All agencies - Natural justice, disclosure, and privacy

Queensland government agencies1 are required to comply with the privacy principles in the Information Privacy Act 2009 (Qld) (IP Act) when collecting, storing, using and disclosing personal information.

Personal information is any information or opinion about an individual whose identity is apparent or can reasonably be ascertained.2

When can an agency disclose personal information?

The general rule3 is that personal information cannot be disclosed to a third party. One of the exceptions is where the disclosure is authorised or required by law.4

Disclosure

An agency discloses personal information when it gives it to someone who doesn't know it and can't find it out, and they will no longer control the information.5

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.6 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.

In the context of a complaint, natural justice requires that the subject of the complaint be given enough information that they can understand and respond to the complaint made against them. This will generally be only a small part of the information collected in the course of the complaint process.

Non-adverse information, adverse information which is not being relied on, and information that would merely be of interest7 to the person does not trigger a natural justice obligation to provide the person with the information.

Natural justice: required by law

The obligation to accord natural justice8 is a requirement of the government decision making process. It applies before the agency relies on the adverse information to make the decision; once the decision has been finalised, the obligation no longer applies.

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

If an agency has to disclose personal information in order to meet its natural justice obligations, the disclosure will be authorised by law. Only the minimum amount of personal information necessary should be disclosed, and any irrelevant personal information removed or held back.

Note

The onus will be on the agency to establish that the disclosure is necessary. If natural justice can be given using de-identified information the disclosure of personal information will not be authorised.

Complaint handling and natural justice

Regardless of the complexity and circumstances, all complaint processes will involve natural justice obligations, for example:

  • Complainants, who may need to be given natural justice, for example, where the complaint process involves a decision that will negatively affect them9.
  • Where the agency declines to accept a complaint, for example because it lacks jurisdiction, natural justice may require giving the complainant the opportunity to make submissions on why the agency should accept it.
  • Telling the person the complaint is about the details of the complaint against them and the evidence the agency is relying on to make a decision that it is substantiated.

Where a complaint is made by one individual against another individual, the complainant or their interests will not necessarily be directly10 affected by the outcome of the complaint. For these complaints, while natural justice will always apply to the person complained about, it will rarely apply to the complainant or witnesses.

Limits of the authorisation

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.

The identity of the complainant

For many complaints, the identity of the complainant 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 the complainant's 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 the complaint is about. However, even with these complaints, only some of the complainant’s personal information will be relevant. Irrelevant information, such as any personal damage the complainant suffered because of the behaviour complained about, should not be provided.

Identities of witnesses

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.

De-identification and redaction

Natural justice does not automatically require that the subject of a complaint be given with unedited copies of relevant documents. 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 outcome of the investigation, the findings of the investigator, and any actions taken against the person the complaint was about are that person's personal information. Natural justice cannot require giving that information to a third party, such as the complainant (if their interests were not the subject of the complaint) or witnesses.

Complainants often have expectations of being provided information on the outcome of a complaint; the best time to address these expectations are when time the complaint is made.

Agencies that want to communicate the personal information of the subject of the complaint to other persons must ensure they do not breach the privacy principles when doing so, and should consult Complaint status and outcomes – what can you tell a complainant? for more information.

  • 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 National Privacy Principle 2 (NPP 2) for health agencies and Information Privacy Principle 11 (IPP 11) for all other agencies.
  • 4 IPP 11(1)(d) and NPP 2(1)(f). See Use and disclosure authorised by law and Health agencies use and disclosure authorised by law for more information.
  • 5 Section 23 of the IP Act – refer to Key privacy concepts – disclosure for more information
  • 6 See Brennan J, in Kioa v West (1985) 159 CLR550 at 629.
  • 7 For example, the identity of the complainant is invariably a subject of interest to the person complained about. However, in most cases this identity is not relevant to the subject matter of the complaint.
  • 8 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.
  • 9 See for example, section 268 of the Local Government Act 2009 (Qld).
  • 10 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.
  • 11 For more information on this topic refer to OIC’s Guideline Privacy in complaints management: anonymity and confidentiality

Current as at: September 20, 2019