarised by the Tribunal in DTN v Commissioner of Police [2020] NSWCATAD 16 at [69]. An order requiring the Respondent to pay damages can only be made if the Tribunal is satisfied, on the evidence, that the Applicant has suffered financial loss and/or psychological or physical harm as a result of the conduct of concern.
I am satisfied, based on the evidence, that the Applicant has met the burden of establishing the causal link between the breaches of HPP 9 and the harm he has suffered.
In my view this is a case where there should be an award of damages. I do not accept the Respondent's submission that the award should be at the "lower end of the spectrum". The Respondent's breaches have caused significant distress and harm to the Applicant and have had a considerable negative impact on his wellbeing. It has also been necessary for the Applicant to have gone through the stress of bringing these proceedings. In my view, an appropriate award for the harm caused to the Applicant by these breaches, taking account of all the factors referred to in NK v Northern Sydney Central Coast Area Health Service (No 2) [2011] NSWADT 81 at [37]-[45] and having regard to the Decision in the Related Proceedings, is $7,500.
I note that in the Decision in the Related Proceedings, the Tribunal made orders requiring the Respondent to perform HPP 9 including by specifying in a procedures document and implementing in the NSWPF those steps as are reasonable in the circumstances, having regard to the purpose for which the relevant health information is to be used, which are to be taken by the Respondent and the NSWPF to ensure that all health information is relevant, accurate, up to date, complete and not misleading before it is used and to implement such administrative measures necessary to ensure the Respondent will take such steps as are reasonable in the circumstances, having regard to the purpose for which the relevant health information is to be used, to ensure that any of the Applicant's health information to be used is relevant, accurate, up to date, complete and not misleading before it is used. Accordingly, I do not consider a further order of that nature is required.

Orders: 1. Pursuant to s 64 Civil and Administrative Tribunal Act the publication or broadcast of the name of the Applicant in these proceedings is prohibited. Note: A reference to the name of the Applicant includes a reference to any information, picture or other material that identifies the Applicant or is likely to lead to the identification of the Applicant. 2. Within 14 days of the date of these Reasons for Decision the Respondent is to provide an unreserved formal written apology to the Applicant addressing and apologising for the Respondent's breaches of HPP 9 in respect of the health information of the Applicant as identified in these Reasons for Decision and for all distress and embarrassment caused to the Applicant by such. 3. Within 14 days of the date of these Reasons for Decision the Respondent is to pay to the Applicant damages in the amount of $7,500 by way of compensation for the damage he has suffered by reason of the Respondent's breaches of HPP 9.

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: 16 September 2022

Privacy and Personal Information Act 1998(NSW)

Health Records Information Privacy Act 2002(NSW)

Introduction

In these reasons for decision the name of the Applicant has been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as the Applicant or DTN.
The Applicant lodged twelve separate applications to the Tribunal under s 55 of the Privacy and Personal Information Act 1998 (NSW) (PPIP Act) for an administrative review of the conduct of the Respondent that was the subject of applications for internal review lodged by the Applicant with the Respondent under s 53 of the PPIP Act. Those internal review applications complained that the Respondent had breached the Information Privacy Principles (IPPs) under the PPIP Act in respect of his personal information or the Health Privacy Principles (HPPs) under the Health Records Information Privacy Act 2002 (NSW) (HRIP Act) in respect of his health information, or both, in certain documents in the Respondent's files concerning the Applicant.
By letters dated 15 June 2021 the Respondent gave the Applicant notice of its internal review decision, in eleven cases concluding that the conduct of the Respondent was exempt from the definition of "personal information" under section 4(3)(j) of the PPIP Act or section 5(3)(m) of the corresponding provision of the HRIP Act because the relevant information in each document was "information or an opinion about the Applicant's suitability for employment as a public sector official".
By order made on 24 August 2021 those eleven applications were listed for hearing together on the preliminary issue as to whether the information in issue in each case attracted the exemption under s 4(3)(j) of the PPIP Act or s 5(3)(m) of the HRIP Act.
The twelfth application commenced by the Applicant in proceedings number 2021/178005 was ordered to be heard separately. That matter was heard by Senior Member Christie who delivered his Reasons for Decision on 27 April 2022 in DTN v Commissioner of Police [2022] NSWCATAD 134 (the Decision in the Related Proceedings).
The hearing of the preliminary issue for the other eleven applications was conducted in October 2021 and March 2022 and the Tribunal's Reasons for Decision in that matter were delivered on 19 May 2022 in DTN v Commissioner of Police [2022] NSWCATAD 158. The Tribunal found that the exemption under s 5(3)(m) of the HRIP Act applied in respect of the information in the documents the subject of ten out of the eleven applications but not in respect of the document the subject of these proceedings. The proceedings in the other ten matters were dismissed and these proceedings were set down for hearing on the substantive issue.
The background to the Applicant's applications, including the application the subject of these proceedings which is the last of sixteen applications the Applicant has filed in the Tribunal, is set out in the Decision in the Related Proceedings at [3] to [11] and I will not repeat it here.
These proceedings concern an internal memorandum dated 25 May 2011 prepared by Ms A Sailing an Injury Management Advisor in the Injury Management Unit of the New South Wales Police Force (NSWPF) which appears to have been prepared for submission to the Manager Injury Management, General Manager Injury Management, Commander Workforce Safety and the Office of General Counsel of NSWPF outlining a complaint made by the Applicant about the provision of inaccurate medical information relating to him by Injury Management to a number of third parties and seeking advice in relation to whether the actions taken by Injury Management to address the Applicant's complaint were appropriate and adequate. The document sets out by way of background some historical medical information about the Applicant. The Applicant complained that the information in this document is false and misleading in seven different respects which are detailed below. That document is referred to in these reasons as the Conduct Document.
In the internal review application the Applicant identified that his complaint in respect of the Conduct Document related to the collection, security, accuracy, use and disclosure of the relevant information.

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (4)