Commentary
IPP 2.1(a) – Use or disclosure is for a related and reasonably expected secondary purpose
Relevance of IPP 1.1 to characterising the primary purpose of collection
- The decision suggests that when characterising the primary purpose of collection for the purposes of IPP 2.1, organisations can look to their statutory functions (often found in their enabling/establishing legislation).
- That is, IPPs 1.1 and 2.1 work together: because IPP 1.1 prohibits collection personal information unless necessary for one or more of and organisation’s functions or activities, the ‘primary purpose of collection’ referred to in IPP 2.1 must similarly be aligned to one or more of those functions or activities.
Facts and decision
- SET was serving time in Hopkins Corrections Centre (HCC) following convictions of sexual offences against minors, including children of his son (S). S was also incarcerated at HCC and so care of the children had been temporarily placed with SET’s partner (P).
- The Department of Health and Human Services (Department) was required under the Children, Youth and Families Act 2005 to prepare a report for the Children’s Court to assist in planning for the long-term placement of the children. The report was intended to identify any protective concerns held by the Department about the children.
- The Department prepared a report including details of SET’s recent criminal history, including details about the names and ages of the children and the nature of the offences committed by SET against them.
- In accordance with guidelines issued by the Children’s Court, the Department provided a copy of the report to S.
IPP 2.1 – Use and disclosure
Submissions
- SET alleged that the Department breached IPP 2.1 when it disclosed the Report to S. The Department contended that the disclosure was authorised under:
- IPP 2.1(a) – the primary purpose of collection was investigating protective concerns and appropriate placement of children and the secondary purpose related to this, being the Department’s obligation to provide reports of such nature to parents.
- IPP 2.1(f) – the disclosure was authorised under s 561 of the Childrens, Youth and Families Act 2005 (Vic.) (CYFA) which stated that reports must be provided to a range of persons, including the parent, except were doing so would be prejudicial to the physical or mental health of the recipient.
- or IPP 2.1(g)(v) – the disclosure was necessary for the preparation for proceedings before the Children’s Court.
- The Department also alleged that they were exempt from complying with IPP 2.1 because they were a law enforcement agency and this non-compliance was reasonably necessary to perform its functions associated with proceedings commenced in the Children’s Court.
Decision
- VCAT held that the disclosure to S was authorised under IPP 2.1. VCAT characterised the primary purpose of collection as the Department’s statutory obligation to investigate protective concerns and placement of children and that this involved complying with the Children’s Court Guidelines which required such reports to be provided to parents. VCAT did not consider that such disclosure was for a secondary purpose.
- VCAT also held that the disclosure would have been authorised under IPP 2.1(f) and IPP 2.1(g)(v), or that the Department was exempt from complying with IPP 2.1 under s 15 of the PDP Act — largely agreeing with the Department’s positions.
IPP 4.1 – Data security
Submissions
- SET alleged that the Department breached IPP 4.1 when it sent the Report to Port Phillip Prison (PPP) instead of HCC. The Department contended that it had not breached IPP 4.1 because it had taken the following reasonable steps:
- the Department had previously contacted SET at PPP and, since that time, had not been advised that he had been transferred to HCC;
- prior to sending the Report, the Department had contacted PPP and been informed to send it; and
- the Department sent the Report via fax which was considered the most secure form of communication to a prison whilst still keeping it expeditious.
Decision
- VCAT held that there was no interference with IPP 4.1. VCAT largely agreed with the Department’s position that the steps they took were reasonable in the circumstances.
About this decision
Venue: VCAT
Date of decision: 06/02/2019
Tags: