The hazards of incorrectly redacting a document. What does providing access to personal information “without excess delay or expense” mean? -  AIN v Medical Council of New South Wales [2017] NSWCATAP 21, AIN v Medical Council of New South Wales [2017] NSWCATAP 22, and AIN v Medical Council of New South Wales [2017] NSWCATAP 23

In AIN v Medical Council of New South Wales [2017] NSWCATAP 21, AIN v Medical Council of New South Wales [2017] NSWCATAP 22, and AIN v Medical Council of New South Wales [2017] NSWCATAP 23, the registered medical practitioner appealed several decisions made by the New South Wales Civil and Administrative Tribunal (Tribunal) relating to the collection, use and disclosure of her personal information by the predecessor of the Medical Council of NSW, Medical Board of NSW (Medical Council).24 This article examines the interpretation of the Protection of Personal Information Act 1988 (NSW) (Act) by the Appeal Panel of the Tribunal (Appeal Panel). There are similarities between the Act and the Privacy Act 1988 (Cth).

Background

The facts may be briefly summarised as follows:

• AIN (a pseudonym) was a registered medical practitioner with general registration. AIN applied for full general registration but her application was refused. There had never been a complaint about AIN’s conduct to any medical authority.
• AIN provided the Medical Council with her personal information to determine whether she was suitable for general registration as a medical practitioner.
• The Medical Council granted AIN general registration subject to conditions.
• AIN appealed the Medical Council’s decision to the Medical Tribunal. The parties settled the matter by agreeing to orders imposing revised conditions on AIN’s general registration. The Medical Tribunal granted a non-publication order which prohibited, amongst other things, the publication of AIN’s name.
• The Medical Council notified the conditions on AIN’s general registration to the Australian Health Practitioner Regulation Agency (AHPRA).
• The Medical Council published the decision on its website (Contravening Publication), however, used the Adobe software to redact references to the name. With some versions of the Adobe Acrobat Reader, AIN’s name was displayed whenever the mouse hovered over the redacted lines. Any person with a PDF editing tool was able to remove the blanking in each of the lines so that AIN’s name was displayed. The Contravening Publication contained “Re A Practitioner” and the parties were stated to be “A Practitioner” and “Office of the Healthcare Complaints Commission” (the HCCC). The latter party was incorrect. The catchwords referred to the duty of the Medical Council to protect public health and safety. There was no reference in the catchwords section to returning to practice after an extended absence.
• On googling AIN’s name, the Medical Council’s decision came up.
• AIN was concerned that the Contravening Publication gave an incorrect disclosure that conditions were imposed upon her registration due to a HCCC Complaint.

Grounds of Appeal

AIN appealed the Tribunal’s decisions regarding various matters including:

1. the collection of AIN’s personal information by the Medical Council;
2. the use of AIN’s personal information by the Medical Council;
3. the disclosure of the conditions on AIN’s general registration by the Medical Council to AHPRA against a non-publication order;
4. AIN’s access to personal information held by the Medical Council, including access “without excessive delay or expense”;
5. the Medical Council’s failure to check the accuracy of AIN’s personal information before use; and
6. the Contravening Publication.

Collection of Personal Information

AIN provided the Medical Council with her personal information to determine whether she was suitable for general registration as a medical practitioner. The Medical Council subsequently (after the matter was settled at the Medical Tribunal) acknowledged that AIN had always had the status of general registration and therefore she was not required to make an application for general registration.  On this basis, AIN alleged that the Medical Council had contravened section 8(1) of the Act because the Medical Council collected her personal information for an unlawful purpose.

Section 8(1) of the Act states:

A public sector agency must not collect personal information unless:

(a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and

(b) the collection of the information is reasonably necessary for that purpose.

The Tribunal adopted the description of “lawful purpose” set out by the Administrative Decisions Tribunal in PN v Department of Education and Training [2009] NSWADT 287 at paragraph 153 and endorsed on appeal in PN v Department of Education and Training [2010] NSWADTAP 59 at paragraph 23:

“Lawful purpose” has been stated to generally mean, a purpose that is not forbidden, rather than positively authorised, by law: NX v Officer of the Director of Public Prosecutions [2015] NSWADT 74 at paragraph 22.

The Tribunal found in favour of the Medical Council and said, whilst the collection of AIN’s personal information by the Medical Council was due to a mistaken belief by the Medical Council, it did not detract from its lawfulness.25

The Appeal Panel held that the Tribunal failed to respond to substantial evidence and submissions by AIN that the Medical Board knew that she did not need to re-apply for general registration and that error was a breach of procedural fairness to exercise jurisdiction.26

In addition, the Appeal Panel did not agree with the Tribunal because it failed to consider whether “the collection of the information is reasonably necessary for that purpose”. The Appeal Panel said whether the collection of information was reasonably necessary would depend on the evidence of any witnesses on the state of mind of the Medical Council.27 If it was established that the Medical Council knew that AIN did not need to re-apply for general registration but nonetheless collected her information, then the collection by the Medical Council would not be reasonably necessary.

Disclosure of Personal Information

AIN alleged that the Medical Council’s disclosure to AHPRA contravened section 18 of the Act because there was a nonpublication order in place. The Tribunal held that the Medical Council did not contravene section 18 of the Act because an exception in section 18 of the Act applied. Section 18 of the Act relevantly provides a public sector agency that holds personal information must not disclose the information to a person unless:

1. the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure; or
2. the individual concerned is reasonably likely to have been aware that information of that kind is usually disclosed to that other person.

The Appeal Panel agreed with the Tribunal’s decision. The Appeal Panel examined the Medical Practice Act 1992 (now repealed) which allowed the Medical Tribunal to make the non-publication order. It relevantly allowed the Medical Tribunal to direct that:

1. the name of any witness is not to be disclosed in the proceedings;
2. the name and address of a registered medical practitioner not to be published.

The Medical Tribunal only had a power to direct that the name of a registered medical practitioner not to be published. It did not have a power to direct that the name of a registered medical not to be disclosed.

The Appeal Panel noted the definition of “publish” in the Macquarie Dictionary referred to “issue to the public” and “to make publicly or generally known.28

Accordingly, the non-publication order did not prohibit the Medical Council’s disclosure to AHPRA. The Appeal Panel noting AIN’s reason for applying a non-publication order was to prevent the “world at large” being informed of the conditions on her general registration said AIN was aware that the conditions on her general registration would be disclosed to AHPRA.29

Access by AIN

AIN sought access to her personal information held by the Medical Council. The Medical Council initially provided some documents to AIN and informed AIN that it had provided her with all the requested information. AIN challenged the Medical Council’s response and later received documents that the Medical Council initially said it did not hold. AIN applied for internal review by the Tribunal complaining the Medical Council’s conduct in dealing with her right to access to personal information under section 14 of the Act.

Section 14 of the Act states:

A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

The Tribunal accepted the Medical Council’s submission that the complaint should be dismissed because AIN had been provided with the requested information and that any issue relating to delay or expenses in providing AIN with access would go to remedy.

The Appeal Panel did not agree with the Tribunal. The Appeal Panel held that a public sector agency who complies with a request for personal information but failed to do so without excessive delay or expense contravenes section 14 of the Act.30

Accordingly, section 14 of the Act has two limbs:

1. Whether the request for access to personal information has been complied with; and
2. Whether the request for access to personal information was provided without excessive delay or expense.

The failure of the Tribunal to determine whether or not access was provided without excessive delay or expense resulted in a failure by the Tribunal to consider a significant part of AIN’s case.31

The Contravening Publication - Disclosure

The Medical Council published the decision regarding AIN’s application for full registration on its website (Contravening Publication), however, used the Adobe software. With some versions of the Adobe Acrobat Reader, AIN’s name was displayed whenever the mouse hovered over the redacted lines. Any person with a PDF editing tool was able to remove the blanking in each of the lines so that AIN’s name was displayed. Apparently what you are supposed to do is print out the document as amended by Adobe and scan the redacted version, thereby removing the meta data/data trace.

There was no dispute that the Medical Council had contravened section 18 of the Act.

Section 18 of the Act states:

18 Limits on disclosure of personal information

(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:

(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

Section 16 of the Act states:

A public sector agency that holds personal 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. AIN contended that the Contravening Publication did not accurately set out what was agreed.

The grounds of appeal included the duration of the breach of section 18 of the Act, the nature and scope of publication and hence the nature of the breach of section 18, and section 16 and remedies.

The Appeal Panel found, amongst other matters that the Tribunal at first instance had erred in finding that AIN’s personal information was “masked from the human eye” based on an error of fact which was unreasonably arrived at and clearly mistaken.

In addition, the Appeal Panel found that the Contravening Publication falsely conveyed that AIN had been the subject of a complaint about her conduct and this was a breach that impacted very adversely on her reputation and caused her significant distress and anxiety.32

The Contravening Publication - Use

AIN alleged that the Medical Council had contravened section 16 of the Act by using her personal information in the Medical Council’s creation of the Contravening Publication.

The Appeal Panel acknowledged that there can be an overlap between use and disclosure, however, the Act reveals a legislative intention to identify distinct stages of the information handling process, ranging from collection, to holding, to access, to use, and to disclosure, with varying agency obligations at each stage.33

The Tribunal found that the Medical Council did not contravene section 16 of the Act on this point because that particular section does not apply to “external disclosure” and there was no “identifiable internal use” of AIN’s personal information.34

The Appeal Panel agreed with the Tribunal and referred to AFC v The Sydney Children’s Hospital Speciality Network (Randwick and Westmead) [2012] NSWADT 189. In that case, it was held that “writing and dispatching [a] letter should be viewed as one course of conduct that falls to be considered as a disclosure.”35

Accordingly, the Medical Council in compiling and disclosing the Medical Tribunal’s decision did not contravene section 16 of the Act. The question of the duration of the breach of section 18, relief and costs were remitted for redetermination.

24 AIN v Medical Council of New South Wales [2017] NSWCATAP 21; AIN v Medical Council of New South Wales [2017] NSWCATAP 22; AIN v Medical Council of New South Wales [2017] NSW CATAP 23; and AIN v Medical Council of New South Wales [2017] NSWCATAP 36.

25 AIN v Medical Council of New South Wales [2017] NSWCATAP 22, paragraph 33

26 AIN v Medical Council of New South Wales [2017] NSWCATAP 22, paragraph 38

27 AIN v Medical Council of New South Wales [2017] NSWCATAP 22, paragraphs 39 and 40

28 AIN v Medical Council of New South Wales [2017] NSWCATAP 22, paragraph 79

29 The Appeal Panel also found the exceptions in sections 18(1)(a) and 25(b) applied. The former applied because APHRA had the functions of maintaining the national register of health practitioners and the Medical Council had no reason to believe that AIN would object to the disclosure. The latter applied because section 221 of the Health Practitioner Regulation National Law lawfully authorised the Medical Council not to comply with section 18 of the Act.

30 AIN v Medical Council of New South Wales [2017] NSWCATAP 21, paragraph 24

31 AIN v Medical Council of New South Wales [2017] NSWSCATAP 21, paragraph 44

32 AIN v Medical Council of New South Wales [2017] NSWCATAP 23, paragraph 65.

33 AIN v Medical Council of New South Wales [2017] NSWCATAP 23, paragraph 75

34 AIN v Medical Council of New South Wales [2017] NSWCATAP 23 paragraph 69, In PK v Department of Education and Training [2010] NSWADTAP 59, it was found that section 16 of the Act did not apply to a disclosure of personal information outside the public sector agency (“external disclosure”). In Department of Education and Communities v VK [2011] NSWADTAP 61, it was found that there might be both a use for the purpose of section 16 of the Act (see above) and a disclosure for section 18 in the one sequence of events, but only where there were separate “identifiable internal use” and “identifiable external disclosure” transactions or actions.

35 AIN v Medical Council of New South Wales [2017] NSWCATAP 23, paragraph 81