Recent Cases: Victoria

Makarucha v Victoria Police [2019] VCAT 1142

The applicant had been arrested and interviewed by Victoria Police (“Police”) in relation to an allegation he had menacingly threatened someone over the phone.  The applicant was not charged in relation to the allegation.  However, the applicant was concerned that he had been wrongly accused and that the events may one day be used against him.  He also had concerns in relation to information passed on to VicRoads by the police in relation to his fitness to hold a driver’s license and information that was used to suspend his firearms licence. 

He made a request for documents under the FOI Act.  The Police identified 14 documents relevant to the request and provided access to six documents in full, five in part and refused access to three documents.  The applicant sought review of the decision by the Office of the Victorian Information Commissioner (“Commissioner”).  Five documents were released in part, including a report, memorandum, preliminary brief, charge sheet and notes. The statement of the victim of the phone call threats was denied in full.

The applicant had a number of peripheral concerns that were outside the scope of the Tribunal review hearing.  For example, he had made a request to VicRoads in October 2017 which yielded several Police documents which were not identified by the Police.  He also suspected that some documents had been changed or altered by the Police prior to release. 

Personal information: s 33(1) 

The documents claimed to be exempt contained personal information of third parties such as names, addresses, dates of birth, contact information and a third party allegation. 

The Tribunal outlined a number of factors to consider in deciding whether disclosure of personal information would be unreasonable.  It was taken into account that the victim had indicated through the s 53A consultation process that he did not want his personal information released primarily due to concerns for his safety.  The Tribunal found that the release of the victim’s details and the victim’s account of events would be unreasonable.

The applicant’s associate had also been contacted pursuant to s 53A.  She had indicated verbally that she had no objection to her personal information being released to the applicant.  She also did not return the s 53A documents.  The Tribunal held this information was not exempt under s 33(1).

Material obtained in confidence: s 35(1)(b)

The Tribunal confirmed that the disclosure of information provided by persons to the Police in confidence would significantly impair the Police’s ability to obtain information in future investigations.  This would likely go beyond potential witnesses being less forthcoming than they otherwise would be and could mean that people refuse to speak to Police about alleged crimes.  Without the support of the public, it would be difficult for the Police to gather information and investigate alleged crimes.

HELD

The Tribunal affirmed the Commissioner’s decision in relation to three documents.  The decision of the Commissioner was set aside in relation to the remaining three documents to the extent they contained personal details of the applicant’s associate.  It was held that these details were not exempt as the associate did not object to their release.

Kitson v Tofler [2019] VCAT 889

The respondent was a medical practitioner who provided medical services to the complainant in 2002 and 2003.  The complaint, made in 2018, was declined by the Health Complaints Commissioner (“HCC”) before being referred to the Victorian Civil and Administrative Tribunal (“Tribunal”). The complaint contained 3 allegations, 1) the respondent breached HPP 5.1 by not providing the complainant with a copy of the respondent’s privacy policy; 2)  the respondent breached HPP 6 by failing to provide the complainant with his health information; and 3) the respondent breached HPP 2 by disclosing the complainant’s personal health information to the respondent’s professional indemnity insurer.

The complainant applied for the presiding member to step down from hearing the matter on the basis of actual or apprehended bias.  The complainant argued that the presiding member would be reluctant to consider the possibility that an earlier decision of the member, as to the operation of the HR Act, was wrong. 

Application for refusal

The Tribunal found that a fair-minded lay observer would not entertain a reasonable apprehension that the presiding member might not bring an impartial and unprejudiced mind to the resolution of the matter.  The Tribunal reiterated that the task before it was to consider the evidence and the parties submissions in making a decision and there was nothing to suggest that this task would not be performed with integrity and care.

HPP 5.1

HPP 5.1 requires an organisation to set out its policy on managing health information and the steps individuals must take to access their health information.  This document must be made available to anyone who asks for it.

The Tribunal agreed with the complainant that advising the complainant that the policy remained unchanged from a version previously provided was not the same as providing the complainant with a copy (or further copy) of the policy, or otherwise making the policy available on the respondent’s website.  However, as there was no evidence that the complainant suffered any loss as a result of the technical breach of HPP 5.1, the Tribunal declined to make any remedial or compensatory order. 

HPP 6

HPP 6 requires an organisation to provide any health information that it holds about an individual to that individual upon request.  

There was no information held by the respondent that had not already been supplied to the complainant.  The complainant submitted that he was seeking a subset of the file and specifically sought an explanation of a diagnosis made by the respondent some 16 years ago.  The Tribunal found that the HR Act does not require the respondent to justify or provide further detail as to a patient’s diagnosis.  The HR Act is concerned with access to available information and the complainant had been supplied with all available information.  No breach of HPP 6 could be established.

HPP 2.2

HPP 2.2 states that an organisation must not use or disclose personal information for a purpose other than the primary purpose of collection unless one of several conditions apply.

The complainant had previously written a letter to the respondent, alleging professional misconduct and threatening civil action.  The respondent disclosed the contents of the letter to his professional indemnity insurers because he was required to notify them of any incident which may give rise to a claim on his insurance.  The complaint alleged that there was no lawful purpose justifying disclosure of the letter’s contents to the professional indemnity insurer.  The Tribunal found that disclosure of the letter was necessary for the establishment, exercise or defense of a legal claim, which is a lawful secondary purpose under HPP 2.2(k). 

HPP 2.1

HPP 2.1 permits use or disclosure of information for the primary purpose of its collection.  The Tribunal noted that it could also be argued that the primary purpose of collecting the information in the letter was the purpose of the complainant’s complaint and that sending the letter to the respondent’s professional indemnity insurer was therefore a lawful disclosure for a primary purpose.

HELD

The Tribunal decided it could hear the matter.  It then found that the respondent had breached HPP 5.1 in a technical sense but did not take further remedial action because it could not be established that the complainant suffered any loss.  The remaining complaints were otherwise dismissed.