Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DTN v Commissioner of Police [2022] NSWCATAD 158 Hearing dates: 18 October 2021, 23 March 2022 Date of orders: 19 May 2022 Decision date: 19 May 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: S Dunn, Senior Member Decision: All proceedings, other than proceedings 2021/177994, are dismissed under s 55 (1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) Proceedings 2021/177994 are listed for directions on 7 June 2022 at 2pm by telephone. Catchwords: PRIVACY – personal information – health information – s4(3)(j) Privacy and Personal Information Act 1998 – s5(3)(m) Health Records and Information Privacy Act 2002 – information or opinion about an individual's suitability for appointment or employment as a public sector official Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 (NSW) Health Records and Information Privacy Act 2002 (NSW) Privacy and Personal Information Act 1998 (NSW) Cases Cited: ACO v Department of Education and Training [2012] NSWADT 79 AF v Minister for Health [2012] NSWADTAP 16 AHC v Fire Rescue New South Wales [2012] NSWADT 258 AOB v Commissioner of Police [2013] NSWADT 138 CYL v YZA [2016] NSWCATAD 314 Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270 Department of Education and Training v PN [2006] NSWADTAP 66 DPD v Far West Local Health District [2020] NSWCATAD 141 DTN v Commissioner of Police (NSW) [2021] NSWCATAD 240 DTN v Commissioner of Police, NSW Police Force (No 2) [2021] NSWCATAD 294 EY v Department of Corrective Services (GD) [2009] NSWADTAP 25 OD v Department of Education and Training [2012] NSWADT 312 PN v Department of Education & Training [2006] NSWADT 122 Y v Department of Education and Training [2001] NSWADT 149 Category: Principal judgment Parties: DTN (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Applicant self-represented Sparke Helmore Lawyers (Respondent) File Number(s): 2021/00167080, 2021/177994, 2021/177996, 2021/177999, 2021/178001, 2021/178002, 2021/178008, 2021/178010, 2021/178011, 2021/178023, 2021/178236 Publication restriction: Pursuant to s64 of the Civil and Administrative Tribunal Act 2013 the publication or broadcast of the name of the Applicant in these proceedings is prohibited. Note: A reference to the name of the Applicant includes a reference to any information, picture or other material that identifies the Applicant or is likely to lead to the identification of the Applicant. REASONS FOR DECISION Background 1. In these reasons for decision the name of the Applicant has been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as the Applicant or DTN. 2. The Applicant has lodged eleven separate applications to the Tribunal under s 55 of the Privacy and Personal Information Act 1998 (NSW) (PPIP Act) for an administrative review of certain conduct of the Respondent that was the subject of applications for internal review lodged by the Applicant with the Respondent under s 53 of the PPIP Act. 3. Pursuant to s53 of the PPIP Act, in December 2020 and April 2021 DTN requested the NSW Police Force (NSWPF) conduct an internal review of the conduct of the Respondent in relation to each of the following documents which are now the subject of the applications in the following proceedings: 1. 2021/00167080: Letter dated 9 April 2010 from A Sailing, Injury Management Unit NSWPF to Dr Tim Anderson, Occupational Physician which is at pp17-19 of the documents lodged by the Respondent with the Tribunal pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) (the s58 documents) and referred to by the Respondent (and will be referred to in these reasons) as P2; 2. 2021/177994: Memorandum dated 25 May 2011 from A Sailing, Injury Management Unit which appears to have been copied to the Manager Injury Management, General Manager Injury Management and Commander Workforce Safety of the NSWPF which is at pp41-42 of the s58 documents and referred to by the Respondent (and will be referred to in these reasons) as P3; 3. 2021/177996: Facsimile dated 10 August 2010 from A Sailing to Dr Norm Southern at page 58 of which is at p58 of the s58 documents and referred to by the Respondent (and will be referred to in these reasons) as P4; 4. 2021/ 177999: Letter dated 19 February 2010 from A Sailing to Dr Pusic which is at pp74-75 of the s58 documents and referred to by the Respondent (and will be referred to in these reasons) as P5; 5. 2021/178001: Proposed Return to Work Plan dated 29 March 2011 prepared by A Sailing which is at pp93-94 of the s58 documents and referred to by the Respondent (and will be referred to in these reasons) as P6; 6. 2021/178002: Proposed Return to Work Plan dated 29 March 2011 prepared by A Sailing which is at pp111-112 of the s58 documents and referred to by the Respondent (and will be referred to in these reasons) as P7; 7. 2021/178008: Proposed Return to Work Plan dated 8 April 2011 prepared by A Sailing which is at pp142-143 of the s58 documents and referred to by the Respondent (and will be referred to in these reasons) as P9; 8. 2021/178010: Letter dated 10 August 2010 from A Sailing to Dr Norm Southern which is at p159 of the s58 documents and referred to by the Respondent (and will be referred to in these reasons) as P10; 9. 2021/178011: Letter dated 7 October 2009 from A Sailing to Dr Norm Southern which is at pp179-181 of the s58 documents and referred to by the Respondent (and will be referred to in these reasons) as P11; 10. 2021/178023: Letter dated 19 February 2010 from A Sailing to Dr Norm Southern which is at pp198-200 of the s58 documents and referred to by the Respondent (and will be referred to in these reasons) as P12; 11. 2021/178236: Facsimile dated 16 February 2009 from A Sailing to Dr Norm Southern which is at pp212-215 of the s58 documents and referred to by the Respondent (and will be referred to in these reasons) as P13. 1. In each case the Applicant complains that there has been a breach of either the Information Protection Principles (IPPs) under the PPIP Act in respect of his personal information or of the Health Privacy Principles (HPPs) under the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act) in respect of his health information or both. 2. By letters dated 15 June 2021 the Respondent gave the Applicant notice of its internal review decision in respect of each application, in each case concluding that the conduct of the Respondent was exempt from the definition of "personal information" under section 4(3)(j) of the PPIP Act or section 5(3)(m) of the corresponding provision of the HRIP Act because the relevant information in each case was information or an opinion about the Applicant's suitability for employment as a public sector official. 3. By order made on 24 August 2021 these applications were listed for hearing together on the preliminary issue as to whether the information in issue in each case is personal information of the Applicant. The Respondent contends that it is not on the grounds that s 4(3)(j) of the PPIP Act or s 5(3)(m) of the HRIP Act apply to exempt the information. 4. Accordingly, the only issue presently for determination by the Tribunal is whether s 4(3)(j) of the PPIP Act or s5(3)(m) of the HRIP Act applies in respect of the information the subject of each application contained in documents P2, P3, P4, P5, P6, P7, P9, P10, P11, P12 and P13 respectively. 5. The proceedings were listed for hearing on 18 October 2021. During the course of the hearing of the proceedings on that date, the Applicant indicated that he needed to attend to an urgent personal matter and proposed, therefore, to withdraw the applications. The proceedings were adjourned part-heard and the Applicant was provided an opportunity to confirm to the Tribunal and the Respondent whether he wished to withdraw the applications. The Applicant subsequently indicated that he did not wish to withdraw the applications. Accordingly, the proceedings were listed for hearing part-heard on 23 March 2022. Material Before the Tribunal 1. An order was made that evidence in one set of proceedings is evidence in each set of proceedings. 2. As it is the Respondent's contention that the exemption in s 4(3)(j) of the PPIP Act or s5(3)(m) of the HRIP Act applies, it was appropriate that the Respondent file and make its submissions first. 3. The Respondent relied on certain pages in the s 58 documents which it identified in submissions and in the hearing and are referred to in these reasons (as the s 58 documents comprise approximately 3800 pages it was made clear to both parties that the Tribunal would have regard only to those pages of the s 58 documents to which its attention was addressed), submissions dated 15 September 2021 and further submissions dated 20 December 2021. 4. The Applicant relied on submissions dated 27 September 2021 and further submissions dated 24 December 2021 which also attached some further documents. I note that there is reference in the Applicant's 27 September 2021 submissions to a without prejudice exchange between the parties. That material is not material that can be admitted in proceedings without the consent of both parties. The Respondent did not consent to the Tribunal having regard to that material and I have had no regard to it. 5. At the hearing both parties made submissions which were directed to the issue of whether or not there had been a breach of an IPP or HPP, in particular as to whether the documents contained inaccuracies and as to how those inaccuracies may have come about. As indicated to the parties, I have not referred to those submissions in these reasons as those matters are beyond the scope of the issue presently before the Tribunal. Relevant Legislation 1. It is not in dispute that both the PPIP Act and the HRIP Act apply to public sector agencies, including the Respondent. PPIP Act 1. The PPIP Act sets out certain IPPs which public sector agencies must comply with when handling "personal information" including in relation to the collection of the information (ss 8, 9 and 10), the accuracy of the information (ss 11, 15 and 16), the retention of the information (s 12), the use (ss 16 and 17) and disclosure (ss 18 and 19) of the information. 2. "Personal information" is defined in s 4(1) of the PPIP Act as: In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. 1. Section 4(3)(j) of the PPIP Act provides that "personal information" does not include "information or an opinion about an individual's suitability for appointment or employment as a public sector official". 2. Section 4A of the PPIP Act provides: Except as provided by this Act or the Health Records and Information Privacy Act 2022, the definition of personal information in section 4 does not include health information within the meaning of the Health Records and Information Privacy Act 2022. 1. Part 5 of the PPIP Act relates to the review of conduct. Section 53 of the PPIP Act provides that a person aggrieved by the conduct of a public sector agency may apply for an internal review of the conduct. Section 55 of the PPIP Act provides that a person who has made an internal review application and is not satisfied with the findings of the review or the action taken by the public sector agency in relation to the application may apply to the Tribunal for an administrative review of the conduct that was the subject of the internal review application. HRIP Act 1. The HRIP Act sets out certain HPPs which public and private sector agencies must comply with when handling "health information". There is substantial overlap between the IPPs under the PPIP Act and the HPPs under the HRIP Act. 2. Section 6 of the HRIP Act defines 'health information', relevantly, as follows: In this Act, health information means: (a) personal information that is information or an opinion about: (i) the physical or mental health or a disability (at any time) of an individual, or … 1. Section 5(1) of the HRIP Act defines "personal information" in identical terms to s 4(1) of the PPIP Act. 2. Section 5(3) (m) of the HRIP Act provides that "personal information" does not include "information or an opinion about an individual's suitability for appointment or employment as a public sector official". As can be seen it is in identical terms to s 4(3)(j) of the PIPP Act. 3. Section 21 of the HRIP Act provides that a contravention of an HPP that applies to a public sector agency is conduct to which Part 5 of the PPIP Act applies. "information or opinion about an individual's suitability for appointment or employment as a public sector official": the authorities 1. As can be seen from the above the exemption under s 4(3)(j) of the PPIP Act and s5(3)(m) of the HRIP Act are in identical terms. It is accepted that the exemption under both Acts should be interpreted and applied in the same manner: DTN v Commissioner of Police (NSW) [2021] NSWCATAD 240 at [19] and [24]. 2. The following principles emerge from the authorities as to the purpose and scope of the exemption. 3. The accepted purpose of the exemption is to enable the assessment of prospective or current employee competencies and their suitability without being constrained by the IPPs or HPPs. If the relevant information is not personal information because the exemption applies, then the IPPs and HPPs do not apply: DPD v Far West Local Health District [2020] NSWCATAD 141 at [81] 4. As the PPIP Act (and HRIP Act) is beneficial legislation, any exclusion from the definition of 'personal information' should be interpreted narrowly: PN v Department of Education & Training [2006] NSWADT 122, at [58]. However, as the Court of Appeal said in Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270 at [49] the fact that: The Act is beneficial legislation which must be liberally interpreted in order to achieve its beneficial purpose. That does not mean that it must be interpreted in such a way that whatever may be regarded as improving its enforcement must fall within the intention of the legislature. 1. The scope of the exemption goes beyond assessing suitability for appointment to a public sector position and extends to an assessment of the ongoing suitability of current public sector officials to perform their roles: EY v Department of Corrective Services (GD) [2009] NSWADTAP 25 at [39]. 2. For the information to be "about" an individual's suitability for employment, the individual's suitability must be a "live issue" and the information (or its context) must demonstrate that the individual's suitability for employment is being assessed. The information would generally contain within it language which indicates to an objective observer that the information canvasses the aptitude and competence of the employee with respect to their current or prospective employment. Y v Department of Education and Training [2001] NSWADT 149 at [36]. However, this is not necessarily a requirement as the question is always a broader one of context and content. AF v Minister for Health [2012] NSWADTAP 16 at [43], AOB v Commissioner of Police [2013] NSWADT 138 at [12]. 3. Both the content of the information and the context in which the information was collected, stored, used or disclosed by the relevant agency are relevant: AHC v Fire and Rescue New South Wales [2012] NSWADT 258 at [34]. Information that satisfies the content test but not the context test will not come within the scope of the exemption: Department of Education and Training v PN [2006] NSWADTAP 66 at [60]. 4. Information which was collected for the purposes of assessing an individual's suitability for employment and satisfied the context test at that time, but which is later used for a different purpose is not exempt under s 4(3)(j) of the PPIP Act: See for example CYL v YZA [2016] NSWCATAD 314 where the Tribunal stated at [104] (and see also: OD v Department of Educations and Training [2012] NSWADT 312; DTN v Commissioner of Police, NSW Police Force (No 2) [2021] NSWCATAD 294) : 104. However, in my opinion, the categorisation of the information can change with the context in which it was being addressed. In the context in which the Disclosure was made, it was not information about CYL's suitability for employment. The AHRC was not considering whether to employ CYL. It was investigating a complaint of discrimination and the information was supplied in that connection. 1. On the other hand, context can bring information within the scope of the exemption. In ACO v Department of Education and Training [2012] NSWADT 79 the Applicant complained that information about the Applicant which was included in a referral for a medical assessment to determine his fitness to continue, and capacity to complete the inherent requirements of his role, was wrong. The Tribunal found that the information was within the scope of the exemption and stated at [27]: The context in which those comments were made is that of the referral. Unlike the situation in AF, here the referral raised for consideration questions going directly to ACO's suitability for employment as teacher. The referral first sought advice on ACO's "ability to perform the inherent requirements of a class room teaching position." It squarely raised the issue that "[ACO's] ability to interact with students is so restrictive that DET is struggling to support the ongoing employment of [ACO]." That was the context in which the information about ACO was raised: one of seeking a medical assessment of his suitability for continued employment as a teacher. Factual Background 1. The following background facts are not in dispute. 1. The Applicant commenced employment with the Respondent as a police officer in about August 1995. 2. On 28 August 2007 the Applicant sustained a physical workplace injury (a serious foot injury). 3. The Applicant's last day on duty was 3 July 2008. 4. Between August 2007 April 2012 the Applicant saw a number of different medical practitioners including various different specialists in relation to his injury. 5. The Applicant was medically discharged from the Respondent on or about 9 April 2012 by reason of his physical injury. 6. On 12 January 2020, the Applicant made a request of the Respondent for access to, amongst other things, his Medical File and Injury Management File for the period of his employment and in July and August 2020 the Applicant was provided with a copy of the files requested. 7. Other than document P13, the documents the subject of these applications were amongst those files. The Applicant complains that these documents contain significant inaccuracies or false and misleading information. He is concerned, in particular, about references in these documents to the possibility that the Applicant may have been suffering a psychological illness which the Applicant says is incorrect and that this incorrect information was disclosed to various doctors who were treating him at the relevant time. The Applicant says that this caused considerable harm to his recovery, If the Tribunal finds that the exemption does not apply, the Applicant will submit that the Respondent breached various of the IPPs and/or HPPs including as to the accuracy and disclosure of this information. The Parties' submissions 1. The Respondent submits that each of the relevant documents is directly related to the Respondent's assessment of the Applicant's suitability for ongoing employment as a public sector official and that in all but one case (document P13) the relevant document was stored on the Applicant's Injury Management File which files are used to manage medical issues related to an officer's employment with NSWPF and any return to work plans that may be put in place. As such, the Respondent submits both the content and the context support the applicability of the exemption. 2. The Applicant submits that the legislation does not permit an employer to state something "that should have been known by the employer was incorrect" or "was contrary to stated medical opinion in the employer's possession at the time the [document] was written and of which the author of the [document] should have been aware". That is, I understand the Applicant to submit that the exemption does not apply to information about the suitability of an individual for employment if the information is incorrect. 3. Alternatively, the Applicant submits, that the Respondent is sheltering behind protectionist legislation to avoid accountability. Complaints of that nature are beyond the jurisdiction of the Tribunal which must apply the law as it stands. Findings and Conclusions 1. I have reviewed the contents of each of the documents in question and have considered the parties' submissions. I find it convenient to deal with documents of a similar nature together in summarising my conclusions below. Before I do so however, there are a number of observations which apply to all of the relevant documents. 2. First, in each case the information in question is clearly information or opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion such that the information would be personal information within the meaning of that term in both the PPIP Act and the HRIP Act. Personal information must either be personal information for the purposes of the PPIP Act or health information for the purposes of the HRIP Act. The same information cannot be both. Much of the information is information or opinion about the physical or mental health or disability of the Applicant which would, therefore, be health information for the purposes of the HRIP Act. However, some of the documents might contain a mixture of both personal information for the purposes of the PPIP Act and health information for the purposes of the HRIP Act. Given that the exemption under both Acts is identical, however, there is no need for me to determine whether the information contained in each of the relevant documents is the Applicant's personal information or health information or a mixture of both. 3. Secondly, it was not in issue that as at the date of each of the documents in question, the Applicant's suitability for employment was a live issue. 4. Thirdly, it is also not in issue that the documents (other than document P13 which I deal with below) were contained in the Respondent's Injury Management File. (I note that the Respondent has referred in its submissions to certain of the documents as being drafts. It is not clear to me from the materials I have reviewed whether some of those documents are drafts or final versions of letters as sent. However, I do not consider anything presently turns on this.) 5. Fourthly, while the Applicant holds concerns that the documents may have been disclosed to third parties, there is no evidence that any of the documents have been disclosed to anyone other than the relevant addressees of the documents and the Applicant's former solicitors at the Applicant's request in 2018. 6. Fifthly, there is nothing in the legislation which excludes the exemption from applying to information about an individual's suitability for employment which is inaccurate. I accept the Respondent's submission in this regard that the exemption would apply to information whether it is accurate or not. If that were not the case, then effectively the IPPs as to accuracy of information would be binding on agencies whether the exemption otherwise applied or not and if this is what Parliament had intended you would expect that to have been made clear. As the Appeal Panel stated in Department of Education and Training v PN at [14]: It is evident, as the representatives of both parties acknowledged, that the accuracy of information allegedly disclosed in breach of the Privacy Act and the propriety of any such disclosure are not directly relevant to the question whether the information falls within the statutory definition of 'personal information'. P2 1. P2 is a letter dated 9 April 2010 from A Sailing of the Respondent's Injury Management Unit NSWPF to Dr Tim Anderson an Occupational Physician. The Respondent's Injury Management Unit is the business unit of the Respondent responsible for dealing with injured employees and managing their return to work or exit from the NSWPF. The letter sets out details as to the Applicant's employment history and medical history (some of which the Applicant complains is inaccurate). It notes that the Applicant has continued to be certified unfit for work since approximately February 2009 and seeks Dr Anderson's advice as to the Applicant's ability to return to work and recommendations as to treatment options which might assist his capacity for work. 2. The content of the letter including the material contained in the medical history (whether accurate or not) is clearly information about the applicant's suitability for employment at a time when that was a live issue. It was provided to Dr Anderson to assist him in forming the opinion the Respondent was seeking from him as to the Applicant's ability to return to work. 3. The document was prepared for the purposes of assessing the Applicant's suitability for employment and is contained in the Applicant's Injury Management File, so there is nothing about the context which would serve to take the document out of the scope of the exemption. 4. Both the content and the context of the document relates to the Applicant's suitability to undertake duties as a police officer which was a live issue at the time. I therefore find that the information in P2 was not personal information for the purposes of the PPIP Act or health information for the purposes of the HRIP Act because the information falls within the exemption in s 4(3) (j) of the PPIP Act or s 5(3)(m) of the HRIP Act. P5, P11, P12, P13 1. Document P5 is a letter dated 19 February 2010 from Ms Sailing to Dr Pusic, a Psychiatrist. The letter contains very brief information about the Applicant including a statement that the author was aware of "the lengthy period for which [the Applicant] has endured the effects of both physical and psychological injuries". It asks Dr Pusic "to assist ongoing injury management for [the Applicant] to progress towards achieving maximum capacity for work in the future" to consider and comment on a series of questions directed at assessing the Applicant's suitability to undertake duties as a police officer, including as to whether "the currently diagnosed psychological condition" affects the Applicant's capacity for work. 2. While the Applicant complains that the reference to a psychological illness and a diagnosed psychological condition is incorrect, the information in the letter is information about the Applicant's suitability for employment as a police officer. That was the context in which the information about the Applicant was provided: one of seeking a medical assessment of his suitability for continued employment as a police officer: ACO at [27]. 3. Both the content and the context of the document relates to the Applicant's suitability to undertake duties as a police officer which was a live issue at the time. I therefore find that the information in P5 was not personal information for the purposes of the PPIP Act or health information for the purposes of the HRIP Act because the information falls within the exemption in s 4(3) (j) of the PPIP Act or s 5(3)(m) of the HRIP Act. 4. Documents P11, P12 and P13 are similar in nature. They are each letters (or facsimiles) from Ms Sailing addressed to Dr Norm Southern, who was the Applicant's treating doctor for some time. They are dated 7 October 2009, 19 February 2010 and 16 February 2009 respectively and are in substantially similar terms. Each commences with an introductory paragraph: As you are aware NSW Police Force is committed to assisting officer's return to work following an injury. NSW Police Force is a large organisation with many roles/duties available for officer's to undertake conducive to their medical restrictions. As part of the injury management process it is necessary to ensure an appropriate return to work goal is in place for [the Applicant]. Therefore I would like to clarify the following with you: 1. The letters then proceed to list a number of questions for Dr Southern about the Applicant including as to his current diagnosis and symptoms that affect his ability to return to work and each conclude with the question Do you believe that [the Applicant] should consider a medical discharge from the NSW Police Force and on the basis of which current condition – Psychological or Plantar Fascitis 1. Again, the Applicant complains that the reference to a psychological condition is incorrect, however the information in the letters is information about the Applicant's suitability for employment as a police officer. The context in which the information about the Applicant was provided was one of seeking a medical assessment of his suitability for continued employment as a police officer. 2. Both the content and the context of the documents relate to the Applicant's suitability to undertake duties as a police officer which was a live issue at the time. 3. As mentioned above, document P13 does not appear in the Applicant's Injury Management File. The Respondent is not aware where the Applicant obtained a copy of document P13 from. However, it was clearly prepared by the Injury Management Team and there is no evidence that it was disclosed to anyone other than Dr Southern so there does not appear to be anything about the context of that document which would take it outside of the exemption. 4. I therefore find that the information in P11, P12 and P13 was not personal information for the purposes of the PPIP Act or health information for the purposes of the HRIP Act because the information falls within the exemption in s 4(3) (j) of the PPIP Act or s 5(3)(m) of the HRIP Act. P6, P7, P9 1. Document P6 and P7 are duplicate copies of the same document. It is a document entitled "Proposed Return to Work Plan" and is dated 29 March 2011. It is not clear on the face of the document whether it is a draft, but nothing turns on this. It appears to have been prepared by Ms Sailing, the Respondent's Injury Management Advisor. 2. It notes that the Return to Work Goal is for the Applicant to return to pre-injury duties as an operational officer within the NSWPF and outlines a proposed plan (pending approval from a medical practitioner) for the Applicant's staged return to work over a three month period, proposing sedentary duties for that period but with gradually increasing hours and outlines proposed restrictions on the duties that the Applicant would be able to undertake. 3. Document P9 is also a Proposed return to Work Plan dated 8 April 2011. Again it is not clear whether the document is in draft, but again nothing turns on this. The Respondent submits that this document was also prepared by Ms Sailing but, while it appears clear that it was prepared by some person within the Injury Management Team it is not clear that Ms Sailing was the author of this document. It identifies the Return to Work Goal for the Applicant is to be a fully operational police officer within the NSWPF and sets out a different proposed staged return to work plan (also subject to review by a medical practitioner): a plan for "stage one" over a period of one month following which it was proposed that the Applicant's progress be reviewed by a medical practitioner and Injury Management and for a discussion to take place to determine the Applicant's capacity for "stage two". 4. Both Proposed Return to Work plans clearly contain information and opinion as to the Applicant's suitability for employment as a police officer with the NSWPF. The documents were clearly prepared for the purpose of assessing his capacity to return to work and are contained on the Respondent's Injury Management File. Again, there is nothing about the context of this information which would serve to take the document out of the scope of the exemption. 5. I therefore find that the information in documents P6, P7 and P9 was not personal information for the purposes of the PPIP Act or health information for the purposes of the HRIP Act because the information falls within the exemption in s 4(3) (j) of the PPIP Act or s 5(3)(m) of the HRIP Act. P4 and P10 1. Document P4 is a facsimile dated 10 August 2010 from Ms Sailing to Dr Southern which states: Just a quick update regarding [the Applicant] – I have been speaking with Allianz recently regarding [the Applicant's] psychiatric symptoms and they have agreed to arrange an assessment by a psychiatrist. [The Applicant] is aware, once I receive the report I will forward a copy to you for your information. 1. Document P10 is a letter also dated 10 August 2010 from Ms Sailing to Dr Southern which states: Following our recent telephone conversation regarding ongoing psychiatric treatment for [the Applicant], I have made further enquiries into available treating psychiatrists in the area. 1. The letter then provides Dr Southern with the names of three possible psychiatrists and a relevant telephone contact number. 2. Both letters bear the same date and cover similar information. It is not clear whether one may have been an earlier draft which was not sent. 3. Neither document on its face expressly concerns the Applicant's suitability for work as a police officer. However, the Respondent took the Tribunal to a report that was ultimately prepared by one of the identified psychiatrists, Dr O'Rourke, on 15 October 2010 (at p 1049 of the s 58 documents). 4. The letter dated 15 October 2010 from Dr O'Rourke, a Consultant Psychiatrist at St John of God Health Care to the Senior Case Manager at Allianz Australia Insurance Limited provides an assessment of the Applicant in relation to a work cover claim. It refers to a referral letter from Dr Southern dated 17 September 2010. It notes that "Dr Southern has requested a review of an associated psychological problem – Obsessive Compulsive Disorder with the possibility of a Somatoform disorder (Somatization)." Dr O'Rourke's opinion is that the Applicant's condition was a Pain Disorder Associated with a General Medical Condition and he concluded: I do not find that there are any psychological factors contributing to [the Applicant's] ongoing pain. … In my opinion there are no psychological conditions [the Applicant] is experiencing relating to his work or physical injury. 1. Accordingly, it is clear from their context, that the letters dated 10 August 2010 to Dr Southern were part of a chain of correspondence (or draft correspondence) concerning a review of the Applicant's fitness to return to work. Accordingly, I accept the Respondent's submission that these documents are also "about" the Applicant's suitability for work as a police officer and are within the exemption. P3 1. Document P3 is a document of a different nature. It is an internal memorandum dated 25 May 2011 prepared by Ms Sailing of the Injury Management Team for submission to the Manager Injury Management, General Manager Injury Management, Commander of Workforce Safety and Office of General Counsel outlining a complaint made by the Applicant about the provision of inaccurate medical information by Injury Management to a number of third parties and seeking their advice in relation to whether the actions taken by Injury Management to address the Applicant's complaint are appropriate and adequate. The document sets out some brief historical medical information about the Applicant. It then notes that Injury Management was advised by Local Area Command (LAC) that the Applicant had presented to Blacktown LAC on 14 April and was later admitted to hospital that day. As part of "the normal process" Injury Management disseminated the information regarding the Applicant's presentation at Blacktown LAC and admission to Blacktown hospital to the insurer to include in a psychiatric referral with Dr Wilson and to the Nominated Treating Doctor, Dr Southern. The memorandum notes that it had become apparent that the information provided to Injury Management was only partially correct and that, after being advised of the incorrect information, Injury Management alerted Dr George, an independent psychiatrist with whom the Applicant had a scheduled appointment, that the background information provided about the Applicant's admission to Blacktown Hospital was inaccurate. It also outlines the steps Injury Management had taken to deal with the Applicant's complaint and further steps proposed to be taken including to provide Dr Southern, the insurer and Dr Wilson with the "correct version of events that occurred in relation to [the Applicant's] attendance to Blacktown Hospital". 2. While some of the background medical information would be relevant to the Applicant's suitability for employment as a police officer and, at the time of this memorandum, his suitability for employment remained a "live issue", this document does not concern the Applicant's suitability for employment. It has not been prepared in the context of seeking to "canvass the aptitude and competence of the employee with respect to their current or prospective employment". It has not been prepared with a view to identifying whether he might return to work in some capacity. Rather it concerns a complaint made by the Applicant as to the provision of incorrect information concerning him to third parties and how that complaint has been and is proposed to be addressed. The background medical information has been included in this document in that context. 3. The Respondent took the Tribunal to some further documents in the s 58 documents (at pp 1357-1367 of the s 58 documents), namely a letter dated 8 September 2011 from the Commander of Workforce Safety to the Applicant, which acknowledged some information provided to various medical professionals about the Applicant's admission to Blacktown Hospital was inaccurate and agreeing to amend that information and a further letter dated 23 September 2011 to the Applicant attaching copies of letters sent to a number of different doctors, including Dr O'Rourke, as well as Employers Mutual correcting the information previously provided. The Respondent submitted that these letters served to bring document P3 within the exemption. I do not accept that submission. I agree that the letters sent to a number of different doctors, including Dr O'Rourke, as well as Employers Mutual correcting the information previously provided which came about in response to the Applicant's complaint would fall within the exemption, but that does not change the context of the internal memorandum recording the Applicant's complaint and the steps taken and to be taken to deal with it. 4. Information which was collected for the purposes of assessing an individual's suitability for employment and satisfied the context test at that time, but which is later used for a different purpose is not exempt under s 4(3)(j) of the PPIP Act or s 5 (3)(m) of the HRIP Act. I find, given the context of the memorandum, that the information in document P3 is not information or opinion about the Applicant's suitability for employment as a police officer and, as such, the exemption does not apply. Appropriate orders 1. The Respondent has submitted that, to the extent the Tribunal finds that the information is not personal information for the purposes of the PPIP Act or HRIP Act by reason of the application of the exemption, the appropriate order would be for the Tribunal to take no further action in accordance with s 55(2) of the PPIP Act. 2. Section 55(2) of the PPIP Act states, relevantly, (2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders— … 1. The Respondent referred the Tribunal to two earlier decisions of the Tribunal involving the Applicant where the Tribunal determined to "take no further action" (DTN v Commissioner of Police, NSW Police Force (No 2) [2021] NSWCATAD 294 and DTN v Commissioner of Police [2021] NSWCATAD 240). However, in each of those cases, the Tribunal had reviewed the Respondent's conduct. 2. In this case, at this stage, the Tribunal has dealt only with the preliminary question as to whether the exemptions under s 4(3)(j) of the PPIP Act or 5(3)(m) of the HRIP Act apply and has not reviewed the conduct of the Respondent. 3. In respect of those documents where I have found the exemption does apply, the PPIP Act and the HRIP Act do not apply to the Respondent's conduct and the Tribunal has no jurisdiction to deal with those applications. The appropriate order in respect of those proceedings is that the proceedings be dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 4. In respect of the proceedings concerning document P3, the proceedings should be listed for directions for the filing and service of any further evidence and submissions by the parties on the substantive application and for a hearing date to be set. Orders Proceedings 2021/00167080: 1. The proceedings are dismissed under s 55(1)(b) of the NCAT Act. Proceedings 2021/177996: 1. The proceedings are dismissed under s 55(1)(b) of the NCAT Act. Proceedings 2021/ 177999: 1. The proceedings are dismissed under s 55(1)(b) of the NCAT Act. Proceedings 2021/178001: 1. The proceedings are dismissed under s 55(1)(b) of the NCAT Act. Proceedings 2021/178002: 1. The proceedings are dismissed under s 55(1)(b) of the NCAT Act. Proceedings 2021/178008: 1. The proceedings are dismissed under s 55(1)(b) of the NCAT Act. Proceedings 2021/178010: 1. The proceedings are dismissed under s 55(1)(b) of the NCAT Act. Proceedings 2021/178011: 1. The proceedings are dismissed under s 55(1)(b) of the NCAT Act. Proceedings 2021/178023: 1. The proceedings are dismissed under s 55(1)(b) of the NCAT Act. Proceedings 2021/178236: 1. The proceedings are dismissed under s 55(1)(b) of the NCAT Act. Proceedings 2021/177994: 1. The proceedings are listed for directions on 7 June 2022 at 2pm by telephone. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 May 2022