FHI v Dental Council of New South Wales [2022] NSWCATAD 347 | Case summary

Judgment (12 paragraphs)

[1]

Introduction

This is an application by FHI (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (ADR Act) for an administrative review under section 55(1) of the Privacy and Personal Information Protection Act 1998 (PPIP Act) of conduct by the Dental Council of New South Wales (the agency) which has been the subject of an internal review pursuant to s 53 of that Act which he alleges was in contravention of information protection principles contained in Part 2, Division 1 of the PPIP Act. This application was made to the Tribunal on 18 February 2022 (the application).
For the reasons set out in greater detail following, the Tribunal has determined not to take any further action in relation to the matter. The agency made the impugned disclosure for the purpose for which the applicant's personal information had been collected and it had no reason to believe, at the time the personal information was disclosed, that the applicant would object to the disclosure. The disclosure thus falls within the s 18(1)(a) exception to the obligation imposed by s 18(1). I am also satisfied, for reasons explained below, that the disclosure falls with the s 18(1)(b) exception, and that it was also an exempt disclosure under s 25 of the PPIP Act.

[2]

Material facts

The applicant is a dental surgeon.
The agency is established as a "Council" for the health profession of dentistry under s 41B of the Health Practitioner Regulation National Law (NSW) (the National Law). It is the regulator of dental practitioners in NSW under the National Law. There is no issue that the Council is a "public sector agency" within the meaning of s 3 of the PPIP Act to which the PPIP Act applies.
Part 8 of the National Law deals with the competence of a health practitioner to practice a health profession, including dentistry. Division 3 of that Part concerns complaints about the professional conduct of health practitioners. Subdivision 7 of that Division sets out the powers of a Council for a health profession for the protection of the public in relation to complaints about professional conduct. It includes that following provisions: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest - (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the condition relating to the practitioner's practicing the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens - (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. … (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. … 150A Review of certain decisions [NSW} (1) A registered health practitioner or student may apply to a Council for the review of a decision of the Council under section 150 to - (a) suspend the practitioner's or student's registration; or (b) impose conditions on the practitioner's or student's registration or alter conditions imposed on the practitioner's or student's registration. (2) On receiving an application for review, Council - (a) may refuse to reconsider its decision if, in the Council's opinion, the application is frivolous or vexations; or (b) must otherwise reconsider its decision, and in doing so must consider any new evidence or material submitted by the practitioner or student that the Council reasonably considers relevant. (3) Following its reconsideration of a decision, a Council may - (a) affirm the decision; or (b) set it aside and take any action the Council has the power to take under section 150. (4) A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner's or student's circumstances that justifies the variation or setting aside of the decision. … 150J Powers of Council to obtain information, records and evidence [NSW] (1) If, in a Council's opinion, a person is capable of giving information, documents (including medical records) or evidence that would assist the Council in making a decision about action taken or proposed to be taken by the Council under this Subdivision, the Council may, by written notice given to the person, require the person to do one or more of the following - (a) to give to the Council, in writing signed by the person (or in the case of a corporation, by a competent officer of the corporation), within the time and in the way specified in the notice, information of which the person has knowledge; (b) to produce to the Council, in accordance with the notice, documents; (c) to appear before the Council or a member of staff of the Council authorised by the President or Deputy President of the Council at a specified reasonable time and place and give evidence, either orally or in writing, and produce documents. (2) Information and documents may be given to a Council in compliance with this section despite any other Act or law. (3) A person who is subject to a requirement made under subsection (1) must not - (a) without reasonable excuse, fail to comply with the requirement; or (b) in purported compliance with the requirement, provide information, documents or evidence knowing the information, documents or evidence to be false or misleading in a material particular. Maximum penalty - 20 penalty units
On 6 May 2020, pursuant to s 150A of the National Law, delegates of the agency (the review panel) conducted a review of a decision to impose conditions on the registration of another dental practitioner. I will refer to in this dental practitioner as "Dr Z". The applicant was present at this review at Dr Z's request as a support person for her.
During this review, the applicant told the review panel that he had information that was relevant to the review that would assist Dr Z's case, which the review panel could obtain from him by exercising its power under s 150J of the National Law. The review panel determined to do so and adjourned its review pending the provision of that information by the applicant.
By letter dated 7 May 2020 the Executive Officer of the agency wrote to the applicant giving notice to provide this information pursuant to s 150J. That letter states, relevantly: Dear Dr (applicant) Notice to provide information under Section 150J of the Health Practitioner Regulation National Law (NSW) (the National Law (NSW)) On 6 May 2020 the Council convened a Section 150A Review hearing for [Dr Z]. The Council notes that you attended this hearing as a support person of [Dr Z]. As you are aware, the meeting was adjourned to obtain further evidence that could assist the delegates of the Council in making a decision about [Dr Z]. The Council is seeking information relating to this matter under s 150J of the National Law (NSW) which requires you to give the Council, within a reasonable period specified in the notice, any information/documents or evidence that would assist the Council in making a decision relevant to [Dr Z's] Section 150A Review. Please submit the requested information to Council by 5pm on Monday, 11 May 2020. A copy of Section 150J is appended at the end of this letter for your reference. …
On 10 May 2020 the applicant submitted a letter to the agency in response to its s 150J Notice. The letter was sent as an enclosure to an email. In the covering email the applicant states the following: Dear [officer] Please find attached correspondence as requested under s 150J of the national law. To protect all concerned, please note that the attached response should only be opened by [the agency's Executive Officer and then he can work out where he would like it directed. …
The letter enclosed with the applicant's email is headed "PRIVATE and CONFIDENTIAL" and "Re: Provision of Information under s 150J of the Health Practitioner Regulation National Law (NSW)". The applicant characterises the letter as "the response" to the Notice. The nature of the substantive content of the letter makes it inappropriate to outline it in any detail. It is sufficient to state that it contains opinions about the agency's regulatory approach that include allegations of inappropriate conduct and bias by named regulatory officers appointed by the Council in relation to four other named dental practitioners. The letter also contains information identifying the applicant as the author of the response, his telephone number, and information about his qualifications and experience, including in legal and regulatory processes.
The letter also contains the following statements and paragraphs 3 and 4: Legal advice provided to me indicated that any oral evidence that I would have provided on 6 May 2020 would have needed to be extremely limited. However, legal advice after reading the Council's broad letter of instruction suggests that I can provide a wider variety of information including my personal comments and interpretation of the issues. I also understand that S150J is Council initiated and the Council is free to share the Response in whatever form it sees fit. Given that, I have not shared the Response with [Dr Z] or any other practitioner. I would also request that the Council NOT share the response with any of the Professional Officers (PO) or Authorised Persons (AP) of the Health Professional Councils Authority (HPCA). …
At some time after 10 May 2020, while her s 150A review remained in progress, the agency provided Dr Z with a copy of the applicant's response to the 150J Notice. Before doing so it redacted the names of most (but not all) persons referred to in the response. Among the names not redacted were those of the applicant and Dr Z. The applicant's opinions and his stated qualifications and experience are not redacted in any way. The agency did not contact the applicant to advise that it intended to release a redacted copy of the response to Dr Z before doing so.
On or about 30 August 2021 Dr Z contacted the applicant by email to express dissatisfaction about her s 150A review. She informed him that she had a redacted copy of his response to the 150J Notice and that she intended to make this document public, including by sending copies to certain named persons and authorities.
The applicant first complained to the agency about the release of his response to Dr Z by letter dated 30 August 2021. There then followed a series of communications between the applicant and the agency which ultimately resulted in the agency conducting an internal review in relation to this disclosure and other matters which are not presently relevant under s 53 of the PPIP Act.
The internal review was conducted at arms-length from the agency by an employed solicitor of the Crown Solicitor due to the agency's concern that the applicant would not regard an internal review by any of its staff as impartial. That belief arose because of criticisms the applicant had made about the agency's officers in his various communications with the agency from 30 August 2021. In this respect, in one of those communications, dated 3 September 2021, the applicant had stated "the entire Council is conflicted in the handling of this matter".
For the purposes of this administrative review the conduct that was the subject of the internal review was the release of the applicant's response to the s 150J Notice to Dr Z without the redaction of information that could identify him. The applicant summarised his complaint about the release of this document in correspondence to the internal reviewer dated 28 November 2021 as follows: The Council was provided a complete document and chose to redact numerous names. However, it did not redact my private information which it was duty bound to do so! I do not object to the document being released to [Dr Z] but I greatly object to it being released to her without my personal identifying details being redacted. That this document has now been released publicly is completely unacceptable. The sensitive content of the document can have incredible personal and professional impacts on myself.
The applicant was given several opportunities by the internal reviewer to identity a specific provision of the PPIP Act that he believed had been contravened by the agency's conduct, but he did not do so. The internal reviewer proceeded on the basis that the applicant alleged contravention of s 18(1) of the PPIP Act.
The internal review was finalised in a decision published to the applicant on 27 January 2021. The agency determined in accordance with s 53(7) of the PPIP Act to take no further action in the matter based on the following findings: 5.1 Section 18(1)(a) The information was collected for the purpose of enabling Council to conduct the [Dr Z] review pursuant to s 150A of the National Law. By your own account of events, you raised the prospect of the Council seeking information from you pursuant to s 150J of the National Law at the hearing of the [Dr Z] review. The information was disclosed to [Dr Z] for the purpose of enabling the Council to conduct the [Dr Z] Review pursuant to s 150A of the National Law. As Mr Frommer indicated to you in his letter of 15 November 2021, the Response was provided to [Dr Z] in order to accord her procedural fairness. That is, the Response was provided to [Dr Z] so that she would have the opportunity to consider and respond to the issues raised in it as part of the review relating to her conduct under s 150A of the National Law. The information was disclosed for the same purpose for which it was collected, namely, to enable the Council to conduct the [Dr Z] Review. In the Response, you indicated that you accepted that "the Council is free to share the Response in whatever form it sees fit". The Council therefore had no reason to believe that you would object to the disclosure of the Response to [Dr Z]. Accordingly, I am satisfied that the Council has not breached s 18(1) of the PPIP Act, because it falls within the exception in s 18(1)(a). 5.2 Section 18(1)(b) I also consider that you were reasonably likely to have been aware that information provided under s 150J of the National Law is usually disclosed to the person whose conduct is the subject of a review under s 150A as a matter of procedural fairness. It is apparent that you are experienced with proceedings before the Council. For that reason, I am also satisfied that the Council has not breached s 18(1) of the PPIP Act because it falls within the exception in s 18(1)(b). 5.3 Section 25 … The power to obtain information under s 150J applies to decisions taken under Pt 8, Div 3, Subdiv 7 of the National Law. That subdivision includes s 150A, which is the provision pursuant to which the [Dr Z] review was conducted. I think it is reasonably contemplated by that subdivision that information obtained under s 150J will be put to a person seeking review of a decision under s 150A as a matter of procedural fairness. Accordingly, I am also satisfied that the Council was not required to comply with s 18 of the PPIP Act insofar as it released the Response to [Dr z] by reason of s 25(b) of the PPIP Act.
The internal review also found that redaction of the response in the way contended for by the applicant would not have prevented [Dr Z] from identifying him as the author of the Response because he was her support person at the s 150A review hearing, and she was present when he proposed to the review panel that it obtain information from him in accordance with s 150J. It also found the subsequent publication of the redacted response by Dr Z was conduct by her, not of the Council, and as such was a matter between the applicant and Dr Z because the PPIP Act imposed no obligation on the Council to prevent publication by Dr Z of material which is in her possession.

Consideration

I note at the outset that the applicant's submissions cavass complaints about the agency in relation to issues and matters that extend beyond the conduct that was the subject of the internal review. He contends that the Tribunal has jurisdiction and an obligation to exercise various powers in relation to these broader matters. The applicant is mistaken is this respect. This administrative review is limited to the conduct that was the subject of the internal review and to the powers the Tribunal is capable of exercising under s 55 of the PPIP Act in relation to this subject matter: Department of Education and Training v GA (No.3) [2004] NSWADTAP at [7]; CWS v NSW Department of Education [2017] NSWCATAD 287 at [14]. I therefore do not consider any matters raised by the applicant that are outside this scope.
There is no issue in this case that the redacted response released to Dr Z contained personal information of the applicant, including his name, qualifications, telephone number, and opinions. The agency therefore had an obligation not to disclose this personal information to Dr Z otherwise than as permitted by the PPIP Act.
The applicant contends that the release of his name and opinions falls within the scope of s 19 of the PPIP Act because it involved the disclosure of his ethnic or racial origin and his philosophical beliefs to Dr Z which the agency was only permitted to do to prevent serious and imminent threat to the life of health of a person which did not pertain in the circumstances on this case.
I am not satisfied that the disclosure of a name only is sufficient to disclose an ethnic or racial origin, but in any event Dr Z already knew the applicant's name in connection with the response because he initiated the process that led to its production in her presence. The release of the response with the applicant's name apparent therefore did not reveal anything to Dr Z that she did not already know.
Nor am I satisfied that the critical opinions the applicant states in his response about specific agency regulatory staff and agency functioning more generally are philosophical beliefs. They are criticisms about the conduct of regulatory processes which are time and context specific. A philosophical belief concerns a genuine belief about a profound and substantial aspect of human life and behaviour with a status or cogency comparable to a religious belief. It is belief that is independent of a particular time and context. The applicant's opinions are not of this character.
The disclosure of the applicant's personal information in this case is therefore governed by s 18 of the PPIP Act.
I am not satisfied that there has been any contravention of that section by the agency in the circumstances of this case.
When the applicant provided the response to the agency, he did so pursuant to the compulsory process prescribed by s 150J of the National Law in context of the regulatory procedure prescribed by s 150A of that Law. Dr Z was the subject of the regulatory procedure. The release of the response to Dr Z was therefore clearly a disclosure directly related to the purpose for which the response was obtained.
The temporal focus for s 18(1)(a) is the time the disclosure was made. The fact that the applicant objected to the release of the response to Dr Z after it happened is therefore not to the point. There is no objective basis upon which the agency could have had a reason to believe that the applicant would object to the disclosure of the response to Dr Z with his personal information evident when it made the disclosure.
The applicant was a support person for Dr Z in the review proceedings. He initiated the agency's s 150J request for information by suggesting to the review panel in Dr Z's presence that he had information relevant to the review that would assist Dr Z's case.
In the covering email to his response, sent on 10 May 2020, the applicant states that the response should only be opened by the agency's Executive Officer and "then he can work out where he would like it directed". Objectively viewed, that statement clearly communicates to the agency that the applicant consented to the release of the response at the discretion of the agency's Executive Officer.
In the letter of response itself, the applicant states that he has not provided a copy to Dr Z, but he does not request the agency not to provide it to Dr Z or to only do so with his personal information redacted. The fact that the applicant had not given a copy of the response to Dr Z would not have put the agency on notice that he did not want it to be released to her. He was responding to a compulsory process under the National Law. The agency would not expect that a response to s 150J Notice would be given to anyone other than itself as the issuer of the Notice.
The fact that the response was marked "Private and Confidential" would not put the agency on Notice that applicant objected to the personal information it contained being released to Dr Z. Objectively those words communicated to the agency that the applicant considered the contents of his response to be private and confidential to the persons involved in Dr Z's review. They did not communicate that the response was to be kept confidential from Dr Z.
In any event, the applicant expressly states his "understand[ing]" that the agency is "free to share the Response in whatever form it sees fit" and "given that" he has "not shared the Response with [Dr Z]". Viewed objectively, those words communicate an understanding by the applicant that the agency would be providing a copy of the Response to Dr Z. That is reinforced by the words that immediately follow, which request that the response not be shared with Professional Officers or Authorised Persons of the Health Professional Councils Authority. Read together these sentences clearly permit the agency to give the response to Dr Z but not to other specified persons.
At no time after he submitted the response, and before it was disclosed, did the applicant notify the agency by any means that he objected to its disclosure to Dr Z with his personal information evident.
I am therefore satisfied that the disclosure of the response to Dr Z was a permitted disclosure of the applicant's personal information because it falls within the exception found in s 18(1)(a) of the PPIP Act.
I am also satisfied that the disclosure of the response to Dr Z was a permitted disclosure because it falls within the exception found in s 18(1)(b) of the PPIP Act.
It must be accepted that information obtained by the agency pursuant to an exercise of power under s 150J for the purpose of a s 150A review would usually be disclosed to the person who is the subject of that review. The suspension of, or imposition of conditions on, a health practitioner's registration under s 150 of the National Law may have serious professional and personal consequences for a health practitioner. The conduct of a review of a s 150 outcome under s 150A may also have serious professional and personal consequences for a health practitioner because it will result in the s 150 outcome being affirmed or set aside or varied. It affects the practitioner's rights and interests in this way. Because that is so, a panel conducting a review under s 150A has common law duty to ensure that its proceedings are procedurally fair to the health practitioner concerned: Kioa v West (1985) 159 CLR 550. That would usually require disclosure to the practitioner of all evidence being considered in the review, and providing the practitioner with the opportunity to respond to it.
The applicant is a person who is reasonably likely to have been aware of that fact for several reasons. He was Dr Z's support person in the review, and he therefore knew the seriousness of the review for her professional registration and directly observed the procedure of the review panel. He was therefore precisely aware of the process of the review. He also suggested to the review panel that it issue the s 150J Notice so that he could provide information in Dr Z's cause. It would make no sense if she were not to know what that information was.
Additionally, the applicant stated in his response that he had taken legal advice in relation to Dr Z's review, and specifically in relation to his response to the s 150J Notice. I am satisfied that a person who has taken legal advice about their response to a s 150J Notice is reasonably likely to have been advised that its' contents would be disclosed to the health practitioner the subject of the review, and that if they did not want this to occur, that they ought to request that it not be released or only be released in a specified format. The fact that the advice the applicant claims to have received traversed the issue of disclosure is patent from his references to information he says he holds which is subject to legal professional privilege. He states he was legally advised to refer to this 'privileged information' only in broad terms and not in specific detail, presumably to avoid its disclosure.
The applicant also provides information in the response about his professional experience, and he attaches to it a document which is in the form of a short curriculum vitae (although it is not headed as such). Those statements and the curriculum vitae state, among other things, that he has been since 2015 an Expert Reviewer for the Health Care Complaints Commission, a Member of the Civil and Administrative Tribunal (to 2019), and an expert advisor to legal firms and professional indemnity insurance providers and that he has "witnessed a wide range of regulatory activity directly". Assuming that is the case, the applicant is in a better position than most people lay to the law to understand the obligations of an administrative decision maker, such as the agency's review panel, to accord procedural fairness to a person subject to a s 150A review.
For essentially the same reason the disclosure of the response falls within the 18(1)(b) exception, it is an exempt disclosure under s 25 of the Act. It was necessary to accord Dr Z procedural fairness in the s 150A review. The National Law does not exclude a requirement for procedural fairness, and for the reasons I have already stated, a duty to act with procedural fairness to the subject health practitioner is necessarily implied or reasonably contemplated in a s 150A review. It is thus an exempt disclosure by operation of s 25(b).
The information provided in the response purported to be of assistance to Dr Z in relation to the review; that is, it was not adverse to her case. But this did not mean procedural fairness did not require its disclosure. It was necessary for the agency to disclose it to enable Dr Z, if she wished, to be heard with respect to the relevance, or persuasive or corroborative value of the information for her case: ATP15 v Minister for Immigration and Border Protection [2016] FCAFC 53; (2016) 241 FCR 92 at [52] per Flick J (in dissent but stating an uncontroversial general principle).
The applicant's contention that if the agency felt compelled to disclose the response to Dr Z on procedural fairness grounds it could and ought to have done so only after removing his personal information cannot be accepted. The response is substantially comprised of the applicant's opinions about the matters canvassed in the response. The response would be meaningless if those opinions and the author of those opinions was redacted. In any event, Dr Z knew the applicant was the author of the response because he had initiated the agency's request for the provision of this information in her presence. Redaction of the applicant's name and contact information would not have prevented Dr Z from knowing the source of the information in these circumstances and would have been of no utility in that regard.
This is not a case where the information subject to the disclosure had been provided to the agency in circumstances where it was known that the provider of that information sought anonymity and where a non-identifying summary of the information would have been sufficient to satisfy the requirements of procedural fairness: cf VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) CLR 88.
There is no equivalence between the applicant and those persons referred to in the response whose names were redacted in the copy given to Dr Z. The applicant was the contributor of the information in response to the s 150J Notice. Those persons whose names were redacted were third parties unconnected with the review who he named in the response. There was no basis upon which the agency could have concluded that the disclosure of their personal information fell within the s 18(1) exceptions. In any event, whether the agency was correct or incorrect in redacting that personal information, it was clearly correct in not redacting the applicant's personal information given its very different character and its direct connection with the review.
It may be accepted that redaction of the applicant's personal information might have prevented Dr Z from later publishing a copy of the response that contained it, but that is not to the point. Dr Z's publication of the personal information does not constitute a disclosure of that information by the agency. Whether it was proper for her to do so is not a matter the Tribunal has any jurisdiction to determine. She is not a public sector agency to which the PPIP Act applies.

FHI v Dental Council of New South Wales

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