FM and FN v Department of Community Services [2008] NSWADT 288 (24 October 2008)

Last Updated: 11 November 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
FM and FN v Department of Community Services [2008] NSWADT 288


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANTS
FM and FN

RESPONDENT
Department of Community Services



FILE NUMBERS:
083102
083103

HEARING DATES:
22 September 2008

SUBMISSIONS CLOSED:
22 September 2008



DATE OF DECISION:
24 October 2008

BEFORE:
Montgomery S - Judicial Member





LEGISLATION CITED:
Privacy and Personal Information Protection Act 1998

CASES CITED:
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24 ALR 577
GR v Department of Housing (No.2) [2005] NSWADT 301
GR v Director-General Department of Housing [2004] NSWADTAP 26
JD Medical Board [2006] NSWADT 345
JD v NSW Medical Board (No.2) [2006] NSWADT 345
NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61
NZ v Director General Department of Housing [2006] NSWADT 173
RD v Department of Education and Training [2005] NSWADT 195
Re Rummery & The Federal Privacy Commissioner & Anor [2004] AATA 1221
Shi v Migration Agents Registration Authority [2008] HCA 31
WT v Auburn Council [2007] NSWADT 253
WT v Auburn Council [2008] NSWADTAP 16

TEXTS CITED:


APPLICATION:
Privacy - information protection principle - disclosure to third party

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person
RESPONDENT
S Clarke, solicitor


ORDERS:
1. In matter No. 083102, pursuant to section 55(2)(a) of the Privacy and Personal Information Protection Act 1998, the Department of Community Services is to pay to the applicant damages in the sum of $5,000
2. In matter No. 083103, pursuant to section 55(2)(a) of the Privacy and Personal Information Protection Act 1998, the Department of Community Services is to pay to the applicant damages in the sum of $5,000.


Reasons for Decision:

REASONS FOR DECISION

1 The Applicants have each applied to the Tribunal for a review of conduct of the Department of Community Services ("the Department") pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 ("the Act"). The parties have agreed that the two matters should be heard together because of their common circumstances. Evidence is one case is to be regarded as evidence in the other.

2 In these reasons the names of private individuals have been anonymised so as to preserve the privacy of their personal affairs. In these reasons the Applicants are referred to as FM and FN. I have also limited my discussion of the Applicants’ evidence in order to avoid the possibility that their identities might be revealed.

3 The Applicants allege that in October 2007 the Department breached the Act by providing FM’s mother with a copy of a report relating to the Applicants ("the report"). The report resulted from an assessment of the Applicants to establish that they were appropriate to be carers for FM’s nephew. FM’s mother had previously cared for the nephew but had become unable to care for him. An assessor contracted by the Department of Child Safety, Queensland, on behalf of the Department, conducted the assessment and produced the report. During the assessment, the Applicants had discussed sensitive aspects of their past with the assessor.

4 The Applicants asserted that they had given the information in confidence and understood that the report would only be used and viewed by officers of the Department. It is not in dispute that FM’s mother was given a copy of the report. The Department included the Applicants’ personal information in evidence filed in court hearings for FM’s nephew and it failed to advise the Applicants that their personal information would be used in evidence. FM’s mother was given a copy of that evidence.

5 FM’s mother was angered and upset by some of the material that was contained in the report. The Applicants allege that the disclosure of the report has caused tension between themselves, with FM’s mother and with other family members, and that it has caused them stress, anxiety and depression.

6 Each Applicant applied to the Department for an internal review of the Department’s conduct in providing FM’s mother with a copy of the report. The significance of the provision of the report to FM’s mother can been seen from the following statement in FM’s internal review application:

The disclosure of this information caused a broken relationship between my mother and me. Information contained in this document described how I viewed my early childhood and issues that have never been resolved between my mother and me. I had no intention of raising these issues with my mother as they were too painful. After several years of not having a relationship with my mother due to painful memories of my childhood, I had established a positive relationship and past issues were long forgotten. The release of my personal views of my upbringing to my mother has now destroyed our relationship. This has caused me deep depression and stress related illness including nightmares about my mother. I find it hard to sleep since this happened.

7 FN raised similar issues. It is not in dispute that the report contained very personal information concerning FN that was not previously known to FM’s mother or other members of FM’s family.

8 An internal review was conducted and it was established that a breach of the Act had occurred in relation to each of the Applicant's complaints. It was found that the Department breached sections 17 and 18 of the Act. As a result of those findings, the Department took a number of steps. These are summarised in the internal review reasons as follows:

Actions taken by the Department

The internal review found that a verbal apology was made to you by Steve Blackburn, Manager Casework, Parramatta Community Services Centre, for failing to inform you of how your personal information would be used.

The internal review found that a letter of apology was sent to you and [FN] from Loyce Willis, Manager Client Services, Parramatta Community Services Centre, on 30 November 2007.

The internal review also found that Dianna Costa, Caseworker, Parramatta Community Services Centre, informed [FN] on 23 October 2007 by e-mail that [FM’s mother] had told her that she had no intention of photo copying the report, or showing the report to anyone.

[The Department] acknowledges your request for a change in policy or practices and training for the staff involved in this matter. I wish to advise you that the Department is reviewing current policies and procedures in relation to personal information provided to parties during court proceedings. Appropriate training will be provided to staff following the review.

I am aware that Steve Blackburn sent a letter to [FM’s mother] on 12 December 2007 apologising for any distress or family issues that have been caused from her receiving a copy of the placement assessment report concerning [FM’s nephew]. This letter advised her that if she photocopied and distributed, or showed the assessment report to anyone, she would be in contempt of the court.

The internal review found that [FM’s mother] returned the assessment report to [the Department] on 6 February 2008. The internal review found no evidence that [FM’s mother] has photocopied and distributed the assessment report to any other person.

9 The parties have agreed that, as the breaches of the Act have been admitted, the issue to be decided by the Tribunal is that of damages.

Applicable legislation

10 The Applicants are seeking compensation under section 55(2)(a) of the Act. Section 55 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.

(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,

...

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

...

(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.

...

The Applicants’ cases

11 The Applicants each gave evidence on their own behalves. They provided their individual stories with respect to the loss and harm that they assert that they have suffered as a consequence of the release of their personal information. Each explained the impact on their careers and their personal lives.

12 Each gave evidence that they have been experiencing a lot of stress a result of the release of their personal information. They have been preoccupied about the matter and that has taken up much of their time and mental energy.

13 Each Applicant provided an Employment Separation Certificate signed by their former employer; a medical certificate certifying that they were unfit for work for a specified period; and referrals to personal support programmes.

14 Each gave evidence that they have been unable to continue in their previous employment and provided documentation to show their previous income levels. They also provided documentation to support their assertions that they each suffered a material psychological injury that started immediately on learning of the breach, and has continued since that time.

15 Each says that the discovery of the breach was a clear precipitating factor in the deterioration of their health. They gave evidence of the psychological support that they had received in an effort to cope with their circumstances. Each says that they are unable to afford the cost of a report from a psychologist or psychiatrist.

16 Each of the Applicants argues that they have suffered financial loss, as a consequence of their lost employment, and psychological harm in the form of depression and anxiety. They seek compensation for this loss. They also say that the Department should pay aggravated damages because of its initial refusal to acknowledge its breaches of the Act and its failure to acknowledge the impact of those breaches.

The Department’s cases

17 The Department submits that the Tribunal should decline to award damages to the Applicants or alternatively that any amount awarded should be at the lower end of the range of damages generally awarded under the Act.

18 The Department relies on the affidavit evidence of Ms Dianna Costa, a caseworker employed by the Department and of the Department’s Manager Casework, Mr Steven Blackburn. Mr Blackburn attended the hearing and was subjected to cross-examination.

19 The evidence is that Ms Costa received the report by email and that she annexed the report to an affidavit prepared in relation to an application to vary the Children's Court Care Order relating to FM’s nephew. The variation was necessary to facilitate FM’s nephew's transition into the Applicants' care. The affidavit was sworn and filed with the assessment report attached at Parramatta Children's Court. In accordance with Children's Court procedure, Ms Costa served a copy of the affidavit, with the report attached, on FM’s mother, who was a party to the Children's Court proceedings.

20 The Department does not dispute that FM’s mother was angered and upset by some of the material that was contained in the report or that the disclosure of the report to FM’s mother has caused tension between the Applicants themselves and with FM’s mother and other family members, and that it has caused them emotional distress.

21 The Department submits that the Tribunal's power under section 55(2)(a) to make an order that an agency pay damages is discretionary, even where a breach has occurred. In support of this submission Ms Clarke referred to views expressed by the Tribunal’s President in NW v New South Wales Fire Brigades (No 2) [2006] NSWADT 61 where he stated at paragraphs 23 - 24:

23 In my view the award of statutory damages in Privacy Act matters remains a discretionary one even where a causal link sufficient to satisfy section 55(4). That the position under this statute is less automatic is reflected, I consider, in the language of the opening words of section 55(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’ (Emphasis added).

24 These words do not preclude the possibility that the Tribunal might find a contravention, might find a causal link between the contravention and harm suffered and make no order. The matter of what to do after reviewing the conduct is left entirely to the Tribunal. Then if it is minded to make an order involving payment of damages the rule in section 55(4)(b) comes into play. It does not follow that if a causal link to satisfy section 55(4)(b) is found that the Tribunal must award damages. It still remains a discretionary matter. As I see it, there is no ‘right’ to compensation in the way that might be the case under common law principles in tort and contract."

22 The Department submits that before exercising its discretion under section 55(2)(a), the Tribunal must firstly be satisfied that the Department's conduct caused the Applicant to suffer 'financial loss, or psychological or physical harm'. It relies on the decision in WT v Auburn Council [2007] NSWADT 253 as authority for this principle. The Department relies on the Appeal Panel decision in GR v Director-General Department of Housing [2004] NSWADTAP 26 as authority for this principle that it is the responsibility of the Applicants to produce evidence of causation.

23 In the current matter, the Applicants both allege that they have experienced anxiety and depression as a result of the Department's breach of the Act. The Department concedes that it has been established in JD Medical Board [2006] NSWADT 345 and WT v Auburn Council that anxiety and depression can constitute psychological harm for the purposes of sections 55(4)(b) and 55(2)(a) of the Act. However it submits that the Applicants have failed to demonstrate adequately that they have experienced depression and anxiety of a nature that would constitute psychological harm and have thus failed to satisfy either arm of the section 55(4)(b) test.

24 The Department submits that in order for an applicant to sustain an argument that they had experienced 'psychological harm', evidence to that effect would need to be elicited from a psychologist or psychiatrist. The Applicants have not provided that type of evidence in this matter. None of these documents appear to have been written by a psychologist or psychiatrist. While it is possible that some of the authors of the documents have qualifications in psychology or psychiatry, no such information can be gleaned from the documents themselves.

25 A doctor certified that FM was unable to work due to depression and anxiety, and that FN was unable to work due to depression. However in each instance the certificate was for a short period. The doctor’s area of practice is not evident from either of the documents.

26 The Employment Separation Certificates indicate that each of the Applicants ceased to work due to family related issues. However, prior to and at the time of the breach, the Applicants' relationships both with one another and with their extended families were at the least strained. The Department submits that, from the limited information and material provided by the Applicants, it cannot be determined that the Department's breach of the Act has caused family tension resulting in the Applicants experiencing stress and anxiety that would constitute psychological harm.

27 The Department submits that the Tribunal does not have evidence that would allow it to distinguish between anxiety and depression, which could constitutes 'psychological harm', and hurt feelings or sadness. It argues that compensation could not be awarded if the Applicants have merely experienced hurt feelings or sadness.

28 The Department relies on the decision in GR v Director-General Department of Housing for its further submission that the evidence provided by an applicant as to the existence and causation of psychological harm must provide sufficient detail to support an award of compensation under section 55(2)(a). The Department submits that the Applicants’ documents are not sufficient to support their assertion that they have experienced psychological harm as a result of the Department's breaches. Accordingly, the applications should be dismissed.

Findings

29 Section 63(1) of the Administrative Decisions Tribunal Act 1987 provides that in determining an application for a review, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, taking account of any relevant material and any applicable written or unwritten law. See further Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24 ALR 577 at 589 and most recently Shi v Migration Agents Registration Authority [2008] HCA 31.

30 As indicated above, there is no dispute in regard to the Department's breaches of the Act. The issue for determination is whether each of the Applicants is entitled to compensation for the breaches.

31 The Tribunal's ability to make damages orders is limited to situations where the harm suffered by the applicant is "because of" the conduct of the agency.

32 As submitted by the Department, the award of damages is discretionary. The Tribunal has considered the question of compensation under the PPIP Act on a number of occasions. Judicial Member Higgins summarised the principles set out in a number of those decisions in WT v Auburn Council at paragraph [27]:

27 The principles set out in the abovementioned decisions and which are relevant to this applicant are:

(a) that damages are compensatory in that the applicant should be awarded such sums of money so as that he/she may be restored to the position that he/she would have been in but for the breach: see [GR v Department of Housing (No.2) [2005] NSWADT 301] at [26] and [Re Rummery & The Federal Privacy Commissioner & Anor [2004] AATA 1221] at [32]. However, this must also be viewed in the context of the $40,000 limit as provided for in the PPIP Act;

(b) in measuring compensation the principles of damages as apply in tort law are a guidance but the ultimate guide is the wording of the PPIP Act and its objectives: see [NW v New South Wales Fire Brigades (No 2)] at [22];

(c) compensation should be assessed having regard to the complainant’s reaction and not to the perceived reaction of the majority of the community or of a reasonable person in similar circumstances: see Rummery (supra) at [46] as adopted in [NZ v Director General Department of Housing [2006] NSWADT 173]at [35];

(d) ‘psychological harm’ in section 55(4) of the PPIP Act is intended to encompass situations where an individual suffered some impairment of the mental states and processes. These being conditions such as depression and anxiety: see [JD v NSW Medical Board (No.2) [2006] NSWADT 345] at [53]; and

(e) even where an applicant is able to substantiate loss or damage as a result of conduct that contravenes an ‘information principle’ under the PPIP Act, an award of damages under that Act remains a discretionary one: see NW (supra) at [23] and [24] and cf. Re Rummery (supra) at [32].

33 If the Tribunal is of the view that there is a causal connection between an agency's conduct and an applicant's psychological damage, it is "not to the point that the applicant was particularly fragile, vulnerable or even that he was pre-disposed to injury of this kind": GR v Department of Housing at paragraph [23]. Thus, the fact that the Applicants may be susceptible to depression or may have already been the subject of family disharmony does not affect any entitlement to compensation that they may have.

34 When making a claim for compensation under section 55(2)(a), an applicant is required to produce evidence of causation. In GR v Director-General Department of Housing at paragraph [37] the Appeal Panel observed that it is an applicant's responsibility to put material before the Tribunal in support of an order in relation to section 55(2)(a). The Appeal Panel also commented on the need to assist an unrepresented applicant to ensure as far as is possible that the material supplied is sufficient to support a claim for compensation.

35 Section 55(2)(a) provides that the payment of damages is to be "by way of compensation". However, views expressed in RD v Department of Education and Training [2005] NSWADT 195 and NZ v Department of Housing suggest the possibility of a punitive damages award. In RD v Department of Education and Training the Tribunal’s President stated at paragraph [33]

33 It may be that in circumstances of this kind, where it would appear that the error was not remedied at the first point at which it could reasonably have been identified as having occurred, some punitive component should be incorporated into the damages award.

36 In this case the Applicants seek both awards of damages by way of compensation and awards for punitive damages. The Applicants contend that punitive damages are warranted because the Department initially denied the breaches and endeavoured to cover them up.

37 The Applicants assert both ‘psychological harm’ and ‘financial loss’. In JD v Medical Board (NSW) (No 2) I considered that the expression ‘psychological harm’ in section 55(4) "is intended to encompass a situation where an individual suffers some impairment of their mental states and processes" and includes depression and anxiety.

38 The Appeal Panel considered that the expression "financial loss" in WT v Auburn Council [2008] NSWADTAP 16. At paragraph [15] the Appeal Panel stated:

15 The reference to ‘financial loss’ in section 55(4)(b) is ordinarily to be understood as a reference to financial loss that has actually been incurred, and is able to be quantified. We accept, as we believe the Tribunal did, that in principle a financial loss might take the form of a loss of opportunity – to use the words of Lord Evershed in Kitchen v Royal Air Force Association [1958] 1 WLR 563 at 575 – ‘some right of value, some chose in action of reality and substance’.

39 In this case the Applicants claim compensation for both financial loss and psychological harm. Their loss has not been quantified but they assert that it is greater than the maximum amount that can be awarded. I must be satisfied, on the balance of probability, that (a) the Applicants have in fact suffered financial loss or psychological harm as alleged; and (b) that the loss or harm was in fact ‘caused’ by the Department’s conduct.

Financial Loss

40 The Applicants alleged financial loss relates to the time in which they say they were unable to continue in their employment. They each rely on their own evidence in regard to their personal circumstances at the time and documentary evidence to show the amounts that they had been earning prior to ceasing their employment. They each have medical certificates that indicate that they were unfit for work from 25 February to 3 March 2008 inclusive. The Employment Separation Certificates indicate that FM ceased to work due to 'stress resulting from family issues' and that FN ceased work due to 'personal family reasons'.

41 Prior to the hearing the Department expressed concern in regard to the limited evidence presented by the Applicants. The Applicants were offered an opportunity to repair the perceived omission. I note that the Applicants’ evidence is that they were unable to afford psychological reports that would support their assertions that they were unfit for work as a result of the Department’s conduct. For the same reason they do not have evidence to show that they continued to be unfit for work as a result of the Department’s conduct. This is an unfortunate situation. The consequence is that neither the Department nor the Tribunal has had the opportunity to test any objective evidence concerning the Applicants’ fitness for work.

42 While I accept that the outcome may have been different if the Applicants’ circumstances were such that they could have obtained additional evidence, on the material before me I am not satisfied that the Applicants have proven that there is a causal connection between the Department's conduct and the financial loss that they have alleged that they have suffered.

43 That being the case, it is my view that the Applicants are not entitled to an award of damages for the alleged financial loss.

Psychological harm

44 I accept the Applicants’ evidence that the Department's conduct in releasing the report caused them psychological harm in that it caused them to suffer depression and anxiety. I also accept that the Applicants were experiencing stress prior to the breaches and that their relationships were strained. I have no other evidence on which I am able to determine the extent of the psychological harm. It may well be that these breaches were in effect ‘the straw that broke the camel’s back’. Alternatively, it may be that the psychological harm was such that it can be managed with treatment. Expert evidence would have been relevant to assist in determining this issue.

45 I am satisfied that it is probable that each of the Applicants has suffered depression and anxiety to the extent that some psychological support was warranted. This view is supported by the fact that their GP made a referral to personal support programmes. I am also satisfied that any depression and anxiety that each of the Applicants suffered prior to the breaches became worse as a consequence of their learning of the breaches. There are clearly other ongoing issues that effect the Applicants’ health and psychological well-being. However, I accept that the breaches were a contributing factor to the worsening of their psychological conditions.

46 Accordingly, I am satisfied that each of the Applicants suffered psychological harm as a result of the Department’s conduct. However, insofar as each of the Applicant’s condition was caused by the Department’s conduct, the time period for which each of the Applicants will require treatment for the condition is unclear.

47 As previously noted, damages are compensatory. The Tribunal has awarded damages in several cases. Judicial Member Higgins considered some of those awards in WT v Auburn Council at paragraph [38] of her decision. I agree with her view that while each application must be considered in light of its own facts, the previous decisions provide some guidance.

48 It is my view that these are matters in which it is appropriate for the Tribunal to exercise its discretion and make an order that the Department pay damages to the Applicants. In each application, having regard to the impact the disclosure has had on the Applicant, I consider an amount of $5,000 is the appropriate amount of damages.

49 The final question for determination is whether the Tribunal should exercise its discretion and make an order for punitive damages.

50 I do not agree that the evidence supports the Applicants’ submission in regard to their applications for punitive damages. I note the steps taken by the Department to mitigate the consequences of its breaches. A summary of those steps is set out at paragraph 8 above. In my view those steps were reasonable in the circumstances and I do not consider that the Department should be required to take any further steps in that regard. I do not consider that punitive damages are warranted.

Orders

1. In matter No. 083102, pursuant to section 55(2)(a) of the Privacy and Personal Information Protection Act 1998, the Department of Community Services is to pay to the applicant damages in the sum of $5,000

2. In matter No. 083103, pursuant to section 55(2)(a) of the Privacy and Personal Information Protection Act 1998, the Department of Community Services is to pay to the applicant damages in the sum of $5,000.