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Recent Cases: Victoria

Kaliszewski v Department of Justice and Community Safety (Human Rights) [2020] VCAT 27

Mr Kaliszewski (“Complainant”) was employed within the Department of Justice and Community Safety (“Department”) for more than 16 years.  From December 2016, he worked at Hopkins Corrections Center (“HCC”) as a prison officer.  Following an investigation in 2017, the Complainant was found to have jeopardized the security of the prison and was demoted. 

 

The Complainant argued that by viewing the internal CCTV footage as part of the investigation, the Department had breached his privacy.  The Department investigated and found the complaint was without foundation.  It informed the Complainant of this outcome.  The Complainant then proceeded to take the matter to the Office of the Victorian Information Commissioner, who after an unsuccessful conciliation, referred the complaint to the Victorian Civil and Administrative Tribunal (“Tribunal”).

 

The complaint considered by the Tribunal was whether the Department breached IPPs 1.3 (not taking reasonable steps to make a person aware of matters relating to collection of personal information) and 2.1 (using personal information other than for the primary (or accepted secondary) purpose of collection).

 

IPP 1.3

The Complainant argued that the Department did not take reasonable steps to provide him with notice of it collecting his personal information through CCTV footage.  In response, the Department said that, Complainant was aware, prior to the recording of CCTV footage, that his personal information was being collected and could be used for the purpose of investigating a complaint of a security breach, including the investigation of a disciplinary matter which could give rise to a security breach.

The Tribunal accepted the Department’s arguments, finding that the Complainant knew this because he had been a prison officer for more than 16 years; the cameras were not disguised or hidden; and on two prior occasions, the Complainant had been informed that CCTV footage had been used to investigate allegations of misconduct about him.

The Tribunal was satisfied that the Department had taken reasonable steps to ensure that the Complainant was aware of the collection and use of his personal information, because:

(a) There were published guidelines about use of CCTV within the prison;

(b) the CCTV cameras were not disguised but were clearly visible;

(c) if CCTV footage was used in disciplinary proceedings, the person the subject of such proceedings was aware of its use and shown footage or stills; and

(d) through regular use and exposure, the Department ensured that the use of CCTV footage to ensure prison security was a matter of common knowledge.

 

The Tribunal concluded that the Department was not in breach of IPP 1.3 as reasonable steps were taken to ensure that the Complainant was aware of the collection of the information and the purposes for which the information was collected, at the time which the information was collected.

 

IPP 2.1

The Tribunal accepted that the primary purpose of using CCTV footage within HCC was safeguarding the good order and security of the prison.  The Tribunal also accepted that the secondary purpose of investigating allegations of misconduct, was closely related to the primary purpose, as the link between the two was clear, inextricable and undeniable.

Accordingly, the Tribunal was satisfied that IPP 2.1 had not been breached by the Department as the Complainant’s personal information was used for a secondary purpose, closely related to the primary purpose, for which it was collected.

 

HELD

The Complainant’s application failed and was dismissed.

Chopra v Department of Education and Training [2019] VCAT 194

The applicant made a request to the Department of Education and Training (“Department”) seeking access to his Personnel File. 

 

The Department released 74 pages to the applicant and identified 34 pages in relation to which exemptions were claimed.  The documents in dispute were narrowed down to five administrative documents containing the personal affairs information of individuals.  The Department denied access.  The applicant sought review of the Department’s decision from the Office of the Information Commissioner (“Commissioner”).  The Commissioner confirmed the decision of the Department that it would be unreasonable to release the personal affairs information of the individuals contained in the documents.  The applicant sought review of the Commissioner’s decision to the Victorian Civil and Administrative Tribunal (“Tribunal”).

 

Personal affairs information: s 33

 

The exempt parts of documents mostly comprised a person’s name, with one instance of a position description capable of identifying an individual.

The Tribunal considered whether the applicant would benefit from the release of the names and other identifying material in the documents.  The Tribunal held that the release of names and position descriptions of lower level administrative staff would not be of any discernible benefit and would not serve the applicant’s intended purpose to "clear his name".

The level of seniority of the named employees was also considered.  The Tribunal determined that it would be unreasonable to disclose the personal information of more junior employees as they have less authority and they are usually implementing the decisions made by more senior officers.

In finding that it was unreasonable to release personal affairs information contained in the document, the Tribunal also took into account the potential for harassment or vilification of those persons.  The Tribunal referred to the applicant's behavior during the hearing which included frequent disparaging comments and allegations of impropriety, unethical conduct and "blatant lying".

 

Disciplinary action: s 61

 

Section 61 of the FOI Act empowers the Tribunal, at conclusion of proceedings, to notify the agency and Commissioner, that a relevant officer of an agency is guilty of a breach of duty or misconduct in the administration of the FOI Act. This power arises if the Tribunal forms the view that there has been enough evidence of misconduct. The Tribunal held that there was insufficient evidence suggesting the Department had breached their duty or engaged in misconduct in handling the applicant’s request.

 

HELD

 

The Tribunal affirmed the decision of the Department and found the extracts from the five documents were exempt under s 33 of the FOI Act.