BWY v Secretary, Department of Education [2020] NSWCATAD 208

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BWY v Secretary, Department of Education [2020] NSWCATAD 208 Hearing dates: 18 March 2020 Date of orders: 24 August 2010 Decision date: 24 August 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: R J Perrignon, Senior Member Decision: For the reasons given, I: (1) find that the respondent did not, on 26 March 2019, breach sections 17 or 18 of the Privacy and Personal Information Protection Act 1998 as alleged, and (2) decide not to take any action on the matter. Catchwords: ADMINISTRATIVE LAW — Personal information — whether used or disclosed – whether held by an agency – whether used or disclosed otherwise than in good faith Cases Cited: CYL v YZA [2016] NSWCATAD 314 GR v Department of Housing (No 2) [2006] NSWADTAP 34 PN v Department of Education and Training [2010] NSWADTAP 59 Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 Texts Cited: None cited Category: Principal judgment Parties: BWY (Applicant) Secretary, Department of Education (Respondent) Representation: Solicitors: J Pintley (Agent) (Applicant) Crown Solicitor (Respondent) File Number(s): 2019/00223322 Publication restriction: None

Judgment 1. The applicant, BWY, complains that the respondent Department used and disclosed information about her at a meeting on 26 March 2019 at which she was not present, in contravention of sections 17 and 18 of the Privacy and Personal Information Protection Act 1998. She seeks certain orders pursuant to section 55 of the Act and, if the Tribunal is of the view than an employee of the Department exercised otherwise than in good faith a function conferred or imposed under the Act or under a privacy code of practice, referral for the attention of the Minister under section 55(5). 2. To protect her identity, BWY's name has been anonymised, and the names of the schools at which she worked, the educational software firm for which she worked, and the names of colleagues with whom she worked, are not disclosed in these reasons. 3. By way of background, BWY was the head teacher in Human Society and its Environment at a Sydney high school ('the School'). She undertook secondary employment with a vendor of educational software, whose products she demonstrated. 4. In 2019, that vendor offered educational software to the School for trial and purchase. On 26 March 2019, its salesman ('the salesman') met with the school principal ('the Principal') and two deputy principals at the school. 5. BWY complains that, at that meeting, the Principal or one of her deputies used and disclosed to the salesman personal information about her, in breach of sections 17 and 18. BWY was not present at the meeting, but understands that one or more of the three, after asking the salesman whether BWY was a presenter and being told that she was not, expressed the opinion that, if she was, 'this would pose a problem for the school using the resource'. 6. On 16 April 2019, the applicant complained to the Department that her personal information had been used and disclosed in that meeting. On 18 April 2016, in response to a request for particulars, she provided the version of events summarised above, which was consistent with the version in her initial complaint. 7. The respondent Department agrees that certain things were said about BWY at that meeting, by one or more of the three teachers present, but says that this did not breach any privacy protection principle, because: 1. sections 17 and 18 apply only to personal information 'held' by an agency, and 2. in this case, the personal information was not 'held' by the agency for the purposes of the Act, because it was merely an opinion in the mind of the Principal or one or other of her deputies. 1. In the alternative, it says that section 25 of the Act exempted it from compliance with the relevant privacy principles, because non-compliance was necessarily implied or reasonably contemplated by the laws of negligence and occupational health and safety. 2. The issues for determination may be summarised as follows. 1. What personal information with respect to the applicant was used or disclosed by one or more of the teachers at the meeting on 26 March 2019. 2. Whether that information was 'held' by the agency. 3. If any of it was 'held' by the agency, whether non-compliance with sections 17 or 18 was necessarily implied or reasonably contemplated by the laws of negligence and occupational health and safety. 4. Whether, in using or disclosing personal information, any employee of the Department exercised otherwise than in good faith a function conferred or imposed under the Act, including under a privacy code of practice. 1. The Tribunal has been considerably assisted by oral and written submissions provided by both parties, and by the Information and Privacy Commissioner.