AIG Australia Ltd & NM Insurance Pty Limited v Commissioner of Police, NSW Police Force [2020] NSWCATAD 84
Read the decision here: AIG Australia Ltd & NM Insurance Pty Limited v Commissioner of Police, NSW Police Force [2020] NSWCATAD 84
Summary
The Tribunal reviewed the decision by the Commissioner of Police, NSW Police Force (respondent) to withhold a certificate of analysis in respect of a blood sample analysis which had been sought by an access application under the Government Information (Public Access) Act 2009 (GIPA Act). This information related to the respondent’s investigation into the collision of a boating vessel, for which the access applicants are the insurer and sought the information pursuant to a property damage and public liability policy held by the owner (the insured) of the vessel. On Tribunal review, the respondent claimed the public interest considerations against disclosure in clauses 3(a) and 3(b), arguing that release of the certificate would reveal personal information, and that disclosure of the blood sample test could reasonably be expected to contravene an information privacy principle under the Privacy and Personal Information Protection Act 1998 (PPIP Act). The Tribunal (at [35]-[36]) was satisfied that the considerations in clauses 3(a) and 3(b) were made out, as the disclosure would reveal the name and health information of the person which would contravene the PPIP Act because the blood sample was collected for an investigation, and disclosure to the insurer was another purpose not permitted by any exceptions in section 18 of the PPIP Act. However, the Tribunal found (at [49]) that these public interest considerations against disclosure did not outweigh the public interest considerations in favour of disclosure, being the personal factors of the application in this case within the meaning of section 55 of the GIPA Act. The Tribunal attached significant weight to the evidence that a third party (a person on board the vessel) who was consulted by the respondent had made no response to the opportunity to contest the disclosure. The Tribunal gave substantial weight to the personal factors of the application and the insurer’s valid reasons for seeking access to the blood test results. While the Tribunal also considered the fact that disclosure under the GIPA Act cannot be subject to conditions, this did not outweigh these personal factors. The Tribunal (at [51]) set aside the decision, finding that the correct and preferable decision was to release the Certificate by Analyst.
What you need to know
The decision concerns a unique type of government information sought under the GIPA Act, being information relating to the blood test analysis of blood alcohol levels of an individual. The personal factors and motives of the insurer to use the information to determine an indemnity claim were substantial factors in favour of disclosure.
the Tribunal considered (at [38]) that the personal factors of the application could be characterised as public interest considerations in favour of disclosure, and in this case, were given greater weight, despite the significant weight attached to the public considerations against disclosure (at [50]).
The decision highlights for agencies the importance of identifying and weighing the personal factors to an application pursuant to section 55 of the GIPA Act, in a decision about whether to release information.
Legislative background
GIPA Act
Section 80(d) review of a decision to refuse to provide access to information in response to an access application
Section 12 public interest considerations in favour of disclosure
Section 14 public interest considerations against disclosure (clauses 3(a) and 3(b))
Section 55 personal factors of application
Review requirements and jurisdiction
Section 100 Administrative review of decision by NCAT
Factual background
The access applicants are the insurer of a vessel which was involved in a collision with an unknown object in April 2019, in which three people were on board at the time of the collision, including the boat owner. The owner made a claim under the insurance policy with the insurer, which then made an access application under the GIPA Act on 1 August 2019 for information relating to the collision and the respondent’s investigation. The information sought by the insurer was refused in full by the respondent’s notice of decision of 16 August 2019. The insurer sought internal review on 4 September 2019, but only sought information that was the results of any blood alcohol test of the persons on board the vessel at the time of the collision. By its decision on internal review of 25 September 2019, the respondent refused to release the blood sample analysis, claiming that the public interest consideration against disclosure under clause 2(b) of the Table in section 14 of the GIPA Act (information relating to an open investigation), outweighed the public interest considerations in favour of disclosure. During the review by the Tribunal, the respondent also relied on clauses 3(a) and 3(b), and advised by supplementary submissions, filed on 13 February 2020, that the respondent no longer relied upon clause 2(b).
Tribunal findings
The Tribunal (at [49]) determined that:
“Weighing the competing public considerations for and against disclosure, and having considered the evidence and submissions and the applicable legal principles [outlined at [17] of the decision], I have concluded that the public interest considerations against disclosure do not outweigh the public interest considerations in favour of disclosure and the personal factors of the application.”
The Tribunal had attached significant weight to the evidence that the disclosure of the blood alcohol results could be reasonably expected to reveal personal information of the third party who submitted to the test as well as contravene an information protection principle (as defined in section 18 of the PPIP Act). In considering the respondent’s argument that greater weight should be accorded to the protection of personal information in an open criminal investigation, the Tribunal (at [49]) stated that “there is nothing in the language of clauses 3(a) and 3(b) that treats personal information obtained in a criminal investigation differently to other personal information.”
In finding that the personal factors and public interest in favour of disclosure outweighed the claims to clause 3(a) and 3(b), the Tribunal (at [49]) stated that:
“… the personal factors of the application are, in this case, to be given substantial weight. The release of the blood sample analysis will enable the insurer to determine the indemnity claim in respect of damage to the vessel. In turn, that could result in a potential financial benefit to the insured. These are valid reasons for seeking access to the results and are weighty considerations. On the evidence before me, I consider that the release of the information could contribute in a substantial way to the resolution of the insurance claim.”
In considering the personal factors of the insurer as the applicant in this case, the Tribunal (at [40]) took into account the submissions by the Information Commissioner:
“Referring to the Tribunal’s decision in Shoebridge v Department of Education [2017] NSWCATAD 343, the Information Commissioner submits that a person’s motive and purpose for making an application to release information can be taken into account as a factor in favour of providing disclosure. The Information Commissioner further submits that the Tribunal could consider the analogous context where information is provided in the context of CTP for motor vehicle accident claims as a public interest consideration in the management of insurance claims and premiums.”
The Tribunal (at [41]) also considered that the respondent did not provide any authorities explaining why it would not be permissible to take into account the professional interest of an insurer to manage an insurance claim, or the potential financial benefit to the insured as personal factors of the application under section 55 of the GIPA Act. The Tribunal (at [42]) was satisfied that disclosure would assist the insurer properly conduct their business and observe their obligations under the insurance policy. The Tribunal also considered that the potential personal benefit to the insured under the insurance policy was a relevant personal factor that could be taken into account.
Tribunal outcome
The Tribunal determined that the correct and preferable decision is to release the Certificate by Analyst dated 8 November 2019 made in respect of a blood sample analysis and to set aside the respondent's decision. The Tribunal ordered the decision of the respondent to be set aside and ordered the respondent to release the Certificate by Analyst.
