Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: AFW v WorkCover Authority of New South Wales [2013] NSWADT 133
• Hearing dates: On the papers
• Decision date: 11 June 2013
• Jurisdiction: General Division
• Before: S Montgomery, Judicial Member

Decision

The application is dismissed.

• Catchwords: Health Records - Personal Information - aggrieved person - standing -Jurisdiction
• Legislation Cited: Health Records and Information Protection Act 2002; Privacy and Personal Information Protection Act 1998
• Cases Cited: Access for All Alliance Inc v Hervey Bay City Council [2004] FMCA 915; Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; Australian Right to Life Association (NSW) Inc v Secretary, Commonwealth Department of Human Services and Health [1995] 128 ALR 238; Chapman & Anor v Commissioner of Police, NSW Police [2004] NSWADT 3; Department of Education & Training v PN [2006] NSWADTAP 66; GA v Department of Education and Training & NSW Police (No 2) [2005] NSWADT 10; GA v Department of Education and Training [2005] NSWADT 47; NR and NP v Roads and Traffic Authority [2004] NSWADT 276; Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64; WL v Randwick City Council [2007] NSWADTAP 58; ZR v NSW Dept of Education and Training [2008] NSWADT 199
• Category: Principal judgment
• Parties: AFW (Applicant); WorkCover Authority of New South Wales (Respondent)
• Representation: AFW (Applicant in person); S Gul, Solicitor WorkCover Legal Branch (Respondent); J McAteer, Office of the Privacy Commissioner
• File Number(s): 123178

Reasons for decision

1 GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): AFW has applied for a review of the determination made by the WorkCover Authority of New South Wales ("WorkCover") pursuant to the Privacy and Personal Information Protection Act 1998 NSW ("the PPIP Act") and the Health Records and Information Protection Act 2002 NSW ("the HRIP Act").

2 AFW made allegations of inappropriate use and disclosure of health information in news media reports. His complaint was in the following terms:

In recent weeks the Minister for Finance and Services Greg Pearce has used and disclosed intricate details of workers compensation claims made under the NSW WorkCover Scheme. The use and disclosure by the Minister of such information has occurred in media releases and in the Parliament of New South Wales. The WorkCover Authority of New South Wales ("WorkCover") appears to have supplied the Minister with such information. Further, and also in recent weeks, the agency has used and disclosed health information about workers compensation claimants by directly releasing the same to selected media outlets who have subsequently, as is their role, published such information. ...

In nearly all of these related disclosures sufficient detail has been included which would allow family, friends, health services providers, or others to be able to readily ascertain the identity of the individual whose workers compensation claims and health information is referred to therein (despite their names not being disclosed).

The use and disclosure of the health information of these individuals may result in significant hurt, distress and suffering to be caused to the affected parties (and their respective families), may result in secondary psychological injuries (or exacerbation of existing ones), and may result in other unforseen and negative consequences for people who have done no wrong and for no reason other than the agency's inappropriate use of their workers compensation claim information.

The release of the claim and health information by WorkCover appears to be related to maligning injured workers in order to provide narrative consistent with the Minister's various recent public statements about the scheme. ...

It is noted that the information released by WorkCover excludes detail which would further explain and likely justify the injured worker's situation. ...

The complainant considers that WorkCover's decision to release such information about injured workers for political reasons, for media management and to skew public opinion is appalling and it is a serious breach of the trust which had been placed in the agency by those workers compensation claimants.

It is alleged that WorkCover, through its searching of workers compensation claim information, selecting specific claims for no reason other than for dramatic effect, and to suit the Government's Media agenda, has used and disclosed health information in a manner which is in breach of HRIP Act Health Privacy Principle 10 - Limits on use of health information and 11 Limits on disclosure of health information. As such, the complainant requests that you immediately commence an investigation into this most grievous complaint.

In resolution of this complaint, at a minimum, the complainant seeks that WorkCover immediately cease the release of further such information (unless the claimant has made an informed decision and provided express consent about such a release), that the agency contact each workers compensation claimant whose health information has been breached to inform them of the breach, and that the agency makes an ex-gratia payment as recompense for any hurt and suffering that may have been caused as a result of the agency's actions.

...

3 The Applicant included an extract from a media release issued by 23 April 2012 by Minister for Finance and Services Greg Pearce with his complaint.

4 Ms Christine Laing, an officer in the WorkCover Executive & Ministerial Services Unit, undertook the internal review. In her determination she wrote:

...

It is understood you are 'aggrieved by the conduct', in accordance with section 53(1) of the PPIP Act, of the alleged release of health information in two media reports, one by the Minister for Finance, the Hon Greg Pearce issued on 23 April 2012, the other by the Daily Telegraph newspaper published on 13 May 2012.

To be considered an aggrieved person, it must be established that you have been attributed a direct and personal injustice suffered as a result of the decision complained of. This grievance must be beyond that which you may have as an ordinary member of the public.

Based on the evidence you have provided I consider that you cannot be properly characterised as an aggrieved person for the purposes of section 53(1) of the PPIP Act, or that you are acting on behalf of anyone except yourself.

Therefore considerations concerning this matter are now finalised.

...

5 The Applicant relies on Principles 10 and 11 contained in HRIP Act. These are the provisions entitled "limits on use of health information" and "limits on disclosure of health information" respectively.

6 The Tribunal is empowered to review the Application under section 55(1) of PPIP Act and is able to make orders under sections 55(2) of PPIP Act and sections 54(1) and (2) of HRIP Act.

Preliminary issue

7 WorkCover seeks that the Application be dismissed on the following grounds:

a)The Applicant is not an "aggrieved person" for the purposes of section 53(1) or 55(1A) of PPIP Act. He therefore lacks standing.

b)That, even if the Tribunal is satisfied that the Applicant is an "aggrieved person", it is not empowered to make the orders sought, as the Applicant has not made out any financial loss, physical or psychological harm caused by WorkCover as specified in section 55(4)(b) of the PPIP Act.

c)That the Tribunal is not empowered to make the orders sought, as the Applicant has not made out any financial loss, physical or psychological harm caused by WorkCover as specified in section 54(2)(b) of the HRIP Act.

Applicable legislation

8 Section 5 of the HRIP Act provides:

5 Definition of "personal information"

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following:

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual that is contained in a generally available publication,

(c) information about an individual that is contained in a document kept in a library, art gallery or museum for the purposes of reference, study or exhibition,

(d) information about an individual that is contained in a State record under the control of the State Records Authority that is available for public inspection in accordance with the State Records Act 1998,

(e) information about an individual that is contained in archives within the meaning of the Copyright Act 1968 of the Commonwealth,

(f) information about a witness who is included in a witness protection program under the Witness Protection Act 1995 or who is subject to other witness protection arrangements made under an Act,

(g) information about an individual arising out of a warrant issued under the Telecommunications (Interception) Act 1979 of the Commonwealth,

(h) information about an individual that is contained in a public interest disclosure within the meaning of the Public Interest Disclosures Act 1994, or that has been collected in the course of an investigation arising out of a public interest disclosure,

(i) information about an individual arising out of, or in connection with, an authorised operation within the meaning of the Law Enforcement (Controlled Operations) Act 1997,

(j) information about an individual arising out of a Royal Commission or Special Commission of Inquiry,

(k) information about an individual arising out of a complaint made under Part 8A of the Police Act 1990,

(l) information about an individual that is contained in Cabinet information or Executive Council information under the Government Information (Public Access) Act 2009,

(m) information or an opinion about an individual's suitability for appointment or employment as a public sector official,

(n) information about an individual that forms part of an employee record (within the meaning of the Privacy Act 1988 of the Commonwealth) about the individual held by a private sector person,

(o) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subsection.

9 Section 6 of the HRIP Act provides:

6 Definition of "health information"

In this Act, health information means:

(a) personal information that is information or an opinion about:

(i) the physical or mental health or a disability (at any time) of an individual, or

(ii) an individual's express wishes about the future provision of health services to him or her, or

(iii) a health service provided, or to be provided, to an individual, or

(b) other personal information collected to provide, or in providing, a health service, or

(c) other personal information about an individual collected in connection with the donation, or intended donation, of an individual's body parts, organs or body substances, or

(d) other personal information that is genetic information about an individual arising from a health service provided to the individual in a form that is or could be predictive of the health (at any time) of the individual or of any sibling, relative or descendant of the individual, or

(e) healthcare identifiers,

but does not include health information, or a class of health information or health information contained in a class of documents, that is prescribed as exempt health information for the purposes of this Act generally or for the purposes of specified provisions of this Act.

10 Section 53 of the PPIP Act provides:

53 Internal review by public sector agencies

(1) A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.

(1A) There is no entitlement under this section to the review of the conduct of a Minister (or a Minister's personal staff) in respect of a contravention of section 15 (Alteration of personal information).

Note. Any such conduct can still be reviewed by the Tribunal. See section 55 (1A).

(2) The review is to be undertaken by the public sector agency concerned.

(3) An application for such a review must:

(a) be in writing, and

(b) be addressed to the public sector agency concerned, and

(c) specify an address in Australia to which a notice under subsection (8) may be sent, and

(d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and

(e) comply with such other requirements as may be prescribed by the regulations.

...

11 Section 55 of the PPIP Act provides:

55 Review of conduct by Tribunal

(1) If a person who has made an application for internal review under section 53 is not satisfied with:

(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application,

the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53.

(1A) A person (the applicant) who is aggrieved by the conduct of a Minister (or a Minister's personal staff) constituting a contravention of section 15 (Alteration of personal information) may apply to the Tribunal for a review of the conduct.

(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:

(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

(c) an order requiring the performance of an information protection principle or a privacy code of practice,

(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,

(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,

(f) an order requiring the public sector agency not to disclose personal information contained in a public register,

(g) such ancillary orders as the Tribunal thinks appropriate.

(3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997.

(4) The Tribunal may make an order under subsection (2) (a) only if:

(a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and

(b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.

12 Section 54 of the HRIP Act provides:

54 Order or other decision of Tribunal

(1) After holding an inquiry, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:

(a) subject to subsection (2), an order requiring the respondent to pay to the complainant damages not exceeding $40,000 if the respondent is a body corporate, or not exceeding $10,000 in any other case, by way of compensation for any loss or damage suffered by reason of the respondent's conduct,

(b) an order requiring the respondent to refrain from any conduct or action in contravention of a Health Privacy Principle, a provision of Part 4 or a health privacy code of practice,

(c) an order requiring the performance of a Health Privacy Principle, a provision of Part 4 or a health privacy code of practice,

(d) an order requiring health information that has been disclosed to be corrected by the respondent,

(e) an order requiring the respondent to take specified steps to remedy any loss or damage suffered by the complainant,

(f) such ancillary orders as the Tribunal thinks appropriate.

(2) The Tribunal may make an order under subsection (1) (a) only if:

(a) the application relates to conduct that occurs after the end of the 12-month period following the date on which Schedule 1 commences, and

(b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the respondent.

(3) In making an order for damages under this section concerning a complaint lodged on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons.

WorkCover's case

13 WorkCover contends that the Applicant is not an "aggrieved person" for the purposes of section 53(1) or 55(1A) of PPIP Act. It relies on views expressed by Deputy President Hennessy in GA v Department of Education and Training [2005] NSWADT 47 at paragraph [8] where she stated:

8 The scope and purpose of the PPIP Act is reflected in the long title which begins "An Act to provide for the protection of personal information, and for the protection of the privacy of individuals generally; ..." Such a purpose is also evident from the wide definition of "personal information" in s 4. The PPIP Act is beneficial legislation and accordingly a broad interpretation of the words "person aggrieved" is appropriate. However, the person must nevertheless be "aggrieved" because he or she believes that the conduct constitutes a breach of the PPIP Act, not for any extraneous reason.

14 It is a question of fact depending on the circumstances. It was also established in the case of Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64 that a person who suffers a grievance beyond the suffering experienced by an ordinary member of the public may be a person aggrieved.

15 WorkCover submits that the Application in this case can be compared to the facts in GA v Department of Education and Training. Both relate to a complaint as to the conduct of an Agency towards another party (or parties.) The complaint made by GA related to the conduct of the Agency towards his adult son. The Applicant complains about the conduct of WorkCover in relation to a number of de-identified individuals. WorkCover further submits that the relationship between the Applicant is somewhat further removed than in the GA case as there appears to be no relationship between him and the de-identified persons.

16 At paragraph [12] in GA v Department of Education and Training Deputy President Hennessy stated

12 ... [W]here, as in this case, the child is an adult and there is no evidence of him or her consenting to or supporting the application made by a parent, then a real issue arises as to the parent's standing. In addition, in this case, there is no connection between the alleged conduct of the agency and GA. The comment in item 5 relates exclusively to the son. In all the circumstances I am not satisfied that GA is "aggrieved by the conduct" of the agency that relates to his adult son.

17 WorkCover submits that the circumstances of that case are directly applicable to the current application. The Applicant complains on behalf of de-identified individuals. He does not have the consent of those individuals to act for him, nor is there any evidence of their support for him doing so. The alleged conduct of WorkCover in no way relates to him personally. There is no connection between the conduct of WorkCover and the Applicant.

18 WorkCover contends that, even on a broad interpretation, to define the Applicant as an "aggrieved person" is to construe the words too widely. It says that the Applicant has no greater standing than any other member of the public of NSW. To define him as such would create a class of aggrieved persons far too wide for the practicable application of PPIP Act.

19 WorkCover submits that the finding in GA v Department of Education is supported by established judicial authorities on standing, for example, Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at pages 530 and 531 per Gibbs CJ, and Australian Right to Life Association (NSW) Inc v Secretary, Commonwealth Department of Human Services and Health [1995] 128 ALR 238 at pages 251252 per Lockhart J. For example, in Australian Right to Life Association, Lockhart J observed (at 252):

"The applicant must establish that he is a person who has a complaint or grievance which he will suffer as a consequence of the decision beyond that of an ordinary member of the public. In order that an applicant may show that he is a person 'aggrieved', the element of 'grievance' must be special to the applicant. He must suffer more greatly or a different way than other members of the community."

20 WorkCover contends that in the present case, the Applicant is referring to an infringement of rights allegedly suffered by de-identified third parties with whom he has no relevant connection. The Applicant is not himself personally affected by the disclosure of the information that is the subject of his Application, nor does the Applicant indicate that his alleged grievance is special to him.

21 For these reasons, WorkCover submits that the Applicant is not an "aggrieved person" for the purpose of section 53(1) or 55(1A) of the PPIP Act and therefore has no standing to apply for review by the Tribunal under section 55(1) of the PPIP Act.

22 WorkCover also contends that the information, which is the subject of the Application, is not "personal information" within the meaning of section 5 of the HRIP Act, and is therefore not "health information" within the meaning of section 6 of the HRIP Act.

23 It submits that the Tribunal therefore does not have jurisdiction to consider the Application or to make orders under section 55(2) of the PPIP Act.

24 WorkCover also contends that the Tribunal will be limited in the orders that it could make because it could not be satisfied that the Applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency (as required by section 55(4)).

25 WorkCover submits that there is no allegation of, or evidence that, the Applicant has suffered such harm. The orders sought are done so on behalf of others. Moreover, the persons referred to in the Applicant's initial complaint and orders sought are de-identified. It is therefore impossible for the Tribunal to be satisfied that they have sustained loss or harm. WorkCover submits that it is simply a hypothetical argument based on supposition by the Applicant. Orders under paragraphs 55(2)(a) and 55(2)(e) would not be available to the Applicant unless the Applicant himself was able to demonstrate loss or damage of the kind referred to in those paragraphs.

26 WorkCover acknowledges that section 55(3) provides that: "Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 (ADT Act)." However, WorkCover submits that even if the Applicant sought orders available under those provisions in the ADT Act, his lack of standing would make them unavailable to him.

The Applicant's Submissions

27 The Applicant provided detailed submissions in support of his application.

28 With respect to the decision in GA v Department of Education and Training he contends that WorkCover has taken an unreasonably narrow view of the definition of an 'aggrieved person'. He contends that he is not just an ordinary member of the public, but that he is a part of the group whose information was accessed by WorkCover then released to government ministers and to news media. He contends that the link between him and WorkCover's conduct is direct and strong.

29 The Applicants submits that a broader and more appropriate view of the definition of an 'aggrieved person' is based on the decision in Access for All Alliance Inc v Hervey Bay City Council [2004] FMCA 915:

• "the complainant must show that they have a grievance that is beyond that which will be suffered by an ordinary member of the public to satisfy the test";
• "the phrase includes a person who has a genuine grievance because the action prejudicially affects their interests" and
• "'person aggrieved' should not be interpreted narrowly and should be given a construction that promotes the purpose of the relevant Act."

30 The Applicants submits that these broader and more appropriate guidelines as to whether he is an aggrieved person have been met and should be favoured over the narrow view submitted by WorkCover.

31 The Applicant further submits that whether he has "a grievance that is beyond that which will be suffered by an ordinary member of the public" is in no doubt. He asserts that he is part of the very group of people (injured workers who have made a workers compensation claim) whose information is the subject of the application. He says that for WorkCover to claim that he "has no greater standing than any other member of the public of NSW" is false and it is misleading. He says that has genuine and legitimate concern that WorkCover would release his information in the same way that it had released the information of other claimants.

32 The Applicant submits that it is premature to speculate on any orders the Tribunal might make, and whether it can make such orders, before substantive facts have been established.

33 The Applicant submits that it is evident from WorkCover's own privacy management plan that it has breached not only its own policy, but also the statutory obligations of the agency to safeguard the personal and health information of workers compensation claims from improper access, use and dissemination.

34 He argues that the WorkCover NSW Privacy Management Plan does not make any provision for the use and disclosure of personal and health information in the manner that is the subject of this case.

The Privacy Commissioner's Submissions

35 Mr McAteer provided written submissions in relation to the jurisdictional issue. He submits that section 53(1) of the PPIP Act does not create an 'open standing' provision. In such a circumstance it becomes necessary to identify the class of person who may be entitled to request an internal review and, subsequently, review in the Tribunal.

36 Mr McAteer referred to a number of authorities. In Chapman & Anor v Commissioner of Police, NSW Police [2004] NSWADT 3, the Tribunal said at paragraph [18]:

As to the standing argument and the alternative section 27 of the Privacy Act argument, I do not need to decide these given the finding on section 4(3)(h) of the Act. If I was required to render a finding on the standing issue, I would have been inclined to accord the applicant father standing as the uncontested evidence was that he was specifically and adversely financially affected by the alleged breach of the Act. He was also personally involved in the subject events from the very first day and he was the subject of some adverse comments from Inspector Oswald (set out in the father's affidavit). He was plainly aggrieved by the conduct of the internal review within the meaning of section 53(1) of the Act.

37 ZR v NSW Dept of Education and Training [2008] NSWADT 199, concerned student marks relating to ZR's son, which was not ZR's personal information. The Tribunal said:

I agree with the Department's submission in regard to ZR's standing in respect of this complaint. The conduct alleged does not concern ZR's personal information. In my view, ZR is not acting as a representative or agent of either ZR's son or any other students in ZR's son's class. It will therefore be a question of fact as to whether or not as a parent she is aggrieved by the conduct. In all the circumstances I am not satisfied that ZR is aggrieved by the conduct of the Department that is the subject of complaint No.1 . Accordingly, this complaint should be dismissed.

38 In GA v Department of Education & Training it was said at paragraph [12]:

In relation to the passage in item 5, GA said that a false allegation about a member of his family affects him. I am not persuaded that the principle can be stated so broadly. Whether or not a parent is aggrieved by the conduct of an agency which relates to his or her child, is a question of fact to be determined depending on the circumstances of each case. If the parent has legal responsibility for the child, because, for example, the child is a minor or has a disability, a parent may have standing to lodge a complaint in his or her own right. However where, as in this case, the child is an adult and there is no evidence of him or her consenting to or supporting the application made by a parent, then a real issue arises as to the parent's standing. In addition, in this case, there is no connection between the alleged conduct of the agency and GA. The comment in item 5 relates exclusively to the son. In all the circumstances I am not satisfied that GA is "aggrieved by the conduct" of the agency that relates to his adult son.

39 Further, in GA v Department of Education and Training & NSW Police (No 2) [2005] NSWADT 10, it was said at paragraph [24]:

Accordingly, the applicant is only permitted to agitate matters before the Tribunal in these proceedings that relate to conduct or alleged contraventions concerning him personally (his personal information) and which directly relate to such conduct "that was the subject of the [internal review] application" under s 53 of the Privacy Act. That is the nature of the application that has already been substantially heard before the Tribunal and in which several interlocutory applications have been heard and determined.

40 Mr McAteer submitted that these decisions indicate that an 'aggrieved' person is one whose personal information has been dealt with by an agency contrary to privacy principles. However, he noted a somewhat wider approach by the President in NR and NP v Roads and Traffic Authority [2004] NSWADT 276. Although it was not necessary to rule on the question of standing, the President made the following comments at paragraph [58]:

The Tribunal makes the following brief observations. Standing to apply to the Tribunal is given by the Privacy Act to a 'person aggrieved' by the conduct in issue. On the other hand the rights conferred by the Act seek to protect the personal information of `individuals'. Had the Parliament intended to limit standing to those individuals it would, presumably, have used that term rather than 'person aggrieved'. As a matter of statutory construction, the `applicant' referred to in s 55(2)(a) is the 'person aggrieved' referred to in s 53(1), by dint of the definition of 'applicant' found in the latter provision. So, it may be the case that a 'person aggrieved' other than the individual affected by the contravention could make a claim for monetary compensation.

41 Mr McAteer submitted that an action under the PPIP Act is available to two classes of persons:

a.Where the complaint involves the person's own personal information, that person. This will be the majority of cases.

b.A person other than the person about whom the information in question relates, who has suffered some tangible and measurable impact, as opposed to merely having an intellectual or emotional concern about the matter.

Discussion

42 I agree with Mr McAteer's submission in regard to the classes of persons who are able to bring an action under the PPIP Act. However, the initial approach to be adopted is to determine whether or not the information that is the subject of the application is health information for the purposes of the HRIP Act. That will be a question of fact.

43 If the information is health information, it will then be necessary to determine whether or not the Applicant has standing to bring the application.

44 Both in PPIP Act and HRIP Act, 'personal information' is defined as:

personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion

(HRIP Act, s 5(1)); PPIP Act, s 4(1)).

45 Since both the PPIP Act and HRIP Act is beneficial legislation, the expression should be interpreted broadly, and the exclusions from the definition of personal information should be construed narrowly: Department of Education & Training v PN [2006] NSWADTAP 66 at paragraph [78].

46 Documents which do not contain any obvious features identifying an individual can be 'personal information' by virtue of the context to which they belong: WL v Randwick City Council [2007] NSWADTAP 58 at [15].

47 In WL the Appeal panel indicated that information might be 'personal information' even though extrinsic knowledge is necessary to identify an individual, where the recipient of the information can link the information to an individual.

48 WorkCover contends that the information is not "personal information" within the meaning of section 5 of the HRIP Act, and is therefore not "health information" within the meaning of section 6 of the HRIP Act.

49 I do not agree with that submission. I accept that the information under consideration is not the Applicant's 'personal information'. I also accept that much of the information is generic in nature and that the identity of the individuals referred to in some of the case studies in issue is not apparent nor could the identity reasonably be ascertained from the information or opinion.

50 However, in my view, it is possible that the identity of the individual referred to in at least one of the case studies contained in the media release could be identified from the details provided. In my view the term "personal information" is broad enough to include this type of information.

51 The question therefore arises as to whether or not the Applicant has standing to bring the application.

52 I have been referred to a number of authorities that have dealt with the meaning of the expression 'person who is aggrieved by the conduct'.

53 There is no dispute that the information concerned does not relate to the Applicant. Nor is there any suggestion that the individuals to whom the information does relate have either consented to or supported the application brought by the Applicant.

54 The Applicant contends that he has standing to bring the application because he is a member of a class of people affected by the conduct in issue. He states that as an injured worker who has made a worker's compensation claim he has greater standing than other members of the public of NSW.

55 I do not agree with that submission.

56 In my view Judicial Member Robinson correctly stated the position in GA v Department of Education and Training & NSW Police (No 2) [2005] NSWADT 10 in the passage from paragraph [24] of his decision that has been referred to above.

57 The Applicant is only permitted to agitate matters before the Tribunal in proceedings that relate to conduct or alleged contraventions concerning him personally and where he has suffered some tangible and measurable impact.

58 In my view, whether or not that is the case is a question of fact to be determined on the evidence presented. In this matter I do not accept that the Applicant has standing to bring the application. It is not sufficient that the Applicant identifies himself as falling within a group of workers who have made a worker's compensation claim.

59 The Applicant has not established that he is a person who is aggrieved by the conduct for the purposes of section 53 of the PPIP Act. Accordingly, it is my view that the Tribunal does not have jurisdiction to review conduct or alleged contraventions in this matter.

60 The application should therefore be dismissed.

Order

The application is dismissed.

 

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Decision last updated: 11 June 2013