Victoria operates the Emergency Services Telecommunications Authority (ESTA) which provides for centralised emergency call taking and dispatch services.  ESTA is established by the Emergency Services Telecommunications Authority Act 2004 (Vic).  Today’s question:

…relates directly to the ESTA Act. Specifically, section 33, Secrecy. Section 33 makes it an offence for anyone “who has confidential information that he or she has received in the course of carrying out duties under this Act” to “record, disclose, communicate or make use of that information.”. This section clarifies that it is fine to do so to “the extent necessary to perform duties under this Act”. It further makes specific exceptions for persons; Giving evidence at court, disclosing information with the written permission of the minister or person to whom the information relates, disclosing information to the Ombudsman or disclosing information specifically authorised by any other Act. Section 33 also contains a definition for “confidential information”.

“In this section confidential information means any information relating to calls received or messages communicated by the Authority in the course of providing a service to an emergency services and other related services organisation.”

My questions regarding this section are as follows:

  1. Confidential information. How do you interpret this definition? “Calls received by” does that limit to only calls received? What about calls made? Does this only include telephone calls? What about radio transmissions? This further begs the question “messages communicated by the authority”. What does this mean? What about messages received on the radio or phone to the Authority by the emergency services themselves?
  2. Senior ESTA Managers often make comment in public regarding incidents (usually incidents drawing media attention for negative reasons). Can they do so without written permission of the Minister or the person to whom the information relates?
  3. General ESTA performance information. ESTA releases internally each month to staff performance information. Generally, this information contains graphs regarding how many calls were taken, how many calls were dispatched and how performance was tracking against Inspector General for Emergency Management Benchmarks. These internal releases contain a warning that discussing or releasing this information could see the staff member charged under section 33 of the ESTA act. Obviously, internal disciplinary procedures could occur in such a case. But is it a stretch to think a staff member could be charged with this offence in the circumstance of such general, performance information was recorded, disclosed or communicated? If so, by passing out this information internally, are managers not “communicating” it already and potentially breaching the act?
  4. As far as I am aware, nobody has ever been charged under this section. Are there any cases you are aware of or ability to confirm this as the case?

I’ll start by setting out s 33 in full.  It says

33 Secrecy

(1)       In this section confidential information means any information relating to calls received or messages communicated by the Authority in the course of providing a service to an emergency services and other related services organisation.

(2)       A person who has confidential information that he or she has received in the course of carrying out duties under this Act must not, except to the extent necessary to perform duties under this Act, record, disclose, communicate or make use of that information.

Penalty: 5 penalty units.

(3)       Subsection (2) does not prevent a person from—

(a)       giving evidence or producing a document to a court in the course of criminal proceedings or proceedings under this Act, even though the evidence or document contains confidential information; or

(b)       disclosing or communicating confidential information in accordance with the written authority of the Minister or the person to whom the information relates; or

(c)        disclosing or communicating confidential information to an Ombudsman officer (within the meaning of the Ombudsman Act 1973); or

(d)       disclosing confidential information to the extent specifically authorised by another Act.

These provisions mirror provisions in the Telecommunications Act 1997 (Cth).  Under the Commonwealth law (s 278) it is an offence for an ‘emergency call person’ (that is a person who receives triple zero calls and forwards them to the relevant emergency service) to:

… disclose or use any information or document that:

(a)       relates to:

(i)        the contents or substance of a communication that has been carried by a carrier or carriage service provider; or

(ii)       the contents or substance of a communication that is being carried by a carrier or carriage service provider; or

(iii)      the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and

(b)       comes to the person’s knowledge, or into the person’s possession, in connection with the operation of an emergency call service.

Of course, it’s no offence to pass that information onto the emergency services to allow them to respond to the emergency (s 286).

Let us put this in context.  A person rings the emergency services and discloses details about themselves to obtain an emergency response.  Those details may be very personal and may be admissible in court proceedings or at least relevant to subsequent investigations.  This legislation says that the person who takes the call is not allowed to share the information – what happens at work stays at work.  With that in mind let me turn to my correspondent’s questions:

  1. Confidential information. How do you interpret this definition? “Calls received by” does that limit to only calls received? What about calls made? Does this only include telephone calls? What about radio transmissions? This further begs the question “messages communicated by the authority”. What does this mean? What about messages received on the radio or phone to the Authority by the emergency services themselves?

I don’t think it is so limited.  The words used are ‘any information relating to calls received’ not just information received during the call.  A person rings triple zero and asks for an ambulance response, the details are given is relevant information.  But equally, I would suggest, the transmission of information to the emergency service is information ‘relating’ to the call received, as is a call back from the ambulance service to the ETSA giving more information.  I don’t see why ‘calls’ would be limited to telephone calls.  One could call ‘for’ the emergency services by way of telephone, printed message delivered to the service or standing on the rooftop and yelling.  ‘Call taking and dispatch services means the services of— (a) taking, listening to and recording calls … being calls in which assistance is sought of an emergency services…’ (s 3).  ETSA could receive calls in any way it wanted to and no doubt it does that by telephone but also by Text Emergency Calls for the hearing impaired (see https://www.triplezero.gov.au/Pages/default.aspx) and, if not yet, one day by web based message services.   I can see nothing in the Act that limits how the call is made to a telephone.

The reference to ‘messages communicated by the Authority’ is a bit odd, but again the relevance is that the information is about a call communicated by the Authority, so a message back conveying more information is ‘relating to’ the message originally communicated by the authority.

In short, I would suggest that for the purposes of the Act confidential information includes the information given by the initial caller as well as information communicated by and to ETSA by the emergency services and others involved in the response.

  1. Senior ESTA Managers often make comment in public regarding incidents (usually incidents drawing media attention for negative reasons). Can they do so without written permission of the Minister or the person to whom the information relates?

That’s impossible to answer in the abstract.  It would depend what was said in the comment and whether the person involved could be identified.  Information about ETSA’s performance is probably not confidential.  Releasing the recording of the triple zero call (which seems to happen) would seem to be prohibited.  In between those there are a myriad of possibilities.

  1. General ESTA performance information. ESTA releases internally each month to staff performance information. Generally, this information contains graphs regarding how many calls were taken, how many calls were dispatched and how performance was tracking against Inspector General for Emergency Management Benchmarks. These internal releases contain a warning that discussing or releasing this information could see the staff member charged under section 33 of the ESTA act. Obviously, internal disciplinary procedures could occur in such a case. But is it a stretch to think a staff member could be charged with this offence in the circumstance of such general, performance information was recorded, disclosed or communicated? If so, by passing out this information internally, are managers not “communicating” it already and potentially breaching the act?

I would suggest internal communications is not an issue. The information that ESTA has is for its purposes and passing it within the agency for the purposes of informing the agency and performing its tasks has to be using it ‘to perform duties under this Act’.  For example the Authority is required ‘to promote and develop policies and procedures to improve the standard and provision of emergency telecommunications and other communications services’ (s 7(1)(b)).  To do that it needs to know how it’s performing to ensure that it is up to standard and find ways to improve that standard.

One would imagine that deidentified and aggregated data – number of calls received, dispatch times etc, is not confidential information but it is arguably ‘information relating to calls received’ even if it is not about a specific call. I think it might be a long shot to say releasing that information is contrary to s 33 but it might be, and even if it isn’t it would not doubt be a breach of employment conditions to breach an employer’s confidentiality and there may well be relevant provisions in Victorian public sector legislation.

  1. As far as I am aware, nobody has ever been charged under this section. Are there any cases you are aware of or ability to confirm this as the case?

I am unable to locate any cases where anyone has been prosecuted for a breach of s 33.