Pursuant to s. 62 Health Records and Information Privacy Act 2002
for the Department of Community Services
Interpretation
Except as provided below, words and phrases defined in the Health Records and Information Privacy Act 2002 which are used in this Direction have the same meanings as in the Act.
In this Direction:
“Act” means the Health Records and Information Privacy Act 2002.
“Commission” means the South Australian Commission of Inquiry into Children in State Care
“Commissioner” means the Commissioner conducting the Commission
“Department” means the Department of Community Services
Coverage
This Direction covers the Department of Community Services.
Background
The Direction aims to permit the Department of Community Services to disclose incidentally to the South Australian Commission of Inquiry into Children in State Care health information about third parties, whose health information appears on New South Wales Department of Community Services files. The files in question relate to individuals who, as children, were in State care in South Australia and New South Wales and whose cases are the subject of inquiry by the Commission. The incidental disclosure of the third parties' health information will occur, because it is not possible or practical to obtain the consent of those third parties to the disclosure of their health information and removing their health information from all files would be onerous for the Department. The disclosures permitted by this Direction would otherwise be contrary to Health Privacy Principle (HPP) 11 of the Act.
It should be noted that the Direction does not apply to the subjects of the Department’s files, who were in care in New South Wales, as their written consent to disclosure of their health information will be requested and obtained by the Commission. As a result, there will be no breach of the Act requiring an exemption in relation to their health information.
In addition, the Direction will allow the Department of Community Services to disclose health information outside New South Wales. This would otherwise be a breach of Health Privacy Principle 14.
Finally, in order to ensure that the South Australian Commission of Inquiry into Children in State Care handles the health information of third parties substantially in accordance with New South Wales privacy legislation, the South Australian Commissioner will give an undertaking in writing to the Department that the information will not be held beyond the expiry of the Commissioner's Terms of Reference and that it will be held securely in accordance with Health Privacy Principle 5 of the Act. The Commissioner will also undertake that the health information of third parties will not be disclosed or used contrary to Health Privacy Principles 10 or 11 of the Act, except where expressly or impliedly authorised or permitted by the Act governing the Commission or otherwise required by law.
The Commissioner will also undertake not to disclose the contents of the documents on the files (including any health information) to any person or agency without the express permission in writing of DOCS. In granting such permission to the Commissioner, DOCS would be bound by New South Wales law, including New South Wales privacy law, as this exemption only relates to dealings between DOCS and the South Australian Commissioner. It does not exempt DOCS from Health Privacy Principles 10, 11 and 14 of the Act in relation to any other persons or agencies apart from the Commissioner.
Finally, for greater caution, it should be noted that the South Australian Commission is exempt from the provisions of the Freedom of Information Act (SA).
Public Interest
This direction has been made to allow the Department of Community Services to transfer to the South Australian Commission of Inquiry into Children in State Care the entire file of persons, who were in State care in New South Wales and South Australia and whose cases are the subject of the Commission's investigations. These files will contain, incidentally, the health information of third parties. The Commission is required by legislation to investigate and report on allegations of sexual abuse of children in State care in South Australia, allegations of criminal conduct resulting in the death of a child in State care, the adequacy of response to such allegations and other matters.
Accordingly, I am satisfied that the public interest in requiring the Department of Community Services to comply with Health Protection Principles 11 and 14 is outweighed by the public interest in my making this direction.
Modification of and exemption from Health Privacy Principles (HPPs)
The following HPPs are modified only to the extent outlined below and are not modified so as to remove or limit any exemption in the HPPs, which might apply to the agency. They do not affect any other restriction imposed by any other Act or law upon the disclosure of the information concerned.
HPP 11 Limits on disclosure of health information
1. The Department may disclose to the Commission the entire Departmental file (including any health information) of an individual who was in the care of the State in New South Wales and whose case is being investigated by the Commission where:
(a) the Commission requests in writing that the file be disclosed for the purpose of its investigations; and
(b) the individual referred to in the file, who was in the care of the State, gives their consent.
2. Notwithstanding point 1 above, where the release of such information would result in the incidental release of the health information of third parties, the Department may disclose such information to the Commission, where the Commissioner gives an undertaking in writing to the Department that such health information will not:
3 In addition to 1 and 2 above, the Commissioner will undertake that the contents of the documents in the files provided to him by DOCS (including the health information therein) will not be disclosed to any person or agency without the express permission in writing of DOCS.
HPP 14 Limits on transborder data flows
1. The Department may transfer to the Commission the entire Departmental file (including any health information) of an individual who was in the care of the State in New South Wales and whose case is being investigated by the Commission where:
(a) the Commission requests in writing that the file be transferred for the purpose of its investigations; and
(b) the individual referred to in the file, who was in the care of the State, gives their consent.
2. Notwithstanding point 1 above, where the transfer of such a file would result in the incidental release of the health information of third parties, the Department may transfer the health information to the Commission, where the Commissioner gives an undertaking in writing to the Department that such health information will not:
3. In addition to 1 and 2 above, the Commissioner will undertake that the contents of the documents in the files provided to him by DOCS (including the health information thereon) will not be disclosed to any person or agency without the express permission in writing of DOCS.
Duration
This direction has effect until the 31st of December 2006, or the expiry of the Terms of Reference of the Commission, whichever is the later.
Signed by me on this 15th day of November 2006
Philippa O’Dowd
Acting Privacy Commissioner
