NLD v Department of Families, Fairness and Housing [2023] VCAT 544

Commentary

IPP 2.1(f) – Use or disclosure required or authorised by law

  • One critique that can be raised about this decision is the submissions that the disclosure was authorised under IPP 2.1(f). IPP 2.1(f) necessitates that a legal obligation or authorisation exists to use or disclose the personal information in a certain way. In this case, the authorisation in s 555 of the Children Youth and Families Act 2005 (Vic.) (CYFA) is to use the personal information in the Report, namely to include it if it is relevant to the child’s protection. However, there appears to be no explicit obligation or authorisation to disclose the personal information to third parties.
  • This can be contrasted to the decision in SET v Department of Health and Human Services [2019] VCAT 113 (see case note) where the Respondent also prepared a child protection report and disclosed the Report to several parties. In that case, the disclosure was found to be authorised under IPP 2.1(f) because s 561 of the CYFA required the Respondent to disclose the Report to those parties.

Compensation

Scope of non-economic loss

  • This decision affirms that complainants can receive compensation for non-economic loss (referred to as ‘injury to hurt feelings’ in the Privacy and Data Protection Act 2014 (Vic.) (PDP Act)), including emotional harm such as humiliation and distress. Non-economic loss is not limited to a diagnosed mental health condition.

Evidence necessary to support claims for non-economic loss

  • This decision also re-affirms that complainants will be more successful if they provide medical and like evidence to support their harm and treatment. In this case, NLD sought that the Department of Families, Fairness and Housing (DFFH) pay for her medication and treatment under a mental health plan associated from the unauthorised disclosure. However, VCAT did not award this remedy because NLD had not led any evidence to quantify this or demonstrate its necessity.

Causation

  • This decision suggests that there is an element of disentanglement or apportionment when awarding damages for non-economic loss. In this case, VCAT noted that DFFH was not responsible for NLD’s long-term distress about the rape and that her current distress may be partially attributable to the fact that she never accessed any counselling about the rape. However, VCAT recognised that the unauthorised disclosure would cause NLD to revisit those memories with some consequent distress and that DFFH bore some responsibility for this distress as it stemmed in part from the breach.

Other factors relevant to calculating non-economic loss

  • Interestingly, one of the factors VCAT took into account when deciding damages was the number of people that the information had been disclosed to, which was very small. Organisations and complainants should not read into this too deeply as the number of people that information is disclosed to is unlikely to, in isolation, equate to the volume of damages. The number should be considered in context with other factors such as the nature of the personal information, the relationship between the complainant and recipients (if any), and the harm that may arise.

Facts and decision

  • In 2021, DFFH drafted a child protection report (Report) regarding the placement of the NLD’s granddaughter in the event that the granddaughter’s mother was unable to look after her.
  • In this Report, DFFH included information that NLD had been the victim of a rape and sexual assault in 1997. DFFH then sent this Report to NLD’s daughter, the granddaughter’s father, solicitors, and the Children’s Court.
  • NLD had never told her daughter or granddaughter about her sexual assault and rape and alleged that DFFH interfered with IPP 2.1 when it disclosed the Report.

IPP 2.1(a) – Use or disclosure is for a related and expected secondary purpose

Submission

  • DFFH contended that the disclosure was authorised under IPP 2.1(a) because:
    • The primary purpose of collecting the personal information had been to protect NLD’s granddaughter. The information was used for the related secondary purpose of assessing NLD’s suitability to care for her granddaughter should her daughter be unable to do so.
    • This disclosure should have been reasonably expected because, when NLD was interviewed, she would have been told that anything she said would be included in the Report.

Decision

  • VCAT held that the exception in IPP 2.1(a) was not satisfied. On the facts, VCAT was not satisfied that DFFH had actually informed NLD that anything she said would be included in the Report. This was because of a lack of evidence to support this position and the wording of the Report which suggested the information had been sourced from Victoria Police and not from an interview with NLD.
  • VCAT explained that even if NLD had been informed as alleged by DFFH, it was not satisfied that a disclosure of this information would be ‘reasonably expected’. This is because, the interview would likely have occurred 20 years ago and NLD was only being assessed for fitness regarding short term, not long-term care of her granddaughter.

IPP 2.1(d)(i) – Use or disclosure is necessary to lessen or prevent a threat to an individual’s life, health, safety or welfare

Submissions

  • DFFH contended that the disclosure was necessary to lessen or prevent a serious threat to NLD’s granddaughter’s welfare because the information demonstrated concerns DFFH had about NLD’s mental health/fitness to care for her granddaughter.

Decision

  • VCAT held that the exception in IPP 2.1(d) was not satisfied. On the facts, VCAT was not satisfied that DFFH ‘reasonably believed’ that the disclosure of NLD’s rape was necessary to lessen or prevent a serious threat to NLD’s granddaughter’s welfare. VCAT analysed the Report and found that it did not mention NLD’s rape as a cause of concern regarding her granddaughter’s welfare. This was contrasted to concerns raised in the Report by the DFFH about placing NLD’s granddaughter with third parties.

IPP 2.1(f) – Use or disclosure is required or authorised by law

Submissions

  • DFFH contended that the disclosure was authorised by s 555 of the CYF Act which required that information in the Report only deal with matters relevant to the question of whether the child is in need of protection.

Decision

  • VCAT held that the exception in IPP 2.1(f) was not satisfied. VCAT appears to have held that the information was not relevant to the question of whether NLD’s granddaughter was in need of protection, as required by s 555 of the CYFA.

Compensation

Non-economic loss

  • VCAT ordered that DFFH pay $9,000 in compensation for re-igniting NLD’s humiliation associated with the rape and distress associated with the information being disclosed to members of her family who she had not told.

About this decision

Venue: VCAT
Date of decision: 12/05/2023