ZIL v Punchard[2018] QCAT 274

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   These decisions all relate to interlocutory applications in a privacy complaint referral.
2. [2]
   The background is that ZIL discovered that Senior Constable Neil Punchard, an officer in the Queensland Police Service, had provided her address to her ex-partner. ZIL understands that Senior Constable Punchard and her ex-partner are friends. ZIL says the supply of her address caused her great alarm because her ex-partner is violent. She says that various domestic violence protection orders have been made over the years in an effort to prevent the ex-partner from contacting and harming her.
3. [3]
   ZIL says that Senior Constable Punchard had improperly obtained her address from the database kept by the Queensland Police Service which is known as QPRIME.
4. [4]
   ZIL made a privacy complaint to the information commissioner about the incident. Such complaints are regulated under Chapter 5 of the Information Privacy Act 2009 (Qld) (‘Information Privacy Act’). Where mediation by the office of the information commissioner does not resolve a privacy complaint, the information commissioner must refer the privacy complaint to QCAT if asked to do so by the complainant.^[1]
5. [5]
   On 30 April 2018 the information commissioner referred ZIL’s privacy complaint to QCAT.
6. [6]
   The Queensland Police Service says that it has conducted a disciplinary process against Senior Constable Punchard over the incident.
7. [7]
   In this QCAT referral, the Queensland Police Service does not dispute that the Senior Constable engaged in the conduct in question. It does, however, dispute that it breached its obligations under the privacy principles in the Information Privacy Act. In other words, it does not accept that it is responsible for the privacy violation.
8. [8]
   There are a number of interlocutory applications to be decided. I will discuss each in turn. Directions have previously been made for the parties to file submissions about the applications, and for the applications to be decided on the papers. Various submissions have been received but in ZIL’s case they do not address all of the applications. For the record I note that the submissions filed by ZIL consist of:

   1. (a)
      a nine-page document with 37 numbered paragraphs, headed Applicant’s response to submissions made by the Second Respondent dated 9 July 2018, with attachments, dated 17 July 2018 and filed on 18 July 2018; and
   2. (b)
      a one-page document headed Supporting Information for the Applicant to receive a full unredacted copy of her QPRIME file, undated but filed on 18 July 2018.
9. [9]
   However, ZIL also makes reference to some of the applications in correspondence to the QCAT registry or the Queensland Police Service, which is on the file. I have had regard to any views about the applications expressed by ZIL in those documents.

Application for miscellaneous matters filed by Senior Constable Punchard on
28 June 2018.

10. [10]
    In this application Senior Constable Punchard seeks the strike out or dismissal of the part of the proceeding that is against him. He contends that this part of the application is misconceived and/or lacking in substance because, he argues, a privacy complaint can only be made about an agency and not about an individual such as himself.
11. [11]
    The Queensland Police Service takes a similar view.
12. [12]
    It appears that Senior Constable Punchard and the Queensland Police Service have both been treated as respondents by QCAT because the ‘Respondent’s Details’ part of the referral form listed them both. Because of the design of the form, however, which calls for both individual and ‘company’ details for a respondent, it is not really clear whether both were intended to be respondents. In an accompanying document headed ‘Grounds’, ZIL said that ‘the agency is the QPS, more specifically, Mr Punchard’. This does not clear up whether one or two respondents were intended. In any event, both Senior Constable Punchard and the Queensland Police Service have been treated as respondents in QCAT’s directions to date.
13. [13]
    ZIL has not filed submissions in relation to Senior Constable Punchard’s application for strike out or dismissal. Nor has she expressed an opinion about that application in any of the correspondence on the file. However, it can be assumed from the ‘Grounds’ document that she would not favour such a strike out or dismissal.
14. [14]
    Section 177(1) of the Information Privacy Act says:

The complainant and respondent for a privacy complaint the information commissioner refers to QCAT are both parties to the proceeding before QCAT.

15. [15]
    The privacy complaint document that the information commissioner received from ZIL has not been filed in QCAT. Therefore I have not been able to examine it to see whom it nominated as the respondent (or respondents). There is, however, a letter from the Principal Privacy Officer of the office of the information commissioner to ZIL, dated 19 February 2018, which refers to her ‘privacy complaint against the Queensland Police Service’. The letter goes on to refer to ZIL and the Queensland Police Service as ‘the parties’ to the complaint. These comments suggest that the only respondent to the privacy complaint that ZIL lodged with the information commissioner was the Queensland Police Service.
16. [16]
    It is also useful to consider the meaning of ‘privacy complaint’ in the Information Privacy Act. It is defined, relevantly, as:^[2]

… a complaint by an individual about an act or practice of a relevant entity (the respondent for the complaint) in relation to the individual’s personal information that is a breach of the relevant entity’s obligation under this Act to comply with … the privacy principles …

17. [17]
    ‘Relevant entity’ means ‘an agency’ or ‘bound contracted service provider’.^[3]
18. [18]
    ‘Agency’, for Chapter 5, means a Minister, a department, a local government, or a public authority.^[4] A ‘public authority’ can be a person holding an office established under an Act, but a person is not a public authority merely because the person holds an office ‘the duties of which are performed as duties of employment as an agency’s officer’.^[5] Senior Constable Punchard is not a Minister, a department, or a local government. He might be regarded as holding an office under the Police Service Administration Act 1990 (Qld), but his duties would be performed as duties of employment as an officer of the Queensland Police Service. Accordingly,
    Mr Punchard is not an ‘agency’.
19. [19]
    Similarly, ‘contracted service provider’ is defined in such a way as to exclude employees of agencies.^[6]
20. [20]
    In other words, the privacy obligations in the Information Privacy Act attach to the Queensland Police Service rather than to individual employees. There would no doubt be privacy restrictions on employees, but they would come from other sources.
21. [21]
    It follows that Senior Constable Punchard is not a ‘relevant entity’, and so a privacy complaint cannot be made about him under the Information Privacy Act.
22. [22]
    I am persuaded that Senior Constable Punchard should be removed as a party, and the part of the proceeding that is against him should be dismissed as misconceived. This is because, apparently, he was not a respondent to the privacy complaint made by ZIL to the information commissioner, and is therefore not a proper party to the QCAT proceeding. Alternatively, if he was treated as a respondent to the privacy complaint lodged with the information commissioner, he should not have been.

Application for leave to be represented filed by Senior Constable Punchard on 28 June 2018

23. [23]
    Senior Constable Punchard sought leave to be represented by the Queensland Police Union Legal Group.
24. [24]
    On 27 July 2018 I granted leave for all parties to be represented at the compulsory conference on 7 August 2018.
25. [25]
    As Senior Constable Punchard will no longer be a party to the proceeding, his application for leave to be represented should now be dismissed.

Application for miscellaneous matters filed by ZIL on 5 June 2018

26. [26]
    ZIL has said she did not make an application on this date. However, QCAT’s file contains a document apparently signed by ZIL, and filed, on 5 June 2018, on the application for miscellaneous matters form. The form cites the case number: OCL021-18.
27. [27]
    ZIL has advised that she intended her document to be a complaint rather than an application. I accept that ZIL does not seek to have any application in the proceeding determined on the basis of that form. Accordingly, the appropriate course is to dismiss the application.
28. [28]
    There is a separate process for dealing with complaints which it is not necessary or appropriate to discuss here.

Application for miscellaneous matters filed by ZIL on 18 June 2018

29. [29]
    There are three parts to this application. The first part is an application for an order that the Queensland Police Service provide ZIL with ‘a full unredacted copy’ of the QPRIME file for herself showing all accesses to the records for at least 10 years. The second part is an application for an order that the Queensland Police Service provide ZIL with a ‘full and complete unredacted copy’ of the police disciplinary file for Senior Constable Punchard. The third part is for a direction that the applicant’s name in the matter be abbreviated to her initials.
30. [30]
    In the space in the application form for her reasons for seeking those orders or directions, ZIL has merely written: ‘to assist me in preparation for my case’. However, in her submissions filed on 18 July 2018, ZIL has discussed why she should be entitled to the QPRIME file. The submissions do not squarely address the other parts of the application, but they do provide background information.

The QPRIME file

31. [31]
    In essence, ZIL seeks access to the file so she can check if Senior Constable Punchard accessed her records on other occasions, and to see if other officers may have accessed her file for unauthorised purposes. She argues this is important to assess the level of risk to the safety of herself and her family.
32. [32]
    ZIL mentions other people who have gained access to QPRIME files about themselves through the right to information process. She mentions that she is pursuing access to the QPRIME records for herself through that process.
33. [33]
    ZIL also refers to the decision of QCAT in Eaves v Commissioner of Police^[7] (‘Eaves’). In that case, QCAT decided that the QPRIME file should be made available to lawyers for the complainant, with a view to them agreeing on which parts could be disclosed to the complainant or at least identifying the parts that would require a decision by QCAT. However, ZIL argues that in her case there should be direct disclosure to herself, as she does not have legal representation.
34. [34]
    The Queensland Police Service opposes the proposed order on the basis that the information is irrelevant, and that this aspect of the application is a ‘fishing expedition’.
35. [35]
    It is entirely understandable that ZIL wants to know whether there have been other unauthorised accesses. However, the more appropriate way for her to seek to find that out is through the Right to Information Act 2009 (Qld). That Act sets out criteria and a structured process, including review rights, for deciding whether information held by an agency should be released or withheld.
36. [36]
    The privacy complaint that has been referred to QCAT relates to a particular access to QPRIME by Senior Constable Punchard. There is no dispute that the Senior Constable accessed ZIL’s address on QPRIME on that occasion. It is therefore not necessary for ZIL to see the QPRIME file in order to establish the privacy complaint. If ZIL finds out through the right to information process that other improper accesses have been made, then she can lodge a further privacy complaint or complaints with the information commissioner.
37. [37]
    Eaves is not the same as this case because the complaint there was of widespread unauthorised access by many unidentified officers. Therefore a range of QPRIME records were relevant in establishing the extent of unauthorised accesses.
38. [38]
    ZIL has also submitted that in a case of RM, a QCAT member required the Queensland Police Service to provide full details to a complainant of the persons who received an email. However, in the absence of published reasons for that decision, I cannot derive assistance from it.
39. [39]
    As I am not satisfied that there is any need for ZIL to have access to the QPRIME file in order to properly prepare and present her case, it is appropriate to dismiss this aspect of her application.

Senior Constable Punchard’s disciplinary file

40. [40]
    I do not know what disciplinary sanction, if any, Senior Constable Punchard received. However, the outcome of the disciplinary process is unlikely to be relevant in the present referral. However, if in due course it is shown to be relevant, the particulars of the sanction would probably be all that would be required, rather than the entire disciplinary file.
41. [41]
    The disciplinary file may also contain other information unrelated to the incident in question.
42. [42]
    If QCAT finds that the privacy complaint is substantiated, its powers do not include disciplining Senior Constable Punchard or reviewing the disciplinary process engaged in by the Queensland Police Service. Rather, QCAT could require the Queensland Police Service to apologise, pay compensation, engage in a reasonable act or practice to compensate for loss or damage, and so on.^[8]
43. [43]
    It is not apparent how the contents of Senior Constable Punchard’s disciplinary file – beyond, perhaps, the details of any sanction imposed in relation to the incident in question – could usefully inform the referral process.
44. [44]
    I am not satisfied that disclosure of the file to ZIL is required for her to be able to properly prepare and present her case. Accordingly, it is appropriate to dismiss this aspect of her application.

Abbreviation to initials

45. [45]
    ZIL has not explained why she does not wish to be identified. However, presumably it is because of domestic violence. In her submissions, ZIL has set out the reasons why she fears her ex-partner, the history of domestic violence protection orders, and so on.
46. [46]
    I consider that the application would best be treated as an application for a non-publication order under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). Such an order can be made if it is necessary, for example, to avoid the publication of confidential information.^[9]
47. [47]
    Publication of information identifying a party to a domestic violence proceeding, or children concerned in such a proceeding, is generally not permitted.^[10] As it is an integral part of ZIL’s evidence that she has been a party to such proceedings, and her children have been named in protection orders, publication of her name as a party to this proceeding, or of her children’s names, would undermine the confidentiality provisions in the domestic violence legislation. Accordingly, it is appropriate to make a non-publication order.
48. [48]
    I also consider it appropriate to direct that in QCAT’s published reasons the applicant is to be referred to by the letters ZIL, rather than her initials, to reduce the risk of identification. I assume that ZIL was not aware that random initials could be assigned.
49. [49]
    As the orders and directions made in this respect differ from the outcome requested by ZIL, I will express them to be ‘until further order’. This will allow ZIL to seek variations at the next directions hearing if she wishes.

Application for leave to be represented filed by the Queensland Police Service on 17 May 2018

50. [50]
    The issue of representation is dealt with in section 43 of the QCAT Act. Section 43(1) says that the main purpose of the section is to have parties represent themselves unless the interests of justice require otherwise. The section goes on to list matters that can be considered by QCAT in deciding whether to grant leave for representation: whether the party is a state agency; whether the matter is likely to involve complex questions of fact or law; whether another party is represented; and whether all parties have agreed to a party being represented.
51. [51]
    The Queensland Police Service wishes to be represented by Crown Law, and if it considers it appropriate, by counsel. It points out that it is a state agency and that the issues raised in the referral are significant to its operations. It contends that the matter is complex as it requires an assessment of whether it has breached various information privacy principles. It acknowledges that ZIL could feel at a disadvantage, without representation herself, but notes that it is required to conduct itself as a model litigant. It argues that its being legally represented would assist in a cost-effective determination of the matter.
52. [52]
    ZIL has not filed submissions about this application, but she has expressed in correspondence concerns that she would be disadvantaged. She has also indicated that her concerns would be greater if lawyers external to the Queensland Police Service were used.
53. [53]
    QCAT must strive to be fair.^[11] It must also take reasonable steps to ensure that each party understands the nature of assertions made in a proceeding and the legal implications of the assertions.^[12]
54. [54]
    On balance, I consider it appropriate to grant leave for the Queensland Police Service to be legally represented. It is also appropriate to grant leave for ZIL to be legally represented, in case she engages a lawyer. The matter involves some legal complexity, and legal representation of one or both parties would assist QCAT. I am satisfied that any disadvantage or perceived disadvantage to ZIL can be addressed by QCAT taking steps to ensure that she understands the arguments that are put.

Conclusion

55. [55]
    With these interlocutory applications now decided, the matter will proceed to a directions hearing on a date to be advised.