Commentary
- This decision was based on the preceding legislation to the Privacy and Data Protection Act 2014 (Vic.) (PDP Act), the Information Privacy Act 2000 (Vic.) (IP Act). However, the decision still provides useful guidance on the interpretation of and application of the exemptions in s 10 and s 12 of the PDP Act.
s 12 – Exemption for publicly available information
- In this decision, VCAT held that the exemption in s 11 of the IP Act (similar to s 12 of the PDP Act) only applied to documents not to information within those documents. Accordingly, VCAT held that the letter that the Medical Practitioners Board of Victoria (MPBV) sent was not subject to the exemption because it was not a document that was generally publicly available. Even though the information within the letter (that CT was to attend a formal hearing regarding their medical license) was generally publicly available.
- However, in Jurecek v Director, Transport Safety Victoria [2016] VSC 285 (see case note) the Victorian Supreme Court (VSC) considered and overturned this interpretation, holding that the exemption applied to both documents and information. In that case, the VSC held that the exemption could apply to Facebook posts (as documents) as well as the information contained within the Facebook posts (even when that information is recorded in different documents that may not be generally available publications). However, the VSC ultimately ended up finding that they weren’t covered by the exemption because they were not generally available.
- Note that s 11 of the IP Act has been amended in the PDP Act, substituting the phrase “a document containing personal information, or to the personal information contained in a document” with “any information contained in a document”. In our view, this amendment strengthens the argument put by the VSC that if information appears in a generally available publication, it will no longer be subject to the PDP Act – even if reproduced in non-public documents.
Facts and decision
- The MPBV held a formal hearing regarding a complaint made about the Complainant’s as a medical practitioner and adjourned the hearing without setting a date for resumption.
- The Victorian Government’s Solicitors Office (VGSO) was assisting the MPBV with the formal hearing and sent a letter to CT advising him of the date that the formal hearing was to resume.
- CT was concerned because the letter had been sent by fax to his surgery, where his staff could read the fax without his knowledge.
- The VGSO applied for the complaint to be summarily dismissed and VCAT ultimately agreed. This case note deals with the interpretation and application of s 10 and 12 exemptions.
s 12 – Exemption for publicly available information
Submissions
- The VGSO contended that the information in the letter was essentially that the MPBV was to hear a complaint against CT, that this was publicly available, and therefore subject to the exemption in s 11 of the IP Act (similar to s 12 of the PDP Act).
Decision
- VCAT did not consider that the exemption was satisfied. It highlighted that s 11 of the IP Act is concerned with documents that are generally or publicly available, not with the information within those documents. As the letter was not a document that was publicly or generally available, the exemption was not satisfied.
- One of the reasons VCAT gave for this interpretation was that it would be difficult for the exemption to operate in a practical sense if it turned on whether the personal information was publicly available, as this would involve an exercise that would always be difficult and controversial.
- As noted above, the VSC considered and rejected this interpretation in Jurecek v Director, Transport Safety Victoria [2016] VSC 285 (see case note), finding that the exemption in s 11 applies also to information contained within a generally available publication, even where that information appears in another document that is not generally or publicly available.
s 10 – Exemption for courts and tribunals
Decision
- VCAT considered that when the VGSO sent the letter to CT, it was acting as an other office in connection with the MPBV quasi-judicial functions and therefore the exemption in s 10 of the IP Act (equivalent to s 10 of the PDP Act) applied. VCAT broke this down and analysed it in three elements:
- Was MPBV acting in a ‘quasi-judicial function’?
- VCAT held that MPBV was acting in a quasi-judicial function when organising a formal hearing, as a previous Victorian Supreme Court of Appeal decision had affirmed this.
- Whether VGSO sending the letter to the CT was ‘related to’ this function?
- VCAT held that the expression ‘which relate to’ requires a connection “but it is an expression which is satisfied if the connection is not remote or tenuous.” (Note that the wording in the PDP Act has changed to ‘in relation to’).
- VCAT held that the purpose of the letter was to organise a resumption of a hearing and this was directly related to the quasi-judicial function that MPBV was carrying out – that of conducing a formal hearing.
- Whether VGSO was an ‘other office’ of a court or ‘tribunal’?
- VCAT held that the words ‘other office’ could be interpreted to mean “a body which fulfils a similar responsibility to a registry, whether permanently or temporarily, whether ad hoc or not”. Applying this, VCAT held that the VGSO was acting like a registry, as it fulfilled functions traditionally carried out by a registry, such as organising the date and place of the hearing and providing notice to persons of the hearing which it sent the letter.
- VCAT held that the word ‘tribunal’ should be interpreted as a common noun. Applying this, MPBV could be characterised as a tribunal for the purposes of s 10.
- Was MPBV acting in a ‘quasi-judicial function’?