Administrative Decisions Tribunal New South Wales Medium Neutral Citation: ACO V Department of Education & Training [2012] NSWADT 79 Hearing dates: On the papers Decision date: 30 April 2012 Jurisdiction: General Division Before: P H Molony, Judicial Member Decision: The application is dismissed Catchwords: Privacy and Personal Information Protection Act - Legislation Cited: Privacy and Personal Information Protection Act 1998 -personal information - information or an opinion about an individual's suitability for appointment or employment as a public sector official Cases Cited: AF v HealthQuest [2011] NSWADT 99 Department of Education and Training v PN (GD) [2006] NSWADTAP 66 GA & Ors v Department of Education & Training and NSW Police [2004] (GD) NSWADTAP 18 GL v Director-General, Department of Education and Training [2003] NSWADT 166 PN v Department of Education & Training [2006] NSWADT 122 Y v Director General, Department of Education [2001] NSWADT 149 Category: Interlocutory applications Parties: ACO (Applicant) Department of Education & Training (Respondent) Privacy Commissioner of NSW Representation: ACO (Applicant in person) (Respondent) Privacy Commissioner File Number(s): 113113 REasons for decision Introduction 1This is a preliminary decision concerning whether certain information, which is the subject matter of ACO's application under the Privacy and Personal Information Protection Act 1998 (the PPIP Act), is excluded from the definition "personal information" for the purposes of section 4 of the PPIP Act, as it is "information or an opinion about an individual's suitability for appointment or employment as a public sector official," under 4(3)(j) of the PPIP Act. 2If the information falls within the later category it is not personal information to which the PPIP Act applies, and the Tribunal has no jurisdiction to review the conduct with respect to that information. 3ACO is the review applicant. The respondent is the Department of Training & Education (the agency). 4At a planning meeting held on 27 September 2011 I determined to determine the preliminary issue on the papers. I made orders for the parties to file and serve submission. Each of them, including the Privacy Commissioner, has made submissions to which I have had regard. 5I was and remain satisfied, that the issue requiring preliminary determination in this case can be adequately determined, in the absence of the parties, on the papers. Factual Background 6ACO was a teacher at a High School, in excess to the school's staffing requirements. His was working under a return to work program with restrictions, and the Department was looking for suitable permanent for him. In that context the agency commenced a process whereby ACO was referred for a medical assessment to determine his fitness to continue, and capacity to complete the inherent requirements of his substantive position. 7The process of seeking a medical assessment was governed by the (then current) Premiers Memorandum "Revised 'Fitness to Continue' Procedures" M2001-11 and the agency's own guidelines called the ""Fitness to Continue Medical Assessment Referral and Implementing Recommendations Guidelines" Transitional arrangements from HealthQuest (the agency guidelines). 8As part of the assessment, the Principal of the High School completed a report entitled "Health Assessment Referral Report", dated 19 August 2010 (the supervisor's report). Part 3.6.5 of the agency guidelines set out the purpose of a supervisor's report:- The occupational physician requires a report from the employee's Workplace Manager to assist in determining the employee's work performance capacity in relation to the requirements of their role. It is the Referring Officer's responsibility to obtain this report from the Workplace Manager. The supervisor's report should cover the following: Any variations of the employee's role from the position description and/or duties statement supplied; Any particular aspects of the duties that the employee is unable to perform; and Any other concerns the Workplace Manager may have in relation to the employee's fitness for work. 9The Injury Management Advisor also prepared a "Fitness to Continue Medical Assessment Referral" dated 14 September 2010 (the referral). Paragraph 3.6.1 of the agency guidelines set out the suggested content of the referral:- The referral letter [for fitness to continue medical assessments] should include the following: Type of referral sought; Reason for referral; Employee's employment background; Employee's leave history overview; Chronological account of events leading to the referral; Outline how the health-related issue(s) is affecting work performance; Actions and strategies used to support the employee in resolving the current situation; Availability of suitable and/or alternative duties; Where appropriate, current related workers compensation information; Previous referrals; and Specific questions concerning the employee's work capacity. It should be made clear what you specifically require answer to. For example is the employee able to continue in a particular job? Is the employee able to undertake alternative employment? etc 10The referral advised that ACO was a full-time teacher at the High Scholl who was:- ...being referred for Fitness to Continue Assessment to determine his ability to perform the inherent requirements of a classroom teaching position and possible appointment into a substantive role in the Department ... 11It outlined a series of health issues that ACO had suffered from since 2003, his substantial time off work as a result, efforts to assist him to return to work, positions he had occupied, disputes he had with the Department, and his current placement. It concluded:- It is most apparent from the Supervisor's Report that the Principal does have genuine concerns regarding his ability to undertake the inherent requirements of the position of a Classroom Teacher. Furthermore, [ACO]'s inability to appropriately interact with students is so restrictive that DET is struggling to support the ongoing employment of [ACO]. 12The conduct about which ACO complains relates to information contained in the referral and the supervisor's report. With respect to the latter the information was contained in the following five quotations: "He has not been involved in any class teaching and learning activities, evaluating and assessing programs or completing student reports." "While [ACO] is suitably qualified in the specific content areas required for secondary science, his suitability and capacity to handle the rigours of classroom management with Yr 7 to Yr 10 classes has proven to be a concern. It is uncertain as to whether issues relating to classroom management are the result of [ACO] managing his health or whether it is a reflection of classroom practice". "I have allocated [ACO] some class supervision duties in conducting the online computer tests for the half yearly and yearly examinations. When there were distinct student behaviour management matters across Yr 7 to Yr 10 I arranged for each class teacher to be in the room with him to manage the behavioural matters that emerged and [ACO] do the technical aspects of the online tests". "[ACO] has demonstrated difficulty in ensuring that students are appropriately engaged and satisfactorily motivated." "It is my professional opinion [ACO] is not competent in combining rudimentary literacy and numeracy skills teaching in his lesson. For example, extended sentence or paragraph answers to questions." 13The information in the referral that is at the subject of ACO's conduct complaints are: "[ACO] returned to [Named] High School working 3 days per week up until 21 April 2005." "As stated in the Principals report [ACO] has had difficulties in maintaining the rigours of classroom management." "Furthermore [ACO]'s inability to appropriately interact with students is so restrictive that DET is struggling to support the ongoing employment of [ACO]." 14ACO considers these comments to be unsubstantiated and wrong. The relevant legislation 15Section 4 of the PPIP Act relevantly provides: (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: ... (j) information or an opinion about an individual's suitability for appointment or employment as a public sector official, 16Public sector official" is relevantly defined in s 3 of the Privacy Act as follows: "public sector official" means any of the following: (c) a person employed in the Public Service, the Teaching Service or the Police Service" 17"The PPIP Act is beneficial legislation and should be interpreted broadly so that people can obtain the maximum benefit from the rights they are afforded:" see GA & Ors v Department of Education & Training and NSW Police [2004] (GD) NSWADTAP 18 at [48]. In the context of discussing the exemption in section 4(3)(j), the Tribunal made the following comment in PN v Department of Education & Training [2006] NSWADT 122, at [58]: "As the Privacy Act is beneficial legislation, any exclusion from the definition of 'personal information' should be interpreted narrowly." 18In Y v Director General, Department of Education [2001] NSWADT 149 the President considered the interpretation and operation of s 4(3)(j). He rejected a submission made by the Privacy Commissioner that the exclusion should be construed as referring only to information that was collected in the course of a selection process or a formal disciplinary process: see [29-32]. Rather he said, at [33]:- 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'. 19He explained, at [36]:- As I see it, the protection against an over-reaching application of this exclusion is to be found in the word 'suitability'. 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). 20The requirement that one have regard to the context in which the information is found, as well as to its content, was highlighted in GL v Director-General, Department of Education and Training [2003] NSWADT 166. There the information in issue was contained in a report about GL's teaching methods and behaviour. This was sent to the principal of a new school to which GL had been appointed. Given the content of the information and the context in which it was provided to the new principal, after GL had attained her new position, the Tribunal held that the exemption in s 4(3)(j) did not apply. 21In Department of Education and Training v PN (GD) [2006] NSWADTAP 66 it was found that the exemption did not apply to information obtained as to PN's performance as a teacher in the context of defending a worker's compensation claim brought by her, with respect to a psychological injury sustained in the workplace. While the content of the information did bear on her suitability for her position, the context in which it was provided was not an employment or appointment one, especially as "the question of suitability for employment was evidently an afterthought" in the workers compensation proceedings. 22The Appeal Panel made the following analysis of the test, at [57-63]:- '57 The written submissions filed on behalf of the Department advanced the following propositions governing the interpretation of s 4(3)(j):- (a) The content of the information in issue and the context in which it is found can reasonably be said to be 'about an individual's suitability for appointment or employment'. (b) The information canvasses the aptitude and competence of the employee with respect to their current or prospective employment. (c) Suitability for employment can embrace such matters as the relationships between staff at the school, co-operativeness, ability to work effectively as part of a team and interpersonal skills. (d) The question of the applicant's suitability must be a live issue. 58 It will be observed that the first three of these propositions are drawn from Y v Director General and the fourth from GL v Director General. 59 Subject to some minor qualifications (notably the reference to 'relationships between staff at the school'), we would accept that these propositions are sufficiently supported by the six decisions that we have outlined. But we consider that in order to resolve this appeal, they require some elaboration. 60 To begin with, it is important to note that the first proposition requires that both the content and the context of the information must be 'about' the relevant individual's 'suitability for appointment or employment'. Frequently, an agency will 'collect' (in the sense in which that term is used in the Privacy Act) information about a public sector official that is clearly relevant to that person's suitability for appointment or employment. But if the context in which that information is collected is not related to that issue - as would be the case, for instance, if a document containing highly critical observations about an official's performance in employment was sent to a superior officer in response to a request for information confined to the number of hours that the official had been at work during recent weeks - the exclusion in s 4(3)(j) would not apply. Conversely, not every piece of information collected about a person being assessed in a 'routine personnel context', such as an appointment or promotion process, will bear upon the person's 'suitability'. It may be, and indeed be put forward as, an item of information having no relevance to this issue. 61 As we interpret the decision in Y v Director General, the 'context' in which the information is 'collected' must generally, if not invariably, be some kind of formal process which the relevant agency has instigated and is in the course of conducting. We infer this in particular from the use of phrases such as 'orthodox instrument of administration' and 'routine personnel context' in the paragraphs quoted above (at [45]) from this decision. 62 A requirement that the relevant 'context' to be current at the time when the information is 'collected' underlies the decision in GL v Director General. When the applicant in that case was still employed at the first school and the complaints against her were being formally investigated, there clearly existed a 'context' in which her suitability for employment was squarely 'on the agenda'. But by the time when the report of the principal of this school was sent to the principal of the second school, this 'context' no longer existed. Since Healthquest had assessed her as fit to remain in employment, the issue of her fitness was no longer 'live'. This point appears also to be borne out by the Appeal Panel's observations on the implications of a change of context in OD v Department of Education and Training. [[2005] NSWADTAP 74] 63 The decision in TA v Director General illustrates that identification of the relevant 'context' is not always straightforward. In the passage from its judgment quoted above at [56], the Tribunal identified the context in which the file note was made as 'the applicant's workers compensation claim'. But it went on to point out that the 'central concerns' of the file note (and, by implication, the associated record of interview) related to the complaint made against the applicant by the parent, the way in which the complaint was handled by officers of the respondent and the respondent's procedures for dealing with complaints. By referring to s 11A of the Workers Compensation Act, the file note expressed the opinion that, in the particular circumstances of the case, the question whether the respondent's conduct in response to the complaint constituted 'reasonable action with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal' within the meaning of s 11A(1) was one of significance in dealing with the workers compensation claim. It was clearly open to the Tribunal to treat the investigation of this specific question as a 'context' as one which could reasonably be said to be 'about' the applicant's suitability for employment. ...' 23AF v HealthQuest [2011] NSWADT 99 was concerned with information associated with a fitness to continue referral to HealthQuest by the RTA. The Tribunal found that the referral, which had been made under the RTA's sick leave policy, was made to ensure AF's best interest and that she was receiving proper support. Advice was sought as to whether AF had a medical condition affecting the performance of her duties, and, if so, to what extent and for how long. The report did not consider whether due to her medical condition she should be involuntarily retired. The Tribunal found that the relevant context was not her suitability for employment. The Tribunal concluded, at [41]:- It will be apparent from these reasons that the Tribunal's view is that neither the information supplied to the respondent, nor the context in which that information was received, demonstrate that the applicant's suitability for employment was in fact a live issue. The situation had not yet reached this stage. This is of course different to the factual situation where the circumstances are such that any nexus with suitability for employment , once existing, has been severed. But the principles to be applied remain the same. It must be shown, by the nature of the information under review, or the context in which it is found, that the information is about an individual's suitability for employment. This means that the information, or the context, must demonstrate that the individual's suitability for employment is a live issue and that the individual's competence or aptitude for employment is being canvassed, following Y v Department of Education and Training (op cit). 24The decision in AF v HealthQuest is presently on appeal. Consideration 25In ACO's case the information in issue is that set out in the quotes to paragraphs 10 and 11 above. He takes issue with each of them. 26Each contains an assertion of either fact or opinion going to the manner in which ACO fulfils, and his aptitude and competence to fulfil, his duties as a teacher. Read together, irrespective of whether or not those assertions are correct, they are concerned with ACO's suitability to perform his role as a teacher, and raise concerns as to his aptitude and competence, and his ability to manage students. 27The context in which those comments were made is that of the referral. Unlike the situation in AF, here the referral raised for consideration questions going directly to ACO's suitability for employment as teacher. The referral first sought advice on ACO's "ability to perform the inherent requirements of a class room teaching position." It squarely raised the issue that "[ACO's] ability to interact with students is so restrictive that DET is struggling to support the ongoing employment of [ACO]." That was the context in which the information about ACO was raised: one of seeking a medical assessment of his suitability for continued employment as a teacher. 28While the Privacy Commissioner submitted that it was open to me to conclude, as occurred in AF, that ACO's suitability for employment was not a live issue at the time the referral, that conclusion is not reasonably open on the material. A reading of the of both the supervisor's report and the referral makes it very clear that the context was one in which advice was being sought regarding ACO's suitability to perform his duties as a teacher. The content of the information in those documents, about which ACO's complains (and which he assets is wrong and false), was concerned with the same issue. 29ACO submitted that agency policy required that any unsatisfactory performance on his part be dealt with under its Guidelines for Dealing with Unsatisfactory Performance. That policy, however, noted that health may impact on performance, and should be dealt with by appropriate strategies. The reality is that ACO was working under a return to work program and the agency held concerns about his ability to manage the inherent demands of his job. It was in that context that the referral was made. 30ACO provided the Tribunal with the reasons for decision with respect to an Interim Payments Direction made by a delegate of the Registrar of the Workers Compensation Commission on 8 August 2011. One of the issues canvassed in that decision was whether s 11A of the Worker's Compensation Act 1997 applied with respect to ACO's claim for medical expenses. These were incurred as a result of a psychological injury he suffered after reading the supervisors report and the referral. Section 11A(1) of the Worker's Compensation Act 1997 provides: No compensation is payable under this Act 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. The delegate of the Registrar found that s 11A did not apply. The referral was not concerned with the provision of employment benefits, and was otherwise not reasonable. 31The statutory criteria applied under the Worker's Compensation Act 1997 are different to that under the PPIP Act. Here the issue I have to decide is whether the information in issue is information or an opinion about an individual's suitability for appointment or employment as a public sector official. 32As a consequence of all the above, I am satisfied that the information in issue is not personal information within the meaning of the PPIP Act. It is information or opinion about ACO's suitability for appointment or employment as a public sector official (teacher). It is therefore excluded from the definition of personal information in the PPIP Act by s 4(3)(j). 33It follows that the Tribunal has no jurisdiction to review the agency's conduct with respect to that information. As a consequence the application is dismissed. ********** 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: 30 April 2012