Health Records Act 2001 (Vic) definitions.

Walne v Victoria Police (Human Rights) [2025] VCAT 282

1. There has been no breach of any of the Information Privacy Principles and the complaint is dismissed under section 77(1)(d) of the Privacy and Data Protection Act 2014 (Vic).

1. During an investigation about the complainant by the respondent, Victoria Police, an internal letter was generated by a Police psychologist which referred to the complainant's personal circumstances and suggested lines of enquiry which a Police Sergeant pursued.
2. The complainant says that the author of the letter interfered with his personal privacy, in breach of the Privacy and Data Protection Act 2014 (Vic) ('Act'), by citing his personal information, some of which was out-of-date, and that the Sergeant also interfered with his privacy by unnecessarily collecting some of the information the psychologist had suggested. He says the respondent failed to disclose to him that it had collected his personal information. He further says the respondent has continued to interfere with his privacy because it has failed to alter or redact the information. He says these actions or omissions are in breach of Information Privacy Principles ('IPPs') 1.1, 1.5 and 3.1.
3. The respondent says that there has been no interference with the complainant's privacy and no breach of the Act or the IPPs because its actions were consistent with its powers and duties under the Criminal Procedure Act 2009 (Vic) ('CPA') and the Victoria Police Act 2013 (Vic) ('VPA').

1. In section 16, the Act provides that acts or practices of an organisation are interferences with the privacy of an individual if the acts or practices are contrary to, or inconsistent with, an IPP.
2. Section 20 of the Act requires:

(1) An organisation must not do an act, or engage in a practice, that contravenes an Information Privacy Principle in respect of personal information collected, held, managed, used, disclosed or transferred by it.

1. Section 3 defines 'personal information' as:

... information or an opinion (including information or an opinion forming part of a database), that is recorded in any form and whether true or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, but does not include information of a kind to which the Health Records Act 2001 applies

1. Section 6(1) of the Act states:

If a provision made by or under this Act ... relating to an Information Privacy Principle or applicable code of practice is inconsistent with a provision made by or under any other Act, that other provision prevails and the provision made by or under this Act is (to the extent of the inconsistency) of no force or effect.

1. Section 18 and schedule 1 of the Act establish the IPPs. The complainant's allegations relate to the following IPPs:

1.1 An organisation must not collect personal information unless the information is necessary for one or more of its functions or activities.

1.5 If an organisation collects personal information about an individual from someone else, it must take reasonable steps to ensure that the individual is or has been made aware of the matters listed in IPP 1.3 except to the extent that making the individual aware of the matters would pose a serious threat to the life or health of any individual.

3.1 An organisation must take reasonable steps to make sure that the personal information it collects, uses or discloses is accurate, complete and up to date.

1. The Office of the Victorian Information Commissioner ('Commissioner') referred the complaint to VCAT under section 66(4) of the Act on 26 October 2023.
2. An order was made in Chambers on 1 November 2023 requiring the complainant to indicate his intentions regarding the complaint by 1 December 2023. On 31 January 2024, after VCAT granted an extension of time, the complainant indicated his intention to proceed with the complaint.
3. On 5 March 2024, at a directions hearing, VCAT directed the complainant to notify VCAT how he obtained the Bennett letter[1] (described below in paragraphs 30 - 32) and set directions for a compulsory conference.
4. The compulsory conference, convened on 21 June 2024, did not resolve the proceedings. Directions were issued on that date for the exchange and filing of materials by the parties and set the matter for hearing on 17 and 18 February 2025. In four subsequent orders, VCAT approved extensions of time for the exchange and filing of materials by the parties but affirmed the hearing dates. These extensions were made in Chambers by consent.
5. On 6 February 2025, the complainant applied for an adjournment because he needed further time to address the respondent's materials. He noted being unrepresented and problems he had with receiving materials by email. The respondent objected to an adjournment. I refused the adjournment because:

Parties have had 6 months to prepare for the hearing and engage legal representation. The applicant has been granted several indulgences in relation to the filing and service of his materials. The applicant has not provided sufficient reasons to adjourn the hearing.

1. The hearing proceeded on 17 February 2025. A Tribunal Book prepared by the respondent was tendered as the evidence in the case and included all statements and submissions by both parties.[2] I removed from the Book a document titled 'Summary of Alleged Facts' as it extended beyond matters in the Commissioner's referral and I have not read that document.
2. The applicant did not give evidence but relied on his statement. Parts of the statement were the subject of objection by the respondent. I struck out parts of the complainant's statement (except to the extent that the statements reflected his feelings), and his response to the respondent's legal contentions, which extended beyond the range of the Commissioner's referral. This is because the substance of the complaint to be considered by VCAT, must be identical to that considered by the Commissioner as established in Jurecek v Transport Safety Vic[3] and Bruce v Victorian Workcover Authority (WorkSafe).[4] The complainant was not questioned in relation to his redacted statement.
3. The respondent called Sergeant Manassa as a witness. He was questioned by the complainant. Parties made submissions and the hearing concluded in one day. During the hearing the complainant made numerous references to his disadvantage in not being represented. Despite such references, he did not renew his application for an adjournment.
4. During the hearing, I was mindful of the requirements of section 97 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to act fairly and in accordance with the substantial merits of the case. I also endeavoured to provide to the complainant, as an unrepresented litigant, such assistance as was necessary to ensure that the proceeding is fair.[5] This included explaining process issues and offering the complainant procedural options, assisting the complainant to limit his questions to the witness to matters in issue and conducting some questioning of my own to ensure that all issues under enquiry were properly canvassed.
5. On 21 February 2025, I sent Supplementary Questions to the parties under cover of an order directing the parties to provide brief answers to the questions within a week. Submissions were received according to the timetable.

1. As pointed out by the respondent, the complainant seeks to air several grievances against the respondent, many of which are not within VCAT's jurisdiction in a complaint under the Act. The allegations that fall within the Act are that:
   • Sergeant Manassa unnecessarily collected his personal information when he obtained a marriage certificate from Births Deaths and Marriages ('BDM certificate'), and information from the Melbourne and Maroondah City Councils ('Council reports') about him in breach of IPP 1.1.
   • The respondent failed to alert him that it had obtained the BDM certificate and the Council reports in breach of IPP 1.5.
   • The Bennett letter (described below) makes reference to the complainant's ex-wife and former employer which he says is out-of-date personal information in breach of IPP 3.1.
   • Various of Dr Bennett's opinions were based on information that was inaccurate and out-of-date in breach of IPP 3.1.
   • Sergeant Manassa and Dr Bennett relied on incomplete information because they were selective about excluding complaints made by him and only relied on complaints about him and used selective Council records in breach of IPP 3.1.
   • The respondent failed to correct the false information, being Dr Bennett's opinions about him in breach of IPP 3.1.
2. The complainant states that, as a result of Dr Bennett's opinions, he and his family were subjected to a series of intrusive responses by the respondent that caused him trauma, embarrassment and distress. He seeks $100,000.00 in damages.[6]

1. The respondent admits that it collected Dr Bennett's letter, the BDM certificate and the Council reports. The respondent states that collection of the information was 'necessary' in accordance with IPP 1.1 as part of a criminal investigation.
2. In relation to the allegations under IPP 1.5 the respondent states that it was not reasonable or practicable to notify the complainant of the collection of the complainant's personal information from third parties as that had the potential to prejudice an ongoing criminal investigation. Secondly, it states that when it supplied the Brief of Evidence to the complainant's legal representatives in accordance with Part 4.4 of the CPA, it also complied with IPP 1.5 or alternatively that IPP 1.5 is inconsistent with section 226 of the VPA and/or Part 4.4 of the CPA.
3. The respondent states that Dr Bennett's letter includes her professional opinions based on material available to her at the time of its preparation. It says it is not obliged by IPP 3.1 to remove or delete information about historical events.
4. The respondent states that eventually the complainant pleaded guilty to a range of charges of breaches of Personal Safety Intervention Orders ('PSIOs') while some other charges were withdrawn. [The complainant states that the pleas were 'pragmatic,' made on legal advice and he does not believe the pleas accurately represent what occurred. Convictions were not recorded but the complainant gave an undertaking to the Court.]

1. Although he was a prosecutor at the time, Sergeant Manassa's role with regard to the complainant was a temporary assignment to 'case manage' a situation with the complainant and his neighbours. Accordingly, he sought Detective Senior Sergeant Dr Debra Bennett's (Dr Bennett) professional opinion about 'what was going on at [complainant's address]'.
2. Sergeant Manassa met with Dr Bennett on 30 May 2019. At the time he was investigating charges against the complainant of stalking, recklessly causing injury and various contraventions of PSIOs. Dr Bennett agreed to look at the complainant's information and provide a statement. However, she prepared, instead, the letter dated 27 June 2019. After the letter was received, Sergeant Manassa set about collecting the information she recommended,[7] noting she is of higher rank but not his supervisor.
3. Sergeant Manassa gave evidence that he sought and obtained the BDM certificate to assist in locating and speaking to the complainant's ex-wife as recommended by Dr Bennett. However, he did not manage to contact the ex-wife and never interviewed her. He was also unsuccessful in receiving any information from the complainant's current or former employers.
4. Sergeant Manassa said that when he made the request of the Councils for information, as recommended by Dr Bennett, they requested written assurance that divulging the information would be consistent with Privacy legislation and he confirmed that it was. The Councils then provided reports of previous incidents involving the complainant. Sergeant Manassa also conducted a search of Court proceedings involving the complainant.
5. The complainant asked Sergeant Manassa why he did not interview the complainant and his wife. He replied that both had refused an interview. When asked why he did not inform the complainant about the information he was seeking or obtained, Sergeant Manassa replied he did not want to tip-off the complainant as to his enquiries.

1. On 27 June 2019, Dr Bennett wrote a letter to the Station Commander. In all documents, evidence, and submissions, that letter has been referred to as a 'report'. However, I do not accept that it is a 'report,' in that it does not contain typical features of a psychological report, being test results, interpretation of scores, diagnostic impressions, and recommendations for treatment.
2. Based on a brief of evidence provided by Sergeant Manassa, Dr Bennett's letter states her conclusions that:
   • The complainant meets the classification for a 'resentful stalker',
   • If the complainant's behaviours are tolerated, his behaviours would likely escalate and become ingrained,
   • There was potential for a catastrophic outcome unless a comprehensive and concerted strategy was formulated about the complainant,
   • The complainant had been terrorising his neighbours for years,
   • There had not been sufficient evidence to determine a diagnosis of mental illness, but she strongly suspected that the complainant has mental health issues.
   • Further investigations should be made of the complainant's current and previous employers, his ex-wife, previous neighbours and responsible Councils.
3. Dr Bennett later produced a statement to similar effect that was used in Court proceedings.

1. There was no dispute between the complainant and the respondent that the information was personal information within the meaning of the Act. I accept that the BDM certificate and the Council reports are information about the complainant and his identity is apparent from the information.
2. The complainant's concern, insofar as the Act is concerned,[8] about Dr Bennett's letter was her reference to his ex-wife. He says that Dr Bennett interfered with his privacy by mentioning the former marriage or his marital status. It is information that he considers is personal (private) to him. That is not 'personal information' within the meaning of the Act.
3. At times, the complainant described the reference to his ex-wife by Dr Bennett as 'sensitive information,' but as his marital history or status does not fall within the definition of 'sensitive information' as defined in Schedule 1 of the Act, and he has not made a complaint under IPP 2.1 or 10, I will assume that he used the word 'sensitive' as a descriptor, not in the legal sense.
4. The second issue about Dr Bennett's letter as 'personal information' caused me to issue the Supplementary Questions[9] and seek submissions from the parties. The substantive question was:

Did Dr Bennett's letter include 'health information' of a kind to which the HRA (only) applies?

... information or an opinion (including information or an opinion forming part of a database), that is recorded in any form and whether true or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, but does not include information of a kind to which the Health Records Act 2001 applies.

1. The Health Records Act 2001 (Vic) ('HRA') applies to and defines 'health information' and 'health provider' as follows:

health information means -

(a) information or an opinion about -

(i) the physical, mental or psychological health (at any time) of an individual; or ...

that is also personal information;

1. The HRA applies to either 'health service providers' or 'organisations' who hold health information. An 'organisation' is defined as:

'a person or body that is an organisation to which his Act applies by force of Division 1 or 2 of Part 2'.

1. Section 10(1)(j) falls within Division 1 of Part 2 of the HRA and states:

1. The respondent's submissions argued that, because of its purpose and the manner in which the letter was created, the letter is not health information. Dr Bennett expressly disclaimed making a diagnosis, and only expressed a suspicion not a medical opinion. It notes that the respondent is not a health service provider and was not providing a health service. The complainant's submissions repeated many of his complaints about Dr Bennett's letter but appears to agree with the respondent that the letter is not health information.
2. The definition in the Privacy and Data Protection Act 2014 says its definition of 'personal information' does not include information of a kind to which the HRA applies.
3. Sergeant Manassa's evidence is that he sought Dr Bennett's 'professional opinion' about 'what was going on at [complainant's address].' Dr Bennett called upon her qualifications as a psychologist to make assessments of the complainant's behaviour from documents about him and concluded that he met the criteria of being a 'resentful stalker'. She further said she 'strongly suspected' that he has a mental illness, though she lacked evidence to make a diagnosis. In essence, she was using her professional psychological skills to make a desk-based assessment of the complainant's mental state and likely, or possible, past and future behaviour. The definition in the HRA does not require that the intention of the information be for therapeutic treatment or to promote the health of the person about whom information is recorded. It also does not require that the information conclude in a diagnosis or an opinion, only that it is information. Notwithstanding that I do not accept Dr Bennett's letter as a 'report' as noted in paragraph 30 above, it is information compiled and analysed by a psychologist as part of her professional functions and is amenable to the HRA.
4. Therefore, contrary to both parties, I consider that Dr Bennett's letter is health information of a kind to which the HRA (only) applies. I agree with the parties that section 14E of the HRA does not operate to exempt the letter from the HRA. Accordingly, Dr Bennett's letter cannot form the basis of a breach of any IPPs and to that extent the complaint is dismissed.
5. Because neither party concurs with this view, and the Health Privacy Principles and the IPPs are so very similar, I will touch on how Dr Bennett's letter may or may not be treated by the IPPs if it were personal information as defined.

1. The complainant argues that it was not necessary for the respondent to collect the BDM certificate and the Council reports ('information').
2. Sergeant Manassa said that he collected the information because Dr Bennett had recommended it 'with a view to tendency evidence'.
3. The respondent argues that the collection of information was necessary for the discharge of its functions under the VPA to:
   1. investigate alleged criminal activity on the complainant's part,
   2. obtain evidence for use in future criminal proceedings against the complainant, and
   3. conduct its community policing function to manage ongoing disputes between the complainant and his neighbours.
4. The respondent cited Jurecek v Director of Transport Safety Victoria[10] as authority to support its argument that 'necessary' means 'reasonably necessary' or 'reasonably required' or 'legally ancillary', not 'essential' to the performance of the organisation's function. The complainant's view is that the collection of information was excessive to manage a neighbourhood dispute and notes that a Police Brief or Brief of Evidence already existed.
5. While I excluded some information that disclosed the nature of the criminal proceedings against the complainant and therefore have not read it,[11] it is evident from the materials and statements made by the complainant at the hearing that, for several years, a situation had been developing that brought the complainant and some of his neighbours into contact with the Police and the Courts. This resulted in numerous charges being made against the complainant, some of which were withdrawn, and some resulted in the adjourned undertakings. Sergeant Manassa's evidence was that his role was not merely preparing a prosecution brief but looking for means by which the respondent could control or resolve that situation. He was presented with an opinion by a psychologist that the situation may continue or escalate.
6. I am satisfied that the collection of the BDM certificates and the Council reports was necessary for the performance of the respondent's functions, in particular its community policing function to manage ongoing disputes between the complainant and his neighbours.
7. If I am incorrect about my conclusions in paragraph 44 above, I also consider that the collection of Dr Bennett's opinion was also part of Sergeant Manassa's role and was necessary for the performance of the respondent's functions, in particular its community policing function to manage ongoing disputes between the complainant and his neighbours.
8. The respondent has not breached IPP 1.1.

1. The respondent did not make the complainant aware of its collection of the BDM certificate or the Council reports (and the Bennett letter) until it sent the Part 4.4 CPA information to his solicitor ahead of the hearing of the charges against him.
2. The complainant has not stated directly but has inferred that sending the material to his solicitor does not constitute disclosure to him. The argument was only inferred, but in any event, it is not sustainable in the context of a solicitor-client relationship.
3. Ultimately the issue about IPP 1.5 in this case is when should the respondent have made the complainant aware that it was collecting the information. In this respect I note the following comments in Dr Bennett's letter:

Nevertheless, Mr Walne's offending behaviours are likely to escalate if he becomes aware that police are making enquiries of that nature. This likelihood needs to be taken into account for the safety of all concerned.

1. Additionally, counsel for the respondent argued that it was not practicable to notify the complainant of the collection of the information as that had the potential to frustrate or prejudice the ongoing criminal investigation. Further, that disclosure under IPP 1.5 would be inconsistent with Part 3.2 of the CPA because that Part consolidates the respondent's disclosure obligations for prosecution of summary offences - that is: disclosure is not required in the investigation phase but only after charges are brought and only of information that is to be relied upon in a hearing.
2. I agree that IPP 1.5 is inconsistent with Part 3.2 of the CPA and therefore IPP 1.5 is of no effect regarding personal information collected as part of a criminal investigation. Again, in case I am incorrect about my conclusions in paragraph 44 above, then IPP 1.5 would have no application to Dr Bennett's report for the same reasons as set out above. Accordingly, there has been no breach of IPP 1.5.

1. As noted in paragraph 44 above, I consider that the definition of 'personal information' in the Act excludes Dr Bennett's letter as it is 'health information' under the HRA. Accordingly, Dr Bennett's letter cannot found a complaint about a breach of the IPP 3.1. In case I am incorrect about this, I will set out the parties' arguments in relation to the IPPs and my findings in relation to them.
2. The complainant alleges that Dr Bennett's letter contains inaccurate material, that it is based on historical events that are out of date. He says it is incomplete because the respondent did not invite he and his wife to participate in the collation of the information.[12] The complainant stated that the respondent has refused to remove, correct or test Dr Bennett's opinion.
3. The respondent says that Dr Bennett's letter and statement represented her expert opinion based on the material available to her at the time of preparing them. It argues, based on Zedaj v Victoria Police[13] that it is not obliged to remove or delete information which records historical events. In Zedaj, Senior Member Dea said:

I accept the contention that Victoria Police records are points in time and it would not be appropriate to remove or delete information which records historical events, including when allegations come to nothing and no action is taken.

1. Even if Dr Bennett's letter is 'personal information,' I do not consider that there has been a breach of IPP 3.1. IPP 3.1 is not a vehicle to import procedural fairness considerations to a police record. The fact that the letter mentions historical events, such as a former marriage, also does not make it out-of-date. IPP 3.1 does not prohibit an agency from collecting and retaining historical material. A record that presented historical status as if it were current would potentially be a breach, but Dr Bennett's letter was clear that the complainant had an ex-wife, who might provide background information.
2. There was no breach of IPP 3.1.

1. There has been no breach of any of the IPPs and the complaint is dismissed under section 77(1)(d) of the Act.

[1] It does not appear that the complainant ever answered this direction. The direction arose because the respondent suggested that the document was filed in other Court proceedings and may be subject to the Harman undertaking. The complainant sent an email on 3 June 2024 says 'We are presuming that the Harman undertaking is satisfied? If you could please confirm.' There was no response to his question. No other record on file appears to address the issue.

[2] The complainant relied on his 'Position Paper' for the compulsory conference as his legal submissions, the respondent took no objection to that.

[3] [2015] VCAT 253.

[4] [2022] VCAT 34.

[5] See Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors [2008] VCAT 1479, [35] (Acting President Judge Ross) and Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337, [141] (Bell J).

[7] Although some information might have already been collected before the date of her letter, according to the evidence of Sgt Manassa.

[8] He has multiple other concerns, such as the inaccuracy and unfairness of her conclusions, a lack of professionalism and the consequences of her opinions, that fall outside the limits of the Act.

[10] [2016] VSC 285 at [102] - [103].

[12] Sergeant Manassa's evidence was that they refused to participate in an interview.

[13] [2018] VCAT 1733 [132] - [133].