The applicant, who is referred to as DTN, seeks an administrative review pursuant to the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) of the conduct of the respondent, the Commissioner of Police, NSW Police Force, that was the subject of his application for internal review made under s 53 of the PPIP Act on 18 February 2019 (the internal review application).
I have decided pursuant to s 55(2)(a) and (4)(b) of the PPIP Act that the applicant is entitled to damages of $1,000.00 from the respondent by way of compensation for the loss or damage he has suffered because of the conduct of the respondent in 2014 that was the subject of the internal review application, and otherwise pursuant to s 55(2) of the PPIP Act that no action be taken on the matter.
[2]
Background
On 16 August 1995, the applicant became a police officer.
On 11 May 2011, the applicant made an application to the NSW Police Force (NSWPF) for an amendment to certain records under the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act). His request related to the letter dated 7 September 2010 from Ms Annette Saling (Ms Saling), the Injury Management Advisor of the NSWPF, to his nominated treating doctor (the 7 September 2010 letter) and an email from Ms Saling to Ms Eloise Stedman of Allianz Insurance sent on 30 July 2010 (the 30 July 2010 email). The subject matter of the two documents related to an event that occurred on 21 July 2010. He claimed that the 7 September 2010 letter contained incorrect information.
On 9 September 2011, NSWPF advised the applicant by letter that his amendment request had been considered under cl 8 of sch 1 of the HRIP Act and the NSWPF confirmed that amendments would be made.
On 23 September 2011, NSWPF by letter to the applicant confirmed the agreed upon amendments. The letter also advised that NSWPF would contact six doctors and individuals about the incorrect information.
On 9 April 2012, the applicant was medically discharged from the NSWPF and received an off-duty partial and permanent disability benefit.
On 3 June 2013, the applicant filed an application to resolve a dispute in the Workers Compensation Commission in relation his off-duty partial and permanent disability benefit (the workers compensation application).
In October 2014, the applicant made a claim for an on-duty total and permanent disability benefit under two separate group policies issued by Metlife Insurance Limited (Metlife) and administered by FSS Trustee Corporation as trustee for First State Superannuation Scheme (FSS) (the TPD claims).
On 4 November 2014, the workers compensation application was resolved by the making of consent orders.
On 1 December 2014, NSWPF completed, signed and provided directly to Metlife an Employer Statement Total and Permanent Disability Claim form as part of the applicant's claim for an on-duty total and permanent disability benefit (the 2014 Employer Statement) which relevantly listed one of his conditions to include a "psychotic illness".
On or shortly before 6 December 2017, Metlife declined the TPD claims.
On 7 December 2017, the applicant made a compliant to the Financial Ombudsman Service (FOS) in relation to Metlife's decision to decline the TPD claims.
On 21 December 2018, the applicant received an email from the Australian Financial Complaints Authority (AFCA), which is the successor of the FOS, with attached a number of documents including the 2014 Employer Statement.
On 23 December 2018, the applicant in his letter to the NSWPF requested that NSWPF provide to him and Metlife an amended Employer Statement, reflecting a factual diagnosis of his condition (the 23 December 2018 letter).
On 30 January 2019, NSWPF completed a new Employer Statement Total and Permanent Disability Claim form (the 2019 Employer Statement) with the applicant's condition being noted as "Bilateral plantar fasciitis, chronic pain syndrome, and neuropathic syndrome of the lower legs with a peripheral neuropathy".
On 6 February 2019, the applicant in his letter to FSS (the 6 February 2019 letter) relevantly asked the following question:
6) Fss/MetLife were provided information by NSWPF that was false. How does Fss/MetLife respond to the suggestion that its decision to decline my claims was made in reference to false information provided it by NSWPF? Under the circumstances does Fss/MetLife intend to revisit its decision to decline my claims in light of amended medical information now provided it by NSWPF?
On 15 February 2019, the applicant made a complaint to the Information and Privacy Commission in relation to documents held by NSWPF that he alleged contained false information.
On 21 March 2019, FSS in its letter to the applicant (the 21 March 2019 letter) relevantly provided the following answer to question 6 of the 6 February 2019 letter:
As mentioned above, the employer information is one piece of information considered in the assessment. The information provided by the employer as to the condition which caused you.to cease work did not impact the Trustee's decision to decline your claim. It is not medical information. It is an Employer Statement providing 'information relevant to your employment history.
…
We therefore confirm the amended Employer Statement does not cause Metlife, or the Trustee, to revisit its decision on your claim.
[3]
The internal review application
On 22 February 2019, the respondent received the internal review application which complains that the respondent provided the following documents containing "false information" about the applicant to various medical practitioners, Allianz Insurance, FSS, MetLife, the Workers Compensation Commission and other NSWPF employees:
1. the contents of a correspondence authored by Ms Saling in 2010 (the 2010 Conduct); and
2. the contents of a "First State Super MetLife Employer's Statement Total and Permanent Disability Claim" form created by the NSWPF on 1 December 2014 (the 2014 Conduct).
On 12 March 2019, the Office of the General Counsel of the NSWPF in its letter to the applicant advised that an officer had determined that the internal review application was not validly made on the basis that it was outside of the statutory timeframe specified in s 53(3)(d) of the PPIP Act, and had declined to exercise his discretion to grant an extension of time for its lodgement (the 12 March 2019 decision). The officer relevantly states:
I understand your Request relates to conduct of the NSWPF in both 2010 and in 2014. I will deal with that conduct in turn.
…
2014 Conduct
I understand your complaint to be concerned with the use of the words "psychotic illness" in an Employer Statement created by the NSWPF on 1 December 2014. The Employer Statement was created in response to a request from First State Super following your claim to them for payment of a total and permanent disability benefit.
On 15 March 2019, the applicant in his letter to the NSWPF responded to the 12 March 2019 letter (the 15 March 2019 letter).
[4]
Procedural history
On 19 March 2019, the applicant commenced proceedings no 2019/00086806 in the Tribunal against the respondent by lodging the application in which he set out the grounds for review by referring to and attaching the 2014 Employer Statement, the 2019 Employer Statement, the 23 December 2018 letter and the 15 March 2019 letter.
On 30 April 2019, the Tribunal made orders for the exchange of evidence and submissions and fixed the proceedings for hearing on 22 July 2019.
[5]
The first hearing
On 22 July 2019, the first hearing was held. The Tribunal found that for the purpose of s 53(3)(d) of the PPIP Act the applicant became aware of the 2014 Conduct on or about 21 December 2018, and remitted the 12 March 2019 decision to the respondent for re-consideration in relation to the 2014 Conduct.
[6]
The internal review decision
On 24 September 2019, an officer of the respondent completed a report in relation to the internal review application (the internal review decision) which sets outs introductory remarks including the material considered, the scope of the internal review, the relevant legislation and the background.
Section 5 of the internal review decision which is headed "My findings" provides:
5.1 I have determined that:
(a) there has been a contravention of the Accuracy HPP;
(b) there has not been a contravention on the Collection HPP; and
(c) there has not been a contravention of the Use HPP; and
(d) there has not been a contravention of the Disclosure HPP.
Section 6 of the internal review which is headed "Reasons for my findings" provides:
Accuracy HPP
6.1 HPP 9 provides that an agency must not use health information without taking steps to ensure the information is accurate, up to date, complete and not misleading.
6.2 I find that the reference to a 'psychotic illness' included in the 2014 claim form was extracted from an internal NSWPF Medical Discharge form at page 1, under the heading 'Nature of Injury' which is a summary of your medial history as contained in various documents and medical reports and opinions held on your NSWPF file. The reference to a 'psychotic illness' is taken from the claim summary form prepared by Dr Wilson dated 29 September 2010.
6.3 I note that there are various other documents, after this date, which refer to your psychological condition and pain associated with your lower leg injury, but there is no other diagnosis of your having a psychotic illness.
6.4 I also note the content of your HRIP amendment confirmation (dated 23 September 2011) and the amendment agreement (dated September 2011), the latter of which specifically confirms the reference to your having a psychotic illness will be corrected on the NSWPF's records.
6.5 In the circumstances and in light of the amendment agreement I consider the reference your having a psychotic illness on the 2014 claim form to be inaccurate and, at a minimum, inconsistent with the position agreed by the amendment agreement.
6.6 I confirm that on 30 January 2019, the 2019 claim form was amended to reflect the correct information at Part 3 of Section 3 on page 3. A copy of this form was provided to you and the insurer.
Collection HPP
6.7 The HPP in relation to the collection of personal information requires an agency to be satisfied that information was collected for a lawful purpose directly related to the agency's functions.
6.8 The background set out in Part 4 of this internal review decision notes the circumstances around the collection of information in relation to your having a 'psychotic illness' and the amendment agreement.
6.9 From my review of your file and the information set out in your Request and NCAT proceedings, I consider the NSWPF has collected your health information for a lawful purpose (for the purpose of assessing and facilitating your work place injury and subsequent medical discharge from the NSWPF).
6.10 I am satisfied the NSWPF has complied with its obligation in relation to collection.
Use HPP and Disclosure HPP
6.11 HPP 10 provides an agency can only use personal information for a purpose directly related to the purpose for which it was collected. Likewise the Disclosure HPP contains similar limitations.
6.12 Putting aside the accuracy of the content of the 2014 claim form, I am satisfied that the content was used by the NSWPF for facilitating your medical discharge from the NSWPF and, later, to provide information to the insurer in order for the insurer to assess your claim for compensation.
6.13 In these circumstances I am satisfied the NSWFP has complied with its obligation in relation to use and disclosure.
6.14 As noted above, the NSWPF is generally exempt from compliance with the Act, except in connection with the exercise of its administrative and educative functions (see section 27 of the Act). In Commissioner of Police, New South Wales Police Force v YK (GD) [2008] NSWADTAP 78, the Appeal Panel held that section 27(1) gives a blanket exemption from the application of the Act in respect of all functions, subject only to the qualification set out in ·section 27(2). Therefore, the starting point is that all functions of the NSWPF have the benefit of the section 27(1) exemption. The question is whether the function is brought back under the regulation of the Act because it is in connection with an 'administrative' or 'educative' function of the NSWPF.
6.15 In HW v Commissioner of Police, New South Wales Police Service [2003] NSWADT 214, the Tribunal stated at [30] that "corporate services areas performing functions such as personnel, budget and information technology involve the performance of 'administrative' functions. There may be areas of the Police Service where the characterisation of the activity in terms of core/administrative/educative may vary depending on context that has given rise to the conduct in issue".
6.16 I am of the view that the NSWPF in completing and providing the 2014 claim form was performing an administrative function of the NSWPF. As such, the exemption in section 27(1) does not apply.
6.17 For the reasons set out above, I find that the NSWPF not did meet its obligation in the Accuracy HPP when completing the 2014 claim form, having regard to the terms of the amendment agreement made in September 2011.
Section 7 of the internal review decision which is headed "Action" provides:
7.1 Based on the above reasons I am of the view that there has been a contravention of HRIP Act, specifically the Accuracy HPP.
7.2 I propose to issue an apology for this conduct. I note that the inaccurate information in the 2014 claim form has already been amended by the 2019 claim form.
[7]
The second hearing
On 20 December 2019, the second hearing was held.
The applicant tendered the following written evidence:
1. statutory declaration of himself made on 18 June 2019 (Ex A1);
2. statutory declaration of himself made on 12 July 2019 (Ex A2);
3. statutory declaration of himself made on 11 October 2019 (Ex A3);
4. statutory declaration of himself made on 5 December 2019 (Ex A4).
The respondent tendered the following written evidence:
1. the statement dated 2 July 2019 of Wendy Kathleen Banning (Ms Banning) (Ex R1) (the Ms Banning statement);
2. Determination dated 12 April 2019 of the AFCA (Ex R2) (the AFCA Determination);
3. the internal review application (Ex R3);
4. the 12 March 2019 decision (Ex R4);
5. the internal review decision (Ex R5).
There was no oral evidence.
The applicant made oral submissions.
The respondent relied on its written submissions dated 20 November 2019 (the respondent's 20 November 2019 submissions).
The respondent also made oral submissions.
[8]
The statutory declaration of himself made on 18 June 2019
In his statutory declaration made on 18 June 2019, the applicant has set out a chronology of events, attached several documents and relevantly made the following statements:
The (2014 Employer Statement) contained a number of set questions to which hand written responses had been provided. The form had been signed by a NSWPF employee, Wendy Banning, and was dated 01 .12.14'.
I saw that information written on (Pg. 3) of the document, in answer to 'What condition caused the employee to cease work?' was written 'Bilateral lower limb pain, memory loss, psychotic illness and pain disorder'.
I do not suffer a 'psychotic illness' and I was shocked and distressed at what I read. It was the first time I had seen the document. (page 2)
…
What has happened to me is wrong and has negatively impacted upon my thoughts of NSWPF. To falsely state I suffer a 'psychotic illnesses to all those having a right to enquire is to do me incalculable harm. I doubt anyone would believe my claim upon Fss/Metlife and the Workers Compensation Commission was not detrimentally affected by statement of same. The extent of damage done to me, my name, reputation, and friendships with those I worked, together with the financial loss suffered consequent to Fss/Metlife/Wcc declination of disability claims is incalculable. (page 7)
[9]
The statutory declaration of himself made on 12 July 2019
In his statutory declaration made on 12 July 2019, the applicant has attached several documents and responded to the respondent's written submissions dated 2 July 2019 and the Ms Banning statement.
[10]
The statutory declaration of himself made on 11 October 2019
In his statutory declaration made on 11 October 2019, the applicant has attached several documents and relevantly made the following statements:
Loss and damage;
The financial cost to my family and I is substantial and has no conclusion in sight. The settlement monies owed to me, by MetLife, are several hundred thousand dollars and AFCA has determined MetLife should have been paid the monies on or before the 18 March 2016.
…
AFCA applies financial limits cap's (maximum amounts AFCA can award) to their award amounts. With AFCA cap's applied my two MetLife policies summate to a value
of approx. $800,000 although there are substantial monies to be debited from that figure by NSWPF. Just estimating interest at 3% payable on the monies owed since 18March, 2016 exceeds the financial compensation limit under S55 of the Privacy and Personal Information Protection Act 1998.
Taking into account the effect of AFCA cap's on the real value of both my MetLife polices means that what MetLife have to pay via an AFCA judgement is reduced by many thousands of dollars compared to if I had received settlement from MetLife direct. (page 3)
…
Conclusion
NSWPF acknowledge they have contravened the HRIP Act, specifically the Accuracy HPP and they propose to issue an apology for their actions. … An apology is insufficient to satisfy the harm done.
I have suffered financial loss, psychological distress and expended hundreds of hours doing paperwork away from my family in pursuit of receiving some justice for the harm that been occasioned to me by NSWPF documenting, and stating to others, that I suffer a 'Psychotic Illness'. (page 4)
One of the attached documents is the letter dated 9 October 2019 of Dr Peter van Niekerk (the 9 October 2019 letter) which relevantly states:
(DTN) … has been my patient since December 2010.
I am aware of the protracted nature of his WorkCover claim and MetLife & First State Super TPD claims.
I have been shown a copy of (the 2014 Employer Statement) which incorrectly states" memory loss" and "psychotic illness" as conditions causing him to cease work.
This has caused him psychological distress and harm which has negatively impacted his well being.
[11]
The statutory declaration of himself made on 5 December 2019
In his statutory declaration made on 5 December 2019, the applicant has responded to the respondent's 20 November 2019 submissions.
[12]
The Ms Banning statement
In the Ms Banning statement, Ms Banning has:
1. provided details of her position and its responsibilities;
2. described the process where an injured worker wishes to make a claim for total and permanent disability;
3. stated that she completed the 2019 Employer Statement;
4. described the process of managing an injured worker's compensation claim by the NSWPF;
5. provided details of the applicant's claim for a work-related injury including her completion of the 2014 Employer Statement and in respect of which she has stated:
11. The NSWPF's Fitness to Continue Unit referred the Applicant to a number of IMEs:
a. Dr Graham George, Psychiatrist report dated 9 May 2011 which states, relevantly, "no current psychiatric diagnosis. Prior brief psychotic disorder, Probable obsessional personality traits and Pain disorder related to a medical condition" and "I have not made a psychiatric diagnosis. It does appear that in the past (DTN )did suffer a paranoid psychosis described at the time as a brief reactive psychosis. It does appear that there has been a medical diagnosis made previously in this case ... "; and
b. Professor David Champion, Neurologist report dated 29 August 2011. Dr Champion recommended, relevantly, that the Applicant have "a further neurophysiology I neurology evaluation".
12. The Applicant's claim for medical discharge had two components - a physical injury related to the Applicant's lower limb, and a psychological injury.
13. In relation to the psychological injury, Dr Champion's report dated 29 August 2011 (and his subsequent letter dated 16 January 2012) indicated that the Applicant's psychological injury was an issue being considered as part of his medical discharge and recommended the Applicant to a Dr Raj Sunderaj for a specialist neurophysiology/ neurology evaluation.
[13]
The AFCA Determination
The AFCA Determination relevantly:
1. determines the applicant is entitled to:
1. $309,000 in respect of his TPD claim under Policy 1;
2. a TPD benefit under Policy 2, capped at $500,000;
3. interest on both TPD benefits;
1. includes the following statement in its reasons for determination:
In a report dated 29 September 2010, Dr W said:
I suspect [the complainant] is suffering from a psychotic illness ... If my suspicions are correct and [the complainant] has a psychotic illness, this should respond to antipsychotic medication and it may yet be possible for him to return to work as a police officer ... He may be physically and cognitively capable of performing basic clerical duties for the police.
The panel was not assisted by Dr W's report. We are comfortably satisfied on the preponderance of medical evidence that the complainant's condition is not a psychotic illness.
[14]
The remedies sought by the applicant
As set out in his statutory declaration made on 11 October 2019, the applicant seeks the following remedies:
Reparation;
>I seek $40,000.00 from NSWPF by way of compensation for loss and damage suffered because of 'the conduct'.
>I seek NSWPF take whatever steps necessary to locate any and all documentation in their possession that contain a reference to, or suggestion of my having, or had, a sufferance or suggestion of 'Psychotic Illness' and to permanently remove from that documentation any such reference.
>I seek NSWPF take whatever steps necessary to locate on any and all electronic systems accessible to NSWPF any reference to, or suggestion of my having, or had, a sufferance or suggestion of 'Psychotic Illness' and to permanently remove from that electronic system any such reference. (page 5)
[15]
Jurisdiction
I am satisfied that the Tribunal has jurisdiction under s 55 of the PPIP Act when read with s 21(1)(a) of the HRIP Act to undertake an administrative review under the Administrative Decisions Review Act 1997 (NSW) of the conduct of respondent in 2014 that was the subject of the internal review application. When reviewing conduct that is the subject of an internal review under the PPIP Act, the Tribunal is exercising its administrative review jurisdiction: Civil and Administrative Tribunal Act 2013 (NSW), ss 28(2)(b) and 30.
[16]
The issues
The following issues arise for decision in undertaking an administrative review of the conduct of the respondent in 2014 that was the subject of the internal review application:
1. what conduct of the respondent in 2014 was the subject of the internal review application;
2. whether the respondent contravened any Health Privacy Principles in relation to the 2014 Conduct;
3. whether the applicant should be awarded damages under the PPIP Act;
4. whether the Tribunal should make any of the other orders sought by the applicant.
[17]
Relevant legislation
The following legislation is relevant to an administrative review of the conduct of the respondent in 2014 that was the subject of the internal review application.
[18]
PPIP Act
Part 5 (ss 52-55) deals with "Review of certain conduct". Section 52, which deals with the application of Part 5, relevantly provides:
52 Application of Part
(1) This Part applies to the following conduct:
(a) the contravention by a public sector agency of an information protection principle that applies to the agency,
…
(2) A reference in this Part to conduct includes a reference to alleged conduct.
Section 53, which deals with "Internal review by public sector agencies", relevantly 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.
…
(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.
Section 55, which deals with "Administrative review of conduct by Tribunal", relevantly provides:
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.
…
(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) ….
(4) The Tribunal may make an order under subsection (2)(a) only if:
(a) …, 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.
(5) ….
[19]
HRIP Act
The HRIP Act, which relevantly regulates the manner in which public sector agencies collect, use, store and disclose health information, contains 15 health privacy principles set out in Schedule 1 (s 4(1) definition of Health Privacy Principle or HPP).
"Personal information" is defined in s 5(1) as:
… 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.
"Health information" is defined in s 6(1) and relevantly provides:
6 Definition of "health information"
In this Act, health information means:
(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
Section 11, which deals with "How this Act applies to organisations", provides:
11 How this Act applies to organisations
(1) This Act applies to every organisation … that collects, holds or uses health information.
Note. The term organisation means a public sector agency or a private sector person.
(2) An organisation to whom or to which this Act applies is required to comply with the Health Privacy Principles ….
(3) An organisation must not do any thing, or engage in any practice, that contravenes a Health Privacy Principle ….
Section 17, which deals with specific exemptions for various public sector agencies including the NSW Police Force, relevantly provides:
This Act does not apply to … the NSW Police Force … except in connection with the exercise of their administrative and educative functions.
Section 21, which deals with complaints against public sector agencies, relevantly provides:
21 Complaints against public sector agencies
(1) The following conduct by a public sector agency is conduct to which Part 5 (Review of certain conduct) of the PPIP Act applies:
(a) the contravention of a Health Privacy Principle that applies to the agency,
(b) ….
(2) For that purpose, a reference in that Part:
(a) to personal information is taken to include health information, and
(b) …, and
(3) …
Schedule 1 relevantly includes the following Health Privacy Principles dealing with:
1. the collection of health information (the collection HPP):
1 Purposes of collection of health information
(1) An organisation must not collect health information unless:
(a) the information is collected for a lawful purpose that is directly related to a function or activity of the organisation, and
(b) the collection of the information is reasonably necessary for that purpose.
1. the accuracy of health information (the accuracy HPP):
9 Accuracy
An organisation that holds health information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.
1. the use of health information (the use HPP):
10 Limits on use of health information
(1) An organisation that holds health information must not use the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless …
1. the disclosure of health information (the disclosure HPP):
11 Limits on disclosure of health information
(1) An organisation that holds health information must not disclose the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless …
[20]
What conduct of the respondent in 2014 was the subject of the internal review application?
[21]
The submissions of the respondent
The respondent in the respondent's 20 November 2019 submissions addressed the question of whether the applicant should have any further remedy in respect of its conduct in completing and providing the 2014 Employer Statement to MetLife which it described as the 2014 Conduct.
[22]
The submissions of the applicant
The applicant made no written or oral submissions as to whether the conduct of the respondent in 2014 that was the subject of the internal review application was wider than the 2014 Conduct.
[23]
Applicable legal principles
The Appeal Panel of the Tribunal has decided that the following principles are applicable in determining the scope of an administrative review under s 55 of the PPIP Act:
1. 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 that 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 question of what is the scope of the application, reasonably construed, is one of fact that affects jurisdiction. Its determination is not driven, in any significant way, by any recitation of information protection principles that may appear in the applicant's application. 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: KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56 at [13]-[14];
2. the focus is the conduct of which the applicant complains. 'Conduct' is the expression used in this area of the law to describe action by the agency or circumstances involving the agency that might amount to a possible contravention of an information protection principle: see PPIP Act, s 52. There needs to be material that can be understood by the agency, fairly read, as connecting the action or circumstances of concern to a principle, whether or not the principle itself is actually specified by the application: CYL v YZA [2017] NSWCATAP 105 at [58];
3. the applicant cannot, after the application has been dealt with by the agency, widen the scope of the process. It is a fundamental premise of the PPIP Act that the agency first be given an opportunity to review the conduct of concern to the applicant. Therefore it would be wrong to allow proceedings in the Tribunal to be changed in scope so as to allow the applicant to put in issue new items of conduct or new bodies of information if they were not able to be identified (by the agency considering the complaint reasonably) at the initial stage. It is therefore critical that the agency and subsequently the Tribunal delineate with care and precision the actual information that is the subject of the internal review application and any subsequent application to the Tribunal: OD v Department of Education and Training (GD) [2005] NSWADTAP 74 at [13]-[14].
[24]
Consideration
Having regard to the 12 March 2019 decision and the internal review decision, I find that the conduct of the respondent in 2014 that was the subject of the internal review application was its conduct in completing and providing the 2014 Employer Statement to MetLife.
[25]
Whether the respondent contravened any Health Privacy Principles in relation to the 2014 Conduct
[26]
The submissions of the applicant
The applicant made no written or oral submissions as to whether the respondent contravened any Health Privacy Principle other than the accuracy HPP.
[27]
The submissions of the respondent
The respondent makes no written or oral submissions that he contravened any Health Privacy Principle other than the accuracy HPP.
[28]
Consideration
I am satisfied that the only Health Privacy Principle that the respondent contravened in relation to the 2014 Conduct was the accuracy HPP. The respondent did not contravene any of the collection HPP, the use HPP or the disclosure HPP, and was not entitled to a specific exemption from the Health Privacy Principles under s 17 of the HRIP Act for the reasons set out in the internal review decision.
[29]
Whether the applicant should be awarded damages under the PPIP Act
[30]
The submissions of the respondent
The respondent in the respondent's 20 November 2019 submissions made the following submissions:
1. as to financial loss:
1. the 21 March 2019 letter indicates that the 2014 Conduct did not impact the trustee's decision to decline the applicant's claim;
2. the applicant has not provided evidence of the causal link between the respondent's conduct and the financial loss suffered;
1. as to psychological harm:
1. the applicant's evidence, at its highest, is that he has suffered "psychological harm" of an unspecified nature as a result of the 2014 Conduct;
2. the 9 October 2019 letter should be given little weight because:
1. it is from a general practitioner and not an expert suitability qualified to provide an opinion on the applicant's psychological condition and whether he has suffered psychological harm;
2. it does not meet the requirements of the expert code of conduct;
3. it does not provide any details about the "psychological harm" said to have been suffered or the "negative[e] impact" on the applicant's wellbeing;
1. the applicant has not provided sufficient evidence to show the casual link between the 2014 Conduct and the psychological harm suffered;
1. as to any damages, the Tribunal in the exercise of its discretion should not make an order for payment of compensation in circumstances where the respondent upon being made aware of the use of inaccurate information contained in the 2014 Employer Statement took immediate steps to rectify the situation by completing and providing to MetLife the 2019 Employer Statement.
The respondent in oral submissions substantially repeated the respondent's 20 November 2019 submissions, and on the question of financial loss drew attention to the findings about Dr W's report in the AFCA Determination.
[31]
The submissions of the applicant
The applicant in his statutory declaration made on 5 December 2019 made the following submissions in response to the respondent's 20 November 2019 submissions:
1. as to financial loss, notwithstanding the 21 March 2019 letter, the Tribunal should find that Metlife did act on the false information in the 2014 Employer Statement in declining the TPD claims;
2. as to psychological harm:
1. there is no requirement that the 9 October 2019 letter comply with the expert code of conduct;
2. Dr van Niekerk has been his general practitioner since 2010 and is uniquely placed to offer an opinion regarding his wellbeing.
[32]
Causation
The following principles are applicable to the determination of whether any loss or damage was suffered because of the conduct within s 55(2)(a) and (4)(b) of the PPIP Act:
1. the applicant bears the onus of "establishing the causal link between the breach of privacy and the damage allegedly suffered": APV v Department of Finance and Services [2016] NSWCATAD 168 at [15];
2. the principle of causation which is to be applied is the common law test of causation. The content of that test in the privacy context is that if the agency's breach has 'materially contributed' to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss or damage. As long as the breach materially contributed to the damage, a causal connection will ordinarily exist even though the breach without more would not have brought about the damage: CYH v Family and Community Services [2018] NSWCATAD 84 at [94]-[96].
[33]
The award of damages
The Appeal Panel of the Tribunal has decided that the following principles are applicable in determining whether damages should be awarded for financial loss, or psychological or physical harm, under s 55(2)(a) and (4)(b) of the PPIP Act:
1. the applicant has a responsibility to place material before the Tribunal in support of such a claim. The agency must have the opportunity to test that material: GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 26 at [38];
2. there is no entitlement to claim any loss for reputational damage unless that loss is financial: CPJ v The University of Newcastle [2017] NSWCATAD 350 at [30];
3. damages may be awarded for distress in the absence of independent evidence of psychological harm, where there was acceptance from the submissions and material filed by the applicant, and an assessment of the applicant when she participated in the main appeal hearing, that she has suffered emotional distress and harm, along the lines that she has asserted, because of the aspect of the conduct of respondent in relation to which there was a finding of contravention: AOZ v Rail Corporation NSW (No 2) [2015] NSWCATAP 179 at [20] and [30];
4. an award of damages for distress should be at the lower end of the scale because of the absence of evidence as to the consequential impact of the distress upon the applicant, and determined the amount should be $1,000: CJU v SafeWork NSW [2018] NSWCATAD 300 at [135], [138];
5. the award of statutory damages in PPIP Act matters remains a discretionary one even where a causal link sufficient to satisfy s 55(4)(b): NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61 at [23]-[24]. The discretion not to make an award of compensation has been exercised where the Tribunal has been satisfied that the applicant has already been granted an award of damages in respect to the disclosure of the personal information: JD v Director General, NSW Department of Health (No 2) [2007] NSWADT 256 at [27];
6. ordinarily where a breach is demonstrated, some sanction should be applied to the agency, unless it can be shown that there it has responded in an adequate way already to the problem identified, and no order therefore is needed: Vice-Chancellor Macquarie University v FM (No 2) (GD) [2004] NSWADTAP 37 at [54].
[34]
Consideration
I am not satisfied that the applicant has adduced any evidence that he has suffered any financial loss. I accept the evidence contained in the 21 March 2019 letter that Metlife in declining the TPD claims did not rely on the false information in the 2014 Employer Statement. Accordingly, I find that the applicant is not entitled to any damages for financial loss under s 55(2)(a) and (4)(b) of the PPIP Act because of the lack of evidence establishing any such loss.
I accept the evidence of Dr van Niekerk in the 9 October 2019 letter that the 2014 Employer Statement caused the applicant psychological distress and harm which has negatively impacted his wellbeing. I also am satisfied from what the applicant said and the manner in which he spoke at the second hearing that the applicant has suffered psychological distress as a result of the 2014 Conduct. There was no contrary evidence. There was no direction by the Tribunal that NCAT Procedural Direction 3 dealing with expert evidence applied to these proceedings. Accordingly, I am satisfied that the contravention the accuracy HPP by the respondent in relation to the 2014 Conduct materially contributed to the psychological distress and harm which he has suffered.
I find that the applicant is entitled to damages of $1,000.00 under s 55(2)(a) and (4)(b) of the PPIP Act for the distress he suffered from the 2014 Conduct. I am not satisfied that I should exercise my discretion not to make such an award of damages as I consider that an apology is not a sufficient response to the 2014 Conduct.
[35]
Whether the Tribunal should make any of the other orders sought by the applicant
[36]
The submissions of the applicant
The applicant made no written or oral submissions as to the other orders he seeks.
[37]
The submissions of the respondent
The respondent made no written or oral submissions as to the other orders sought by the applicant.
[38]
Consideration
I am not satisfied that I should make the other orders sought by the applicant. I am not persuaded that they are related to the conduct of the respondent in 2014 that was the subject of the internal review application, being its conduct in completing and providing the 2014 Employer Statement to MetLife.
[39]
Decision
While I accept that find that the respondent contravened the accuracy HPP in relation to the 2014 Conduct and that it is appropriate that the respondent make a formal apology to the applicant, I do not agree that the apology to be given to the applicant by the respondent will have appropriately addressed this contravention. Accordingly, I find that the applicant is entitled to damages of $1,000.00 under s 55(2)(a) and (4)(b) of the PPIP Act from the respondent by way of compensation for the loss or damage he has suffered because of the 2014 Conduct. Otherwise, I find that no action should be taken in relation to the 2014 Conduct.
[40]
Orders
I make the following order and decision:
1. Order pursuant to s 55(2)(a) and (4)(b) of the Privacy and Personal Information Protection Act 1998 (NSW) that the respondent pay to the applicant $1,000.00 by way of compensation for the loss or damage he has suffered because of the 2014 Conduct that was the subject of the application for internal review of the applicant made on 18 February 2019 under s 53 of that Act.
2. Otherwise decide pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 (NSW) that no action be taken on the matter.
[41]
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: 10 January 2020