Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FFN v Cumberland City Council [2023] NSWCATAD 108 Hearing dates: 9 & 10 February 2022; 10 May 2022; 26 October 2022; 2 March 2023 Date of orders: 09 May 2023 Decision date: 09 May 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: H J Dixon SC, Senior Member Decision: Pursuant to section 55(2) of the Privacy and Personal Information Act 1998 the Tribunal takes no action on the matter. Catchwords: Privacy – information protection principles – information not recorded or held in agency's records – information in heads of agency staff – whether information collected – whether information held Legislation Cited: Administrative Decisions Review Act 1997; Children and Young Persons (Care and Protection) Act 1998; Government Information (Public Access) Act 2009; Privacy and Personal Information Protection Act 1998 Cases Cited: CNP v Commission for Fair Trading [2017] NSWCATAD 70; Department of Education and Training v GA (No 3) 2004 NSWADTAP 50; Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44; FFP v Cumberland City Council [2022] NSWCATAD 194; GA & Ors v Department of Education and Training and NSW Police [2004] NSWADTAP 18; HealthShare NSW v CJU [2022] NSWCATAP 316; MG v Department of Education and Training [2004] NSWADT 137; OD v Department of Education and Training (GD) [2005] NSWADTAP 74; Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 Texts Cited: None Category: Principal judgment Parties: FFN (Applicant) Cumberland City Council (Respondent) Representation: Self-represented (Applicant) Mr C McFadzean, General Counsel, Cumberland City Council (Respondent) File Number(s): 2021/00185000 Publication restriction: The disclosure or publication or broadcast of the name of the Applicant or the names of any of the children referred to in the materials before the Tribunal is prohibited pursuant to section 64(1)(4) of the Civil and Administrative Tribunal Act 2013. Reasons for decision 1. The Applicant is a former employee of the Cumberland City Council, the Respondent in this matter (the Council). He was employed and worked within the Council's children's services area during 2016. The Applicant's last day of work was on 16 December 2016 although he resigned in April 2017. 2. On 8 April 2021 the Applicant made a privacy complaint for internal review pursuant to the Privacy and Personal Information Protection Act 1998 (the PPIP Act) addressed to the Council. 3. Following the internal review of the Applicant's privacy complaint the Council by its notice of 17 June 2021 to the Applicant advised him that having completed the review the Council determined to take no further action on the matter. 4. By application dated 28 June 2021 the Applicant made an application pursuant to the PPIP Act for an order that an external agency be required to conduct a proper fact-finding investigation into his earlier privacy complaint for an internal review to be conducted by the Council made on 8 April 2021 under s 53 of the PPIP Act. Materials Relied Upon by the Parties 1. The Applicant relied on the following materials: 1. Points of Claim dated 24 August 2021; 2. a "Summary of Legal arguments" which included submissions and evidence admitted subject to relevance and weight; 3. bundles of documents referenced in the documents referred to at subparagraph (b) above; 4. a letter of 1 May 2020 from the New South Wales Ombudsman; 5. an email of 10 May 2021 to Ms Renneberg; 6. written closing submissions; and 7. written materials of 23 January 2023 in response to Directions issued by the Tribunal on 14 December 2022. 1. The Council relied upon: 1. two statements of evidence from Ms Zammit; 2. a summary of legal arguments dated 5 October 2021; 3. written submissions in reply dated 5 October 2021; 4. a Deed of Release entered into by the Applicant; 5. written closing submissions; and 6. a written response of 13 January 2023 to the Directions issued by the Tribunal on 14 December 2022. Procedural Orders and Procedural History 1. On 2 August 2021 the Tribunal made orders requiring the Applicant to provide points of claim detailing: 1. which privacy principles under the PPIP Act were alleged to have been breached; 2. in each case, what act or omission of the Council led to the breach and when it was breached; and 3. the remedies sought and the legislative basis for such remedies. 1. The hearing commenced on 9 and continued on 10 February 2022 for the taking of evidence and the making of some submissions. The matter was then adjourned to 10 May 2022 for closing submissions by the parties. 2. Following the conclusion of the hearing on 10 February 2022 orders were made, relevantly, that the Applicant file and serve written closing submissions of no more than 20 pages by 4.00pm on 18 March 2022, and the Council was to file and serve written closing submissions of no more than 20 pages by 4.00pm on 22 April 2022. 3. On 10 May 2022 Senior Counsel appeared for the Applicant. 4. He was previously unrepresented and sought an adjournment of the proceedings which was not opposed by the Council. 5. The matter was then relisted for hearing on 14 June 2022. There followed a request for this matter, along with other matters pending in the Tribunal, to proceed to mediation scheduled for 8 September 2022. 6. Mediation was vacated on that day. 7. On 12 September 2022 directions were then issued by the Tribunal for the further hearing of the matter. The matter was listed on 26 October 2022, and then on 17 November 2022, partly to deal with a separate application made by the Applicant dated 21 September 2021 to the Tribunal to issue a summons for production of certain documents, notwithstanding that evidence had closed and the matter had proceeded to the stage of hearing final oral submissions. 8. It was not possible to determine the application for the summons on 26 October 2022 as the Applicant made submissions as to what he said the transcript of earlier proceedings would show about his attempts to have a summons for the production of documents issued. As a result, the matter was then listed for hearing on 17 November 2022 as the transcript was not available on 26 October 2022. 9. At the request of the Applicant the hearing on 17 November 2022 was vacated. The Applicant advised the Tribunal that his application for a summons for the production of documents, to be heard on 17 November 2022, was withdrawn. The parties also advised the Tribunal that they were in agreement that the Tribunal should proceed to deal with their closing written submissions as filed and that they did not wish to add orally to those submissions. 10. On 14 December 2022 a direction was issued to the parties as follows: 1. In the course of the preparation of a judgment in these proceedings it became apparent to the Presiding Member that the parties should be invited to make submissions, if they wish, in respect of the following matters not identified or addressed in the proceedings: a. The complaint as set out in the Applicant's points of claim in Complaints 2, 3, and 4 relates to the evidence said to be "new, key contextual information" about the Plaintiff [sic], namely, the information identified on 13 October 2016 as the Applicant's conduct complained of and as being considered "to look awkward, rather than inappropriate"; b. A preliminary view of the evidence led in the proceedings appears to be that the information ("look awkward, rather than inappropriate") was a view formed by the two Council employees following the interview with the complainant on 13 October 2016 and it was not reduced to writing in any record of the complaints, and was only referred to, for the first time, in the 7 July 2020 Statement made by Ms Zammit in the Applicant's workers compensation claim proceedings; c. In the circumstances, it appears to be the case that until that observation was reduced to writing in the 7 July 2020 Statement made by Ms Zammit it was simply a view held in the minds of the employees who conducted the interview on 13 October 2016; d. In the circumstances, an issue arises as to whether that information was "collected" by the Council, and whether it is information "held" by the Council within the meaning of that term under the PPIP Act. 2 Issues of this kind were addressed by the New South Wales Court of Appeal in Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 where the Court of Appeal held that the words "holds personal information" within the definitions strongly indicate that the words do not extend to information held in the mind of an employee, and also raised questions as to whether such information is collected by an agency. See, also, CNP v Commissioner for Fair Trading [2017]NSWCATAD 70 at [42] to [46]. 3 In the circumstances, the parties are invited to address the issues raised above in light of those decisions referred to above in written submissions to be filed by 23 January 2023, if they wish. 1. The Council responded by letter dated 13 January 2023 to the Tribunal by the Council's General Counsel. The response included the following: 2. In the lead up to filing these submissions, it has been drawn to my attention that the Council's privacy review report, upon which the determination was then issued, was not filed in the proceedings. I apologise for that omission and now attach that report and documents it refers to dated 6, 7 and 13 October 2016 as they respond to issues identified in the December Orders and supplement these submissions. 3. In respect of service on the applicant: 3.1 A copy of these submissions have been served. 3.2 A copy of Council's privacy review report has been served but for minor redactions going to the substance of the initial handwritten 6 October 2016 complaint. 3.3 A copy of the 6 October 201 document has not been served as the document was a handwritten allegation about the applicant's conduct towards named children. It is not in the children's or complainant's interest to have the document released as it may disclose the children's and complainant's identities. Non-disclosure of the document is consistent the Tribunal's finding under GIPA proceedings in [2021] NSWCATAD 379. Furthermore, the document is unresponsive to the determination of the applicant's complaint which goes to information allegedly collected by the Council on 13 October 2016. 3.4 A copy of the 7 October 2016 document in a redacted form that deletes identifying information of the informant, of the children and details of the places where the misconduct allegedly occurred has been served. Disclosure of this redacted document was made pursuant to orders in GIPA proceedings in [2021] NSWCATAD 379. Service is made voluntarily despite the fact that the document is unresponsive to the determination of the applicant's complaint which goes to information allegedly collected by the Council on 13 October 2016. 3.5 A copy of the 13 October 2016 document in a redacted form that deletes identifying information of the informant, of the children and details of the places where the misconduct allegedly occurred has been served. Disclosure of this redacted document was made pursuant to orders in GIPA proceedings in [2021] NSWCATAD 379. None of the redactions go to anything that may be construed as recording the applicant's conduct as looking or being awkward rather than inappropriate. 4. For the Tribunal's information, a copy of redacted documents served on the applicant are annexed to this letter. 1. The Applicant filed a response to the 14 December 2022 direction on 23 January 2023. The response was in two parts. The first was a complaint against me as Tribunal member hearing his application. That section of his response was not provided by the Applicant to the Council as he had an "understanding that the Tribunal would not wish Council to have a copy of a complaint against a member, so I request the Tribunal reads the submission and makes a determination as to whether it wants a copy of it to be made available to the Respondent as per CAT Act s 64(1)(a) or 64(1)(d)". 2. The Applicant separately filed an application seeking an order to the effect that his "confidential submission under CAT Act s 64" dated 23 January 2023 be withheld from Cumberland Council pending approval of this application by the Tribunal…" 3. The Applicant's 23 January 2023 response also proceeded to state as follows: In addition to my other submissions of today's date, it appears to me that the Tribunal's actions/omissions may have contributed to the documentary oversight issues – the same issues raised by Mr Dixon in his orders of 14 December 2022. He then proceeded to elaborate on that assertion. 1. On 13 February 2023 a direction was issued to the parties that in light of the submissions and materials filed and served by the parties in response to the directions issued on 14 December 2022 I had determined that there should be a further hearing, in person, to deal with and hear the parties on all the issues raised by them in their responses. The matter was thus listed for further hearing for 1 hour on 24 February 2023 at 9.00am. 2. I was not prepared to deal with the Applicant's complaint of 23 January 2023 which was, in effect, in the form of a submission concerning the substance of the matters for determination before me without proper notice to the Council of the matters raised. 3. The Applicant then claimed to be unavailable on 24 February 2023. 4. As a result, the Tribunal gave a direction on 23 February 2023 that the hearing on 24 February 2023 be vacated at the request of the Applicant, that the Applicant was to serve forthwith the application dated 23 January 2023 referred to above on the Council, and that the matter was set down for further hearing by AVL for 1 hour on 2 March 2023 to hear the application referred to and oral submissions, if any, in relation to the materials filed by the parties pursuant to the directions issued on 14 December 2022. 5. The direction of 23 February 2023 produced the following responses from the Applicant. First, he said he declined to serve the application complaint on the Council without his s 64 application referred to above first being heard. Secondly, he asked that I recuse myself from the proceedings for the following reasons, in summary: 1. I refuse to accept, process, consider or hear his miscellaneous application dated 23 January 2023 for no apparent reason; 2. I was said to be persistently overly lenient on the Council, my directions are leading and make it easy for Council to try and have the matter dismissed on technicalities and allow late evidence for the Council; 3. I have been, and continue to be, unable or unwilling to understand various aspects of his case; 4. I am unable or unwilling to finalise these proceedings in a timely manner; and 5. the 14 December 2022 orders intended to finalise the proceedings based on insufficient evidence/documents but since I have had carriage of the matter I have failed to order the Council to produce s 58 documents that should have been submitted to the Tribunal within 28 days of the Council receiving the application to the Tribunal. 1. At the hearing on 2 March 2023 the Applicant was invited to make any further submissions in relation to the matters raised in his 23 February 2023 email. He indicated that he would rely on the contents of that email. 2. I declined to recuse myself on the basis of the matters raised by the Applicant and indicated that I would provide reasons in due course. 3. At the hearing on 2 March 2023 the Applicant indicated that he had served the miscellaneous application referred to above and had "given up" on his s 64 application and as a result the matter did not need to be addressed further. 4. The provision of the documents provided under cover of the letter of 13 January 2023 from the Council referred to above was then addressed. The Tribunal sought to clarify whether it was intended that those documents be tendered at this stage of the proceedings. The Applicant complained that they should have been produced earlier but did not object to their tender and had in fact made reference to the contents of those documents in the 23 January submissions he had filed. I admitted into evidence redacted copies of the documents dated 6 October 2016 (received by the Council on 7 October 2016) and a redacted version of typed notes of a meeting on 13 October 2016 with the complainant which had an additional hand-written note prepared by Ms Zammit on 26 May 2018. 5. It is necessary to set out some background to the initial non-production of those documents. 6. At the time of the hearing on 9 and 10 February 2022 the Council indicated to the Tribunal that there was an application pending separately before the Tribunal made by the Applicant pursuant to the Government Information (Public Access) Act 2009 (the GIPA Act) concerning documents sought by the Applicant. The Council was resisting production of documents on various grounds available under the GIPA Act. The Council was also relying on s 29 of the Children and Young Persons (Care and Protection) Act 1998. 7. At the time of the hearing of evidence on 9 and 10 February the documents were thus not in evidence, although evidence was led or submissions made as to the creation of the documents and the addition to the document dated 13 October 2016 by Ms Zammit on 26 May 2018. 8. As appears from the decision of the Tribunal in the matter referred to in the Council's letter of 13 January 2023 quoted above, namely, [2021] NSWCATAD 379, the Tribunal was there concerned with the disclosure of documents in the GIPA application including the documents admitted into evidence by me, namely the 7 October and 13 October 2016 documents with the 2018 addition. (See paragraph [115] and [133]) 9. The Tribunal concluded in the GIPA matter in its decision of 18 February 2022, and thus after the taking of evidence on 9 and 10 February 2022, that these documents, identified as Documents 7 and 8 in those proceedings, be released to the Applicant with redactions to remove matters that identified information of the informant, of the children, and of details of the place(s) where the misconduct is alleged to have occurred. 10. At the hearing on 2 March 2023 I was advised by the Council that these documents were served on the Applicant in May 2022 in the redacted form at which time the notation made on 26 May 2018 was, of course, included. The Applicant thus had in his possession those documents from that date. Neither party had sought to have them admitted into evidence until the tender by the Council on 2 March 2023 not opposed by the Applicant. 11. At the hearing of 2 March 2023 the Applicant argued that I should order and admit into evidence the unredacted versions of these documents. I declined to do so. I would not permit what amounts to a circumvention of the public interest considerations against the disclosure of the entire contents of those documents, the position arrived at by the Tribunal in the GIPA decision, by now permitting the tender of an unredacted copy of each of the documents. In addition, the relevance of disclosing the redacted names of the persons was not established. Background to Application 1. In October 2016 a complaint was received by a Council representative concerning the Applicant's conduct whilst working with children as a casual employee of the Council. 2. The events which occurred following the complaint received by the Council on 6 October 2016 are in summary as follows: 1. On 7 October 2016 the Council wrote to the Applicant informing him of the fact that a complaint had been received and that a meeting would be held with the Applicant on 12 October 2016 to raise the matters with the Applicant. 2. On 8 October 2016 the Applicant sought from the Council further information about the alleged complaints. 3. On 12 October 2016 there was a meeting with the Applicant and Council employees Ms Zammit and Ms Campisi at which the alleged conduct was discussed. The Applicant admitted that the Applicant had allowed children to sit on his lap and also made some concessions in relation to the use of a mobile phone contrary to Council's policies. 4. On 13 October 2016 Ms Zammit and Ms Campisi interviewed the complainant about the complaint notified to the Council on 6 October 2016 at which meeting further information was obtained leading to a view being formed by them about what action should be taken in respect of the Applicant's alleged conduct. 5. From this interview the Council employees concluded that a different description was given, a watered-down version. 6. The Council employees, Ms Zammit and Ms Campisi, formed an opinion or assessment that from the description given the conduct was "more awkward" as opposed to "inappropriate". 7. The account given by the complainant on 13 October 2016 was, Ms Zammit said recorded in a file note. 8. Following the interviews with the Applicant on 12 October, and the complainant on 13 October, the Council wrote to the Applicant on 17 October 2016. 9. The letter of 17 October records that the purposes of the interview which had taken place with the Applicant on 12 October 2016 was to highlight the Council's concern in relation to an allegation against the Applicant of inappropriate physical contact with children. The letter contained a warning that a repetition of action or failure to improve may result in disciplinary action that could ultimately lead to the termination of the Applicant's employment and that the interview of 12 October, and the letter, constituted an initial warning in terms of disciplinary proceedings. 10. On or about 17 October the Applicant was verbally informed at a meeting called at his request that no further action would be taken as the complaint had been considered unsubstantiated. It was thus considered that the conduct identified by the Council was not notifiable or reportable to relevant authorities. 11. On 18 October 2016 the Applicant then returned to his next and final shift. 12. On 15 December 2016 there was a further meeting held between Ms Zammit and Ms Campisi and the Applicant at which the Applicant was advised that further notifications had been received regarding what was described as inappropriate interactions with children and there appeared to be a pattern of behaviour. 1. By letter of 22 February 2017 the Council wrote to the Applicant to record the Council's position. Included in the letter is confirmation that "the conduct was found to be unsubstantiated and there was no notifiable conduct proven. The investigation into inappropriate behaviour found that your comments and other actions were inappropriate but we felt that we could continue to monitor your performance as a casual employee". 2. On 30 March 2017 the Applicant raised, in writing, a bullying and harassment complaint against Ms Zammit and another employee, Ms Attia concerning their conduct "over the last few months". Included in this complaint are matters concerning the advice provided to the Applicant on 10 February 2017. 3. As a result of this complaint the Council appointed an external investigator, namely Mr John Counter of O'Connell Workplace Relations, to conduct an impartial and independent investigation of the various complaints made. The Applicant was interviewed as part of his complaint. 4. On 16 June 2017 the Council wrote to the Applicant having received Mr Counter's confidential report to provide the Applicant with what was said to be the key outcomes involving his complaints. In respect of the bullying complaint against the two Council employees referred to above the letter states: Mr Counter found your complaints were not substantiated with evidence supporting the position that steps taken by Council management, including Ms Zammit and Ms Attia, to deal with child protection and performance issues involving you, constituted reasonable management action (as defined by Council's Bullying & Harassment Policy) and not bullying or harassment. Mr Counter noted that while you may be displeased with the advice provided to you at the meeting of 10 February 2017 about your previous interactions with children under your care forming an unacceptable pattern of conduct, this advice appeared to be a reasonable conclusion based on the preponderance of evidence before those managers of Council responsible for child care services at Cumberland Council. 1. In January and February 2018 there was further correspondence between the Applicant and the Council and, it appears, new issues arising concerning reports of the Applicant's conduct whilst he was an employee of the Council. 2. As stated in a letter of 11 February 2019 from the Council to the Applicant tendered in evidence by the Applicant the letter set out to provide to the Applicant, as stated, "the preliminary findings of the investigation into allegations of Reportable Conduct made against you in 2016 – 2017". 3. The letter then continues as follows: As a result of initial inquiries conducted by Cumberland Council staff, a notification was made to the NSW Ombudsman on 21 and 27 July 2017. Subsequently, a review and further investigation was undertaken by O'Connell Workplace Relations into allegations you made of bullying by Council staff. Following O'Connell Workplace Relations' inquiries, a further notification was made to the NSW Ombudsman and the Office of the Children's Guardian in early 2018. On 17 May 2018, Council received a letter from Ms Anna Kakaire of the NSW Ombudsman's Office, pointing out deficiencies in Council's initial investigation and raising concerns that Council's investigation did not fully canvass allegations raised by staff against you. The NSW Ombudsman requested that further inquiries by undertaken to ensure that you were provided with a procedurally fair investigation. Arising out of the correspondence from the NSW Ombudsman, I engaged the Internal Ombudsman Shared Service (IOSS) to manage the investigation from that point. I am aware that the IOSS engaged WISE Workplace to conduct an initial desktop review into the investigation carried out by Council staff and the subsequent inquiries by O'Connell Workplace Relations. As a result of this desktop review, it was determined that a comprehensive investigation should be carried out with a view to ensure that you were provided with the specific details of the allegations against you and that you were offered an opportunity to respond to those allegations. 1. I note that the letter of 11 February 2019 refers to an attachment in respect of allegations first raised with the Applicant in 2016. 2. By letter dated 8 March 2019 the Ombudsman NSW wrote to the General Manager of the Council to record that the Ombudsman had received a complaint from the Applicant regarding the investigation of reportable allegations concerning him by the Council. The letter states that it was understood that Council had advised the Applicant that it proposes to sustain findings of sexual misconduct and ill treatment against the Applicant. That understanding appears to relate to the outcome of the WISE Workplace investigation as recorded in the letter of 11 February 2019 referred to above. 3. On 1 May 2020 the Ombudsman NSW wrote to the Applicant concerning his complaints about the Council's handling of the allegations of sexual misconduct made against him including, to the following effect: I have concluded that, owing to various flaws in the investigations processes undertaken by the Council, it was impossible for Council to be comfortable that there was a sufficient basis on which to [sic] the allegations of sexual misconduct, or any of the other misconduct allegations made against you. Nor could my office be satisfied under the Ombudsman Act s 25F(3), that the reportable allegations were "properly investigated". Given the length of time that has passed since Council concluded their handling of the allegations, I do not consider it feasible or appropriate to have any aspect of the allegations reinvestigated. I have written to the Children's Guardian to inform her of the outcome of my review so the Working With Children Unit may proceed with your application. (errors in the original) The 7 July 2020 Statement 1. On or about 15 November 2018 the Applicant made an application under the Workers' Inquiry Management and Workers' Compensation Act (NSW) 1998 for compensation arising from psychological injury said to have arisen as a result of the complaint made against the Applicant on 7 October 2016 and the Council's handling of the complaint. In respect of that application, Ms Zammit, then Manager of Children Youth and Families, made a written statement consisting of 11 pages dated 7 July 2020 and signed on 8 July 2020 (the 7 July 2020 Statement) which has been admitted into evidence in these proceedings. 2. As is dealt with in detail below, certain parts of the 7 July 2020 Statement are central to the issues now raised by the Applicant before the Tribunal. 3. The Applicant appears to have become aware of the contents of the 7 July 2020 Statement made by Ms Zammit some time in August 2020. The statement was provided to him by the solicitors acting for him in respect of his claim for workers' compensation. 4. According to the Council the 7 July 2020 Statement signed by Ms Zammit is not in the Council's records and is not accessible to the public. The Council only has in its records, not accessible to the public, a draft the contents of which are not in evidence. 5. It is clear that the 7 July 2020 Statement was prepared for the purposes of responding to the Applicant's workers' compensation claim. The Council did not prepare or assist in the preparation of the statement. It was prepared with the assistance of the solicitors acting on behalf of the Council in respect of that claim. 6. There is no evidence as to whether the 7 July 2020 Statement was ever made public in the sense of being put into evidence in any hearing in respect of the workers' compensation claim. I am unable to determine whether the contents were in fact taken into account in any settlement, or satisfaction, of the claim. 7. In respect of the specific portions of the 7 July 2020 Statement relied upon by the Applicant, it is not possible to determine precisely what was being responded to by Ms Zammit other than, it appears, the broad claim for workers' compensation relating to the Applicant's claims whilst an employee of the Council. The Applicant's claim form stipulates that the date that his injury happened was the 15th of December 2016 ("and other dates"). 8. It is clear from the terms of the 7 July 2020 Statement that it was supplementary to an earlier statement made by Ms Zammit, the contents of which are not known. The statement makes specific reference to an earlier statement. 9. In these proceedings three passages said to found the complaint were extracted from the 11-page document. Those passages are: "Melissa Campisi and I investigated the matter and found the person making the report changed their story and considered the Applicant's actions just looked very awkward, rather than being inappropriate." "Where we failed in this matter was a lack of clear documentation about our interview with the person making the original complaint and how they changed their account." "Essentially, it was the Ombudsman's Office who conducted the further investigation and they reported to the OCG … Council did not change its position on a past internal investigation and we did not contact OCG." 1. The first two quoted sections are from the following parts of the 7 July 2020 Statement: In the case of the Applicant, as I reported in my original statement, there was an allegation of the Applicant being inappropriate to a couple of children on 6th October 2016. Melissa Campisi and I investigated the matter and found the person making the report changed their story and considered the Applicant's actions just looked very awkward, rather than being inappropriate. Following our other inquiries, at this time there was nothing to substantiate reportable conduct on the part of the Applicant. We kept the Applicant informed during the process and informed him of our finding. He then returned to work. Where we failed in this matter was a lack of clear documentation about our interview with the person making the original complaint and how they changed their account. Nonetheless, there were a number of other issues raised about the Applicant's manner toward or with other employees from October to December 2016. This is what led to my meeting with the Applicant on 15th December 2016. I counselled him in relation to his manner and actions and in particular a photograph he submitted of his team, where he had photo shopped his own face and the face of two female staff into another image. In the final image it appeared that the Applicant was riding a jet ski and the two female employees appeared as two buxom women on the rear of the jet ski. This was not a reportable matter, as it did not involve children, but it was raised with the Applicant as crossing professional boundaries. At this meeting the Applicant asked to be taken off the casual roster and his last shift was on 16th December 2016. 1. The statement to 7 July 2020 Statement thus made clear that: 1. the original complaint about the Applicant's alleged conduct of 6 October received by the Council was further investigated; 2. the further investigation by the two Council employees led them to a view that the complainant changed the version of events originally provided; 3. an opinion was formed by Ms Zammit and Ms Campisi about the actions complained of, that they just looked very awkward rather than inappropriate; 4. other conduct raised about the Applicant's conduct led to a view that there were other issues to be addressed but there was nothing to substantiate reportable conduct to the relevant authorities about the Applicant's conduct. Points of Claim 1. Pursuant to the order of the Tribunal the Applicant filed Points of Claim on 24 August 2021 consisting of some 15 pages (116 paragraphs). 2. The Points of Claim identify by way of introduction the following: 1. the Applicant's Internal Privacy Review Form identified four main privacy conduct concerns; 2. Item 1 relates to various written statements prepared and used by Ms Zammit on 7 July 2022 regarding the Applicant which were false, misleading and incomplete (a reference to the 7 July 2020 Statement extracts); 3. Item 2 relates to a disclosure made by Ms Zammit in her written statement of 7 July 2020, that during a follow up interview, an unnamed individual "changed their account" by telling Ms Zammit that his conduct was "awkward, rather than being inappropriate"; 4. the privacy breach in Item 2 is said to be that Ms Zammit intentionally withheld contextual information from the Applicant, known to her, that the same witness who claimed that his conduct was "inappropriate" later changed her opinion regarded his conduct to "awkward, rather than inappropriate"; 5. Item 3 relates to the Council's failure to adequately document Item 2; 6. Item 4 relates to the Council's continued misuse of "inappropriate" conduct attributed to the Applicant after it was revealed to Ms Zammit and Ms Campisi that the context of his alleged conduct was "awkward, rather than inappropriate". 1. These claims were summarised by the Applicant in his closing submission of 4 April 2022 as follows: 1. Complaint 1 - this complaint relates to the argument that Ms Zammit's 7 July 2020 Statement contains five inaccurate, misleading and incomplete statements regarding the Applicant which deflected liability away from Ms Zammit and the Council in response to a Work Cover injury claim he submitted to the Council; 2. Complaint 2 – this complaint concerns a complaint that Ms Zammit's comments in the 7 July 2020 Statement revealed that "new, key contextual information" about the Applicant was collected by Ms Zammit on 13 October 2016. The information is identified as conduct complained of being considered by Ms Zammit to "look awkward, rather than inappropriate" and any reference to it, had been intentionally withheld from the Applicant by Ms Zammit until she provided the 7 July 2020 Statement. This complaint is said to breach ss 10(e), 13(c)(1) and (3) and s 14 of the PPIP Act. It is also claimed that in relation to this complaint that from 13 October 2016 to 7 July 2020 Ms Zammit had misleadingly led the Applicant to believe that his conduct was "inappropriate", "reportable conduct" and "child protection" related in subsequent documentation and that she did not ensure that those documents were "up to date, complete and not misleading" and therefore in breach of s 16 of the PPIP Act; 1. Complaint 3 – this complaint is that in the 7 July 2020 Statement Ms Zammit admits that she failed to appropriately document the information she now describes as looking "awkward, rather than inappropriate" and that the Council has provided no verbal or written evidence that that description, as collected from the Applicant's accuser on 13 October 2016 exists. It is therefore said that the information was not protected against "loss" and is in breach of s 12(c) of the PPIP Act; 2. Complaint 4 – this complaint is that the information, namely the "awkward, rather than inappropriate" description was intentionally withheld and undocumented and was not properly available to, or properly considered by the various investigating officers that subsequently examined the Applicant's conduct and this is in breach of s 16, namely the use of the Applicant's "inaccurate, up to date, complete and not misleading information". 1. In the Applicant's outline of submissions also filed in the proceedings he also seeks financial recompense for the damage allegedly caused to him by reason of these complaints together with other relief. Relief Sought 1. In the Points of Claim the Applicant seeks the following remedies, namely that the Tribunal instruct the Council or a third-party investigator to: (a) correct all the inaccurate statements regarding him in Ms Zammit's statement of evidence dated 7 July 2020 (the legislative basis for this request being under s 55(2) of the PPIP Act); (b) provide him with a copy of the revised accurate statement (the legislative basis for this request being s 55(2)(e) of the PPIP Act); and (c) instruct Ms Zammit to acknowledge and apologise for spreading disinformation about him in her statement of evidence of 7 July 2022 (the legislative basis for this request being s 55(2)(e) of the PPIP Act). Alleged Breaches of the PPIP Act 1. In respect of the claim that the Council breached Principle 10 the Applicant in his Points of Claim stated that: 1. the Council failed to notify him of his right to access "this new contextual information" that Council collected from the witness in breach of s 10(e) of the PPIP Act; 2. the Council failed to notify the Applicant that it collected new critical contextual information from an individual, opining that his alleged conduct "just looked very awkward, rather than being inappropriate" in breach of s 10(a) of the PPIP Act; 3. the Council failed to tell the Applicant that information available to Council in its 2016 investigative process involving the Applicant's alleged conduct was altered in breach of s 10(a) and 10(e) of the PPIP Act; 4. the Council failed to notify the Applicant that it collected new contextual information from the witness as soon as practicable after the collection said to have been on or around 12 to 18 October 2016 but Ms Zammit not disclose that information until 4 years later before she documented this new contextual information in a way that he could access that material in breach of s 10(a) and 10(e) of the PPIP Act. 1. In respect of an alleged breach of Principle 11 rising from the 7 July 2020 Statement the complaint is that: 1. in that Statement Ms Zammit acknowledged that she breached the PPIP Act s 11(a) in neglecting to ensure the Council's records regarding his personal information were accurate, up to date and complete, by failing to document the follow up interview and how his accuser changed her opinion about him; 2. as the subsequent "awkward, rather than inappropriate" context attributed to his behaviour was not clearly documented, the initial context of "inappropriate" and "Child Protection Allegations" remained at the forefront of Council's records regarding the Applicant; 3. Ms Zammit's inadequate, inaccurate and incomplete documentation on the revised context of his accuser's allegation permitted Council to establish a witch-hunt against him without restraint of contemporaneous contextual documentation. 1. In respect of the alleged breach of Principle 12 it is claimed that: 1. Ms Zammit's failure to clearly document the subsequent interview or the revised "awkward" context of the allegation is in breach of s 12(c) of the PPIP Act because this contextual information was for all intents and purposes "lost" for almost 4 years; 2. Council's second internal investigation against the Applicant in 2017, the O'Connell Group investigation against him in 2017-2018 and the WISE Workplace investigation against him in 2018-2019 had inadequate access to this contextual information when they were investigating him, because it was not clearly and contemporaneously documented by Council; 3. the Applicant was not offered procedural fairness by these external investigative agencies because he was being investigated for "inappropriate" conduct, when he was actually accused of conduct that just looked "awkward". 1. In respect of the alleged breach of Principle 13 the Applicant claimed that: 1. Ms Zammit did not take any reasonable steps to enable him to ascertain whether Council held information of an individual who changed her story about the context of allegations regarding him and Ms Zammit knowingly withheld this information from him in breach of s 13(b) of the PPIP Act; 2. Ms Zammit withheld the amended "nature" (the true context) of his accuser's allegations in breach of s 13(c)(i) of the PPIP Act and Ms Zammit had made clear that he was not entitled to gain access to any additional contextual information in breach of s 13(c)(iii) of the PPIP Act. 1. In respect of the alleged breach of Principle 14 it is claimed that: 1. Ms Zammit's failure was her insistence that there was no further information she could provide was in breach of s 14 of the PPIP Act, a failure to provide access to information; 2. the final disclosure of what the Applicant had been seeking was a breach of s 14 of the PPIP Act, excessive delay. 1. In respect of the alleged breach of Principle 15 it is claimed that: 1. on 30 January 2017 the Applicant requested Ms Zammit to change the title of the meeting minutes of 13 October 2016 regarding him from "Child Protection Allegation" to "Work Concerns" and Ms Zammit refused; 2. Ms Zammit breached s 15 of the PPIP Act because she refused to make appropriate amendments to ensure that the actual context of his conduct as reported by his accuser was accurate, up to date, complete and not misleading. 1. In respect of the alleged breach of Principle 16: 1. this alleged breach concerns the statement by Ms Zammit in respect of communications with the NSW Ombudsman office and a Form A and Form B complaint that the Applicant does not believe that those forms, information about him used by Ms Zammit contained the contextual information made known to Ms Zammit, that his accuser had already stated that the allegation was "awkward, rather than being inappropriate", because he believed this Form A and Form B made findings of "Sustained Sexual Misconduct" regarding the Applicant; 2. it is claimed that if this is true Ms Zammit used his personal information without ensuring that it was accurate, up to date, complete and not misleading in breach of s 16 of the PPIP Act. 1. Finally, in respect of what appears to be Complaint 1, the use or disclosure of a document that contained various statements regarding the Applicant that were misleading/inaccurate and/or incomplete it is claimed that the use of an inaccurate statement about the "personal information" of the Applicant was in breach of s 16 of the PPIP Act. The Legislative Framework 1. The PPIP Act is beneficial legislation which is to be interpreted broadly so that persons can obtain the maximum benefit from the rights that are affected (GA & Ors v Department of Education and Training and NSW Police [2004] NSWADTAP 18 at [48]). 2. The PPIP Act aims to strike a balance between a person's rights to privacy and the need to preserve an agency's capacity to carry out its functions (MG v Department of Education and Training [2004] NSWADT 137 at [39]). 3. The PPIP Act regulates the manner in which NSW government agencies, including the respondent Council, and certain other entities deal with and manage personal information. Sections 8 to 19 of the PPIP Act set out the 12 Principles that govern the way in which an agency, including the respondent Council, must collect, store, access, use and disclose personal information. Personal information is defined in s 4 of the PPIP Act. 4. Part 5 of the PPIP Act provides for the review of certain specified conduct of public sector agencies such as the respondent Council. Relevantly, the conduct set out in s 52 of the PPIP Act is as follows: (1) This part applies to the following conduct – (a) the contravention by a public sector agency of an information protection principle that applies to the agency, (b) the contravention by a public sector agency of a privacy code of practice that applies to the agency, (c) the disclosure by a public sector agency of personal information kept in the public register. 1. The PPIP Act provides for an internal review of the conduct of a public sector agency by an aggrieved person. Section 53 reads as follows: (1) A person ("the applicant") who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct. (1A) There is no entitlement under this section to the review of the conduct of a Minister (or a Minister's personal staff) in respect of a contravention of section 15 (Alteration of personal information). [Note: Any such conduct can still be administratively reviewed by the Tribunal. See section 55 (1A).] (2) The review is to be undertaken by the public sector agency concerned. (3) An application for such a review must – (a) be in writing, and (b) be addressed to the public sector agency concerned, and (c) specify an address in Australia to which a notice under subsection (8) may be sent, and (d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and (e) comply with such other requirements as may be prescribed by the regulations. (4) Except as provided by section 54 (3), the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practicable, a person – (a) who was not substantially involved in any matter relating to the conduct the subject of the application, and (b) who is an employee or officer of the agency, and (c) who is otherwise suitably qualified to deal with the matters raised by the application. (5) In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by – (a) the applicant, and (b) the Privacy Commissioner. (6) The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for an administrative review of the conduct concerned. (7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following: (a) take no further action on the matter, (b) make a formal apology to the applicant, (c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant), (d) provide undertakings that the conduct will not occur again, (e) implement administrative measures to ensure that the conduct will not occur again. (7A) A public sector agency may not pay monetary compensation under subsection (7) if – (a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or a former convicted inmate, and (b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and (c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate. (8) As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of – (a) the findings of the review (and the reasons for those findings), and (b) the action proposed to be taken by the agency (and the reasons for taking that action), and (c) the right of the person to have those findings, and the agency's proposed action, administratively reviewed by the Tribunal. 1. An administrative review by the Tribunal of conduct is then also available. Under s 55(1) of the PPIP Act if a person who has made an application for internal review under s 53 is not satisfied with the findings of the review, or the action taken by the public sector agency in relation to the application, that person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (ADR Act) of the conduct that was the subject of the application under s 53. 2. On reviewing the conduct of the public sector agency concerned pursuant to such an application the Tribunal may under s 55(2) of the PPIP Act decide not to take any action on the matter, or it may make any one or more of the following orders: (a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct, (b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice, (c) an order requiring the performance of an information protection principle or a privacy code of practice, (d) an order requiring personal information that has been disclosed to be corrected by the public sector agency, (e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant, (f) an order requiring the public sector agency not to disclose personal information contained in a public register, (g) such ancillary orders as the Tribunal thinks appropriate. 1. The Tribunal's jurisdiction in respect of an application made for review under s 55 is limited to a review of the conduct that was the subject of the internal review application, such that "the Tribunal cannot review any conduct that was not the subject of the application to the agency": Department of Education and Training v GA (No 3) 2004 NSWADTAP 50 at [7]; Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44 at [17]. This is so as it is "a fundamental premise" of the PPIP Act that the agency first be given an opportunity to review the conduct: OD v Department of Education and Training (GD) [2005] NSWADTAP 74 at [13]. 2. Accordingly, the Tribunal cannot review matters which were not raised in the course of the internal review made under s 53 of the PPIP Act. The scope of the Tribunal's review in the current matter is, therefore, delimited by the scope of the internal review application made by the Applicant on 8 April 2021. 3. "Personal Information" is defined in s 4 of the PPIP Act as follows: 4 Definition of "personal information" (1) 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. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following- (a) information about an individual who has been dead for more than 30 years, (b) information about an individual that is contained in a publicly available publication, (c) information about a witness who is included in a witness protection program under the Witness Protection Act 1995 or who is subject to other witness protection arrangements made under an Act, (d) information about an individual arising out of a warrant issued under the Telecommunications (Interception) Act 1979 of the Commonwealth, (e) information about an individual that is contained in a public interest disclosure within the meaning of the Public Interest Disclosures Act 1994, or that has been collected in the course of an investigation arising out of a public interest disclosure, (f) information about an individual rising out of, or in connection with, an authorised operation within the meaning of the Law Enforcement (Controlled Operations) Act 1997, (g) information about an individual arising out of a Royal Commission or Special Commission of Inquiry, (h) information about an individual arising out of a complaint made under Part 8A of the Police Act 1990, (i) information about an individual that is contained in Cabinet information or Executive Council information under the Government Information (Public Access) Act 2009, (j) information or an opinion about an individual's suitability for appointment or employment as a public sector official, (ja) information about an individual that is obtained about an individual under Chapter 8 (Adoption information) of the Adoption Act 2000, (k) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subsection. (4) For the purposes of this Act, personal information is held by a public sector agency if – (a) the agency is in possession or control of the information, or (b) the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement, or (c) the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998. (5) For the purposes of this Act, personal information is not collected by a public sector agency if the receipt of the information by the agency is unsolicited. (emphasis added) 1. As it outlined above, the Applicant relies on Principles 10 through to 16 in his Points of Claim. Those Principles as set out in the PPIP Act are as follows: Section 10 Requirements when collecting personal information If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following – (a) the fact that the information is being collected, (b) the purposes for which the information is being collected, (c) the intended recipients of the information, (d) whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided, (e) the existence of any right of access to, and correction of, the information, (f) the name and address of the agency that is collecting the information and the agency that is to hold the information. Section 11 Other requirements relating to collection of personal information If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that – (a) the information collected is relevant to that purpose, is not excessive, and is accurate, up to date and complete, and (b) the collection of the information does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information rules. Section 12 Retention and security of personal information A public sector agency that holds personal information must ensure – (a) that the information is kept for no longer than is necessary for the purposes for which the information may lawfully be used, and (b) that the information is disposed of securely and in accordance with any requirements for the retention and disposal of personal information, and (c) that the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse, and (d) that, if it is necessary for the information to be given to a person in connection with the provision of a service to the agency, everything reasonably within the power of the agency is done to prevent unauthorised use or disclosure of the information. Section 13 Information about personal information held by agencies A public sector agency that holds personal information must take such steps as are, in the circumstances, reasonable to enable any person to ascertain – (a) whether the agency holds personal information, and (b) whether the agency holds personal information relating to that person, and (c) if the agency holds personal information relating to that person – (i) the nature of that information, and (ii) the main purposes for which the information is used, and (iii) that person's entitlement to gain access to the information. Section 14 Access to personal information held by agencies A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information. Section 15 Alteration of personal information (1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information – (a) is accurate, and (b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading. (2) If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought. (3) If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency. (4) This section, and any provision of a privacy code of practice that relates to the requirements set out in this section, apply to public sector agencies despite section 25 of this Act and section 21 of the State Records Act 1998. (5) The Privacy Commissioner's guidelines under section 36 may make provision for or with respect to requests under this section, including the way in which such a request should be made and the time within which such a request should be dealt with. (6) In this section (and in any other provision of this Act in connection with the operation of this section), "public sector agency" includes a Minister and a Minister's personal staff. Section 16 Agency must check accuracy of personal information before use A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading. Documented Complaint to the Council 1. It is clear that in order to determine whether there was in fact a breach of the principles relied upon it is necessary, in the first instance, to examine the documented complaint to the Council concerning the alleged conduct of the Applicant in 2016, the handwritten complaint of 6 October 2016, the minutes of 13 October 2016 with the addition added in handwriting on 26 May 2018 and the 7 July 2020 Statement. 2. There was extensive evidence given concerning these issues in the proceedings and Ms Zammit was also cross-examined at length about the process that she adopted both in 2016, 2018 and then later in respect of the making of the 7 July 2020 Statement. 3. Ms Zammit gave evidence which I accept that the assessment that the conduct "looked very awkward" in her 7 July 2020 Statement was not what the complainant had recorded in the handwritten complaint of 6 October 2016 and was not what the complainant had said in the follow up meeting of 13 October 2016. The assessment that the conduct "looked very awkward" was what Ms Zammit and, it appears, Ms Campisi made of what the complainant had recorded and subsequently described. Their assessment was not what the complainant had stated and was not the words of the complainant but Ms Zammit's assessment subsequently described in her 7 July 2020 Statement. 4. That evidence is borne out in the two documents, namely the 6 October 2016 complaint and the minutes of 13 October 2016. The words "looked very awkward" are also not recorded in the addition to the 13 October 2016 minutes made on 26 May 2018. 5. As I point out above, the very first occasion that these words were used were by Ms Zammit some years later in the 7 July 2020 Statement prepared for the purposes of the Applicant's workers' compensation claim. 6. My assessment of all the above evidence leads me to find that: 1. the opinion or assessment made by Ms Zammit and, it appears, Ms Campisi on 13 October 2016 following the interview with the person who had made a complaint to the Council that the "actions just looked very awkward, rather than being inappropriate" was their assessment of the complaint and not what the complainant had said to them or recorded in the original complaint; 2. those words were not recorded in the Council's records at the time, or at any time thereafter; 3. the first time that the assessment was reduced to writing was by Ms Zammit in the 7 July 2020 Statement and in response to the Applicant's workers' compensation claim; 4. once the assessment was reduced to writing in the 7 July 2020 Statement, it was communicated to the Applicant through that statement provided to his solicitors; 5. the purpose of then setting out the assessment formed by the two Council employees in 2016 in the 7 July 2020 Statement was thus solely for the purposes of responding to the Applicant's workers' compensation claim. 1. The assessment as recorded in the 7 July 2020 Statement is clearly at the centre of the Applicant's Complaints 2, 3 and 4. That assessment was, however, only in the minds of the Council employee's following their interview with the complainant on 13 October 2016 until Ms Zammit made the comments in the 7 July 2020 Statement. 2. A number of issues arise from this in respect of the Privacy Principles in the PPIP Act. First, it needs to be established that the "looked very awkward" view was "collected" by the Council, and, secondly, that this was information "held" by the Council. 3. There is a detailed analysis of the Privacy Principles and their scope within Part 2, Division 1 of the PPIP Act in Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 ("FM"). The case concerned the Application of the principles, particularly the principle in s 18 of the PPIP Act but, as is clear from the judgment of the Court, it has wider application including in respect of ss 10 to 16 relied upon in these proceedings by the Applicant. 4. The central issue in FM was whether certain information obtained by visual or oral perception and held in the mind of an employee (and then exchanged between two universities) was "personal information" that is "held" within the meaning of s 18 of the PPIP Act. There was also the issue of whether such information was "collected" by the relevant university. 5. Having set out the legislative scheme, ss 18 to 19 and the relevant definition of personal information in s 4, Chief Justice Spigelman, with whom Tobias JA and Brownie AJA agreed, then identified that Division 1 of Part 2 of the Act has within it a clear bifurcation. Sections 8 to 11 all focus on the "collection" of personal information. Sections 12 to 19 are all concerned with when a public sector agency "holds personal information". 6. I set out below further analysis by the Chief Justice of the legislative scheme as follows: [28] Of particular significance is the body of consecutive sections between s12 and s19 of the Privacy Act which adopt as their criterion of operation a reference to where a public sector agency "holds personal information". This Court is concerned with the meaning of that phrase in s18, but it is overwhelmingly probable that the formulation was used in the same sense in each of these other sections. It is almost impossible to conceive how almost all of those other sections could operate in practice if they were intended to apply to information in the minds of employees acquired by direct visual or aural experience and never recorded in any manner. [29] How, with respect to such information, is the public sector agency to perform its statutory duty to: * Ensure the information is kept for no longer than necessary (s12(a)); * Ensure that the information is disposed of securely and in accordance with any requirements for the retention and disposal of personal information (s12(b)); * Ensure that the information is protected by taking reasonable security safeguards against "loss, unauthorised access, use, modification or disclosure, and against all other misuse" (s12(c)); * Take reasonable steps to enable any person to ascertain whether the agency holds personal information, to identify the nature of the information, the main purposes for which the information is used and the person's entitlement to gain access to that information (s13); * Provide any individual who requests personal information about himself or herself with access to the information (s14); * Ensure the information is accurate, relevant, up-to-date, complete and not misleading by making corrections, deletions or additions (s15(1)); * Attach to the information a statement "capable of being read with the information" of the amendment sought by the individual if the agency is not prepared to amend personal information (s15(2)); * Not use any information without taking reasonable steps to ensure the information is relevant, accurate, up-to-date, complete and not misleading (s16); * Not use information for any purpose other than that for which it was collected unless the individual has consented to the use of information for that purpose or use is otherwise authorised (s17)? [30] In this recitation of the relevant provisions that use the formulation "holds personal information", the only provisions which I have not referred to are those relating to disclosure of the information, including s18 itself. The sections to which I have referred from s12 through to s19 constitute a coherent statement of information protection principles. It is most unlikely that the non-disclosure obligations were intended to apply to information not capable of being subject to the other principles. [31] This conclusion is reinforced by the contents of s8 to s11, relating to "collection" of information. These sections represent the remainder of Div 1 of Pt 2 of the Privacy Act which identifies the Information Protection Principles that are the central focus of the legislative scheme. Information of the character in issue in these proceedings was not "collected". The first reason for this conclusion is that the information was unsolicited and, accordingly, the definition which excludes information of that character from the concept of information having been "collected" in s4(5) applies. … [34] It is sufficient for the present case to concentrate on the definition of when personal information is "held" contained in s4(4). Such information is either a "State record" for which an agency is responsible under the State Records Act 1998 or information in the "possession or control" of either the agency itself or an employee of, or person engaged in, the agency, acting in the course of such employment or engagement. The natural and ordinary meaning of the words "possession or control" does not, in my opinion, extend to material held only in the mind of a person. Both words connote some form of physical object upon which or within which an information or opinion is recorded. A person is neither in "possession", nor in "control", of the contents of her or his mind. … [40] The primary context of the legislative scheme which gives meaning to the words "holds personal information" is Pt 2 Div 1, with the definitions in s4. That context strongly indicates that the words do not extend to information held in the mind of an employee. Complaint 1 1. The Council in its written closing submissions submits that: (a) Much of the Applicant's cross examination of Ms Zammit and his closing submissions were and are devoted to attempting to disprove the truthfulness of the following five excerpts from a statement prepared by Ms Zammit on 7 July 2020 in Workers Compensation Proceedings No. 2847/20 involving the Applicant, the Respondent and the Respondent's insurer: (i) "essentially it was the Ombudsman's office who conducted the further investigations" (ii) "Council did not change its mind on a past internal investigation" (iii) "We did not contact the OCG" (iv) "We kept (the Applicant) informed during the process" (v) "we informed (the Applicant) of our finding. (The Applicant) then returned to work" (b) In the points of claim (Exhibit 2, paragraphs 98-115), the excerpts are advanced by the Applicant as breaching of s 16 of the PPIP Act. In the Applicant's closing submissions the first and third excerpts are also advanced, for the first time, as breaching s 15 of the PPIP Act. 1. The Council further argued that: 1. the five excerpts are concerned with Council's conduct or the Council's understanding (via Ms Zammit) of actions of the Ombudsman's office. The fourth excerpt mentions the Applicant but the statement is concerned with the Council's actions; 2. the only personal information contained within the five excerpts relates to the second sentence in the fifth excerpt, that is that the Applicant, being the applicant in these proceedings, then returned to work. The Applicant does not cavil with the fact that the Applicant returned to work, rather the Applicant's application only takes issue with the first sentence of the fifth excerpt that the Council informed the Applicant of its findings; 3. the first four excerpts and the first sentence of the fifth excerpt do not involve personal information. They do not include information about the Applicant. They do not include an opinion about the Applicant; 4. whilst Ms Zammit's 20 July workers' compensation statement (the 7 July 2020 Statement), in its totality, does include personal information about the Applicant, the specific conduct (or statements) the subject of this privacy review application, i.e. the five excerpts, do not, other than to the limited extent of the second sentence in the fifth excerpt which the Applicant does not take issue with; 5. in the context of s 16, the five excerpts do not demonstrate that the Council has used information about the Applicant; 6. the Applicant claims that the excerpts are inaccurate, misleading and incomplete. The Tribunal need not trouble itself with that claim because that goes to a subsequent element of s 16 that the information is accurate, complete and not misleading. That subsequent element only has relevance if the Tribunal is first dealing with personal information about the Applicant, which it was argued is not the case; 7. finally, even if the Tribunal were to find against the Council on s 16, there are no consequences to speak of for the Applicant that require some form of remedy or redress. If the Applicant or the Applicant's legal advisers took issue with components of Ms Zammit's workers' compensation statement, they had the opportunity to test and counter those components in the workers' compensation proceedings. Instead, and without liability admitted by the Council, the Applicant elected to settle the workers' compensation proceedings and in doing so brought to finality the Applicant's workers' compensation claim and any grievance or dispute the Applicant may have had with the Council's evidence; 8. the Applicant seeks corrections in respect of the first and third excerpts from the workers compensation statement under s 15. The Council says relief is not available because the excerpts do not concern personal information about the Applicant. 1. These submissions by the Council require a closer examination as to the meaning of the definition of "personal information" in s 4 of the PPIP Act. 2. The issue was addressed in HealthShare NSW v CJU [2022] NSWCATAP 316 thus: [43] In Turnbull v Strange [2018] NSWCA 157 at [5], Basten J (with whom Meagher JA and Emmett AJA agreed) said, in relation to the definition of 'personal information' in the PPIP Act: … The phrase "about an individual" provides an essential qualification of the subject matter of the definition, namely "information or an opinion". It may be that the content of a telephone conversation, including statements made by one party, will constitute "opinions" about the other party to the conversation. However, statements by the relevant individual will not constitute opinions about himself or herself, in most circumstances. On the other hand, statements made by the individual may identify "information" about that individual, in that they may reveal that he or she held a particular opinion or knew certain things at a particular time. It is unlikely that the whole of the records apparently sought by the subpoena would constitute "personal information" in relation to the deceased. The importance of giving weight to information or an opinion "about" an individual was explained in relation to the equivalent Commonwealth legislation in Privacy Commissioner v Telstra Corporation Ltd. [44] In Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4, the Full Federal Court discussed the definition of 'personal information' in the Privacy Act 1988 (Cth). Kenny and Edelmann JJ said, at [63]-[64] (Dowsett agreeing at [3]): 63. The words "about an individual" direct attention to the need for the individual to be a subject matter of the information or opinion. This requirement might not be difficult to satisfy. Information and opinions can have multiple subject matters. Further, on the assumption that the information refers to the totality of the information requested, then even if a single piece of information is not "about an individual" it might be about the individual when combined with other information. However, in every case it is necessary to consider whether each item of personal information requested, individually or in combination with other items, is about an individual. This will require an evaluative conclusion, depending upon the facts of any individual case, just as a determination of whether the identity can reasonably be ascertained will require an evaluative conclusion. 64. In some instances the evaluative conclusion will not be difficult. For example, although information was provided to Mr Grubb about the colour of his mobile phone and his network type (3G), we do not consider that that information, by itself or together with other information, was about him. In other instances, the conclusion might be more difficult. Further, whether information is "about an individual" might depend upon the breadth that is given to the expression "from the information or opinion". In other words, the more loose the causal connection required by the word "from", the greater the amount of information which could potentially be "personal information" and the more likely it will be that the words "about an individual" will exclude some of that information from National Privacy Principle 6.1. (per Coleman DCJ and Simons, Senior Member). 1. The Appeal Panel then addressed the question of whether the fact that CJU made an enquiry of HealthShare by writing an email to that body was "personal information" under s 4 as follows: [47] Examples of 'personal information' are provided in s 4(2) of the PPIP Act: Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. [48] In the context of the definition, as elucidated in Turnbull v Strange, we do not consider that the fact of having sent an email to a recipient in circumstances such as these was intended to be encompassed in the definition of 'personal information' in the PPIP Act. [49] The examples or 'personal information' in s 4(2) of the PPIP Act are all intrinsic characteristics of a person. Those characteristic may change from time to time, but, at any point in time, while they exist, they belong to the person. A person's opinion or state of knowledge at a particular time is also an intrinsic characteristic of that person. The act of sending an email, or the fact of having sent an email is not personal, in the sense that it is not an intrinsic characteristic of that person, it is simply an event in which they were involved. [50] The fact that CJU made an enquiry of HealthShare is information about CJU. It is not, however, personal information within the meaning of s 4(2) of the PPIP Act. 1. In my view, the statements relied upon by the Applicant, other than the last sentence of the fifth extract do not come within the definition of "personal information". 2. In addition, the extracts do not appear to me to be information "collected" as contemplated under ss 8 to 11 of the PPIP Act or information about the Applicant "held" as contemplated under ss 12 to 16. 3. The Applicant has therefore not established a breach of the principles in Complaint 1. Complaints 2, 3 and 4 1. The Applicant's Complaint 2 proceeds on the basis that the complainant had described the Applicant's conduct as "just looked very awkward". The further element of Complaint 2 is that Ms Zammit intentionally withheld that information claiming that the same complainant (witness) had changed her opinion regarding his conduct from "inappropriate" to "awkward" rather than "inappropriate". 2. Complaint 3 then raises the issue that the Council failed to adequately document Item 2 as I have described above. 3. Complaint 4 also proceeds on the basis that it was revealed to Ms Zammit and Ms Campisi that the context, which I interpret as the change alleged to have been made by the complainant to Ms Zammit and Ms Campisi on 13 October 2016, was so described by the complainant. 4. In addition, it appears from paragraph 63 above, the Applicant's complaints are that the Council had collected that contextual information from the witness and then withheld it from him. 5. Although it is not articulated precisely as such it is also apparent that the Applicant approaches the matter on the basis that the Council was obliged to document Ms Zammit and Ms Campisi's assessment based on what they had seen and heard. 6. In this context it should be noted that the addition to the minutes of 13 October 2016 "to further describe what had been seen" was to qualify that the Applicant "may not have touched" the child the subject of the complaint. 7. As I point out above, the "information" the subject of the Applicant's Complaints 2, 3 and 4 is the description in the 7 July 2020 Statement of conduct as "looked very awkward" made of the Applicant's conduct by the complainant on 13 October 2016. That information was in my view: 1. information held in the minds of Ms Zammit and Ms Campisi; 2. not information collected by the Council but the views formed by those two Council employees from the oral description of the conduct the subject of the complaint on 13 October 2016; 3. not information held by the Council (at least until it finds its way into the possession of the Council in the proceedings when the 7 July 2020 Statement is relied upon by the Applicant). 1. In FFP v Cumberland City Council [2022] NSWCATAD 194 the issue of whether a communication from the General Counsel of Cumberland City Council to the Office of the Children's Guardian, which occurred in the context of proceedings initiated by that applicant as against the Council in this Tribunal in which he alleged, amongst other things, that an interim bar had been placed on his working with children check by the OCG due to a disclosure by the Council. On the face of it, the complaint concerning the OCG referred to in that matter is part of Complaint 1 in the current proceedings before me. 2. It was held that there had been no "collection" of personal information by the Council for the purposes of ss 9, 10 and 11 of the PPIP Act by virtue of the email exchange as between the OCG and the Council's General Counsel and, as such, the Council could not be in breach of the principles relating to "collection" where there had been none (at [43]). 3. In CNP v Commission for Fair Trading [2017] NSWCATAD 70 the Tribunal relied upon the FM decision referred to above and noted that: The PPIP Act is primarily a data protection Act, and whilst there are residual powers for the Privacy Commissioner under section 36 (2) (k) and (l) (concerning privacy related matters), the IPP's primarily deal with data, which is material which at the time of collection, transmission, use etc. is in a recordable form. (at [42]). 1. That case concerned in part information that was conveyed orally between two officers prior to any "record" being made, and possibly consistent with data that had been recorded in a complaints database, the information was regarded at that time as in the mind of one of the officers. 2. It was held that: If what Officer 2 heard was not recorded at the relevant time, then consistent with the case of FM the information would not have constituted personal information under section 4 of the PPIP Act as it was not held by the respondent agency at that time. These observations are consistent with the PPIP Act being in practice a data protection statute rather than a broad privacy statute offering statutory protections against physical privacy infringements, oral disclosures not materially recorded, intrusion, surveillance (in the absence of capture) and more common additional notions of privacy. (at [45]). 1. In the circumstances: 1. the reliance by the Applicant on Principles 10 and 11 is misplaced. The information "just looked very awkward" was in my view not collected by the Council but was no more than an assessment or view in the minds of the Council employees' about information provided by the complainant; 2. it is clear that each of the Principles in ss 12, 13, 14, 15 and 16 is concerned with personal information "held" by an agency; 3. as the Council did not hold the "looks very awkward" information (at least until recorded in the 7 July 2020 Statement and then in a draft statement not in evidence) the Applicant's reliance on those Principles is, in my view, misplaced; 4. further, the personal information ("looks very awkward") was securely retained and was only disclosed to the Applicant, and then only in the 7 July 2020 Statement and there was no breach of s 12. Contrary to the claim by the Applicant this information was "not lost"; 5. once the information of what was in the mind of Ms Zammit was recorded in the 7 July 2020 Statement, it was immediately communicated to the Applicant through his solicitors, s 13 was not breached, and s 14 also was not breached because access was provided to the Applicant by that means at the time. 1. Ms Zammit did say in her evidence that "where we failed in this matter was a lack of clear documentation about our interview with the person making the original complaint and how they changed their account". That evidence did not support a conclusion that the complainant used the phrase or described the conduct complained of as "just looked very awkward". Those were the views formed by the two Council employees at the end of the process. 2. There was, in my view, no breach of Principle 10 as the alleged failure to notify the Applicant of the "new contextual information" was not collected from the complainant as alleged. 3. In respect of the claimed breach of s 11(a) of the PPIP Act the complaint also proceeds on the basis that this "new contextual information" had been collected, which it was not. 4. The Applicant appears to argue that the failure on the part of the Council to document the views forming the basis of what he described as "new contextual information" permitted enquiries about his conduct which occurred subsequently, to proceed without this information which was first recorded in the 7 July 2020 Statement. 5. There were investigations carried out about the Applicant's conduct and also in respect of a complaint made by the Applicant against Ms Zammit. These investigations were carried out by O'Connell Group and WISE Workplace investigations, the former concluding in February 2018 and the latter in February 2019. 6. Those investigations therefore did not have, could not have, available the 7 July 2020 Statement. The 7 July 2020 Statement extracts and views were thus not used by those carrying out those investigations. 7. Whether the Council should earlier have documented the view formed by Ms Zammit and Ms Campisi for the purposes of those investigations, and the full scope of enquiries made by those investigators is not within the scope of this review. I do note, however, that Ms Zammit stated in her evidence that she was interviewed for each of those investigations and gave an account of the descriptions the complainant had given in writing and during the 13 October interview. She stated that she was also aware that the complainant was interviewed by WISE Workplace. 8. The Council did fail to fully record the information provided by the complainant in its 13 October 2016 record of interview. It was added to on 26 May 2018 after the conclusion of the bullying complaint which had been made by the Applicant, but before the conclusion of the WISE Workplace investigation referred to above. It is not clear how the absence of the notation affected the bullying complaint. 9. Ms Zammit also testified that the account given on 13 October 2016, "the watered down" version, was taken into consideration and fundamental to the 17 October 2016 decision that it was acceptable for the Applicant to return to work. I accept that evidence as it appears to me to be highly unlikely that the Council would have allowed the Applicant to return to work if the complaint's original version, as opposed to the account documented on 13 October 2016 (and as added to on 26 May 2018) had not occurred. 10. In respect of the alleged breach of Principle 11 set out at paragraph 65 above, it is correct to say that the record of information provided by the complainant on 13 October 2016 was not complete and that there was recorded a qualification on 26 May 2018. 11. However, the complaint is that the view "awkward, rather than inappropriate" was not clearly documented. That view, as I point out above, was a description given by Ms Zammit in 2020 in respect of the Applicant's workers' compensation claim and based on her recollection at the time. It was not a record of what was said by the complainant and not "collected" by the Council. There has not been established that the Council had an obligation, which it neglected, to record the views held in Ms Zammit's head. 12. In respect of the alleged breach of Principle 12 as set out at paragraph 66 above, I do not accept that there was a breach because the information was "lost". The Council did not "hold" that information, it was in the heads of the Council employees until the making of the 7 July 2020 Statement and not lost. 13. This review proceeding does not extend to an examination of the adequacy or otherwise of what was said by the Council employees about views they had "in their heads" as to how to categorise the seriousness of the complaints raised against the Applicant in the investigations carried out by the O'Connell Group and WISE Workplace investigations. It may, however, be accepted that by allowing the Applicant to return to work after October 2016 that they did not regard the complaints as inappropriate and reportable. 14. Whether or not those organisations afforded the Applicant procedural fairness is not a matter that is within the scope of this review. 15. In respect of the alleged breach of Principle 13 as set out at paragraph 67 above the claim must, in my view, fail. The information the Applicant relies upon, the view of Ms Zammit as recorded in her statement was not held by the Council within s 13(b), and there is not established for the purposes of this review an entitlement under s 13(c)(iii) on the part of the Applicant to gain access to the views held in Ms Zammit's head about the description given by the complainant on 13 October 2016. 16. In respect of the alleged breach of Principle 14 as outlined in paragraph 68 above, the claim must fail as the section is concerned with personal information "held" by the Council, which it was not, and no entitlement existed to "access" that information. 17. In respect of the Principle 15 alleged breach as set out at paragraph 69 above the Council raises the objection that the alleged breach was not a matter raised in the Applicant's privacy complaint and therefore is not a matter that is reviewable under s 53 of the PPIP Act (as I have set out above). I accept this submission. 18. The Council further opposes any amendment to the privacy complaint raised by the Applicant 4 years outside of the 6-month time period in s 53(3)(d) of the PPIP Act. In addition, and in any event, the Council points to the fact that the document recording the interview on 13 October 2016 relates to an allegation of misconduct and even when the clarification made by the complainant is included the complaint remained as an allegation. 19. It is clear that the 13 October 2016 interview related to what could reasonably be described as a "Child Protection Allegation" raised on 6 October 2016 and there does not appear to me to be a basis for claiming a breach of Principle 15 even if allowed to be included in this review. 20. However, and in any event, I decline to allow this claim to be included in the review given the delay and the claim that the record be amended to "Work Concerns", a description which, in my view, would not more accurately reflect the record. 21. In respect of the alleged breach of Principle 16 as set out at paragraphs 61(d) and 70 above, I do not accept that there was an obligation under the Principles to record the views held and thus the views were not "intentionally withheld". In addition, whether or not those views were withheld from the investigators, O'Connell Group and WISE Workplace, is not established in light of the evidence of Ms Zammit referred to at paragraph 124 above. 22. Further, the Council contends that the documents the subject of this complaint and their contents are not admissible in these proceedings in reliance on s 29(1)(d) of the Children and Young Persons (Care and Protection) Act 1998 and therefore there is no way of testing the Applicant's belief as to their contents. 23. It also has not been established that the views expressed by Ms Zammit in her 7 July 2020 Statement were ever recorded anywhere else so that it is highly speculative for the Tribunal to make any assumptions or guess as to the contents of the documents (the Forms) referred to. 24. It is not open to conclude that the content of those documents were otherwise than correct. Relief Requested Claim for Compensation 1. In paragraph 53(c) of the Applicant's Points of Claim, the Applicant claims that he be awarded compensation in the form of financial recompense for damages as a result of the Council's conduct. The claim in respect of an alleged breach of s 10 of the PPIP Act reads as follows: "NCAT to instruct Council to pay appropriate financial compensation to me for the impact of this gaslighting has had on my mental health, self-confidence and capacity to work. The legislative basis for this request is under PPIP Act s 55(2)(a)". 2. The Applicant sets out the basis of that claim as follows: "I ask for financial recompense for damages for; Council choosing to withhold key contextual information collected about me on 13 October 2016, intentionally misleading me to believe my conduct was far worse than it was described to the Council, for failing to properly document information collected regarding me, failing to protect my information against loss, and failing to provide the (non-existent) documentation of the information to Council's investigating Officers to consider their various subsequent investigations regarding me." 3. The Applicant's workers' compensation claim was settled by agreement between the parties. The details are set out in the Deed of Release he entered into in settlement of his claim, a settlement which contained compensation and damages. 4. The Deed contained terms releasing the Council, employees, and agents from all claims of any kind arising out of or incidental to the Applicant's claim. The Deed further contained the following bar to further proceedings: The Parties agree that this Deed of Release may be pleaded as a complete bar to any action, suit, proceeding or third party proceeding commenced, continued or taken by any party to this Deed of Release or on that party's behalf in connection with any of the matters referred to in this Deed of Release except for breach of a provision of this Deed of Release. 1. The Council seeks to rely on this provision. In my view, where the Applicant has in effect made a claim in these proceedings for financial compensation in respect of the same conduct encompassed in his workers' compensation claim the Council should be entitled to rely on the release and bar against further claims. Although the Deed contains a confidentiality clause it would be unconscionable for the Applicant to deny the operation of the plea in bar in these proceedings. Accordingly, the Deed was admitted into evidence. 2. None of the grounds relied upon by the Applicant to preclude reliance on the Deed has, in the circumstances, any merit. 3. I came to that view, in part, as a result of the exchange of submissions by the parties in relation to this issue. 4. In respect of the claim set out at paragraph 53(c) of the Points of Claim the Council submitted as follows: At paragraph 53(c), (the Applicant) seeks financial compensation under s. 55(2)(a) for alleged impacts on his mental health, self confidence and capacity to work. There is no causal link established between Council's actions concerning the 13 October 2016 description of (the Applicant's) conduct and substantiated loss or damages suffered by (the Applicant) and as such it would be inappropriate to make a s. 55(2)(a) order. (The Applicant's) concerns may properly be brought and addressed in a workers compensation claim. (The Applicant) has brought such a claim with a commercial settlement reached, without admission of liability on the part of the Council as to the veracity of the claim. In these proceedings, (the Applicant) is seeking to double dip by seeking a further monetary payment. Such payment is contrary to the terms of a deed executed by the parties whereby (the Applicant) has released the Council and any of their respective present or past officers, employees or agents from all claims of any kind arising out of, connected with or incidental to his claimed psychological and physical injuries. (In an attempt to avoid any future dispute with the applicant, enquiries were made of the applicant on 5 October 2021 as to any grounds of objection to filing the deed. Filing will not take place before the time allowed for a response. It is the respondent's present intention to file / tender the deed.) 1. In my view, the Deed can be relied upon in these proceedings in the event that I am of the view that the payment of compensation is required, a matter I address below. Complaint Dated 23 January 2023 1. As I point out above, the first element of the Applicant's complaint raised in his response to the 14 December 2022 directions issued by the Tribunal raises the question that I failed to ensure that effectively there are no contemporaneous records before the Tribunal to consider whether the conduct complained of in Complaints 2, 3 and 4 can be properly determined and that I had, it appeared, only recently realised that. He then pointed to various events throughout these proceedings "that should have prompted this realisation". He also made specific reference to extracts from his "Summary of Legal Arguments" dated 3 November 2021. 2. The Applicant submitted that I had not challenged the withholding of documents he had sought by the Council "as an excuse to withhold relevant documents in these proceedings" and that could have been overcome by me issuing a summons for their production. He then made reference to a summons application he made on 22 October 2021 which was refused by the Tribunal and also further applications in September 2022 which I note culminated in the proposed hearing to deal with the applications as referred to at paragraph 16 above. 3. The Applicant then submitted that it was "now clear that the Tribunal does not have access to all information that Council has". 4. The Applicant then questioned whether it was the Tribunal's responsibility to ensure that the Council provided all evidence/documentation relevant to the proceedings and, if it was, the Tribunal "failed in its role". 5. In support of this complaint he complained that I had made orders to "invite" Council to address the issue, a reference to the 14 December 2022 directions quoted above. 6. The Applicant then claimed the directions were "soft on Council", I should have recognised earlier that documentation he had identified was relevant and necessary, and that I should have either approved the summons for service, or ordered Council to comply with s 58(1)(b) of the ADR Act. 7. This led the Applicant to submit that I should apologise for the oversight and/or recuse myself due to a perceived bias in favour of allowing Council to withhold relevant documents from the Tribunal. 8. The Applicant then further submitted that if it was the Council's responsibility to "proactively" provide to the Tribunal all evidence and material it considered relevant, it failed to comply with s 58(1)(b) of the ADR Act and the Tribunal should consider whether the Council's failure "may constitute contempt of the Tribunal". 9. In respect of the issues for determination the Applicant submitted by reference to his complaints that "a diligent fact-finding investigation into privacy complaints 2, 3 and 4 should have conducted searches for, identified and considered records/documents that show what contemporaneous contextual information: 1. was collected and recorded by Council; and 2. was considered by the Council, WISE Workplace and O'Connell Group in each of their respective investigations regarding me. Council's internal determination letter of 17 June 2021 did not address any of this". 1. The Applicant then submitted that it was unknown to him or the Tribunal, until 13 January 2023 what documents the Council considered relevant to its internal privacy review. 2. The Applicant complained that he had not received a copy of the handwritten note of 6 October 2016 or unredacted copies of the record of 7 October and record of meeting on 13 October 2016. 3. It was complained then that "despite" my orders of 14 December 2022 the Council had still not served a range of documents (which he specified) concerning the subsequent investigations which I have referred to above. 4. The Applicant then dealt with the response of the Council of 13 January 2023 to the directions of 14 December 2022 and in summary: 1. complained about the redaction of the documents provided; 2. argued that the issue of whether Ms Zammit's contextual information he relied upon was just "in her head" deceptively contradicted "contemporaneous material" the Council had recently provided. 1. By reference to the redacted documents of 7 October 2016 the Applicant then sought to contend that some of the contents "appears to be very similar in nature/content/diction" to Ms Zammit's statement in her 7 July 2020 statement and that the "contextual information" Ms Zammit was referring to in her 7 July 2020 Statement as being "awkward" was the same information collected from the complainant and recorded in the minutes of 13 October 2016. 2. The Applicant claimed that the description recorded in the record provided to him of having fun with the kids in a "laughing", "mucking around" manner was never adequately provided to him at any time, until 13 January 2023, when he said he received a copy of those documents. 3. It was then said that the Applicant was not made aware that the complainant had "watered down" the conduct as described in the annotated copy of the 13 October 2016 meeting minutes "until I received the redacted copy of the record and this substantiated his privacy complaint 2". 4. The Applicant then addressed "contextual information" which he submitted was not properly considered in the Council's and other investigator's investigations, in particular the handwritten addition to the 13 October 2016 document made on 26 May 2018. 5. On 2 March 2023 I declined to recuse myself from further hearing of this matter in respect of the 23 January 2023 application or 23 February 2023 application by the Applicant that I do so. 6. I previously rejected an application by the Applicant that I recuse myself and published reasons on ­­26 May 2022 for doing so ([2022] NSWCATAD 169]). I do not here repeat the relevant authorities but rely on them. 7. In respect of the matters raised in the Applicant's 23 January 2023 complaint the following should be noted: 1. the Applicant had in his possession since May 2022 the core documents, namely, the 7 October and 13 October 2016 complaints which included the written note added on 26 May 2018; 2. the Applicant at no stage sought to tender those documents in these proceedings; 3. the Applicant withdrew his application for a summons for the production of documents which was listed before me on 17 November 2022 to hear the application (see paragraph 13 above) and cannot now be heard to complain that a summons was not issued; 4. there is no obligation on the Tribunal to ensure that parties tender into evidence all documents they regard as relevant and the proceedings are not of inquisitorial nature; 5. the Applicant in his submissions misinterprets the nature and effect of the 14 December 2022 directions which: 1. were designed to afford procedural fairness to the parties to address an important issue, the application of the PPIP Act to the facts (the evidence to be considered), which neither party had addressed; 2. did not, and did not purport, to be an acceptance or indication that the Tribunal considered that essential documents were not in evidence; 1. there was no recent "realisation" by me that Complaints 2, 3 and 4 could not be properly determined because of the absence of documentation submitted by the parties and the tender of the documents on 2 March 2023 did not alter the position or outcome; 2. there was, in my view, an acceptable explanation during the hearing on 9 and 10 February 2022 for the Council not tendering into evidence documents to which access was challenged in the GIPA proceedings pending in the Tribunal and in respect of which judgment was only subsequently handed down on 18 February 2022 and redacted versions of the documents were provided to the Applicant (see paragraph 32 above); 3. on the evidence and by reference to the Applicant's Points of Claim which I have set out and analysed above, I do not accept that the Tribunal does not have access to all information that the Council has which is relevant to this review which is not concerned with an inquiry into the adequacy or accuracy of the investigations carried out by O'Connell Group concerning his complaint of bullying and harassment against Ms Zammit or the WISE Workplace investigation referred to above; 4. the 14 December 2022 directions were, on no view, "soft" on the Council, or the Applicant, and each party had an equal opportunity to address the questions posed for their consideration; 5. in respect of the s 58(1)(b) of the ADR Act complaint it is correct that the Council did not produce the 3 documents identified by the Applicant in his 23 January 2023 submission (page 2 of 10) at the relevant time but to do so would have undermined its resistance to access of those documents in the GIPA proceedings before the Tribunal; 6. there is no basis for regarding the conduct of the Council or its General Counsel as contempt of the Tribunal. 1. There is thus, in my view, no basis for concluding that on the basis of the matters raised by the Applicant a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions before me to decide. 2. There has not been identified or articulated any logical connection between he matters suggesting perceived bias and the feared deviation from the course of deciding the case on its merits. 3. The complaint by the Applicant that the conclusion and determination of this review has been the subject of delay by the Tribunal must also be rejected. As I point out above, the matter was listed for closing submissions on 10 May 2022. The delay in finalising the matter has subsequently largely been at the initiation of the Applicant or with his concurrence. 4. It cannot reasonably be thought that by raising the issues for submissions by the parties in the 14 December 2022 directions, and that the issue identified by the Tribunal in the end results in the Applicant's claims not being accepted, that the Tribunal is thereby "favouring" one side or the other. The outcome is determined by the application of the facts to the law. 5. There was thus in the circumstances no basis raised in the 23 January 2023 submission for me to apologise or to recuse myself. 6. In respect of the second aspect of the Applicant's submissions on 23 January 2023 responding to the Council's submissions of 13 January 2023 the following should be noted. 7. It may be correct to say that the redacted 7 October 2016 file note containing "contextual information" such as the child "laughing", "they were mucking around" was not provided to the Applicant at the time of the Council's response to those allegations in October 2016. The reason for not providing access to that document appears to be revealed by the GIPA application brought by the Applicant at the decision of the Tribunal referred to above. 8. That complaint is, however, directed at the information provided by a complainant (witness) to the conduct of the Applicant complained of. It appears to be unsolicited by the Council. 9. If, as is then contended by the Applicant in his submissions (pages 6-7 of 10) that the "mucking around" description appears very similar in nature/context/diction in Ms Zammit's 7 July 2020 Statement, it is difficult to see how a failure to separately record Ms Zammit's views expressed 4 years later in the workers' compensation proceedings, the issue at the core of the Applicant's review application, had any material adverse effect on the investigations carried out. The "very similar" description was recorded and, as far as can be determined, available to those carrying out the investigation. 10. It is also not correct to say, as the Applicant does, that the "mucking around" comments were never provided to him prior to 13 January 2023 when following the GIPA proceedings the documents with that description were in May 2022 provided to him. 11. The note and qualification added to the 13 October 2016 document on 26 May 2018 does not, in my view, result in a conclusion that s 12(a) of the PPIP Act, a section directed at safeguards for the protection of information and measures against loss, was breached. 12. These proceedings are not concerned with the investigations carried out by the O'Connell Group or WISE Workplace. The review sought by the Applicant stems from what was set out by Ms Zammit in her 7 July 2020 Statement. That Statement could not have been used in the investigations carried out prior to that date. There is further no evidence to support a finding that the views Ms Zammit expressed in her 7 July 2020 Statement were in fact withheld from those carrying out the investigations referred to. 13. I accept that the Council's records of what was described by the complainant (witness) of the Applicant's alleged conduct as provided on 13 October 2016 were initially incomplete and should have included at the time the description added on 26 May 2018. 14. That omission was unrelated to the 7 July 2020 Statement relied upon by the Applicant. 15. A complaint about that issue was not the subject of the Applicant's privacy complaint and is beyond the scope of the review. 16. In addition, the Council's records in respect of the interview of 13 October 2016 appear to have been added to on 26 May 2018 to more accurately record a description of the complaint. 17. It is also relevant that the conclusions formed by those investigating the alleged conduct of the Applicant, which was not confined to what was raised against him on 7 and 13 October 2016 were considered unfounded by the New South Wales Ombudsman. 18. It is also not appropriate to speculate as to the contents of the documents, the forms, and the OCG communications which the Applicant refers to which are not in evidence. 23 February 2023 Recusal Application 1. My reasons for declining to recuse myself from further hearing of this review application raised by the Application on 23 February 2023 are as follows: 1. the issue of the "miscellaneous application" dated 23 January 2023 concerning s 64 of the CAT Act had fallen away and the documents required to be served for the purposes of affording the Council a proper opportunity to respond, were served; 2. the fair-minded lay observer would not reasonably interpret any of the steps taken by the Tribunal as "persistently overly lenient on the Council" as there would be an understanding of the need to deal with the review by a proper application of the law to the facts, not an attempt by the Tribunal to have the matter dismissed on technicalities as alleged by the Applicant; 3. the claim that allowing late evidence favoured the Council, by implication, has no foundation as the documents produced by the Council on 13 January 2023 are embraced and relied upon by the Applicant in his submissions to his advantage and there was a valid basis for earlier admitting into evidence the Deed of Release in answer to the Applicant's claim for compensation; 4. there was no amplification or material pointed to by the Applicant which supported the assertion that I had been unable or unwilling to "understand various aspects" of the Applicant's case and noting that the Applicant also chose to forego the opportunity afforded to him and the Council to orally address the Tribunal in closing to explain or emphasise any aspect of their respective positions; 5. a fair-minded lay observer cognisant of the facts (see paragraphs 6 to 21 above) would not attribute to me an inability or unwillingness to finalise these proceedings in a timely manner where the delays must, to a significant extent, rest with the Applicant and also by the need to afford procedural fairness to the parties; 6. a fair-minded lay observer cognisant of the role of the Tribunal and the nature of proceedings for review would not attribute to me an inability to bring to bear an independent view on the issues by reason of "a failure" by me to compel the production of documents and with knowledge that the Applicant chose not to pursue his application for a summons for production. 1. Accordingly, the Applicant failed to substantiate a basis for me to recuse myself. Question of Relief 1. As I have concluded that the "inaccurate statements" said to be regarding the Applicant to have been made in the 7 July 2020 Statement are not within the scope of "personal information" the relief set out at paragraph 65 above, claiming the correction of such statements, the production of a revised accurate statement (the workers' compensation statement) and an apology from Ms Zammit must be refused. 2. I should add that I would in any event decline to grant relief of this kind in respect of a statement prepared for different proceedings which have been concluded, by agreement. The 7 July 2020 Statement is of a different nature to information collected and held by the Council for the purposes of the PPIP Act. 3. In respect of the claim that the Tribunal should instruct the Council or a third-party investigator to conduct a fact-finding investigation as to why the Applicant was not notified by the Council as soon as practicable about the "just looked awkward, rather than inappropriate" statement in the 7 July 2020 Statement and to apologise and correct the Council's records accordingly (see paragraphs 53(a) and (b); 64(a) to (c) of the Points of Claim): 1. the Applicant has failed to establish the alleged breaches in respect of the 7 July 2020 Statement; 2. there would in any event be no useful purpose served in my view for an inquiry of the kind now sought, in circumstances where: 1. the evidence has established how and for what purpose the 7 July 2020 Statement was created; 2. the Applicant in his 23 January 2023 submission equates the contents of the 7 October and 13 October 2016 record with Ms Zammit's views; and 3. very significantly there has now been a lapse of many years since the complaints were first raised, and there is no justification for the incurring of the cost, and time, which would be involved in such an inquiry, even assuming that all relevant persons are still available. 1. In respect of the Applicant's claims for compensation and damages (see paragraphs 53(c) and 82 of the Points of Claim) the Applicant has failed to make out a case of breach and, in any event, I would decline to make an order for compensation in circumstances where the Applicant sought and received a significant sum in compensation for his workers' compensation claim for essentially the same conduct complained of. The Council is in my view entitled to rely on the plea in bar of the claim as set out in the Deed of Release entered into by the Applicant when represented by his solicitors in his workers' compensation claim. 2. In respect of the relief for the correction of records (as set out at paragraphs 88 and 97 of the Points of Claim) I conclude that the Applicant has not made out a case to warrant any such action, and in any event: 1. the term "Work Concerns" will not accurately reflect the nature of the document or complaints; 2. it would not be appropriate in my view to require corrections to letters given that the description of "awkward looking" was a view of Ms Zammit and not a record of information collected; 3. I would not exercise my discretion to order the correction of documents sent by the Council to other agencies to record the view of Ms Zammit in her 7 July 2020 Statement given that: 1. the description of the conduct there set out was, on the evidence, her recollection in 2020, it was not what the complainant had in fact said but her interpretation of what was said; 2. the NSW Ombudsman recorded in the letter of 1 May 2020 that there were flaws in the investigations carried out, it was impossible for the Council to be confident that there was a sufficient basis to support allegations of sexual misconduct, or other misconduct allegations made against the Applicant and that given the length of time passed it would not be feasible or appropriate to have any of the allegations reinvestigated, a view I concur with and regard as even more pertinent in 2023; 3. resending a different "correct" version of each document to whomever/whichever agency a document was initially sent to by itself, or with an apology for an administrative oversight, would likely now reopen issues which are in effect already decided, and would draw attention to alleged conduct not proven and serve little purpose. Conclusion 1. For all the reasons set out above and in the exercise of the discretion under s 53(2) of the PPIP Act my decision is not to take any action on the matter and an order to that effect will issue. ********** 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 Amendments 20 June 2023 - Paragraph 195 amended. 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: 20 June 2023