Privacy in complaints management - disclosure and natural justice

Queensland government agencies1 are required to comply with the privacy principles in the Information Privacy Act 2009 (Qld) (IP Act) in their dealings with personal information.  This obligation applies when agencies are managing complaints that will involve personal information.

Personal information is any information or opinion about an individual whose identity is apparent or can reasonably be ascertained.2 A complaint is an expression of dissatisfaction with an agency’s products, services3 or employees.

If the complaint is about an agency’s procedures, practices or processes and will not involve personal information, no privacy issues will arise.

Tip

Personal information dealt with in the handling of a complaint can include:

  • name and contact details of the person who made the complaint (complainant)
  • allegations of wrongdoing against an agency officer (subject officer)
  • the subject officer’s name and contact details
  • names, contact details, statements and opinions of third parties, such as witnesses, other interviewees (eg officers consulted to confirm matters of policy, procedure or work practice or experts providing specialist opinion) and family, friends, associates, co-workers or supervisors of the subject officer; and
  • name, contact details and opinions of the officer investigating the complaint.

What is natural justice?

Natural justice is the right to be made aware of, and respond to, information which will be used in the course of a decision that will negatively affect the person.4 It is also called procedural fairness.

In the context of a complaint made against an individual, natural justice requires that the individual be provided with sufficient information to enable them to understand and respond to the complaint made against them.

In most cases, the information that will be subject to natural justice considerations will only be part of all the information dealt with and collected in the course of the complaint process.

Information that would merely be of interest5 to the person does not trigger a natural justice obligation to provide the person with this information.  Non-adverse information, and adverse information which is not being relied on, does not necessarily have to be provided.

Note

To provide natural justice, the decision-maker must give the person who may be negatively affected by a decision sufficient information (ie a description of the possible decision, information on which any such decision would be based, and the criteria for making that decision) so that they may respond to the case against them.

The decision maker also has to:

  • provide them with reasonable opportunity to reply in a way that is appropriate for the circumstances
  • receive and consider their reply before a decision is made (called the ‘hearing’ rule); and
  • ensure they are impartial, free from any conflict of interest and acting without bias in making the decision (called the ‘bias’ rule).

Most often this is accomplished by an exchange of documents and/or submissions between the decision maker and the person.

Complaint handling and natural justice


While the need to collect, use, and disclose personal information can vary depending on the complexity and circumstances of the complaint, all complaint processes will involve the obligations of natural justice.6 Natural justice is required to be given to a person where a decision is going to be made that will negatively affect that person, for example, a decision to discipline an employee, fine someone for a breach of the law, refuse to give someone a licence or take away a benefit, such as a travel concession.  

There are circumstances where the complainant will need to be afforded natural justice; for example, where the complaint is about an action or decision that directly affects them.7 Similarly, if the agency has the capacity to not accept the complaint, for example because it has a specific jurisdiction,8 the obligations of natural justice will provide the complainant the opportunity to submit arguments or submissions on why the agency should accept their complaint, for example by arguing the complaint does fall within the agency’s jurisdiction.

Where a complaint is made by one individual against another individual, the complainant or their interests will not necessarily be directly9 affected by the outcome of the complaint.  For these complaints, while natural justice will always apply to the subject complained about, it will rarely apply to the complainant or witnesses.

Agencies that fail to comply with the requirements of natural justice risk having their decisions declared invalid by a court or tribunal.

Natural justice and the disclosure of personal information

The rules that set out when an agency can disclose personal information are set out in National Privacy Principle 2 (NPP 2) for health agencies and Information Privacy Principle 11 (IPP 11) for all other agencies.  The general rule is that personal information of a person may not be disclosed to a third party. One of the exceptions in IPP 11 and NPP 2 is where the disclosure of personal information is ‘authorised or required by law’.10

Natural justice is a common law obligation for decision makers and so disclosing personal information in order to afford someone natural justice falls within the authorised or required by law exception.  In a complaint process, the authorisation will only apply to disclosures that are necessary to satisfy natural justice and it will only apply to information that is credible, relevant and significant to that complaint.

If an agency discloses personal information which is not required to give someone natural justice, that disclosure may be a breach of the privacy principles and could give rise to a separate privacy complaint.
For many complaints, the identity of the complainant and/or witnesses will have no bearing on the subject matter of the complaint.  Agencies commonly acknowledge this fact by allowing for complaints to be made anonymously or for their identity to be treated confidentially.11

In some complaints, for example a complaint about harassment, the complainant’s identity will be relevant to the investigation and will need to be disclosed to the person accused of the harassment.  Even in these circumstances, however, not all of the complainant’s personal information may necessarily be relevant, such as any personal damage the complainant suffered as a consequence of the harassment.

In most cases, information given by a witness concerning the subject matter of the complaint will need to be provided to the person complained about.  In some cases the witnesses’ identities may also be relevant to the subject of the complaint. In these circumstances, agencies should advise witnesses the first time they speak with them or when taking their statement of the possibility that their personal information may need to be disclosed to the complainant. 

Natural justice would not necessarily require that the subject of a complaint be provided with unedited copies of documents relating to the complaint or the identity of the complainant, witnesses or interviewees.  Agencies should consider whether it would be appropriate to provide de-identified information or documents, outlines of the complaint details and relevant allegations, and/or summaries of evidence and witness statements.

Example

Mary Jones has the use of a departmental vehicle on the condition that she only uses it for travel between her home and the office.  Another officer of the Department, Michael Smith, makes a complaint that Mary frequently uses the car for personal shopping and to transport her children to and from school.
In investigating the complaint, the Department finds that Mary’s vehicle logs show more kilometres travelled than can be accounted for by the permitted travel.  Consequently, the Department commences disciplinary proceedings against Mary.

Before a decision is made in the proceedings, the Department provides the complaint allegation and vehicle logs to Mary to give her the opportunity to respond.  Mary demands to know who made the complaint, claiming that natural justice gives her the right to challenge the credibility of the complainant.

The Department refuses to reveal Michael’s identity on the basis that his identity is not information necessary for Mary to understand the allegation made against her or the evidence on which the Department would base a decision to discipline her.  If the Department had told Mary that Michael had made the complaint he would have strong grounds on which to make a privacy complaint against the Department.

Information about the outcome of a complaint


The findings of the investigation of the complaint and any consequent actions or recommendations made in relation to the individual who is the subject of the complaint will constitute the personal information of that individual.  Natural justice would not authorise the agency’s provision of this personal information to a third party such as the complainant (if their interests were not the subject of the complaint) or witnesses.

In these situations, complainants and/or witnesses may have expectations of being provided information on the outcome of a complaint based on a strong personal interest in this information. Expectations about what information they might expect to receive should be addressed at the time the complaint is made.

Agencies who want to communicate the personal information of the subject of the complaint to other persons must ensure they only do so where it falls within one of the exceptions to the rule against disclosing personal information to a third party - for example, the disclosure is authorised by law.12

  • 1 In this Guideline, reference to an 'agency' includes a ‘Minister’ unless otherwise specified.
  • 2 See section 12 of the IP Act for the full definition of ‘personal information’.
  • 3 Including those areas where agencies are responsible for compliance by members of the community.  For example, local governments administering animal, nuisance and littering laws.
  • 4 See Brennan J, in Kioa v West (1985) 159 CLR 550 at 629.
  • 5 For example the identity of the complainant is invariably a subject of interest to the person complained about. However, in many cases this identity is not relevant to the subject matter of the complaint.
  • 6 The term ’natural justice’ is often used interchangeably with the term ‘procedural fairness’ when referring to the administrative decision making processes of government agencies.  For ease of reference and consistency with other OIC materials, the term natural justice is used in this guideline.
  • 7 See for example, section 268 of the Local Government Act 2009 (Qld).
  • 8 For example, there is no capacity under Chapter 5 of the IP Act for an individual to lodge a privacy complaint with OIC against a Commonwealth Government agency.
  • 9 The complainant may nonetheless have an indirect connection to the complainant. For example, a person who complains about a neighbour’s barking dog will be interested in an outcome where the dog ceases barking.
  • 10 See for example section 46(3) of the Crime and Corruption Act 2001 (Qld)
  • 11 For more information on this topic refer to OIC’s Guideline Privacy in complaints management: anonymity and confidentiality
  • 12 Some Acts set out information which must be provided to the complainant, for example the Crime and Corruption Act 2001 (Qld).

Current as at: July 3, 2014