A correspondent has drawn this news story to my attention – Evan Morgan Grahame ’Triple-zero call-taker charged with disclosing official secrets in alleged tow truck rort’ ABC News (Online) 20 August 2019.

My correspondent says:

I’d be interested to hear your thoughts on this article:

Specifically the charges of ‘disclosing Official Secrets’ component related to the accused charges. While probably a clear breach of employment contract (and clearly immoral), I don’t know enough about the law to know if a private company’s data is regarded an official secret? But I’d be interested to hear your thoughts.

The story, in summary, says:

A St John Ambulance triple-zero call-taker has been charged after allegedly relaying details of traffic crashes to people in the towing industry…

[Police] Superintendent Darren Seivwright told ABC Radio Perth the woman allegedly sourced the information from a secure police database and received payment for it…

“All of the information that we hold here at WA Police has the personal information of everybody in Western Australia on it, and it’s therefore considered to be an official secret,” he said.

“The allegation is that one of our employees used that information to gain a personal benefit.​”

The immediate question arising from the report is did she work for St John Ambulance or WA Police?  Other versions of the story confirm that she worked for St John.  An article in the Guardian Express which also quotes Superintendent Seivwright says:

‘the arrests were linked to the January arrest of a 32-year-old woman, who was employed at the Police Assistance Centre and was paid for tip offs’.

Superintendent Darren Seivwright said the link between all the people charged in the Internal Affairs Unit investigation, believed to be six altogether, seemed to be the same towing company.

What I infer is that employees of both St John and WA Police were involved but the person the subject of the ABC article was a St John employee and whilst I don’t know all the details of how the St John (WA) State Operations Centre works I will assume that the St John operators cannot access the WA Police records.  I will assume therefore, that the St John call taker was passing on information where people made triple zero phone calls requesting ambulance assistance at a motor vehicle accident.  I think, having read a number of reports on the matter, that the quote attributed to Superintendent Seivwright, that ‘the woman allegedly sourced the information from a secure police database and received payment for it…’ relates to the ‘employee at the WA Police Assistance Centre, which handles both emergency and non-life-threatening calls, was charged with corruption in January’.

I may be wrong in my understanding of where the St John employee got the information that was passed on but as we will see not much will turn on that.

Official secrets

We’ve all watched spy movies and heard reference to people ‘signing the Official Secrets Act’.  There is indeed the Official Secrets Act 1989 (UK) but the sort of secrets that, in the UK MI5 and MI6, or in Australia ASIO, ASIS and the Defence Signals Directorate deal with seem to be in a very different class to information about the location of a motor accident.

If this person has been charged with disclosing official secrets then it has to be under WA law and the relevant law is the Criminal Code 1913 (WA) s 81.    That section says:

Disclosing official secrets

(1)          In this section —

disclosure includes —

(a)          any publication or communication; and

(b)          in relation to information in a record, parting with possession of the record;

government contractor means a person who is not employed in the Public Service but who provides, or is employed in the provision of, goods or services for the purposes of —

(a)          the State of Western Australia; or

(b)          the Public Service; or

(c)           the Police Force of Western Australia;

information includes false information, opinions and reports of conversations;

official information means information, whether in a record or not, that comes to the knowledge of, or into the possession of, a person because the person is a public servant or government contractor;

public servant means a person employed in the Public Service;

unauthorised disclosure means —

(a)          the disclosure by a person who is a public servant or government contractor of official information in circumstances where the person is under a duty not to make the disclosure; or

(b)          the disclosure by a person who has been a public servant or government contractor of official information in circumstances where, were the person still a public servant or government contractor, the person would be under a duty not to make the disclosure.

(2)          A person who, without lawful authority, makes an unauthorised disclosure is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

The State of Western Australia does not operate an ambulance service, instead it contracts with others, including St John Ambulance (WA), for those organisations to provide ambulance services to the community.

“St John Ambulance Australia (Western Australia) Inc. (SJA) is contracted by WA Health to provide ambulance services throughout the state. SJA is a non-government incorporated association, linked to the international Order of St John. It has a long history in Western Australia (WA) as the primary provider of ambulance services, operating since 1922. In this regard, WA and the Northern Territory are unlike other Australian jurisdictions where ambulance services are provided by government agencies and regulated by legislation.” (Delivering Western Australia’s Ambulance Services (Western Australian Auditor General’s Report, Report 5 – June 2013, p. 5).

The contract between WA and St John is available online – Services Agreement between State of Western Australia and St John Ambulance Western Australia Limited.  That contract was due to expire on 30 June 2018 but has been extended until June 30, 2020 (Minister for Health, St John Ambulance WA contract extension (26 June 2018)).

St John Ambulance (WA) is not, then, an entity that saw a gap in the market and is providing ambulance services on a fee for service basis entirely in its own right and according to its own assessment of the market.  It is a contractor to government providing services at the request of and in accordance with the terms agreed to with government.  I think we can safely say that St John (WA) is a ‘government contractor … who provides … services for the purposes of — (a) the State of Western Australia’.  It follows that a person employed by St John (WA) is also a government contractor for the purposes of s 81, quoted above.

It is therefore an offence for an employee of St John to disclose ‘information … that comes to the knowledge of [that] … person because the person is a … government contractor’.  Information about the location of a car accident that comes to a person’s knowledge because they have received a triple zero phone call has only come to that person’s knowledge because they are receiving that call as part of the contracted ambulance services.  It is therefore ‘official information’.

The issue that I can see is whether the Crown will be able to prove that there was ‘a duty not to make the disclosure’.  That may depend on the terms of any employment contract and any duty of confidentiality in those agreements and in the service agreement.  The confidentiality clause in the service agreement between WA and St John (cl 17) relates to confidential information held by each organisation with respect to the other and does not appear relevant.   The definition of confidential information in cl 1 relates to information about a patient’s identity and diagnosis which is not the same as information about where an accident has occurred.  It does include ‘all data collected in the course of this Agreement’ which may be wide enough to capture the information that was passed on.   The situation is made more complex by the fact that St John itself does give out information on the location of emergency calls in order to encourage nearby first aiders to respond – St John First Responder App (2019).  If St John can broadcast to the world the location of an emergency is there a duty on the call taker not to ring someone and pass on that same sort of information?

What we don’t know

What we don’t know is the details of the information the defendant is alleged to have provided, where it was accessed from or the terms of the employment contract.

If the information contained personal details, eg the names of people involved in the accident, then it will be easier given the terms of the agreement between St John and WA, and the terms of the Privacy Act 1988 (Cth) (as applied in WA) to argue that there was ‘a duty not to make the disclosure’.

If the information really was accessed from a database maintained by WA Police that St John call takers had access too, there is more likely going to be a confidentiality clause that prohibits further disclosure of that information and that too would make it easier to argue that there was ‘a duty not to make the disclosure’.

We don’t know the terms of any employment contract and most contracts would either expressly, or by implication, impose a requirement not to disclose information that is received in the course of one’s duties.  The Crown cannot however rely on a mere expectation that such a duty exists, it will need to prove, beyond reasonable doubt, that there was ‘a duty not to make the disclosure’.

Conclusion

This is a discussion on s 81 using the report on ABC News as a stimulus for the discussion.  It is not meant to suggest to either the Crown or the defendant in the case before the court how to run the case or what the outcome might be.  I am not suggesting that the defendant is, or is not guilty of the offences charged.  I do not have sufficient details nor is it my place to do that.

This discussion aims to address the point raised by my correspondent who said while ‘probably a clear breach of employment contract (and clearly immoral), I don’t know enough about the law to know if a private company’s data is regarded an official secret’.    A private company’s data is not an official ‘secret’ unless that company is a contractor to government and receives the information in the performance of its duties under the contract.  Even so it is not an offence to disclose that information unless there is ‘a duty not to make the disclosure’.  That duty could arise from law, the contract or the terms of the employment agreement.

Section 81 is entitled ‘Disclosing official secrets’ but the words ‘secret’ or ‘secrets’ do not appear anywhere in the section.  It should be called ‘Disclosing official information’.