OD v Department of Education and Training (GD) [2005] NSWADTAP 74

Appeal Panel - Internal

CITATION: OD v Department of Education and Training (GD) [2005] NSWADTAP 74 APPELLANT PARTIES: OD RESPONDENT Department of Education and Training FILE NUMBER: 059054 HEARING DATES: 12/10/05 SUBMISSIONS CLOSED: 10/12/2005 DATE OF DECISION: 12/22/2005

OD v Department of Education and Training[2005]NSWADT 161 DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Wilson R - Judicial Member; Blake C - Non Judicial Member CATCHWORDS: scope of Application MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 043323 DATE OF DECISION UNDER APPEAL: 07/14/2005 LEGISLATION CITED : Privacy and Personal Information Protection Act 1998 CASES CITED: OD v Department of Education and Training [2005] NSWADT 161 Y v Director-General, Department of Education & Training [2001] NSWADT 149 REPRESENTATION: In person Dr A Bendall, Manager, Freedom of Information and Privacy, Department of Educatoin and Training ORDERS: 1. Appeal allowed; 2. Decision under appeal set aside; 3. Application for review remitted to the Tribunal to be redetermined.

REASONS FOR DECISION 1 The appellant, OD, applied to the Tribunal under s 55 of the Privacy and Personal Information Act 1998 (the Privacy Act or the Act) for review of the conduct of a public sector agency. The Tribunal dismissed the application: OD v Department of Education and Training [2005] NSWADT 161. 2 The Tribunal held that the personal information said to be the subject of conduct which contravened the Privacy Act was not covered by the Act. This was because it concerned personal information which fell within one or both of the following exceptions to the primary definition of personal information in s 4(3): '(3) Personal information does not include any of the following: … (b) information about an individual that is contained in a publicly available publication, … (j) information or an opinion about an individual's suitability for appointment or employment as a public sector official.' 3 The appellant now appeals. His primary submission is that the Tribunal wrongly limited its consideration to only one of the items of personal information that he claimed had been handled by the agency in a way that contravened the Act. His position is that, if his original application for internal review to the agency had been properly construed – first by the agency, and later by the Tribunal, it would have been seen that he was putting in issue several items of personal information, including items that clearly fell within the primary definition of 'personal information' and outside the scope of any exceptions to the primary definition. The primary definition, s 4(1) is: '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.' Background 4 The appellant is employed as a technical officer at a TAFE College. In that capacity he works as an assistant to teachers. He has some instructional duties, such as providing groups of students with laboratory demonstrations under the general supervision of the teacher. 5 In 2002 the College appointed a committee to undertake a review of staffing as part of a restructure process. The review committee examined the qualifications of technical officers. The appellant held an overseas qualification: the certificate he received upon completion of a course of study in Industrial Chemistry at the Secondary Technical School, Las Heros, Menthe appellantza, Argentina (the certificate). The College employed him in 1986 after ascertaining that the certificate met the required standard for appointment to a technical officer position. That assessment was provided by the National Office of Overseas Skills Recognition (NOOSR). 6 The review committee had at first taken a negative view of the adequacy of the appellant's qualification, and a member of the committee claimed that that had occurred after it had been provided with an assessment by an officer of NOOSR given by phone. The committee found, initially, that it was equivalent to an Australian 'certificate IV' rather than a 'diploma'. A technical officer must have a 'diploma' level qualification. In 1986 NOOSR had found that it was equivalent to the level that is now the 'diploma' level. The committee later revised its view and accepted that it was 'diploma' level. 7 The Tribunal construed the appellant's complaint as relating to this assessment, and in particular to challenge the accuracy of the assessment and its use within the review process. In its opinion the 'personal information' constituted by the assessment of the adequacy of the certificate, having regard to the context in which it was used, fell within the exception found in s 4(3)(j), as it was 'information … about an individual's suitability for … employment as a public sector official'. There was also a question, as the Tribunal saw it, relating to the circulation of the information about the certificate itself. As to this, the Tribunal considered that another exception might also be applicable, s 4(3)(b) (information contained in a publicly available publication) – as there was evidence that (in line with usual practice in academic institutions) the qualification was published in generally available publications. 8 The appellant does not dispute these conclusions. His objection is that the Tribunal misconstrued the nature of his complaint to the Department. He had no concern that his qualifications were scrutinised as part of the review process. He is critical of the assessment made, and as to the question of whether any proper NOOSR assessment was obtained. He explained, as already noted, that after raising his concerns of the alleged assessment of his certificate, the College re-examined the matter, and satisfied itself that the certificate continued to be equivalent to the Australian standard required for employment as a technical officer. In the ultimate, his employment was not adversely affected. 9 His concerns relate to the way the flawed information was used by a member of the review committee in another connection, that of his enrolment as a student in a course at the College. The Appeal Panel was informed that it was not unusual for people such as technical officers also to be students in courses at the College, as they sought to upgrade or advance their qualifications. Courses have prerequisites as to the level of qualification required of those that enrol. In this instance he claims that one of the members of the review committee communicated the view that the appellant's certificate did not satisfy a course prerequisite. This view was acted upon, and he was disenrolled. He also had complaints about various statements made about his performance that are included in College documents. The Tribunal's Approach 10 The Tribunal said: '8 The information that is the subject of the application is information about OD's formal qualifications. It seems that at various times since OD commenced working with the Department, information about the qualifications of staff members was generally available to both other staff and members of the public. Qualifications were at one time displayed on a noticeboard within the Department, and that noticeboard was accessible to the public. 9 In more recent times the area within the Department in which OD works was the subject of a restructure. Staff members were asked to provide information with respect to their qualifications in order that the Department could make an assessment of staff suitability to perform various tasks. OD provided information in response to this request. An inquiry was made to NOOSR on behalf of the Department to ascertain the assessed equivalence of overseas qualifications of the kind held by OD to Australian courses. The Department contends that these inquiries were of a general nature and that no information about OD was given to NOOSR as part of those inquiries. 10 The Department has argued that the information regarding OD's qualifications was sought as a consequence of the need to align staff qualifications with the various positions within the new structure. It says that the information is not 'personal information' in terms of the Act and therefore it is not subject to the Information Protection Principles in the Act.' 11 The Tribunal concluded: '15 In my view, information regarding OD's qualifications is "information or an opinion about an individual's suitability for appointment or employment as a public sector official" within section 4 (3)(j) of the Act and is therefore not personal information in terms of the Act. The conduct by the Department about which the Applicant has complained does not involve "personal information". This is consistent with the position adopted by O'Connor DCJ in Y v Director-General, Department of Education & Training [2001] NSWADT 149. The President's findings as to section 4(3)(j) are set out at paragraphs [33] to [36] of his reasons. At paragraph [33], the President said that the test was, "in each case whether having regard to the content of the information in issue and the context in which it is found it can reasonably be said to be 'about an individual's suitability for appointment or employment'." 16 In this case, I agree with the Department's submission that both content and context lead to the inevitable conclusion that the information is about the OD's "suitability for appointment or employment". The information concerns his academic and professional qualifications and was collected for the purposes of assessing these qualifications and matching them to the work situation. The information is not personal information and is not subject to the Act. Consequently, this Tribunal can have no jurisdiction to review conduct in relation to it. Accordingly, the application should be dismissed.' Assessing Scope of Application to Tribunal 12 Because of the interaction between s 53 (the provision giving persons a right to apply to the agency for internal review of conduct) and s 55(1) (the provision conferring the right to apply for review by the Tribunal), the scope of the application for internal review, reasonably construed, sets the parameters for the application to the Tribunal. 13 The applicant can not, after the application has been dealt with by the agency, widen the scope of the process. It is a fundamental premise of the Act that the agency first be given an opportunity to review the conduct of concern to the applicant. Therefore it would be wrong to allow proceedings in the Tribunal to be changed in scope so as to allow the applicant to put in issue new items of conduct or new bodies of information if they were not ably to be identified (by the agency considering the complaint reasonably) at the initial stage. 14 It is therefore critical that the agency and subsequently the Tribunal delineate with care and precision the actual information that is the subject of the internal review application and any subsequent application to this Tribunal. This could well be a difficult task, as in the present case. 15 It would seem that here the Tribunal was guided by the findings made by the Department in its internal review reports. Those findings had focussed on the conduct of the restructure committee. There were no findings as to information communicated to the teacher in charge of the course in which the appellant was then enrolled. 16 As explained, it is the applicant's applications for internal review, reasonably construed, that set the parameters of the application. The evidence before the Tribunal below consisted, in part, of the two Privacy Internal Review Reports dated respectively 27 August 2004 and 19 April 2005, and attachments. Parts of these Reports and attachments have been marked as exhibits A, B, C and D in the proceedings before the Appeal Panel. There was no additional evidence adduced before this Appeal Panel. 17 By reference to these reports, particularly the exhibits mentioned, the appellant itemised the following matters as being of concern to him, and as involving in his view conduct that involved contraventions of the Act: · The accuracy and use of an opinion held as to his tertiary qualifications expressed by an employee so far as his course enrolment was concerned (recorded in Exhibit A), and in particular the opinion that his course enrolment should be cancelled and information on the basis of the information said to have been obtained from NOOSR in the context of the restructure review (Exhibit D). · The accuracy and use of an opinion held and expressed by an employee of the College that the appellant would act dishonestly through the assistance of a friend in relation to sitting examinations in a course in which he was enrolled (recorded in Exhibit D). · The accuracy and use of a statement that students at the College were unhappy about the appellant's involvement in studies at that College (recorded in Exhibit D). 18 These are all matters which raise issues of compliance with the Act, s 16, which requires agencies to observe certain standards as to accuracy and reliability of personal information that the use, and s 17, which places limitations on the use of personal information. The complaints may also raise issues in relation to the correction of records (s 15). 19 There was a further matter mentioned in the reports which the applicant drew to attention. It raised a security concern (see s 13) · the holding of records relating to him (the records were not themselves in evidence) by another employee outside College premises (this matter is referred to in Exhibit B). 20 Dr Bendall for the Department saw the items relating to the communication as to the enrolment and relating to security, as covered by the original complaint. He queried whether the other items were within the scope of the original complaint. As to the security issue, he noted that some action had been taken in relation to the practice of records being held off-premises. Conclusions 21 In our view the Tribunal unduly narrowly characterised the personal information the subject of the application. It needed at least to address the question of whether the use of the information in connection with the enrolment raised issues of contravention of the Privacy Act. It needed also, we think, to establish clearly the matters put in issue by the two applications for internal review made by the appellant. 22 We are satisfied that the Tribunal mischaracterised the appellant's application to the extent that an error of law occurred. In our view, the decision should be set aside, and these matters remitted to the Tribunal for further consideration. 23 At the factual level, there remains, in our view, a real question as to whether any assessment was ever provided by NOOSR. It was said that a member of the committee phoned an officer of NOOSR and received an opinion on a hypothetical basis. As it happens, one of the members of the Appeal Panel is a highly experienced tertiary education administrator familiar with overseas qualification recognition and accreditation procedures (Dr Blake). He expressed surprise at the suggestion that NOOSR would have conducted itself in the way suggested. He saw strength in the doubts expressed by the appellant that any assessment would have been given by NOOSR in the way described in the Department's material, and certainly as to whether any assessment upon which reliance could properly be placed had been given by NOOSR. 24 There then remains a question as to whether information that might have been protected at source (here the opinion held by the review committee, by virtue of the exception in s 4(3)(j)) retains that protection if it is subsequently used or disclosed in another context. Dr Bendall indicated that his preliminary view was that the subsequent uses of the information remained protected. It may be arguable that the circumstances surrounding the way in which an agency wishes to deal with the information may sever the nexus that the information has with employment in the public sector and replace it with a new connection with another object (following the reasoning in Y v Director-General, Department of Education & Training [2001] NSWADT 149). 25 We mention this aspect as, should this issue arise, it appears to us to be a sensible to course to invite the Privacy Commissioner's to appear and make submissions at the re-hearing. 26 Finally, there is a question as to whether the other items of information to which reference is found in the internal review reports, and which the appellant says were within the scope of his original complaint (clearly statements of a very damaging kind, if true) were within the scope of the original complaint. 27 In this regard we note that the agency, through the good offices of Dr Bendall, has evidenced a desire to resolve the appellant's various concerns. It may be that either informal discussions between the parties or formal mediation may put this dispute to rest. In some significant respects the agency has already attended to some of the concerns that the appellant has arising from this matter (for example, it has already taken action in relation to the off-site holding of staff personal records). 28 It may well be that all that is now required to resolve the other issues raised by the appellant is an assurance that the records will be properly rectified, and that steps are being taken to ensure that history does not repeat itself. There needs also to be some recognition of the harm that the appellant feels he has suffered to his reputation; and the more specific harm that he suffered, which was, he says, that he felt it incumbent on him to withdraw from the course when issues were raised over his satisfaction of the prerequisite requirement. Order 1. Appeal allowed. 2. Decision under appeal set aside. 3. Application for review remitted to the Tribunal to be redetermined.