The Court of Appeal has refused to set aside a subpoena addressed to the Commissioner of Corrective Services NSW requesting disclosure of telephone recordings. In Turnbull v Strange  NSWCA 157, the Court of Appeal found that the Privacy and Personal Information Act 1998 (NSW) (Act) did not prohibit the Commissioner from producing information in order to satisfy a subpoena.
The respondent to the appeal commenced proceedings in the Supreme Court challenging a transfer of land made by a since deceased person (who had been in custody) to his wife. As part of those proceedings a subpoena was issued to the Commissioner requiring the disclosure of telephone conversations between the prisoner and his wife and son, recorded by Corrective Services NSW.
The Commissioner produced the information without objection, however, the executors and the deceased's wife (Estate Parties) applied unsuccessfully for the subpoena to be set aside, arguing that the disclosure of the information would be contrary to the Act.
The context of the proceedings in the Supreme Court was an action in the District Court by the respondent to the appeal in which the damages for mental harm were claimed to have been wrongfully inflicted by the deceased. The respondent to the appeal was a compliance officer with the Office of Environment and Heritage and witnessed the shooting of his colleague by the deceased whilst investigating illegal land clearing on the deceased's property. It was claimed in the Supreme Court that the transfer of the property was made with the intention of defrauding creditors.
The issue on appeal was whether the subpoena should be set aside on that basis that it required the Commissioner to disclose personal information in breach of section 18 of the Act, or alternatively whether the Court should make an order for no access to the documents produced.
Section 18 of the Act states that, subject to certain exceptions, "a public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body." Corrective Services NSW is a 'public sector agency' for the purposes of the Act.
The Estate Parties' first submission was that the subpoena exemption to section 18 of the Act contained in section 23(5)(c) of the Act should be read down so as to limit the exemption for the purpose of law enforcement or the protection of the public revenue only. Section 23(5)(c) of the Act provides that "A public sector agency (whether or not a law enforcement agency) is not required to comply with section 18 if the disclosure of the information concerned is authorised or required by subpoena or by search warrant or other statutory instrument."
The Court of Appeal rejected this submission on the basis that the Estate Parties' interpretation of section 23(5)(c) of the Act would either render section 23(5)(d) of the Act unnecessary or read sections 23(5)(c) and (d) conjunctively, whereas they are to be read disjunctively.
The Court of Appeal further acknowledged that the Commissioner's production of information in answer to a subpoena would be protected by section 6 of the Act, which provides that the Act should not impinge upon the court's exercise of a judicial function.
The Estate Parties' second submission related to the operation of section 23(6) of the Act. Section 23(6) of the Act provides that "Nothing in subsection (5) requires a public sector agency to disclose personal information to another person or body if the agency is entitled to refuse to disclose the information in the absence of a subpoena, warrant or other lawful requirement."
The Estate Parties argued that section 23(6) permitted the agency to refuse to disclose the information because it would be entitled to do that without a subpoena.
The Court of Appeal rejected this submission, noting that 'there is no basis for concluding that it was intended to countermand the very provision with respect to which it is said to operate'.
As to what was the purpose of section 23(6), the Court of Appeal suggested that it was 'inserted from an abundance of caution, to ensure that no one sought to give the Privacy Act a broader operation than was intended.'
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