Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AOB v Commissioner of Police [2013] NSWADT 138 Hearing dates: On the papers Decision date: 14 June 2013 Jurisdiction: General Division Before: Naida Isenberg, Judicial Member Decision: The application is dismissed. Catchwords: Privacy - suitability for employment -promotion - health information - whether personal information Legislation Cited: Privacy and Personal Information Protection Act 1998 Health Records and Information Privacy Act 2002 Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: HW v Commissioner of Police, NSW Police and Anor [2003 NSWADT 214 Y v Department of Education & Training [2001] NSWADT 149 Department of Education & Training v PN (GD) [2006] NSWADTAP 66 GL v Director General, Department of Education & Training [2003] NSWADT 166 PN v Department of Education & Training [2006] NSWADT 122 Department of Education & Training v PN (GD) [2006) NSWADTAP 66 AF v Healthquest & Another [2011] NSWADT 99 AF v Minister for Health; Minister for Health v AF [2012] NSWADTAP 16 LN v Sydney South West Area Health Service (No 2) [2010| NSWADT 38 Director General Department of Education and Training v MT (GD) [2005] NSWADTAP 77 Category: Principal judgment Parties: AOB (Applicant in person) Commissioner of Police, NSW Police Force (Respondent) Representation: AOB (Applicant in person) Commissioner of Police, NSW Police Force (Respondent) File Number(s): 133007 reasons for decision Background 1On 2 May 2009, AOB, the applicant, who is a police officer, sustained a work-related injury, which resulted in him being unfit for work. He had applied for promotion to the rank of Sergeant. 2On 29 September 2009, the respondent, through its Promotions Unit, made AOB a conditional offer of promotion to the rank of Sergeant, subject to satisfactory medical and integrity checks. The position was fully operational and not suitable for an officer who was on restricted duties. 3Because the applicant was injured, the respondent left the offer open for over nine months, to give him an opportunity to recover and return to fully operational policing duties. 4From 20 April 2010 the applicant, who remained on restricted duties, was placed in a higher duties position with the rank of Sergeant at the respondent's Parramatta Local Area Command. 5In about May 2010, the applicant was assessed by an independent medical examiner, Dr Kafataris, for the purposes of determining the conditions, if any, upon which he could return to work. This assessment was undertaken at the request of the respondent's Injury Management Unit ('IMU') and arranged through the respondent's workers compensation insurer, Allianz. On 30 June 2010, Dr Kafataris prepared his report ('the report'), which contained health information, about the applicant. The IMU informed the Promotions Unit of the report and later provided it with a copy of the report. As a consequence, the applicant's promotion did not proceed. 6In summary, the applicant alleged that the respondent had breached its privacy obligations under the Personal information Protection Act 1998 ('the PPIP Act') and the Health Records and information Privacy Act 2002 ('HRIP Act') by: a.The release of his health information by the IMU to the Promotions Unit; and b.The use of his health information by the Promotions Unit in considering his promotion. Relevant legislation 7Both the PPIP and the HRIP Acts place obligations on how agencies handle personal and health information. "Personal information" includes any information or opinion that is capable of identifying a person: s.4 PPIP Act and s.5 HRIP Act. "Health information" includes personal information about the physical or mental health or a disability of an individual: s.6 HRIP Act. 8Section 4(3)(j) PPIP Act and s.5(3)(m) HRIP Act, each specifically exclude from the definition of "personal information", information or an opinion about an individual's suitability for appointment or employment as a public sector official. Threshold issue 9At the planning meeting held in this matter the parties were invited to make submissions whether the information the subject of the application for review constituted "personal information" under the PPIP Act/HRIP Act or "health information" under the HRIP Act having regard to the above exemptions. 10This decision addresses this threshold issue only. Consideration of the threshold issue 11The Privacy Commissioner submitted that the definition sections should be construed narrowly, in light of the protection against an over-reaching of the exclusion as expressed in Y v Department of Education & Training [2001] NSWADT 149 at [33] ('Y'), where the Tribunal considered the information must contain 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 (my emphasis). Y is authority for the proposition that the exclusion in s.4(3)(j) of the PPIP Act (and, similarly, s.5(3)(m) of the HRIP Act) is limited, and the scope generally depends on both the content of the information and the context in which it is collected, used or disclosed: see also Department of Education & Training v PN (GD) [2006] NSWADTAP 66 ('PN') at [60]. 12The Privacy Commissioner submitted, and I agree, that to determine whether the information in the report falls within the exemption, the Tribunal is required to characterise the information at the time the breach is alleged to have occurred, because, if the applicant's fitness or suitability for employment was not a live issue at the time of the conduct in question, the exemption will not apply: GL v Director General, Department of Education & Training [2003] NSWADT 166 at [40], PN v Department of Education & Training [2006] NSWADT 122 at [59]-[60], PN, and AF v Healthquest & Another [2011] NSWADT 99 ('AF'). 13In AF at [41] the Tribunal stated that "the information, or the context, must demonstrate that the individual's suitability for employment as being a live issue and that the individual's competence or aptitude for employment is being canvassed". Further, on appeal (AF v Minister for Health; Minister for Health v AF [2012] NSWADTAP 16) the Appeal Panel noted that an individual's 'aptitude' embraces the issue of the health fitness of an employee: at [56]. 14In this regard in the report Dr Kafataris wrote: ... it is unlikely in my opinion that the worker will achieve a functional state that will allow him to perform these duties and therefore permanently modified duties should be the return to work goal. 15In Y the Tribunal determined that the exemption regarding information about an individual's suitability for employment as a public sector official includes consideration of promotion. The Privacy Commissioner submitted, and I agree, that at the time the information was used to make a decision about the applicant's promotion, the suitability for employment was a live issue. The Privacy Commissioner was also of the view in respect of the applicant's submissions in relation to the Injury Management and Workers Compensation Act 1998 (NSW) that this legislation does not have any relevance to whether the information is personal information under the PPIP Act or HRIP Act. I agree. 16The decision to refer AOB to an independent medical examination was taken by the respondent and arranged through its workers compensation insurer, Allianz. When performing such functions, employees of the insurer are considered to be "public sector officials, acting as agents of the respondent, being as they are responsible for the management of the respondent's workers compensation claims portfolio: s.3(g) PPIP Act. It was clear to me that the reason for obtaining the report was for the purpose of determining the conditions, if any, under which the applicant could return to work as part of the normal management of the applicant's workers compensation claim. I accept that at the time the information in the report was collected it was for the purpose of assisting the respondent in deciding whether the applicant could return to work on full operational duties, restricted duties, or at all. 17The applicant said he was never told that the information would be disclosed to the Promotions Unit and was under the impression that the insurance company arranged this medical assessment for its purposes only. The respondent, on the other hand, claimed the applicant had given verbal permission to give the report to the Promotions Unit. The applicant said this was incorrect as he had already been informed his promotion was "being taken from [him]" because of the report. A copy of a file note held by the respondent suggests that on 26 July 2010 the applicant may have consented to an employee of the IMU providing a copy of the report to the Promotions Unit, although the applicant disputes this. 18In the end result it is irrelevant whether or not the applicant consented to the provision of the report to the Promotions Unit; the disclosure of the report by the IMU to the Promotions Unit was an "internal disclosure" within the agency and as such the Respondent was not in breach of the Health Privacy Principles or Information Protection Principles: LN v Sydney South West Area Health Service (No 2) [2011] NSWADT 38. 19Similarly, the use of the information in the report by the Promotions Unit is properly characterised as an "internal use" of the applicant's information by the respondent in its capacity as a public sector agency: Director General Department of Education and Training v MT (GD) [2005] NSWADTAP 77 at [39]. 20I accept that the disclosure of the report to, and its use by the Promotions Unit was for the purpose of enabling a decision to be made about the applicant's suitability for employment at the rank of Sergeant, which by virtue of his application for promotion to the rank of Sergeant, was in my view, a "live" issue at that time. 21Having reviewed the report I accept that both the content and context of the information contained within the report related to the applicant 's suitability for employment and that it was collected and used in circumstances where the applicant's suitability for ongoing or future employment, including his promotion to Sergeant, was a "live issue". As such, the subject information is therefore not "personal information" (nor "health information") and neither the PPIP Act nor the HRIP Act applies. DECISION 22The application, having failed in relation to this threshold issue, is therefore dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. Registrar ********** Amendments 17 June 2013 - remove hyperlinks Amended paragraphs: Coversheet 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: 17 June 2013