Commentary
s 12 – Exemption for publicly available information
- The decision stands for the proposition that an organisation can rely on the exemption from s 12 of the PDP Act even if a document is no longer publicly available, so long as the document was publicly available at the time of the alleged unauthorised act or practice (e.g., disclosure).
- A critique that can be made of this decision is that it did not consider whether the verbal disclosure of DNV’s offending by the Department of Health and Human Services (Department) was exempt under s 12 of the PDP Act.
Remedies – economic loss
- Although VCAT found no interference with privacy and did not consider remedies, VCAT did state that evidence was required to support an award of economic loss: “While it is unnecessary to make a finding about the compensation claimed by the complainant, I record that no evidence was produced to show that a previous will left the grandfather’s house to the complainant. Even if the will had been changed, I would have had some difficulty being persuaded that the cause of the loss resulting from the change was the disclosure by DHHS rather than the complainant’s own offending which he had withheld from the grandfather.”
Facts and decision
- In 2013, DNV pleaded guilty to committing an indecent act in front of his child and was sentenced to two years imprisonment. Protection orders were issued in respect of DNV’s child (the child), to be placed with their mother, DNV’s former partner.
- In 2015, DNV’s former partner informed the Department that she intended to take the child to visit DNV’s father, the child’s grandfather.
- The Department called the child’s grandfather and described the offences that DNV had been convicted of as well as subsequently sent the grandfather a copy of the Court’s sentencing remarks relating to the indecent act. This was because the Department was concerned about the child’s safety given that DNV might visit the child’s grandfather whilst the child was in his care.
- A month after the call, the child’s grandfather died and, in his will, he left his home to the DNV’s children and his residual estate to the DNV’s former partner. This upset the DNV, who believed that the telephone conversation between the Department and the child’s grandfather had led the grandfather to change his will. Where the child’s grandfather had previously told DNV that the house would be left to him.
- DNV alleged that the Department interfered with IPP 2.1 when it disclosed the sentencing remarks to the child’s grandfather.
s 12 – Exemption for publicly available information
Submissions
- The Department contended that the disclosure of the sentencing remarks was exempt from compliance with IPP 2.1 because the sentencing remarks were publicly available, such as on Austlii.
- DNV contended that the sentencing remarks were not publicly available because after being released from prison in 2016, he performed a search for his name on Austlii and did not find any results.
Decision
- VCAT held that the disclosure of the sentencing remarks was exempt under s 12 of the PDP Act because they were available on Austlii (a service that was free and accessible across Victoria) at the time that the disclosure occurred.
- VCAT identified that there were two versions of the sentencing remarks available on Austlii, one which contained DNV’s first initial and last name, and another which was pseudonymised. It appeared that the first version was available on Austlii from September 2013 to May 2017 and subsequently became pseudonymised in June 2017.
- VCAT held that whilst the sentencing remarks may no longer be publicly available (due to them becoming pseudonymised), they were available at the time in question (when the Department disclosed them to the child’s grandfather) and this was sufficient.
IPP 2.1 – Use or disclosure is for the primary purpose of collection
Submissions
- The Department contended that the disclosure to the child’s grandfather was authorised under IPP 2.1 as it was for the primary purpose of collection, being its responsibility to protect children, which necessarily entailed discussing protective concerns with those responsible for the care of the child.
Decision
- VCAT held that the disclosure to the child’s grandfather would have been authorised under IPP 2.1. VCAT characterised the primary purpose as the Department carrying out its protective function regarding children. This protective function involved addressing risks posed by DNV and discussing them with carers, such as the child’s grandfather, and that the sentencing remarks outlined the risks that needed to be addressed with the grandfather.
IPP 2.1(d)(i) – use or disclosure reasonably necessary to lessen or prevent a serious threat to an individual’s life, health, safety or welfare
Decision
- VCAT held that the disclosure to the child’s grandfather would also have been authorised under IPP 2.1(d)(i):
- ‘reasonable belief’ — the Department formed a reasonable belief because of the nature of DNV’s re-offending (DNV had a history of breaching protection orders relating to the child);
- ‘necessary’ — the disclosure of the personal information would have been necessary (but not essential) so that the child’s grandfather could appreciate the nature of the risk and take steps to protect the child from DNV; and
- ‘serious threat to an individual’s life, health, safety, or welfare’ — DNV had previously been imprisoned relating to offences to the child and had attempted to contact the child when released, there was therefore a risk that DNV would attempt to attend the child’s grandfathers home whilst the child wa
About this decision
Venue: VCAT
Date of decision: 06/10/2017
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