Waters, Nigel --- "NSW Government fails the test on student violence allegations" [2002] PrivLawPRpr 46; (2002) 9(6) Privacy Law and Policy Reporter 109

NSW Government fails the test on student violence allegations

Nigel Waters

In May 2002, NSW Privacy Commissioner Chris Puplick issued a special report to the NSW Parliament arising from the widely publicised incident in April 2001 when a NSW Minister alleged in Parliament that a high school student had written in his diary about shooting and had access ,to a gun.

The report, made under s 65 of the Privacy and Personal Information Act 1998 (NSW) (the Act), followed an investigation into a complaint by the student and his father against the Minister for Education and two of his staff.

The report is significant not so much for any substantive finding about the incident as for a range of jurisdictional and procedural issues that arose.

The case was complicated by the fact that the central disclosure by the Minister in Parliament was protected ,by parliamentary privilege. The Commissioner accepted this and confined his special report to the associated disclosures outside Parliament by the Minister and his staff.

The Minister also challenged the Commissioner’s jurisdiction to handle a simultaneous complaint from the Leader of the Opposition on the grounds that the complaint was from a third party. Because the Act is silent on this, the Commissioner confined his report to ,the complaint from the student and ,his father, but recommended that Parliament consider the question of acceptance of third party complaints under the Act.

A further complication was the understandable reluctance of journalists to reveal their sources or to co-operate with the Commissioner in ascertaining who said what to whom and when. (This is a recurrent problem in investigation of disclosures — see the Federal Privacy Commissioner’s Complaint Determination No 2 of 1993, A & B v Minister and Secretary of Administrative Services.)

Another hurdle was the inability of the Commissioner to locate one of the Ministerial staffers involved, and the lack of co-operation by the Minister or Premier’s Department in locating him.

Because the respondents sought advice from the Crown Solicitor, the Privacy Commissioner was obliged to take advice from the private Bar in ,this case.

The first major issue arising was the question of ‘constructive identification’. None of the statements by the Minister or his staff actually named the student. There would only have been a disclosure of personal information if the ‘identity [of an individual] is apparent or can reasonably be ascertained from the information’ (s 4(1)).

The Minister argued first that the ,Act did not contemplate constructive identification, and second that the disclosures did not identify any particular student.

The Commissioner determined that the disclosures had provided enough information to allow the student to be identified at least by other students and teachers, and cited in support of this the reported perceptions of the student.

Also at issue was the standard against which the alleged conduct should be judged. The Information Protection Principles (IPPs) in the Act apply only ,to actions of agencies (not individual employees, and not Ministers) and there was some doubt about whether the Premier’s Department, which employs Ministerial staff, was directly liable.[1] But the Commissioner also has a ,role under the Act to investigate interferences or violations of privacy more generally, for which purposes he uses the 1991 Data Protection Principles (DPPs) (developed by the former Privacy Committee) as the benchmark, together with the Prosser tests (named after ,an American legal academic who summarised a tort of privacy invasion). Unlike the IPPs, neither the DPPs nor the Prosser tests have the force of law, but they have been consistently used ,by the Privacy Committee and Privacy NSW. In this case, the Commissioner assessed the actions of the respondents against both the IPPs and the DPPs/Prosser standards.

The Commissioner concluded that the actions of the Minister and his staff were variously inconsistent with DPPs 8 and 10, and may have breached IPPs 9 and 11 (for which the Premier’s Department would potentially be liable). The violations of the student’s privacy arose from the failure to check the accuracy of the information about access to a gun (DPP 8 and IPP 9) and the disclosure ,of personal information to the media without consent or lawful authority ,(DPP 10 and IPP 11). (Because of the jurisdictional technicalities, the specific findings were more complicated.)

Perhaps of greater concern than the actual infractions is the Commissioner’s finding that ‘there appears to be an inadequate understanding by all parties concerned of their obligations under [the Act], and it appears that little or ,no thought was given to the privacy rights of Student A or his family’.

From a wider perspective, even more worrying is the determined efforts by the Minister to block the investigation, and his subsequent rejection of the report’s findings. In a statement to Parliament on 7 May 2002, the Minister reiterated his earlier apologies, but said that ‘the NSW Government rejects the conclusion that the State Government impinged on the student’s privacy or breached privacy guidelines. ... [it] rejects the assertion that the student was constructively identified. [and] ... [it] rejects the Privacy Commissioner’s recommendation that he be given more power and that he should be able to investigate third party complaints’. The rejection of constructive identification ,is particularly troubling (and baffling) given that the Act very clearly anticipates, in the definition of personal information, that naming an individual would not be a condition precedent to the making of a privacy complaint.

Regrettably this incident has proved yet again that governments (of all political persuasions) are notoriously unwilling to accept the verdict of umpires established under ‘rights’ legislation, particularly where there ,is a clear party-political dimension — continually sending a message to public servants that undermines respect for ,the underlying objectives of the law.

It should be noted that the special report emphasises the procedural fairness of the investigation and reporting process — which no doubt contributed to its 12 month duration. The Commissioner’s investigation led to a non-public report under s 50 ,of the Act, which was provided to ,the parties in October 2001. The respondents were invited to comment and also notified that the Commiss-ioner also intended to make a special report to Parliament under s 65. A draft of the special report was provided to the respondents in April 2002 and their views considered before the report was finalised.

This was the second special report made by the Commissioner under s 65. The first report, made in September 2001, resulted from a complaint Atkins v Queanbeyan City Council.

Nigel Waters, Associate Editor.

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[1] The Commissioner took the view that the Premier’s Department was potentially liable for the actions of the Ministerial staff, but whether the Department had breached the IPPs could only be determined formally after an internal review under Pt 5 of the Act and/or proceedings in the Administrative Decisions Tribunal.