TA v Department of Education and Training [2006] NSWADT 246

CITATION: TA v Department of Education and Training [2006] NSWADT 246

DIVISION: General Division

APPLICANT PARTIES: TA RESPONDENT Department of Education and Training

FILE NUMBER: 053344

HEARING DATES: 3/04/2006

SUBMISSIONS CLOSED: 05/01/2006

DATE OF DECISION: 08/17/2006

BEFORE: Pearson L - Judicial Member

CATCHWORDS: Jurisdiction

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Privacy and Personal Information Protection Act 1998

GL v Director-General, Department of Education and Training [2003] NSWADT 166 CASES CITED: Vice-Chancellor, Macquarie University v FM [2005] NSWCA 192 Y v Director-General, Department of Education and Training [2001] NSWADT 149

APPLICANT In person

REPRESENTATION: RESPONDENT A Johnson and K Mattes, solicitors PRIVACY COMMISSIONER G Singer, agent

ORDERS: 1. The disclosure of the name, address or any other material that identifies, or may lead to the identification of the applicant, or the doing of any other thing that identifies, or may lead to the identification of the applicant, is prohibited; 2. Application dismissed

REASONS FOR DECISION 1 The applicant has applied for review of the conduct of the respondent pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 (the Privacy Act). The respondent has challenged the application on the basis that the Tribunal lacks jurisdiction. Pursuant to section 55(7) of the Privacy Act, the Privacy Commissioner appeared in these proceedings. 2 The applicant is not referred to by name in these reasons. The individual investigator whose access to the applicant's personal information was the subject of complaint is referred to as "the investigator". An employee of the respondent working in the Occupational Health, Safety and Rehabilitation Task Force who produced a file note dated 27 July 2000 concerning a meeting between the applicant and the Principal of the school in which he was then employed is referred to in these reasons as "AB". Background 3 The applicant was a school teacher employed by the respondent. In June 2000 there were discussions concerning one of the applicant's students, involving the applicant, the Principal, Deputy Principal, and a Head Teacher of the school at which he was employed. The applicant subsequently lodged a claim for workers compensation, and on 16 August 2000 signed forms authorising "any medical practitioner or other person" to provide the respondent's insurer "with any and all information" about the workers compensation claim. In 2004 the applicant obtained access to documents under the Freedom of Information Act 1989 from the respondent and the New South Wales Treasury. The applicant became aware that an investigator acting on behalf of the respondent's insurer had contacted a number of officers of the respondent on 8 August 2000. 4 On 21 March 2005 the applicant made a complaint related to alleged breaches of the Privacy Act. The applicant identified the background and ambit of the complaint in a detailed written submission. In essence, the complaint raised concerns as the provision of access to the applicant's personal records to the sub-contracted investigator before the authority was signed; failure to examine the investigator's Request to Investigate authority prior to allowing access to the applicant's files; disclosure to the investigator of information concerning the applicant and his former wife, and an incident that occurred in 1996; the handling of an unsigned parental complaint; and the accuracy of a record of interview dated 27 July 2000. 5 On 31 August 2005 the respondent determined that there had not been a breach of the Privacy Act. In the notice of determination, the applicant's concerns were identified in the following terms: 2.1.1 Departmental staff provided access to his personal records to a sub-contracted investigator appointed by the GIO, [the investigator] of NHN Investigations. This access was allegedly prior to [the applicant] signing an authority on 16 August 2000. 2.1.2 The authority [the applicant] signed was not examined by Departmental staff prior to allowing access to [the applicant's] files. 2.1.3 [The applicant] has sought an explanation about the business dealings between the Department of Education & Training, the Hunter and Northern Investigations (NHN Investigations), the GIO and [the investigator]. 2.1.4 Personal information was collected concerning [the applicant] from staff including […]. [The applicant] is concerned about what was said with regard to his person life and relations with his ex-wife and children. 2.1.5 [The applicant] is also concerned about the school staff's handling of an unsigned parental complaint. 2.1.6 [The applicant's] final request was to amend a number of documents on his personnel file which include: [4 documents were identified] 6 The respondent determined that the provision of information relevant to the workers compensation claim did not fall within the term "personal information" for the purposes of section 4(1) of the Privacy Act as the exception in section 4(3)(j) of the Privacy Act applied, and that access to the files was for the purposes of the Workers Compensation Act 1987, which would be covered by section 25(b) of the Privacy Act. 7 The applicant applied to the Tribunal for review of that determination. Following a planning meeting, the matter was listed for hearing. Shortly before the hearing date, the respondent's solicitor wrote to the Tribunal stating that it had come to her attention that the respondent was exempt from the information protection principles set out in sections 9, 10, 12, 13, 14, 15, 17, 18 and 19 of the Privacy Act from the period of 1 July 2000 through to 31 December 2000 pursuant to Directions by the Privacy Commissioner under section 41 of the Privacy Act. The respondent's solicitor requested that the timetable for filing of witness statements and submissions be vacated, and that the application of the Privacy Act to the respondent be determined as a preliminary issue. 8 A hearing was held on 3 April 2006 for argument on the jurisdictional issue, and further written submissions were provided after the hearing. Respondent's submissions 9 Ms Johnson submitted that the relevant period for consideration was 30 June 2000 (when the applicant was allegedly injured) and August 2000 when he signed the authority for the GIO to investigate. On 27 June 2000 the Privacy Commissioner signed a Direction under section 41 of the Privacy Act exempting the respondent from the information protection principles in sections 9, 10, 12, 13, 14, 15, 17, 18 and 19 of the Act until 30 September 2000. On 1 October 2000 that Direction was extended to 31 October 2000, and again on 31 October 2000 to 31 December 2000. Accordingly, applying the decision of DP Hennessy in GL v Department of Education and Training [2003] ADT 166, the respondent was exempt from the operation of those principles during the relevant period. 10 The respondent further submitted that section 11 of the Privacy Act could not apply to the collection of personal information by the investigator, as he is not a "public sector agency". Section 16 did not apply to any comments made by staff members. The applicant could not point to any records of the respondent containing this information. To the extent that any comments reflected information in the minds of staff members it was not "personal information" (relying on Vice Chancellor, Macquarie University v FM [2005] NSWCA 192). 11 The file note made by AB had been referred to in the applicant's request for internal review in the context of a challenge to the accuracy of the record of interview on which it was based. The Tribunal was restricted to review of the issues raised in the internal review application. To the extent that this raised an issue of the power to order the amendment of the records, this was covered by principle in section 15, which was included in the section 41 Direction. There was nothing to show use of this information and so section 16 did not apply. 12 To the extent that the parental complaint referred to in the file note of AB raised issues concerning whether the applicant's behaviour was appropriate in a teacher, the respondent relied on the decision of O'Connor J in Y v Director General, Department of Education and Training [2001] NSWADT 149, and this information is excluded by s4(3)(j). Applicant's submissions 13 The applicant submitted that the information protection principles in sections 11 and 16 of the Privacy Act applied to both the provision of information to the investigator before the signing of the authorities, and to the file note of AB which refers to a record of interview. The file note did not fall within section 4(3)(j) of the Privacy Act as it was concerned with whether the respondent could rely on section 11A of the Workers Compensation legislation concerning the reasonable actions of the employer, not his ongoing suitability as an employee. Submissions concerning section 24(4) 14 Ms Singer appeared on behalf of the Privacy Commissioner, and supported the submissions made on behalf of the respondent as to the application of section 4(3)(j) of the Privacy Act. Ms Singer also submitted that the file note of AB would be covered by the exemption in section 24(4) of the Act as it concerned the investigation of a complaint that could otherwise have been passed on to the Ombudsman. This provision was inserted in the Act to enable agencies to investigate complaints in house without having to refer them to outside agencies such as ICAC or the Ombudsman. The Occupational Health, Safety and Rehabilitation Taskforce was by definition an investigative process when investigating a complaint. 15 The applicant submitted that while the statement purported to be a complaint it was not a "complaint" as it was unsigned. The Principal was the author of the "complaint" and the parent only read it some time afterwards. There being no parental complaint the Occupational Health and Safety investigation was flawed. Findings and reasons 16 The applicant provided a chronology of events for the period 17 June 2000 to 18 July 2000, and provided copies of documents obtained by him under a request for access under the Freedom of Information Act 1989. Those documents include: (i) an Investigation Request dated 31 July 2000 by the GIO requesting investigation of the circumstances of injury on 30 June 2000; (ii) Investigator's Field Notes dated 29 August 2000, noting investigation/interviews from 7 August 2000 to15 August 2000, including discussions with three named employees of the respondent and access to files; (iii) an authority signed and dated 16 August 2000 authorising "any medical practitioner or other person to provide GIO with any and all information about me for this workers compensation claim." 17 The italicised words in the above extract from the Authority have been deleted in the copy as signed. 18 Based on the above documents, I find that on 28 June 2000 the Deputy Principal at the school at which the applicant was employed conducted an interview with a parent of a child taught by the applicant. The notes of that interview are unsigned, and the applicant disputes the accuracy of the content. Subsequent events lead to the applicant making a claim for workers compensation. An officer of the Occupational Health, Safety and Rehabilitation Task Force, AB, summarised certain events in a file note dated 27 July 2000. As part of the investigation of the workers compensation claim, the respondent's insurer, the GIO, engaged an investigator on 31 July 2000. That investigator discussed the issues with several employees of the respondent, and obtained access to files concerning the applicant, during the period 8 August 2000 to 15 August 2000. The applicant signed an Authority in the terms noted in para [16] above on 16 August 2000. 19 The respondent has provided copies of three Directions made by the Privacy Commissioner pursuant to section 41 of the Privacy Act. The first is dated 27 June 2000, and covers the period from that date until 30 September 2000. The second, dated 1 October 2000, extends the first Direction to 31 October 2000. The third, dated 31 October 2000, extends the Direction to 31 December 2000. All three Directions are in the same terms, and exempt the respondent Department from the following information protection principles as set out in Part 2 Division 1 of the Privacy Act: Section 9 Section 10 Section 12 Section 13 Section 14 Section 15 Section 16 Section 17 Section 18 Section 19 20 Under section 41 of the Privacy Act, the Privacy Commissioner may direct that a public sector agency, such as the respondent, is not required to comply with a specified information protection principle. Any such direction has effect despite any other provision of the Privacy Act. As the conduct the subject of the applicant's complaints took place during the period covered by the Direction of 27 June 2000, the Tribunal does not have jurisdiction to review any conduct so far as it alleges a breach of the information protection principles in sections 9, 10, 12, 13, 14, 17, 18 or 19 of the Privacy Act. That leaves the information protection principles in sections 11 and 16 to be considered. 21 Section 11 states: 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 relates. 22 Section 16 states: 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. 23 Section 11 and section 16 focus on the collection and use of "personal information". This term is defined in section 4: (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 protected disclosure within the meaning of the Protected Disclosures Act 1994, or that has been collected in the course of an investigation arising out of a protected disclosure, (f) information about an individual arising 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 a document of a kind referred to in clause 1 or 2 of Schedule 1 (restricted documents) to the Freedom of Information Act 1989 (ie Cabinet documents or Executive Council documents), (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. 24 The term "public sector agency" is defined in section 4 of the Privacy Act: public sector agency means any of the following: (a) a government department or the Teaching Service, (b) a statutory body representing the Crown, (c) a declared authority under the Public Sector Management Act 1988, (d) a person or body in relation to whom, or to whose functions, an account is kept of administration or working expenses, if the account: (i) is part of the accounts prepared under the Public Finance and Audit Act 1983, or (ii) is required by or under any Act to be audited by the Auditor-General, or (iii) is an account with respect to which the Auditor-General has powers under any law, or (iv) is an account with respect to which the Auditor-General may exercise powers under a law relating to the audit of accounts if requested to do so by a Minister of the Crown, (e) NSW Police, (f) a local government authority, (g) a person or body that: (i) provides data services (being services relating to the collection, processing, disclosure or use of personal information or that provide for access to such information) for or on behalf of a body referred to in paragraph (a)–(f) of this definition, or that receives funding from any such body in connection with providing data services, and (ii) is prescribed by the regulations for the purposes of this definition, but does not include a State owned corporation. 25 There was no dispute that the investigator collected information in the course of his investigation from employees of the respondent in person and by telephone. The Investigation Request dated 31 July 2000 is addressed to "NHN". A letter dated 24 February 2003 from the Acting Superintendent, Newcastle, of the respondent states that NHN is a company which has subcontracted investigation services provided to GIO to the investigator. While the respondent, as a government department, is a "public sector agency", the investigator is not. Any information collected by the investigator is not subject to section 11. 26 Information held in the mind of an employee of an agency is not information held by that agency: Vice Chancellor, Macquarie University v FM [2005] NSWCA 192. Accordingly, to the extent that the investigation involved the collection or use of information concerning the applicant's private life or the incident in 1996, provided orally by the Principal or a co-worker on the basis of their recollection, this was not the collection or use of information for the purposes of either section 11 or section 16. 27 In his initial complaint the applicant referred to the file note of AB in the following terms: Another item that I wish to have corrected is the record of interview between [AB] (OHS&R Task Force 27.7.00) and the Principal […]. The document is entirely flawed in terms of procedural fairness, it is inaccurate and contains a number of falsehoods that can be easily substantiated, namely documentation that I have in my possession. 28 Whether this can constitute "collection" or "use" of personal information depends on the meaning to be given to those terms. In GL v Director General, Department of Education and Training [2003] NSWADT 166 Deputy President Hennessy referred to the Macquarie Dictionary 3rd edition, which defines "collect" as "to gather together; assemble", and "use" as "to employ for some purpose, put into service; turn to account". I accept that these represent the ordinary meaning of the words used in sections 11 and 16. 29 The file note records details of a conversation between AB and the Principal concerning the applicant, and recounts actions of and statements made by the Deputy Principal, the Principal, and the applicant. I accept that this could constitute the collection of information. The concluding statement in the file note is: It is the view of the Task Force that this claim falls under s11a – Reasonable Action of the Employer. 30 This is apparently a reference to section 11A of the Workers Compensation Act 1987, under which compensation is not payable in respect of an injury that is a psychological injury "if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers". 31 I accept that the recording of the details of the conversations and actions was done in the context of the workers compensation claim made by the applicant, and that this could constitute "use" of the information. This then requires consideration of whether the information was "personal information", as defined in section 4 of the Privacy Act. 32 Subsection 4 (3)(j) of the Privacy Act excludes information or an opinion about an individual's suitability for appointment or employment as a public sector official from the ambit of "personal information". The extent of paragraph (j) was considered by O'Connor J in Y v Director General, Department of Education and Training [2001] NSWADT 149 in the following terms: The test, as I see it, must in each case be 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'. …The information in issue must be able to be shown to be information 'about … suitability.' It must contain within it language which indicates to an objective observer that the information canvasses the aptitude and competence of the employee with respect to their current or prospective employment (and can embrace such matters as co-operativeness, ability to work effectively as part of a team and interpersonal skills). If this approach is adopted, then it would be an unusual case where the exclusion would apply outside what I have described as the routine personnel context (that of recruitment, promotion, discipline and involuntary retirement). 33 The file note relates to the handling of complaints made by a parent about the applicant. The file note records that the Principal had discussed with the applicant how the complaint was to be handled, and a previous disagreement between the applicant and the Deputy Principal. Annexed to the file note was a record of interview containing detail of a conversation between the Deputy Principal and the parent concerned. While the file note appears to have been made in the context of the applicant's claim for workers compensation, its central concerns relate to the complaint made against the applicant by the parent, and how this complaint was handled by the Deputy Principal and the Principal, including reference to the respondent's complaint handling procedures. I am satisfied that the information contained in the file note, and the associated document, is information about the applicant's conduct as a teacher, and thus is information about his suitability for employment by the respondent. This information is, accordingly, not "personal information" as defined in section 4 of the Privacy Act 34 This conclusion makes it unnecessary to decide whether section 24(4) of the Privacy Act applies to the file note, and I express no opinion in that regard. 35 The final aspect of the matters raised by the applicant in his initial complaint concerns his request for the inclusion of 5 documents in his work file as "addendums", and that he be provided an opportunity to submit his account of what occurred between 27 June and August 2000. This does not fall within either section 11 or section 16 of the Privacy Act. 36 I conclude that the respondent was exempt from the application of the information protection principles in sections 9, 10, 12, 13, 14, 17, 18 or 19 of the Privacy Act at the relevant time, and that the information protection principles in sections 11 and 16 of the Privacy Act do not apply. Accordingly, the respondent's objection succeeds, and the Tribunal has no jurisdiction. Orders 37 I make the following orders: (i) The disclosure of the name, address, or any other material that identifies, or may lead to the identification of the applicant, or the doing of any other thing that identifies or may lead to the identification of the applicant, is prohibited. (ii) Application dismissed.