FEDERAL COURT OF AUSTRALIA

Ogawa v Australian Information Commissioner [2018] FCA 266

ORDERS

THE COURT ORDERS THAT:

1.    The application filed 28 November 2016 be dismissed

2.    The applicant pay the costs of the first respondent, such costs to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

Background

1    This is an application for judicial review of a decision of a delegate of the Australian Information Commissioner (the Commissioner). The applicant has not indicated the mechanism under which the application is brought, though the remedies sought and the grounds of review raised suggest that it is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth), as has been assumed by the first respondent. In the decision dated 1 November 2016, the delegate declined to investigate Dr Ogawa’s complaint of an interference with the applicant’s privacy by the second respondent, Dr Michele Calvird, under s 41(1)(a) of the Privacy Act 1988 (Cth) (the Act). This decision was made on the basis that Dr Calvird was not in breach of the Act.

2    The complaint related to events in 2008 and 2009. Dr Ogawa first made a complaint to the Commissioner about the second respondent on 2 December 2010. The first respondent declined to investigate the complaint. Dr Ogawa applied to this Court in relation to these events on 26 June 2013 and brought an application for judicial review against a number of respondents.

3    In Ogawa v Australian Information Commissioner [2015] FCA 152 (the previous proceeding), Greenwood J set aside the decisions of the delegate to decline to investigate Dr Ogawa’s complaint against the second respondent and to then affirm that decision. Dr Ogawa’s application was otherwise dismissed.

4    The Commissioner re-examined Dr Ogawa’s complaint following the Court’s decision and again declined to investigate. Dr Ogawa filed the current application for judicial review on 28 November 2016 as a litigant in person. I made orders for the filing of submissions and other material at the first case management hearing. I determined that the matter should be decided on the papers, and also that the affidavit material adduced by the parties in the previous proceeding be relied upon in this proceeding. Dr Ogawa filed two affidavits on 6 and 8 February 2017 respectively, but did not otherwise participate by way of attending the only case management hearing or by filing submissions. The Commissioner filed an affidavit of Andrew Solomon, the Assistant Information Commissioner, and written submissions.

Relevant Facts

5    The factual background to the complaint set out by Greenwood J in the previous proceeding is as follows:

11        Dr Ogawa was charged in the District Court of Queensland with particular Commonwealth criminal offences in respect of conduct in April and May 2006. On 13 November 2008, Dr Ogawa was granted bail in relation to the charges. The bail undertakings she gave included undertakings in relation to psychiatric treatment to be undertaken by her.

12        The undertakings relevant to the current proceeding were in these terms:

5.    On 18/12/2008 I shall attend the clinic of Dr Calvird, at Toowong Private Hospital, for assessment and

i)    thereafter take all medication and undertake all treatment prescribed or recommended by Dr Calvird;

ii)    thereafter attend all further appointments for treatment by Dr Calvird.

…

7.    I shall provide a written authorisation for [Dr Calvird and other named health professionals] to notify the Commonwealth Director of Public Prosecutions of any failure by her [sic: me] to comply with the obligations in paragraph 4, 5 & 6 above.

13        On 13 November 2008, Dr Ogawa signed an authority directed to Dr Calvird in these terms:

I hereby authorise Doctor Calvird to notify the Commonwealth Director of Public Prosecutions of any failure by me to comply with the following obligations:

(a)    On 18 December 2008, attend the clinic of Dr Calvird, at Toowong Private Hospital for assessment;

(b)    thereafter take all medication and undertake all treatment prescribed or recommended by Dr Calvird;

(c)    thereafter attend all further appointments for treatment by Dr Calvird.

14        On 20 February 2009, Ms Roberta Devereaux, the solicitor employed by the CDPP with carriage of the District Court criminal proceedings against Dr Ogawa, swore an affidavit which was filed in those proceedings. A copy of the affidavit was served on Dr Ogawa by email the same day. In her affidavit, Ms Devereaux said this:

5.    On the 5 February 2009 I received a telephone call from Dr Calvird, she told me and I verily believe the following:

a)    Dr Calvird asked me if Dr Ogawa had been remanded in custody. She said that Dr Ogawa had cancelled her last appointment on the 29 January as she had court and had not made another one. Dr Calvird said that she was conscious of the bail condition and wanted to know if the reason that she had not heard from her was because she was in custody. I told Dr Calvird that Dr Ogawa had not been remanded in custody.

b)    Dr Calvird said that she would chase Dr Ogawa up and check if she was going to continue treatment.

6.    On 10 February I telephoned Dr Calvird, she told me and I verily believe the following:

a)    I asked if she had made contact with the Dr Ogawa. She advised that she would check on Thursday if she had received any emails from Dr Ogawa and let me know if she did not make another appointment.

b)    Dr Calvird said that she was aware that Dr Ogawa was moving to Lismore and that she would be reducing the frequency of her appointments and that she would let me know what was happening.

7.    On 16 February I received a telephone message from Dr Calvird, she advised that Dr Ogawa had not rebooked an appointment with her and that she intended to email Dr Ogawa.

8.    On 17 February I telephoned Dr Calvird and she told me and I verily believe the following:

a)    an email had been sent yesterday and that no response had been received;

b)    Dr Ogawa has a mobile phone on which you cannot record messages;

c)    the last time she had seen Dr Ogawa was on 22 January 2009.

15        Dr Ogawa was concerned that the Ms Devereaux’s affidavit would be used in a possible breach of bail hearing. Dr Ogawa’s position was that the affidavit was incorrect, because she had not in fact received any email from Dr Calvird on 16 February.

16        On 23 February 2009, Dr Ogawa sent by email to Dr Calvird a subpoena issued in the District Court of Queensland, requiring Dr Calvird to attend the District Court at Brisbane on a particular date “to give evidence and produce to the court for all emails that you sent to Dr Megumi Ogawa”.

17        There followed a series of correspondence between Dr Ogawa and Dr Calvird’s legal representatives. In a letter to Dr Ogawa on 25 February 2009, Dr Calvird’s solicitor said this:

In response to your complaint, my client advises me that the secretarial staff at Toowong Specialist Centre drafted an e-mail to you, on Dr Calvird’s behalf, during the early afternoon of Monday 16 February 2009. The staff member believed the e-mail was successfully sent to you, however it was only discovered the following day that it had not been transmitted. Dr Calvird was unaware of this when she informed Ms Devereaux of the Commonwealth Director of Public Prosecutions (“CDPP”), that she had not received a response from you.

My client has now sent a letter to Ms Devereaux explaining the situation and specifically that you promptly replied to the e-mail once it was resent to you.

18        The solicitor’s letter to Dr Ogawa enclosed Dr Calvird’s letter to Ms Devereaux dated 23 February 2009. Dr Calvird’s letter was, relevantly, in these terms:

Further to our discussion on February 17th, I would like to advise you that Dr Ogawa has responded to the email sent to her by my staff member. Dr Ogawa advised that she has had a psychiatrist arranged by NSW Health to see her. Dr Ogawa asked in her email if she could keep the possibility of making an appointment with me open at this stage.

Secondly, I have been asked by Dr Ogawa to clarify some details. My staff member drafted an email to Dr Ogawa, on Monday February 16th. The staff member, to the best of her knowledge, thought that the email had been successfully sent through to Dr Ogawa. However, due to a problem with her computer, she was made aware only the following day that the email had not been sent though [sic]. At this stage, she resent the email to Dr Ogawa, and Dr Ogawa promptly replied. The content of this email has already been discussed in the first paragraph. When I spoke to you on Tuesday February 17th, I then said that I would check with my staff as to whether a response to the email had been received from Dr Ogawa. The staff checked, and there was no response, as the email from the Monday had not gone through. However, we were not aware of that at that point. Hence, I gave you the information that Dr Ogawa had not responded to the email, whereas unbeknown to us, Dr Ogawa had not received the email.

Dr Ogawa has not made another appointment at this stage.

19        The secretarial “staff member” referred to in this letter was Ms Chatel Gordge.

20        After a further series of email exchanges, Dr Calvird’s solicitor wrote to Dr Ogawa on 4 March 2009 enclosing a letter from Dr Calvird to Dr Ogawa dated 2 March 2009, in which Dr Calvird informed Dr Ogawa that Dr Calvird had, in the circumstances, terminated their doctor/patient relationship.

21        More than three years later, on 11 October 2012, Dr Ogawa wrote to the Chief Executive Officer of the TPH, making a “complaint against your hospital about the conduct of Dr Michele Calvird and Ms Chatel Gordge”, and seeking an apology. The TPH replied in a letter dated 17 October 2012 in this way:

I understand from your email that you were a patient of Dr Michele Clavird [sic] between 18th December 2008 and February 2009. Our records indicate that you were not a patient of the Actual Hospital during this time. It is therefore assumed that you were an outpatient of Dr Calvert [sic] who you visited at the Toowong Specialist Centre. The Toowong Specialist Centre was located in one of the wings of the Hospital during 2008 and 2009. However, the Specialist Centre was not part of the Hospital but instead leased space from the Hospital. Further, the Toowong Specialist Centre closed in June 2012. As such, I am unable to progress an investigation into the matter that you raised. Nor can I speak on behalf of the Specialist Centre and offer you an apology.

(Original emphasis.)

Previous proceeding

6    Greenwood J set aside an earlier decision of a delegate of the Commissioner “declining to investigate the applicant’s complaint of a breach of privacy against Dr Michele Calvird under s 41(1) of the Act.” It followed that the decision to affirm the first decision was also set aside.

7    Greenwood J held that the delegate failed to consider a relevant matter. His Honour found that while it may have been reasonably open to the delegate to conclude the collection of information was authorised within the terms of the Act, there was nothing in the material to suggest that the delegate in fact reached that conclusion (at [78]).

8    Relevantly, his Honour found:

77        In the delegate’s letter of 18 February 2011 (described earlier in these reasons) the delegate summarised the contentions put forward by Dr Ogawa in her response to the letter of 16 December 2010. The delegate’s summary covered each of the matters raised by Dr Ogawa in her response with the exception of the specific contention about the failure to consider whether the collection by Dr Calvird of information from Ms Devereaux was a breach of Dr Ogawa’s privacy. Contrary to the submissions put for the Commissioner, 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 the applicant’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, which sets out requirements in relation to an organisation’s collection of information (as opposed to NPP2 which relates only to the use and disclosure of information which has been collected). The delegate, however, limited her discussion of the applicable law to NPP2 and NPP3.

(Original emphasis.)

Decision of the Commissioner

9    On 18 August 2015, the delegate wrote to the applicant that, in response to the Court’s decision, he had reviewed the complaint of 2 December 2010 and noted:

… In the process of reviewing your complaint, I have considered the documentation that you lodged as part of your original complaint and subsequent correspondence between you and the OAIC, including the correspondence of 24 February 2009 from Dr Calvird’s legal representative which you provided to the OAIC on 2 January 2011 in support of your complaint, and your January 2011 statutory declaration emailed to the OAIC on 16 January 2011.

10    The delegate summarised the allegations made by the applicant, the law and the view of the Commissioner. The delegate concluded that:

As I am satisfied that Dr Calvird has met her obligations under the Privacy Act in terms of her collection and disclosure of your personal information and has not interfered with your privacy as alleged, I intend to decline to investigate your complaint under s41(1)(a).

However, before I make a final decision, I invite you to provide a response to this letter, should you wish to do so. I would appreciate receiving your written response by 8 September 2015. If I do not hear from you by this date, I will make a decision based on the available information and close your complaint.

(Emphasis omitted.)

11    The applicant responded in a series of emails dated between 15 November 2015 and 27 November 2015. The content of those emails is discussed further below.

12    On 28 March 2016, the delegate wrote another letter responding to each of the emails. He concluded:

I would appreciate any further responses or information you may have in relation to the OAIC’s view, outlined in this letter and our letter of 18 August 2015, that there has not been an interference, by Dr Calvird, with your privacy as defined in the Privacy Act in this instance.

I would appreciate receiving any response by 18 April 2016.

(Emphasis omitted.)

13    The applicant responded in a series of emails dated between 30 July 2016 and 19 August 2016. The content of those emails is discussed further below.

14    On 1 November 2016, the delegate wrote a final letter to the applicant. Again, the allegations made by the applicant, including in the recent email correspondence, the law and the view of the Commissioner were summarised. Relevantly, the delegate decided:

… I have considered the issues raised in your complaint and the further responses you have provided and I do not consider that Dr Calvird has interfered with your privacy, as defined in the Act in this instance. I am therefore closing this matter under s 41(1)(a) of the Act. I confirm the reasons for this below.

15    It is in respect of this decision of the delegate of the first respondent of 1 November 2016 that Dr Ogawa seeks judicial review.

Legislative scheme

16    The Act regulates the manner in which personal information is dealt with by certain organisations. Relevantly, s 13A(1) provides that, for the purposes of the Act, an act or practice of an organisation is an interference with the privacy of an individual if:

(b)    both of the following apply:

(i)    the act or practice breaches a National Privacy Principle in relation to personal information that relates to the individual;

(ii)    the organisation is not bound by an approved privacy code in relation to the personal information…

17    It is not in dispute that the second respondent, Dr Calvird, is an organisation within the parameters of s 13A(1)(b)(ii).

18    Section 36(1) of the Act states:

An individual may complain to the Commissioner about an act or practice that may be an interference with the privacy of the individual.

19    At the relevant time, an act or practice was characterised as an interference with the privacy of an individual if it breached a National Privacy Principle (NPP). The NPPs applied to acts and practices that occurred prior to 12 March 2014. At material times the relevant NPPs in force were NPP 1 (in Cl 1 of Sch 3 to the Act), NPP 2 (in Cl 2 of Sch 3 to the Act), NPP 3 (in Cl 3 of Sch 3 to the Act) and NPP 10.1(a) (in Cl 10 of Sch 3 to the Act). They were as follows:

1    Collection

1.1    An organisation must not collect personal information unless the information is necessary for one or more of its functions or activities.

1.2    An organisation must collect personal information only by lawful and fair means and not in an unreasonably intrusive way.

…

1.4    If it is reasonable and practicable to do so, an organisation must collect personal information about an individual only from that individual.

1.5    If an organisation collects personal information about an individual from someone else, it must take reasonable steps to ensure that the individual is or has been made aware of the matters listed in subclause 1.3 except to the extent that making the individual aware of the matters would pose a serious threat to the life or health of any individual.

2    Use and disclosure

2.1    An organisation must not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection unless:

(a)    both of the following apply:

(i)    the secondary purpose is related to the primary purpose of collection and, if the personal information is sensitive information, directly related to the primary purpose of collection;

(ii)    the individual would reasonably expect the organisation to use or disclose the information for the secondary purpose; or

(b)    the individual has consented to the use or disclosure;

...

3    Data quality

An organisation must take reasonable steps to make sure that the personal information it collects, uses or discloses is accurate, complete and up-to-date.

…

10    Sensitive information

10.1    An organisation must not collect sensitive information about an individual unless:

(a)    the individual has consented …

20    Section 40(1) of the Act provides that, subject to certain exceptions which are not relevant in this case, the Commissioner shall investigate an act or practice if the act or practice may be an interference with the privacy of an individual and a complaint about the act or practice has been made under s 36. Section 41(1)(a) of the Act provides that the Commissioner may decide not to investigate an act or practice about which a complaint has been made under s 36 if the Commissioner is satisfied that the Act or practice is not an interference with the privacy of an individual.

21    As Greenwood J explained in Jones v Office of the Australian Information Commissioner [2014] FCA 285 and repeated in the previous proceeding, the principles to be applied by this Court in reviewing the exercise of an administrative discretion in the context of s 41(1)(a) are as follows:

19        As to the s 41(1)(a) discretion, every statutory discretion, or discretionary power, is confined by the subject matter, scope and purpose of the legislation under which it is conferred (FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 368 per Mason J; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355) and every statutory discretion has to be exercised according to “the rules of reason” (R v Anderson; Ex parte Ipec-Air Pty Limited (1965) 113 CLR 177 at 189 per Kitto J; Minister for Immigration and Citizenship v Li (“Li”) [2013] HCA 18; 297 ALR 225; (2013) 87 ALJR 618 at [23] and [24] per French CJ). The rationality required by “the rules of reason” is an essential element in the lawfulness or legality of administrative decision-making (per French CJ at [26]). The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36; Kruger v Commonwealth (1997) 190 CLR 1 at 36; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429; 83 ALJR 1123 at [15]; Li, per Hayne, Kiefel and Bell JJ at [63]).

20        The exercise of an administrative discretion by the Information Commissioner, not to further investigate a complaint, conditioned on the Information Commissioner’s state of satisfaction (that the complained of act is not an interference with the privacy of the individual on the footing that he or she is satisfied that a relevant organisation reasonably believed that disclosure was reasonably necessary for the investigation of a criminal offence by an enforcement body), requires the Information Commissioner to be satisfied, according to the rules of reason, that the “specific requirements” of the “express statutory conditions” are established by the material upon which he or she relies. A decision made that fails to reflect a state of satisfaction taking the express statutory conditions into account, according to the rules of reason, is beyond power because it “falls outside the framework of rationality provided by the statute” (Li, per French CJ at [26]).

21        Importantly, however, a requirement of legality in decision-making that a decision be reached according to the rules of reason or, put another way for present purposes, reached reasonably, or not unreasonably reached, is not a vehicle for challenging a decision made in contended error of law and beyond power simply because “disagreement” is found with the “evaluative judgment” of the administrative decision-maker. Challenging an administrative decision-maker’s reasoning as illogical or unreasonable may simply be an emphatic way of expressing disagreement with the decision or the merits, and such emphatic disagreement may have “no particular legal consequence” (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J).

22        Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how the discretion should be exercised for that of the decision-maker. Accepting then, that there are limits on the Court’s supervisory jurisdiction and that a “standard of reasonableness” is not applied as a mechanism for merits review (or a vehicle for the Court substituting its own view of the manner of exercise of the discretion), but rather a feature of legality in decision-making, leaves open the question of how the standard “is to be applied and how it is to be tested” (Li, per Hayne, Kiefel and Bell JJ at [66]).

(Original emphasis.)

22    I respectfully adopt these principles.

Application for judicial review

23    In her application, Dr Ogawa relies on the following grounds of review:

1.    The decisions involved an error of law;

2.    The decisions were made taking an irrelevant consideration into account;

3.    The decisions were made failing to take a relevant consideration into account;

4.    There was no evidence or other material to justify the making of the decisions; and

5.    Such and other grounds that the Court thinks fit.

24    The applicant seeks the following orders:

1.    An order that the decisions of the first respondent made on 1 November 2016 be set aside and in lieu thereof an order that the applicant’s complaint of a breach of her privacy against the second respondent be investigated under s 40(1) of the Privacy Act 1988 (Cth).

2.    Such and other orders that the Court thinks fit.

3.    An order that the costs be paid by the first respondent.

25    Dr Ogawa has not filed written submissions. Her grounds of review are broadly expressed and unparticularised. The Court is left to surmise the error of law (if any), and the irrelevant or relevant considerations (if any), on which Dr Ogawa relies, and the basis on which Dr Ogawa claims that there was no evidence for the first respondent’s decision, from lengthy exchanges of emails and letters between Dr Ogawa and the first respondent which were annexed to affidavits filed in the proceeding.

26    The vague grounds of review and absence of submissions by the applicant would support an order simply dismissing the application forthwith for want of merit, and for failure to plead a case which the respondents can answer. I hesitate to do so in this case because:

    the applicant is a litigant in person (albeit clearly a litigant with experience of Court process);

    she has filed affidavits with detailed annexures;

    on further investigation, those annexures include correspondence with the first respondent from which Dr Ogawa’s grievances can, albeit with some difficulty, be gleaned; and

    the first respondent has filed evidence as well as submissions in which it addresses the issues it understands the applicant raises.

27    The risk, of course, in approaching the current application in these terms is that the Court is required to be creative in its identification of the actual grounds of review, and could fall into error by assuming that the applicant’s case is intended to be in the terms set out in her correspondence with the first respondent and the first respondent’s submissions.

28    On balance, in the interests of justice and efficiency as required by s 37M of the Federal Court of Australia Act 1976 (Cth), and on the basis that the applicant has not disputed the submissions of the first respondent filed on 5 May 2017, I will assume that the applicant intended her case to be in the terms summarised by the first respondent in his submissions.

Consideration

29    In considering whether the first respondent has validly exercised the discretion under s 41(1)(a) of the Act, it is incumbent on the Court to consider the circumstances which informed the delegate’s state of satisfaction that Dr Calvird had not interfered with Dr Ogawa’s privacy (because Dr Calvird had not breached the NPPs). As Greenwood J explained in Ogawa v Australian Information Commissioner [2015] FCA 152 at [68], the decision of the delegate must be one which was reasonably open to him on the evidence before him.

30    So far as I can ascertain from the emails from Dr Ogawa to the delegate sent between 30 July 2016 and 19 August 2016, Dr Ogawa’s grievances concerning the decision of the first respondent the subject of this application relate to various NPPs, namely NPP 1.4, 1.5, 2.1, 3, 4 and 10.1(a). However before turning to those grievances it is helpful to note the statement of the delegate in relation to NPP 1.1 and the material before him relevant to the making of the decision:

Based on this information, it is reasonable to accept that Dr Calvird considered that the information about whether or not you were in custody was necessary for her to form an opinion about whether or not you had failed to meet your obligations as set out in your undertakings to the Court. You had consented to Dr Calvird informing the CDPP about any failure to attend future appointments for treatment. Collection of information about the possible circumstances which led your [sic] apparent failure to re-schedule your 29 January 2009 appointment is in my opinion clearly appropriate and relevant for that purpose.

It is also reasonable to accept that Dr Calvird believed she was required to determine whether you simply chose to not reschedule your appointment (in other words, whether you failed to meet your obligations in accordance with your bail undertakings) or whether you were involuntarily prevented from rescheduling the appointment (in other words, due to no failure on your part).

31    In relation to each NPP to which Dr Ogawa referred in her emails, materially the delegate stated, in his reasons, as follows:

(1)    In relation to NPP 1.4:

The information before me indicates that the cancellation of your 20 January 2009 appointment was on the basis that you had to attend court, that Dr Calvird was aware you were on court bail, and that there was nearly a week between that day and the 5 February 2009 when Dr Calvird contacted the CDPP in which you made no attempt to contact Dr Calvird yourself to reschedule the appointment.

The fact that you had not rescheduled your appointment by 5 February 2009 was reason enough for Dr Calvird, under the authority you had given her, which had been mandated by a court as part of your bail conditions, to be able to contact the CDPP directly to advise them of the situation in relation to your appointments with her and to seek information about whether this absence of rescheduling was outside your control because you were in custody.

…

Therefore, the collection of information about whether you were in custody, in the phone call to the CDPP on 5 February 2009, was a collection of that information from the most practicable source, and was within the implied consent you had given to Dr Calvird in relation to the collection and disclosure of your personal information.

(2)    In relation to NPP 1.5:

I am satisfied that although Dr Calvird may not have specifically outlined to you that her assessment of you failing to attend future appointments may include collection of certain information from the CDPP in the context of your whereabouts, you were aware that Dr Calvird was required to make an assessment and therefore implicitly that they may require some collection of information from the CDPP to enable that assessment to be appropriately made. Given that, I find that Dr Calvird has taken reasonable steps through discussing with you on 18 December 2008, the circumstances in which she would need to inform the CDPP of non-attendance and therefore has not interfered with your privacy under NPP 1.5 in this instance.

(3)    In relation to NPP 2.1:

The issue is whether the disclosure off information to the CDPP about when Dr Calvird last saw you, the reduction in your treatment sessions because of your move to Lismore, the fact that Dr Calvird had attempted to make contact with you to determine whether or not you intended to make further appointments, and the fact that you had a mobile phone on which messages cannot be recorded, fell within the scope of the consent you provided.

The information disclosed by Dr Calvird to the CDPP relates to the cancellation of your appointment on 29 January 2009, and the absence of any rescheduling of that appointment and the context surrounding this. I am of the view that the disclosure of this limited set of information to the CDPP is within the terms of your consent as it appears that this information would be relevant to either assessing whether you had failed your bail condition, or notifying the CDPP that you may have failed your obligation to “undertake all treatment… recommended by Dr Calvird” or “undertake all treatment… recommended by Dr Calvird” or “attend all future appointments.”

The information provided to the CDPP by Dr Calvird provided context around the cancellation of your 29 January 2009 appointment with Dr Calvird, and the absence of any rescheduling of that appointment. I am of the view that the scope of your written consent was sufficient to cover possible circumstances surrounding the likelihood of future non-attendance.

(4)    In relation to NPP 3:

Your allegation of Dr Calvird disclosing false information about you appears to stem from a telephone conversation between the CDPP solicitor and Dr Calvird, during which Dr Calvird informed the CDPP solicitor that an email was sent on behalf of Dr Calvird to you on 16 February 2009 but you did not reply.

A 25 February 2009 letter from Dr Calvird’s legal representative which you provided to the QAIC on 8 January 2011 in support of your complaint makes it clear that the email sent to you was not transmitted successfully. It is also clear that subsequent to the resending of the email to you on 17 February 2009, you responded promptly. As acknowledged by Dr Calvird, this information was not available to Dr Calvird at the time of her telephone conversation with the CDPP solicitor, and as a result, Dr Calvird disclosed information about you the CDPP which was inaccurate.

In an attempt to remedy the matter, a letter was subsequently forwarded to the CDPP solicitor advising of Dr Calvird’s error. The QAIC accepts that Dr Calvird took reasonable steps to correct the information once she was aware of the inaccuracy.

…

Dr Calvird’s representative in her 25 February 2009 letter to you advised that the staff member who attempted to send the email to you presumed it had been successfully transmitted on 16 February 2009 and therefore that you had received it more or less instantaneously. For the purposes of NPP 3 it is sufficient that Dr Calvird confirmed with the staff member that the email had been sent and that the staff member, not being notified at that time that it was otherwise, presumed it had been.

(5)    In relation to NPP 4 the delegate made no comment.

(6)    In relation to NPP 10.1:

The NPPs do not require that an individual give his or her consent to the collection of that individual’s personal information. However there is a general prohibition on the collection by an organisation of the sensitive information of an individual. One of a number of exceptions to that prohibition is where an individual has given consent to the collection of that information.

…[I]nformation about whether or not an individual is held in custody could arguably fall within the ambit of criminal record information. However for the following reasons it is unnecessary for the OAIC to determine this issue.

I am of the view that your consent authorising Dr Calvird to inform the CDPP about your failure to attend appointments, impliedly included consent to the passing of necessary information between Dr Calvird and the CDPP so that Dr Calvird could accurately inform the CDPP about your failure to attend for treatment. On this basis, I am of the view that there was implied consent by you to Dr Calvird’s collection of this information and that NPP 10.1 has not been breached.

Consent is defined in the Act to mean express consent or implied consent. Implied consent can be reasonably inferred in the circumstances from the conduct of the individual and the organisation. Therefore, implied consent may not be documented in material evidence or records.

You gave your express consent in writing authorising Dr Calvird to inform the CDPP about whether or not you failed to take all medicines and/or prescribed or recommended treatments, or failed to attend appointments for treatment.

In the circumstances of your matter Dr Calvird needed to form an opinion about whether or not you had failed to comply with your bail undertakings (that is, failed to attend appointments for treatments with Dr Calvird and take medications and treatments prescribed or recommended by Dr Calvird). The information about whether or not you were remanded in custody was directly relevant to Dr Calvird forming an opinion about whether or not you “failed” to reschedule your appointment for treatment. It was given in the context of a discussion about whether or not there was some reason beyond your control which prevented you from rescheduling your appointment.

The OAIC considers that it is reasonable for you to expect that in notifying the CDPP about whether or not you had complied with your bail conditions, it may have been necessary for Dr Calvird to collect certain information to assist in the formulation of her opinion to the CDPP.

32    So far as I can ascertain from examining Dr Ogawa’s emails to the delegate, her grievances (and, presumably, her case against the respondents before me) can be synthesised from the following extracts from those emails:

(1)    In relation to NPP 1.4:

The decision involved an error of law in that the decision maker misconstrued that NPP1.4 did not require an organisation to collect personal information about an individual from that individual if it was not the most efficient way to obtain the information even though it were reasonable and practicable to do so.

-    Dr Michele Calvird could have sent an email to me.

The decision involved an error of law in that the decision maker misconstrued that the requirement under NPP1.4 can be waived by an “implied consent” of the individual whose personal information was to be collected.

-    Consent to disclosure does not include consent to collection.

There was no evidence or other material to justify the making of the decision in that there was no evidence or material to establish that the complainant had implied consent to Dr Michele Calvird to collect the complainant’s personal information from the third party.

-    Consent to disclosure does not include consent to collection.

(2)    In relation to NPP 1.5:

The decision involved an error of law in that the decision maker misconstrued that the requirement under NPP1.5 can be satisfied by taking no step to ensure that the individual is or has been made aware of the matters listed in subclause 1.3.

There was no evidence or other material to justify the making of the decision in that there was no evidence or material to establish the complainant’s knowledge of Dr Michele Calvird’s collection of the complainant’s personal information from the CDPP.

-    In fact, I did not know that Dr Michele Calvird had collected my personal information from the CDPP until the CDPP served their court documents on me.

(3)    In relation to NPP 2.1:

The making of the decision was an improper exercise of the power in that the decision maker when exercising a power failed to take account of the fact that:

i)    At the first consultation with Dr Calvird on 18 December 2008, she told the complainant that she had to inform the CDPP if the complainant failed to attend an appointment with her or the complainant failed to take prescribed medications, but that otherwise what was discussed between the complainant and by Dr Calvird was subject to doctor client confidentiality and would not be disclosed to anyone including the CDPP; and/or

ii)    In response to a question the complainant raised with Dr Calvird about the possibility of her notes being subpoenaed by the CDPP, she assured the complainant that confidentiality would be observed except in respect of information concerning the complainant’s failure to attend an appointment and take prescribed medications or in the event her notes were subpoenaed.

-    You have not been able to explain why these facts are irrelevant or should be disregarded.

There was no evidence or other material to justify the making of the decision in that there was no evidence or material to establish that the complainant had given implied consent to Dr Michele Calvird to disclose that the complainant was moving to Lismore.

There was no evidence or other material to justify the making of the decision in that there was no evidence or material to establish that the complainant had given implied consent to Dr Michele Calvird to disclose that Dr Michele Calvird would be reducing the frequency of her appointment to see the complainant.

There was no evidence or other material to justify the making of the decision in that there was no evidence or material to establish that the complainant had given implied consent to Dr Michele Calvird to disclose that the complainant had a mobile phone.

There was no evidence or other material to justify the making of the decision in that there was no evidence or material to establish that the complainant had given implied consent to Dr Michele Calvird to disclose that Dr Michele Calvird saw the complainant on 22 January 2009.

(4)    In relation to NPP 3:

This decision involved an error of law in that the decision maker misconstrued that, “taking reasonable steps” under NPP3 includes having an intention without taking action.

-    The fact is that Dr Calvird, after asking the staff member to send me an email, never asked the staff member whether an email had been sent.

The making of the decision was an improper exercise of the power in that the decision maker when exercising the power took account of an irrelevant consideration, namely that Dr Michele Calvird is an individual health service provider.

The making of the decision was an improper exercise of the power in that the decision maker when exercising the power failed to take account of the fact that:

i)    Dr Calvird had always asked a staff member to undertake administrative work on behalf of her;

ii)    Dr Calvird had picked up the telephone by herself to call the CDPP whenever she wanted;

iii)    Dr Calvird had taken no steps to correct her false information until after she received my subpoena issued by the Court; and/or

iv)    Dr Calvird had instructed a solicitor to refuse her attendance at court to correct her false information.

(5)    In relation to NPP 4:

-    I noticed that you had not considered NPP4.1

(6)    In relation to NPP 10.1(a):

There was no evidence or other material to justify the making of the decision in that there was no evidence or material to establish that the complainant had given implied consent to Dr Michele Calvird to collect the complainant’s sensitive information.

-    Consent to disclosure does not include consent to collection.

33    In respect of the issues raised by Dr Ogawa I make the following observations.

34    First, NPP 1.4 provides that if it is reasonable and practicable to do so, an organisation must collect personal information about an individual only from that individual. The delegate examined the facts and found that it was not reasonable and practicable for Dr Calvird to collect the information from Dr Ogawa directly given the particular circumstances of the case. Speculation concerning action Dr Calvird could have taken formed part of the consideration of the delegate, who concluded that Dr Calvird had not acted inappropriately. There is no error of law in respect of this reasoning process.

35    In relation to whether “implied consent” of the individual is relevant under NPP 1.4, and whether in fact Dr Ogawa had impliedly consented to the collection of information by Dr Calvird from the Commonwealth Director of Public Prosecutions (the CDPP), the Commissioner made no error of law in stating Dr Ogawa had given implied consent to Dr Calvird to collect information from the CDPP if was not reasonable and practicable to collect that information from Dr Ogawa. Dr Ogawa had expressly consented to Dr Calvird notifying the CDPP of any failure by Dr Ogawa to comply with her obligations to (inter alia) attend appointments with Dr Calvird and take prescribed medication. As the Commissioner found, when Dr Ogawa failed – without explanation – to reschedule an appointment, did not contact Dr Calvird, and to Dr Calvird’s knowledge did not respond to an email from Dr Calvird, it was reasonable for Dr Calvird to have postulated that Dr Ogawa may have been taken into custody and was therefore prevented from making the relevant appointment with or otherwise contacting Dr Calvird. In forming an opinion, as Dr Calvird was required to do, as to whether Dr Ogawa had failed to attend appointments for treatment with her (including scheduling appointments with Dr Calvird), it was open to the delegate to find that Dr Calvird could make appropriate inquiries to ascertain whether Dr Ogawa was prevented from attending such an appointment. In this context, I see no error in the finding of the Commissioner that the passing of information between Dr Calvird and the CDPP was reasonably necessary in the context of Dr Calvird reporting any breach of Dr Ogawa’s bail undertaking to the CDPP. To that extent, in the circumstances of this case I reject Dr Ogawa’s statement that “consent to disclosure does not include consent to collection”.

36    Second, NPP 1.5 provides (materially) that, where an organisation collects information about an individual from a third party, it must take reasonable steps to ensure that the individual was or has been made aware of matters set out in NPP 1.3(c), relevant to the purpose for which the information was being collected. Dr Ogawa’s concerns relate to the alleged absence of evidence to establish her knowledge of Dr Calvird’s collection of personal information from the CDPP, and her statement that she was unaware of the collection of that information until she was served court documents by the CDPP. However the delegate, in some detail, had regard to information provided by Dr Calvird to Dr Ogawa at the initial treatment session on 18 December 2008 and the discussion of Dr Calvird and Dr Ogawa concerning the circumstances in which Dr Calvird would be required to notify the CDPP of future non-attendance by Dr Ogawa. I do not consider that the delegate misconstrued the requirement under NPP 1.5 or that there was no evidence to justify the delegate in its findings referable to NPP 1.5.

37    Third, materially NPP 2.1 provides (inter alia) that an organisation must not use or disclose personal information about an individual for a purpose other than the primary purpose of collection unless the individual has consented to the use or disclosure of that information. I understand that Dr Ogawa’s concerns in respect of this NPP related to disclosure by Dr Calvird to the CDPP of Dr Ogawa’s relocation to Lismore, and to the facts that Dr Calvird would be reducing the frequency of appointments, Dr Ogawa had a mobile phone, and Dr Calvird saw the complainant on 22 January 2009. In my view, notwithstanding Dr Ogawa’s claims:

    no improper purpose attended the decision of the delegate in respect of NPP 2.1;

    as I have already observed, it was open to the delegate on the evidence before him to form the view that Dr Ogawa had impliedly consented to disclosure by Dr Calvird to the CDPP of information relating to Dr Ogawa’s failure to attend her office for treatment; and

    in the circumstances of the case it was open to the delegate to conclude that Dr Ogawa had impliedly consented to the disclosure by Dr Calvird to the CDPP of the information the subject of her complaint.

38    Fourth, NPP 3 provides that an organisation must take reasonable steps to make sure that the personal information it collects, uses or discloses is accurate, complete and up-to-date. In this case I am satisfied that the delegate had regard to the evidence before him, including the terms of the authorisation given by Dr Ogawa to Dr Calvird, the terms of collection and disclosure, the reasonable presumption of Dr Calvird that an email sent by her administrative staff to Dr Ogawa’s email address had been successfully sent and received, and the steps taken by Dr Calvird to ensure the accuracy of the information including consultation by Dr Calvird with her staff. It was open to the delegate to find that Dr Calvird had taken reasonable steps to check the information she had collected and to correct her error concerning the despatch of the email to Dr Ogawa (including informing the CDPP) on discovery of the error. I find no error on the part of the delegate in relation to NPP 3.

39    Fifth, Dr Ogawa asserted that the delegate had not had regard to NPP 4.1, which provides materially that an organisation must take reasonable steps to protect the personal information it holds from misuse and loss and unauthorised access, modification or disclosure. Dr Ogawa’s concerns in relation to NPP 4.1 are unclear. No issue is apparently taken by Dr Ogawa with the data security processes and procedures employed by Dr Calvird in respect of Dr Ogawa’s personal information. Without particularisation, NPP 4.1 appears irrelevant in the circumstances of this case.

40    Sixth, materially NPP 10.1 provides that an organisation must not collect sensitive information about an individual unless the individual has consented. “Sensitive information” includes information about an individual’s criminal record (NPP 9). So far as I can understand Dr Ogawa’s case, she takes issue with the collection by Dr Calvird of information concerning whether Dr Ogawa had been returned to custody. However for reasons I have already explained referable to the Dr Calvird’s obligation to form an opinion about whether or not Dr Ogawa had failed to comply with her bail undertaking, and Dr Ogawa’s implied consent to Dr Calvird disclosing and, as necessary, collecting information, I am satisfied that it was open to the delegate to conclude that Dr Ogawa had consented to the collection by Dr Calvird of information concerning whether Dr Ogawa had been returned to criminal custody. Dr Ogawa’s claim that there was no evidence to support this conclusion by the delegate lacks merit.

Conclusion

41    In light of the absence of particularised grounds of review or submissions by Dr Ogawa, but nonetheless taking into account the claims made by Dr Ogawa in her emails to the first respondent between 30 July 2016 and 19 August 2016, I am satisfied that no meritorious grounds for review of the delegate’s decision have been advanced for consideration by the Court. The appropriate order is to dismiss the application for review.

42    No submissions have been advanced by Dr Ogawa concerning orders as to costs. The first respondent seeks its costs. On the basis that no basis has been demonstrated for departing from the usual orders as to costs the appropriate order is to award costs to the first respondent.

Associate:

Dated:    9 March 2018