EY v Department of Corrective Services [2008] NSWADT 317

CITATION: EY v Department of Corrective Services [2008] NSWADT 317

DIVISION: General Division

APPLICANT EY PARTIES: RESPONDENT Department of Corrective Services

FILE NUMBER: 083054

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 3 June 2008

DATE OF DECISION: 28 November 2008

BEFORE: Higgins S - Judicial Member

CATCHWORDS: Privacy - information protection principle - disclosure to third party

MATTER FOR DECISION: Preliminary matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Criminal Records Act 1991 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998

EG v Commissioner of Police, NSW Police Service [2003] NSWADT 150 CASES CITED: GL v Director General, Department of Education and Training [2003] NSWADT 166 PN v Department of Education and Training [2006] NSWADT 122 Y v Director General, Department of Education [2001] NSWADT 149

APPLICANT In Person REPRESENTATION: RESPONDENT G Singer, solicitor

ORDERS: The Tribunal has no jurisdiction to hear and determine this application

Publication Restriction: In accordance with Practice Note No.13 the publication of the name, address, or any other material that identifies the applicant is prohibited.

REASONS FOR DECISION Introduction 1 This is an application by EY ('the applicant') seeking review of conduct by the Department of Corrective Services ('the respondent') which he alleges was a breach of his privacy under the Privacy and Personal Information Protection Act 1998 ('the PPIP Act'). EY is an employee of the respondent and the conduct he complains of is the respondent's disclosure of three events concerning EY and other matters to the Government and Related Employees Appeal Tribunal ('GREAT'). This information was contained under the heading 'Additional information supplied by the Department' in written submission the respondent had filed in response to an appeal EY had lodged with GREAT. EY had lodged the appeal after his application for an Assistant Superintendent position within the respondent had been unsuccessful. 2 The matters that were disclosed in the respondent's submissions included the following events: (a) EY's suspension in 1985 to 1988 pending determination of criminal charges relating to firearms offences allegedly committed by him. He had pleaded guilty to two of the charges and the Court found these charges to be proven but did not enter convictions against the applicant; (b) the issue of a warning letter to EY in 1995, following his conviction of larceny in the District Court; (c) the formal counselling of EY in 1998 in regard to an alleged breach by him of the Code of Conduct and Ethics, following his alleged inappropriate display of Department pictures and information on his personal website. 3 The other matters of concern to EY were comments about his ability to get on with his peers and supervise a small team and other comments relating to his past work performance. 4 In his application for review, EY asserted that the above three events were of no relevance to his application before GREAT. Each of the matters he said had long been resolved, or 'spent' under the Criminal Records Act 1991. He also asserted that this and the other information was either incorrect (i.e. false), out of date or misleading. 5 In its internal review determination under section 53 of the PPIP Act, the respondent found that the conduct of which EY complained was not conduct that fell within the terms of the PPIP Act as it did not involve his 'personal information' as defined in that Act. The information it said fell within the terms of the exception in paragraph 4(3)(j) of the PPIP Act. That is it was information or opinion about his suitability for appointment to the position he had applied for and which was the subject of the appeal to GREAT. 6 In the alternative, the respondent determined that there was no breach of the PPIP Act as the information had been collected for a lawful purpose which was directly related to the functions or activities of the respondent and its disclosure was for a purpose for which it was collected. 7 When the matter came before the Tribunal, the respondent contended that the issue as to whether the conduct the subject of review involved EY's 'personal information' as defined in the PPIP Act was an issue going to the Tribunal's jurisdiction to hear and determine this application and it should be determined as a preliminary matter. That this was the case was not disputed and the parties agreed that it was an issue that could be determined on the papers. Orders were made for the filing and serving of submissions. The respondent also filed a copy of its written submissions to GREAT. Issues 8 There is really only one issue for determination in this preliminary issue and that is whether the matters complained of by EY as contained in the respondent's submissions to GREAT was information about EY that fell within the terms of paragraph 4(3)(j) of the PPIP Act. 9 In his application for review, EY had also asserted that the conduct of the respondent was a breach of the Health Records and Information Privacy Act 2002. In my opinion the information that is the subject of this application does not fall within the terms of that Act. In the event I am incorrect, the provisions of that Act are very similar to those contained in the PPIP Act and on this basis I have not considered the conduct in context of the Health Records and Information Privacy Act 2002 any further. Relevant Legislation 10 The Tribunal's jurisdiction to hear and determine an application for review of conduct under the PPIP Act arises pursuant to s.38 of the Administrative Decisions Tribunal Act ('the ADT Act') and s.55 of the PPIP Act. Section 38 of the ADT Act gives the Tribunal jurisdiction to review a decision of an administrator where the enactment under which the decision has been made makes provision for applications to be made to the Tribunal for review of that decision or such a class of decision. Section 55(1) of the PPIP Act gives the Tribunal jurisdiction to review the findings of an agency made in regard to an internal review application (see s.53(1) of the PPIP Act) where the internal review applicant is not satisfied with the findings of the agency. 11 Section 52(1)(a) sets out the 'conduct' which may be the subject of an internal review application under s.53(1). That 'conduct' is described as being a 'contravention' by the agency of an 'information protection principle' that applies to the agency. An 'information protection principle' is defined in s.3 to mean the provisions that are set out in Div 1 of Pt 2 of that Act. These provisions are ss.8 to 19 and they concern the collection, retention and security, access, use and disclosure of 'personal information' by a government agency. There is no dispute that the respondent is subject to the provisions of the PPIP Act in regard to the collection, retention and security, access, use and disclosure of 'personal information'. 12 The term 'personal information' is defined in s.4 of the PPIP Act and relevantly provides 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 data base 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) … (3) Personal information does not include any of the following: