This is an unusual case involving an application by a father of a child at a local government childcare service to the NSW Civil and Administrative Tribunal under the Privacy and Personal Information Protection Act 1998 (NSW). It should be noted that this Act applies to NSW ipublic sector agencies and the childcare centre involved, being operated by a local council, was subject to the Act. In this case the father (EOK) requested a review under s.53 of the Privacy and Personal Information Protection Act 1998 of conduct by staff of a child care centre operated by Northern Beaches Council. EOK claimed that the staff had refused to provide him with information about his daughter’s progress at the centre. EOK was not recorded on the child's enrolment record. After an initial phone call they had contacted his ex wife to advise her that he had called, which he claimed was was a breach of his privacy. EOK contended that in delaying provision of information about his daughter, and in disclosing to his former partner that he had contacted the Child Care Centre, there had been a breach of his privacy. He contended that the future actions proposed by the Council (revision of their policies) were not sufficient to compensate him for the significant emotional, psychological and financial trauma suffered, which had been further compounded by the Council’s reliance on child protection as a rationale for their actions. He sought a public apology and compensation. Although the case involved some complex issues relating to the privacy legislation, the Tribunal identified broader duties to which services are subject to, finding that the service was justified in its actions, stating that:
Section 25 of the PPIP Act is expressed in broad language, and the words “otherwise permitted (or is necessarily implied or reasonably contemplated)” are extremely broad: JS v Snowy River Shire Council (No 2) [2009] NSWADT 210 at [53]. Common law principles, including the duty of care on which the Council relies, fall within the scope of the expression “any other law” in s 25(b): CCM v Western Sydney University [2019] NSWCATAP 103 at [65]. The Child Care Centre owed a duty of care to the Child: Plaintiff A and B v Bird; Plaintiff C v Bird; Plaintiff D v Bird [2020] NSWSC 1379. That common law duty to take reasonable steps to prevent injury or harm to the child is consistent with the obligation under s 51(1)(a) of the Children (Education and Care Services) National Law (NSW) that an approved provider operate its services in such a way that ensures “the safety, health and wellbeing of children being educated and cared for” by the service.
The Tribunal is satisfied that in circumstances where it was unclear whether EOK should have access to information about the Child, the steps taken by the Child Care Centre to check the status, including making inquiries of the Ex Wife, and requesting EOK to provide any court orders that he may have, were reasonable steps to clarify the position. The Tribunal is satisfied that any non-compliance with s 18 was otherwise permitted in accordance with those common law and statutory duties.
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