Privacy Commissioner’s decision set aside by the Federal Court

A recent decision by Federal Court of Australia illustrated two things about privacy complaints – or at least those that end up before the courts:

  1. complainants often pursue their claims for many years, displaying a kind of endurance that many litigants do not possess; and
  2. the task facing an administrative decision maker is demanding – an attack on a decision maker’s treatment of one comparatively minor aspect of a long list of alleged contraventions can bring the entire decision unstuck.

In combination, these factors can often lead to parties incurring high costs responding to complaints made by determined complainants (particularly self-represented complainants) even if the complaints are ultimately without merit.

Justice Greenwood is fast becoming the Federal Court’s specialist in Privacy Act cases – within the last 12 months he has decided two cases involving administrative law challenges to decisions of the Privacy Commissioner. Last year’s decision was discussed here.

The relevant conduct

The complainant in this case was Dr Megumi Ogawa. Dr Ogawa has a PhD in law and has had a long, and some may say colourful, interaction with the Australian courts in the last decade – see for example here and here.

In 2006 she had been charged with certain criminal offences. Late in 2008 she was granted bail on condition that she regularly visited a psychiatrist and implemented the treatment recommended by the psychiatrist. Dr Ogawa also undertook to authorise the consulting psychiatrist to notify the Commonwealth Director of Public Prosecutions (CDPP) of any failures to comply with the relevant bail conditions. Dr Ogawa gave such written authority to Dr Calvird, a psychiatrist practising at the Toowong Private Hospital in Queensland.

In late January 2009 Dr Ogawa failed to attend a scheduled appointment. Dr Calvird called an employee of the Commonwealth Director of Public Prosecution to advise that Dr Ogawa had not attended and, seeking to understand if Dr Ogawa had a good excuse for not attending the appointment, asked if Dr Ogawa had been remanded in custody. Dr Calvird was told that Dr Ogawa had not been remanded in custody, and Dr Calvird told the CDPP’s office that she would follow up directly with Dr Ogawa to check if she intended to continue her treatment.

About a week later, the CDPP’s office spoke with Dr Calvird to ask if Dr Ogawa had made contact to arrange an appointment. Dr Calvird did not have access to that information on the day, and undertook to check when she was next at the hospital and advise the CDPP if no appointment had been made. Dr Calvird then asked an administrative assistant employed by the hospital to send an email to Dr Ogawa asking whether Dr Ogawa intended to make an appointment. The administrative assistant told Dr Calvird that an email to this effect had been sent. The following day, the CDPP’s office called Dr Calvird seeking an update. Dr Calvird advised that an email had been sent to Dr Ogawa and that Dr Calvird was not aware of having received a reply. It transpired, however, that the email had not been transmitted to, and was never received by, Dr Ogawa.

When Dr Ogawa read an affidavit filed on behalf of the CDPP in the criminal proceedings against her reciting the communications passing between Dr Calvird and the CDPP, Dr Ogawa became concerned that incorrect information would be used to revoke bail.

The relevant conduct all took place between late 2008 and February 2009.

Procedural history of the complaints

One of several steps that Dr Ogawa ultimately took was to make complaints under the Privacy Act against both Dr Calvird, the hospital and, much later, against the CDPP. The complaint against Dr Calvird was made in December 2010 (the best part of two years after the relevant conduct occurred), and the complaint against the hospital was not made until October 2012.

Dr Ogawa alleged multiple contraventions of the National Privacy Principles, involving the disclosure principle, the data quality principle (relevant to accuracy of record keeping) and the collection principle.

Both Dr Calvird and the hospital denied the alleged contraventions. Dr Ogawa then complained (on several occasions) to the Privacy Commissioner under section 36. The Commissioner’s delegate ultimately made three decisions after reviewing materials submitted by Dr Ogawa, Dr Calvird and the hospital, in each case deciding to decline to investigate further on the basis that no contravention of the NPPs had occurred (see section 41(1)(a)). The last of these decisions was made in late May 2013.

In early May 2013, Dr Ogawa complained to the Privacy Commissioner that the CDPP had contravened the Privacy Act in 2008-09. The Commissioner’s delegate declined to investigate that complaint on the ground that the conduct occurred more than 12 months prior to making the complaint (section 41(1)(c)).

Dr Ogawa subsequently commenced judicial review proceedings in the Federal Court of Australia seeking to have the decisions made by the Privacy Commissioner’s delegate set aside. Those proceedings were the subject of various interlocutory disputes, resulting in decisions published in 2013 and 2014.

The court’s approach

Justice Greenwood followed the approach he had taken in 2014 when reviewing another decision by the Privacy Commissioner to exercise his administrative discretion to decline to investigate a complaint further. This does not involve the court substituting its own view on the merits of the decision. Rather the court considers whether the material before the decision maker allowed the decision maker to rationally and reasonably reach the impugned decision, having regard to the statutory discretions on which the decision rested.

The outcome

The court found that the Commissioner’s delegate had a reasonable basis for exercising the discretion to decline to investigate the complaint further, in all respects bar one.

The deficiency arose in respect of the delegate’s consideration of Dr Ogawa’s complaint that Dr Calvird had contravened the collection principle (NPP 1) when she asked the CDPP whether Dr Ogawa had been remanded in custody, after Dr Calvird had told the CDPP that Dr Ogawa had failed to attend a scheduled appointment. Justice Greenwood found (at [77]) that:

“it does not appear on the available material that the delegate ever reached a state of satisfaction that the alleged collection of information by Dr Calvird fell within the terms of [Dr Ogawa’s] authority. Rather, it seems that the delegate never considered the issue. If the delegate had considered the issue, one might expect the delegate to have made some reference to NPP1”

For this reason the delegate’s decision was set aside. The court did not require the Commissioner to make a new decision since section 41(1) confers a discretion on the Commissioner. However, the court specifically pointed out that it was open to the Commissioner to make “a new decision under s41(1) in respect of the complaint against Dr Calvird, according to law and consistent with the observations made in these reasons”. Dr Ogawa should not be surprised if the Commissioner makes a new decision to decline to investigate further.

In terms of analysis of the other NPPs in issue, the court endorsed (in the sense of deciding that the delegate had a reasonable basis for declining to investigate further on the ground that there had been no contravention of the NPPs) the delegate’s approach to the disclosure principle and the data quality principle. The delegate had found that any disclosures by Dr Calvird or the hospital were within the authority provided by Dr Ogawa. And as to data quality, the delegate had found that it was reasonable for the hospital to take no steps to confirm the email had been sent to Dr Ogawa, before telling Dr Calvird that Dr Ogawa had failed to respond to the email. The latter of these findings is consistent with the Commissioner’s long-standing approach to the application of obligations in various privacy principles to take “reasonable steps”, namely that in some circumstances it is reasonable to take no steps.

Costs remain a live issue in the proceedings – whilst Dr Ogawa succeeded that success was limited to one of many grounds raised in the proceedings.