EN v University of Technology, Sydney (No 2) [2009] NSWADT 193

CITATION: EN v University of Technology, Sydney (No 2) [2009] NSWADT 193

DIVISION: General Division

APPLICANT EN PARTIES: RESPONDENT University of Technology, Sydney

FILE NUMBER: 093040

HEARING DATES: 6 July 2009

SUBMISSIONS CLOSED: 6 July 2009

DATE OF DECISION: 24 July 2009

BEFORE: Handley R - Deputy President

CATCHWORDS: Privacy

Privacy and Personal Information Protection Act 1998 Health Records and Information Privacy Act 2002 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 State Records Act 1998 Workers Compensation Act 1987

BE v University of Technology, Sydney [2008] NSWADT 139 CASES CITED: EN v University of Technology, Sydney [2009] NSWADT 50 Director-General, Department of Education & Training v MT [2006] NSWCA 2710 JD v Department of Health (GD) [2005] NSWADTAP 44

APPLICANT BE, agent for EN REPRESENTATION: RESPONDENT R Henderson, barrister

ORDERS: The Tribunal determines:(1) that no further action should be taken in relation to EN's complaint in respect of alleged inaccurate information about his teaching, and (2) a further written apology should be provided by the Respondent to EN in respect of the lost correspondence in issue, acknowledging breaches of section 12(1)(c) of the Privacy and Personal Information Protection Act 1998 and Health Privacy Principle 5(1)(c).

REASONS FOR DECISION 1 EN (otherwise referred to as 'the Applicant') has applied to the Tribunal for the review of conduct of the University of Technology, Sydney ('UTS', otherwise referred to as 'the Respondent') which he claims to be in breach of Information Privacy Principles ('IPPs') contained in the Privacy and Personal Information Protection Act 1998 ('the PPIP Act') and Health Privacy Principles ('HPPs') contained in the Health Records and Information Privacy Act 2002 ('the HRIP Act'). Background 2 The background to this matter is set out in my decisions in BE v University of Technology, Sydney [2008] NSWADT 139 ('BE v UTS'), a decision on an application brought by EN's wife, BE, and EN v University of Technology, Sydney [2009] NSWADT 50 ('EN v UTS'), which dealt with jurisdictional issues with regard to the present matter. In the latter decision, I concluded that the Tribunal has jurisdiction in relation to EN's application for review with regard to (a) lost correspondence between BE and the former Chancellor of UTS, Sir Gerard Brennan ('the Chancellor'), and (b) alleged inaccurate information about EN's teaching. 3 EN was employed as a lecturer in the Faculty of Business at UTS and was also enrolled as a part-time PhD student at UTS. EN has been in dispute with UTS for a number of years over his PhD candidature and his employment. BE corresponded with the Chancellor about these matters on her husband's behalf in 2002 and 2004, and UTS subsequently lost copies of four letters BE sent to the Chancellor, dated 28 October 2002, 29 October 2002, 15 March 2004 and 29 March 2004, and a letter the Chancellor wrote to BE dated 30 March 2004. These letters contained 'personal information' about EN and the letters dated 28 and 29 October 2002 contain 'health information' about him. UTS acknowledges that it cannot locate this correspondence. 4 EN claims that UTS breached sections 12, 18 and 19 of the PPIP Act and/or HPPs 5, 10 and 11 in connection with the loss of the correspondence. 5 EN's claim in relation to alleged inaccurate information about his teaching arises from an unsigned statement made on 11 September 2002 by Associate Professor Christopher Terry, then Head of School in the School of Finance and Economics at UTS, in which EN was a lecturer. This statement was prepared by Simon Hall of S C Hall & Co Pty Ltd, which was engaged by NRMA Insurance to investigate a workers compensation claim made by EN against UTS. In this statement, Professor Terry, commenting on EN's teaching, said: "My view is that [EN] performs less than satisfactorily as a Lecturer. I would say his main problem is lecturing and speaking to large groups. He is better with smaller groups and tutorials." 6 EN claims that this statement contains inaccurate information about his teaching and that this personal information was used in breach of section 16 and 18 of the PPIP Act. 7 Following my decision in EN v UTS, dated 5 March 2009, I conducted a Planning Meeting with the parties on 24 March 2009 to discuss a timetable for the exchange of any further evidence and submissions on the outstanding substantive issues. On 17 April 2009, UTS filed an internal review report prepared, at its request, by an external consultant, Anna Johnston, in relation to EN's complaint about the alleged inaccurate information about his teaching and EN's claim that UTS had breached section 16 of the PPIP Act. Ms Johnston concluded that: "Associate Professor Terry's opinion about EN, as reflected in the last 3 sentences of para 5 of the draft statement prepared by Simon Hall and included in the report of SC Hall & Co Pty Ltd dated 1 October 2002, was not inaccurate." 8 Ms Johnston found there was no basis for a claim that Professor Terry's opinion was 'out of date, incomplete or misleading', and that UTS: "took such steps as were reasonable in the circumstances to ensure that, having regard to the purpose for which the information was proposed to be used by the investigator and the NRMA, the information was relevant, accurate, up to date, complete and not misleading." 9 Ms Johnston concluded that UTS had not breached section 16 of the PPIP Act and recommended that no further action be taken in response to this part of EN's privacy complaint. By letter dated 17 April 2009, UTS informed EN that (1) it had decided to accept Ms Johnston's advice, (2) concluded that there was no breach of the privacy principles in relation to this part of EN's complaint, and (3) resolved to take no further action. The Relevant Legislation 10 The PPIP Act provides for the protection of personal information and the privacy of individuals by reference to a series of IPPs, set out in Part 2, which public sector agencies, defined in section 3(1) to include universities, are required to observe in the handling of personal information. 'Personal information' is defined in section 4(1) to include "information or an opinion ... about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion". 11 Part 5 of the PPIP Act provides for the review of certain conduct. The conduct to which Part 5 applies is set out in section 52 and includes relevantly: (1)(a) the contravention by a public sector agency of an information privacy principle that applies to the agency. 12 Section 53(1) states that a person who is aggrieved by the conduct of a public sector agency can apply to the agency for a review of that conduct. The Tribunal's role, pursuant to section 55(1) of the PPIP Act, is to undertake a review of the conduct that, in this case, was the subject of EN's complaint to UTS. Pursuant to section 55(2), the Tribunal may then decide not to take any action on the matter or to make any one or more of a series of orders: (2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders: