OD v Department of Education & Communities [2013] NSWADT 136

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: OD v Department of Education & Communities [2013] NSWADT 136 Hearing dates: On the papers Decision date: 13 June 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The Tribunal decides not to take any further action on the matter. Catchwords: Privacy - Jurisdiction - Meaning of "Personal Information" - Exception in relation to Information or Opinion about Suitability for Employment Legislation Cited: Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998 Cases Cited: AF v Minister for Health; Minister for Health v AF [2012] NSWADTAP 16 OD v Department of Education and Training [2006] NSWADT 312 Y v Department of Education and Training [2001] NSWADT 149 Category: Principal judgment Parties: OD (Applicant) Department of Education & Communities (Respondent) Representation: OD (Applicant in person) S Butler, Senior Legal Officer (Respondent) File Number(s): 123237

reasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is a matter brought pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 ("the Privacy Act"). 2In these reasons the names of all private individuals have been anonymised so as to preserve the privacy of their personal affairs. In these reasons the Applicant is referred to as OD.

Background 3OD has been employed at a TAFE college operated by the Respondent for a number of years. He has also attempted a number of TAFE courses over the years and as such has at various times been a student of the Respondent. 4By letter dated 21 May 2012 OD requested an internal review regarding conduct, which he asserted was in breach of his privacy. 5He asserted that on 23 November 2011 he found a memo ("the memo") in a bookcase located in one of his areas of responsibility while he was working at his place of employment. The memo is dated 12 February 2004, was written by a Senior Officer of the Respondent ("the SO"), and was apparently addressed to OD. He asserted that he had never seen the memo before 23 November 2011. 6The memo stated: "Dear [OD] [A specified course with which OD was involved] is not offered in 2004. After consultation with ... Manager College Services, you are required to [perform the specified work]. This is in accordance with your qualifications, efficiencies in timetabling ... as determined by the timetable. Your [work roster] will allow you to have a Roster day off. Your area of responsibility is [as specified]. ... From the College management view, you are under programmed. It is your duty to ensure that [duties were performed as specified]. ... I wish to congratulate you on the successful completion of subjects in [a course OD had studied] and I wish to strongly encourage you to continue. You will have my full support in your studies. Completion of additional subjects will unable [sic] you to [carry out tasks currently carried out] by agency staff. Please submit a new working roster for approval. Thank you for your cooperation" 7OD asserted that his privacy has been breached, as he has never discussed his results with the SO or anyone else in the section of the Respondent from which the memo originated. 8OD asserted that the Respondent had breached provisions of the Privacy Act in relation to * the collection of his personal information; * the security or storage of his personal information; * the use of his personal information; and * the disclosure of his personal information. 9OD stated that his studies results are personal and that he decides to whom he give this information. OD further stated that it was his decision to never give the SO any personal information. The reason being that in the past she had breached his privacy and had unlawfully disclosed personal information to other staff members. 10After finding the memo OD raised the issue with the SO. The SO sent OD an email in which she stated that at the time that the memo was written some staff, including OD, were required to upgrade their qualifications. She stated that this requirement was well known by other officers in OD's workplace and as Senior Officer she recommended approval for their study leave to the Manager. She stated that accordingly she was well aware of OD's studies at that time. 11OD asserted that he enrolled and paid for the course referred to in the memo on his own account and nobody asked him to enrol in it. It was his sole decision. He asserted further that the SO unlawfully obtained his results from a source other than him, without his consent, that she used it to favour other Officers and that she unlawfully passed on this information to the Manager. 12OD asserted that at the time the memo was written the SO was working in a role that probably gave her access to other students' records.