Administrative Decisions Tribunal New South Wales Medium Neutral Citation: JT v Technical and Further Education Commission (No 2) [2011] NSWADT 291 Hearing dates: On the papers Decision date: 08 December 2011 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: 1. JT's application is dismissed. 2. The Respondent has leave to have the matter relisted should it wish to pursue the issue of costs. Catchwords: Personal information - health information - failure to secure - use Legislation Cited: Administrative Decisions Tribunal Act 1997 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998 Cases Cited: JT v Technical and Further Education Commission [2010] NSWADT 85 JT v Technical and Further Education Commission [2011] NSWADT 63 Category: Principal judgment Parties: JT (Applicant) Technical and Further Education Commission (Respondent) Representation: Counsel P Ginters (Respondent) JT (Applicant in person) Crown Solicitor (Respondent) Privacy Commissioner, J McAteer File Number(s): 083301 Publication restriction: Section 75(2)(b) of the Administrative Decisions Tribunal Act 1997 applies in relation to the identity of the Applicant. REasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): In these reasons the names of several private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as JT. I have also limited my discussion of the evidence in order to avoid the possibility that the identities of individuals might be revealed. 2JT has applied to the Tribunal for review of a decision of the Respondent concerning alleged breaches of the Privacy and Personal Information Protection Act 1998 ("PPIP Act") and the Health Records and Information Privacy Act 2002 ("HRIP Act"). JT's alleged the improper use of information about him contained in a counselling file held by the Counselling and Careers Service at a TAFE college operated by the Respondent ("the relevant TAFE"). The Respondent accepts that the file contains both "personal information" about JT as defined in section 4 of the PPIP Act and "personal information" and "health information" about JT as defined in sections 4 and 5 of the HRIP Act. 3JT's allegations relate to the conduct of a number of officers employed by the Respondent. The identity of those officers will also be anonymised. 4I have previously dealt with a number of issues that the Respondent raised in regard to the application. My decisions are recorded as JT v Technical and Further Education Commission [2010] NSWADT 85 and JT v Technical and Further Education Commission [2011] NSWADT 63 ("the March 2011 decision"). JT's application for leave to appeal those decisions was unsuccessful. 5As a consequence of the decisions I have already taken in this matter, I have disposed of much of JT's application. 6The substantive matter was listed for hearing on 28 April 2011. On that day I was satisfied the matter was one that could be decided "on the papers" as provided for by section 76 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") and I made directions setting a timetable for the finalisation of the matter. Each of the parties has filed further material and I have taken that material into consideration. The issues 7As I noted in the March 2011 decision, the scope of JT's case was settled in correspondence dated 9 August 2010 from the solicitors who were acting for JT's at that time, to the Crown Solicitor. In that correspondence JT's solicitors confirmed that JT restricts his claim to the loss and damage suffered by reason of the contravention referred to in paragraph 33 of his points of claim filed on 18 December 2008. Paragraph 33 of those points of claim alleges (with the identity of the officers anonymised): On 4 February 2005, [Ms S] sent an email to [Ms B] that stated that the Respondent spoke with [Ms G] in the morning to find out if the counseling [sic] unit had a file on the Respondent [sic] which could be accessed by the staff. The file existed and [Ms G] indicated that she would alert [Mr C] to this file prior to the Monday Meeting ([Mr C] is a new recruit to [the relevant TAFE]). The email also stated that "Maria was most supportive of our situation regarding his case". 8The text of the email referred to in paragraph 33 of the points of claim (with the identity of the officers anonymised) is: "I have spoken with [Ms G] this morning as I was curious to know if the Counselling Unit has a file on [JT] which all may refer to. They most certainly do and she will alert [Mr C] to this file prior to the Monday meeting ([Mr C] is a new recruit to [the relevant TAFE])". 9As I also noted at paragraph [13] of the March 2011 decision: "I also agree with the Respondent's contention that there are only two issues before the Tribunal i.e. firstly, whether the Respondent allowed the Applicant's personal and health information as contained in his counselling file to be used for a purpose other than that for which it was collected and secondly, whether there were in place security safeguards that were reasonable in the circumstances to ensure that the Applicant's personal and health information contained in his counselling file was protected against loss, unauthorised access, use, modification or disclosure or other misuse." The applicable legislation 10The applicable provisions in the PIPA Act are in sections 12 and 17: 12 Retention and security of personal information A public sector agency that holds personal information must ensure: ... (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 ... 17 Limits on use of personal information A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless: (a) the individual to whom the information relates has consented to the use of the information for that other purpose, or (b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or (c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person. 11The applicable provisions in the HRIPA Act are the Schedule 1 Health Privacy Principles 5 and 10: 5 Retention and security (1) An organisation that holds health information must ensure that: ... (c) 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 ... 10 Limits on use of health information (1) An organisation that holds health information must not use the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless: ... JT's case 12JT relies on his own evidence. He also provided written submissions in support of his application. 13JT's written submissions largely sought to revisit issues that have already been determined. I have only taken account of those parts of his submissions that address the outstanding issues. 14JT points to the email of 4 February 2005 that was sent by Ms S to Ms B. He asserts that he has reasons to believe that Ms G and Mr C colluded to write false comments about him in his psychology notes and that Ms S directed Ms G to instruct Mr C to write false comments. 15JT referred to a transcript from other proceedings between the parties in support of his contention that there is reason to believe that Ms S and/or Ms G contacted Mr C before Mr C wrote his notes about JT, because Mr C might be under the influence of Ms S and/or Ms G to write false and unfair comment about JT. He asserts that it is "high likely" that the information in the counselling file was "disclosed, modified and used". He says that the evidence shows that Mr C's notes were possibly written after talking to Ms G. He says that Ms B had already arranged a meeting with 'Susan' and that the purpose of the email of 4 February 2005 was so that JT's counselling file that could be used for the meeting. He asserted that a note recorded by Mr C in JT's Counselling file was used in the meeting between Ms B and Susan. 16He also states that he has reasons to believe that Mr C passed his counselling file to Ms G, Ms S, Ms B and "Susan". He also states that he has reasons to believe that he became the subject in discussion between Ms G and Ms S, which involved his confidential psychologist notes being released to third parties without his consent. 17JT also contends that by allowing his Counselling file to be accessed by staff for purposes other than those associated with his counselling and welfare, the Respondent has acted in breach of section 17 of the PPIP Act and Schedule 1, clause 10 of the HRIP Act. 18JT also contends that the Respondent has acted in breach of section 12(c) of the PPIP Act and Schedule 1, clause 5(1)(c) of the HRIP Act by failing to take reasonable security safeguards against unauthorised access, use, modification or disclosure, and against all other misuse of the information contained in the Counselling file. The Respondent's case 19The Respondent asserts that JT's contentions are wrong. It points to the evidence of Ms G, Ms S, Ms B and Mr C in support of its argument that JT's counselling file was not accessed or used by staff at the relevant TAFE other than counselling staff involved with JT's case. 20Ms B was an Assistant Director of Education Programs with the Respondent. Her evidence is that she did not see or have access to JT's counselling file and that JT's counselling file was not available for all of the Respondent's staff to peruse. As far as she is aware, with the exception of the counsellors with whom JT met, no member of staff either saw or were provided access to JT's counselling file or used information contained in his counselling file. 21Ms S was employed as a Head Teacher with the Respondent. Her evidence is that she has never seen JT's counselling file and, as far as she is aware, nobody outside the Counselling and Careers Service has ever seen that file. 22In relation to the email of 4 February 2005 from Ms S to Ms B she stated: "The email refers to a forthcoming "Monday meeting" which was to be attended by [Mr C]. This meeting had been arranged to discuss [JT's] request to study three units at [the relevant TAFE]. He had completed semester two of 2004 at [a different TAFE]. I wrote the email to [Ms B] following a conversation with [Ms G] concerning [JT]. When I spoke to [Ms G], I was already aware that [JT] was a client of the Counselling and Careers Services because I had previously attended a meeting with [JT] and his then counsellor, ..., at [JT's] request. When I wrote that "I was curious to know if the Counselling Unit has a file on [JT] which all may refer to", I meant that I was curious to know whether there was a counselling file on [JT] which all counsellors could refer to. At no stage did I mean to suggest that anyone outside the Counselling and Careers Service could have access to [JT's] counselling file. The reason why I asked whether there was a counselling file about [JT] is that I thought it was important that the new counsellor, [Mr C], be aware of, and if possible, have access to [JT's] file so that he could inform himself of issues that had arisen." 23Ms G is a Senior Counsellor with the Respondent. Her evidence is that: "In or about September 2004, [Mr C], a TAFE NSW counsellor, transferred from [a different TAFE College] to [the relevant TAFE]. The Counselling and Careers Service keeps files on each client. Each counsellor who is involved in the client's case may access the client's file. Persons other than counsellors do not have access to our clients' files. The files are kept securely within the Counselling and Careers Service office, stored in a central filing cabinet in that office. Only counsellors and the Counselling Service receptionist have access to the office. The entrance to the Counselling office is restricted to Counselling staff. There is a sign on the door saying "staff only". The door is always locked. Counsellors need to use their key to access the office throughout the day. The filing cabinet is locked at the end of each day. -The key to the filing cabinet is placed in a keytel which is locked each night. The keytel is not visible when you enter the room. The office is securely locked each night. When a client has a scheduled appointment to see a counsellor, that appointment is recorded on the cover sheet to the client's file. [JT] was a client of the Counselling and Careers Service at [the relevant TAFE] between 27 February 2004 and 5 May 2005. [JT] came to the Counselling and Careers Service on 3 February 2005. This was during the enrolment period, so all counselling sessions were on a drop in basis. I understand that he saw [Mr C], who was available at that time." 24In relation to the email of 4 February 2005 from Ms S to Ms B, Ms G stated: "I have read the email of 4 February 2005 from [Ms S] to [Ms B] being Annexure A to the affidavit of [JT] affirmed on 22 June 2010. [Ms S] was the Head Teacher of the Information Technology teaching section at [the relevant TAFE]. [Ms B] was the Assistant Director of Educational Programs. The email refers to a conversation I had with [Ms S] on 4 February 2005. During the course of our conversation I recall that [Ms S] said words to the following effect: "I am concerned that [Mr C], who is assisting [JT], should have the requisite background information to enable him to provide relevant support and advice to understand the complexity of the situation involved with [JT]." I understood this to be a concern that [Mr C] may not understand the background to [JT]'s educational history, as he was relatively new to [the relevant TAFE]. [Ms S] said words to the effect: "Do you keep files on students you provide counselling to?" I said words to the effect: "Yes, we do keep files". I understood [Ms S] to be asking whether [Mr C] would be able to access the file on [JT] so that he could understand the history of [JT]'s involvement with [the relevant TAFE's] Counselling and Careers Service. At no time did I say or suggest that [Ms S] or anyone else outside the Counselling and Careers Service could access [JT]'s file. Where [Ms S] writes in her email that I said "all may refer to" [JT]'s file, I understand her to be referring to my comment that all persons working in a professional capacity in the Counselling and Careers Service could access [JT]'s file. That is, counsellors working with [JT] would have access to his file." 25Mr C is employed as a counsellor with the Respondent. His evidence is: "My position involves providing counselling to [the relevant TAFE's] students and career counselling to prospective TAFE students. There are files for each client within the Counselling and Careers Service. Each counsellor who is involved in the client's case may access the client's file. Counselling files are kept in a filing cabinet in the reception to the Counselling and Careers Service. The filing cabinet is locked at night. When the receptionist is not in the reception area, the reception area is locked and the grille is pulled down. I first met [JT] on 3 February 2005 when he came for a drop-in session at [the relevant TAFE]. After that day, I accessed his file on numerous occasions for the purposes of providing him with assistance. As far as I am aware, [JT]'s file was never provided to anyone outside Counselling Services. It was always in the filing cabinet when I accessed it." 26In relation to the email of 4 February 2005 from Ms S to Ms B, Mr C stated: "[Ms S]'s email to [Ms B] of 4 February 2005 refers to a meeting to be held on the following Monday with myself and [JT]. On 3 February 2005, [JT] and I spoke with [Ms S] in the teaching section, when [Ms S] advised that [JT] had to see [Ms B] prior to enrolment. [JT] and I then saw [Ms B]'s executive assistant in the teaching section on 3 February 2005 and arranged an appointment with [Ms B] for Monday 7 February 2005 (that is, the "Monday meeting"). The purpose of the meeting was to discuss educational issues, including [JT]'s enrolment." 27The Respondent submits that, at best, JT's case invites the Tribunal to draw an inference from the language used in the 4 February 2005 email. At worst, JT's case is entirely speculative. 28While the Respondent concedes that the language used by Ms S in her 4 February 2005 email is possibly infelicitous, it submits that it is not evidence of staff at the relevant TAFE, other than counselling staff involved with JT's case, using JT's personal and health information in contravention of section 17 of the PPIP Act and Schedule 1, clause 10 of the HRIP Act. 29The evidence called on behalf of the Respondent squarely contradicts the inference urged by JT. 30The Respondent submits that the Tribunal would not draw that inference where there is a more probable and innocent explanation available on the evidence. It argues that on the evidence before the Tribunal there is no basis to draw an inference favourable to JT. 31The Respondent submits that JT's contention that the Respondent acted in breach of section 12(c) of the PPIP Act and Schedule 1, clause 5(1)(c) of the HRIP Act is predicated on an inaccurate premise. The premise is that staff, who were not counselling staff involved with JT's case, accessed JT's counselling file. Accordingly, the Respondent submits, JT's case must fail. 32In any event, the Respondent submits that it had in place security safeguards that were reasonable in the circumstances to ensure that JT's personal and health information in the file was protected against loss, unauthorised access, use, modification or disclosure, and against all other misuse. 33The Respondent's Code of Conduct requires that personal information that is collected or held by staff "must be held securely to avoid loss; unauthorised access, use, modification or disclosure; and all other misuse." The Code of Conduct also provides that unauthorised persons cannot access such information. 34The Respondent's evidence is that counselling files held within the Respondent's Counselling and Careers Service, including JT's counselling file, are kept in a filing cabinet in the Counselling and Careers Service office. The filing cabinet is locked at night. The key to the filing cabinet is securely stored each night. The entrance to the Counselling and Careers Service office is restricted to counselling staff. The door to the Counselling and Careers Service office is locked, and counsellors need to use their key to access the office during the day. When the Counselling and Careers Service Office is unattended it is locked and a grille is pulled clown. Only counselling staff have access to client files. When a client has a scheduled appointment to see a counsellor that appointment is recorded on the client's file. 35The Respondent submits that for the purposes of section 12(c) of the PPIP Act and Schedule 1, clause 5(1)(c) of the HRIP Act, the Respondent has taken such security safeguards as are reasonable in the circumstances to protect personal and health information against loss, unauthorised access, use, modification or disclosure, and against all other misuse. Discussion 36I agree with the Respondent's categorisation of the issues remaining to be determined. It seems to me that JT's case is based on inferences that he has drawn from the wording of the email of 4 February 2005 from Ms S to Ms B. He also seeks to rely on evidence given in other proceedings, which he considers as providing support for his interpretation of the wording of the email. 37In my view, the uncontested evidence of the Respondent's witnesses totally addresses these issues. Those witnesses have provided a context for the email of 4 February 2005 and a plausible explanation for the contents. In my view, there is no basis to draw an inference from the text of the email that is favourable to JT's case. 38For the reasons argued by the Respondent, I am not satisfied that any of the Respondent's staff, other than counselling staff involved with JT's case, have had access to or used JT's personal and health information in contravention of section 17 of the PPIP Act and Schedule 1, clause 10 of the HRIP Act. 39I am also satisfied that the Respondent has taken such security safeguards as are reasonable in the circumstances to JT's protect personal and health information against loss, unauthorised access, use, modification or disclosure, and against all other misuse. I am satisfied that the Respondent has satisfied the requirements of section 12(c) of the PPIP Act and Schedule 1, clause 5(1)(c) of the HRIP Act. 40Accordingly, JT's application must fail and it should be dismissed. Costs 41The Respondent sought an order that JT pay its costs in relation to responding to a summons issued on 16 February 2011 at JT's request. The Respondent objected to the summons and brought an application for it to be set aside. I dealt with that application on 23 March 2011 and granted the Respondent's application. I formed the view that the application for summons of documents was largely a fishing expedition and that JT had not identified any legitimate forensic purpose for seeking access to the documents. 42I indicated at the time that the Respondent's application for costs would be considered at the hearing in the substantive matter. 43In it's written submissions in the substantive matter the Respondent indicated that it seeks to reserve its rights in relation to the question of costs. I agree with that request. Order 1. JT's application is dismissed. 2. The Respondent has leave to have the matter relisted should it wish to pursue the issue of costs. ********** 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: 08 December 2011