AFU v Sydney Local Health District

[2012] NSWADT 197

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AFU v Sydney Local Health District [2012] NSWADT 197
Hearing dates:	25 May 2012
Decision date:	21 September 2012
Jurisdiction:	General Division
Before:	Nadia Isenberg, Judicial Member
Decision:	Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 the Tribunal determines not to take any action on the matter.
Catchwords:	Privacy - excessive delay - adequacy of search - personal information
Legislation Cited:	Privacy and Personal Information Protection Act 1998
Cases Cited:	AF v Healthquest & Another [2011] NSWADT 99 Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56 Department of Education & Training v GA (No 3) [2004] NSWADTAP 50 Department of Education and Training v PN (GD) [2006] NSWADTAP 66 DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215 EG v Commissioner of Police Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 EM v NSW Department of Education and Training [2009] NSWADT 87 GA & Ors v Department of Education and Training and NSW Police (GD) [2004] NSWADTAP 18 GL v Director-General, Education and Training [2003] NSWADT 166 and Information Commissioner of Queensland in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464 KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56 KT v Sydney South Western Area Health Services [2010] NSWADT 94 LN v Sydney Local Health District (GD) [2012] NSWADTAP 9 OD v Department of Education and Training (GD) [2005] NSWADTAP 74 OD v Department of Education and Training [2006] NSWADT 312 O'Hara v North Sydney Council [2005] NSWADT 100 Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 QN & Ors v Commissioner of Fire Brigades [2011] NSWADT 125 PN v Department of Education and Training [2006] NSWADT 122 V v Director General, Department of Education & Training [2001] NSWADT 149 Y v Director General, Department of Education [2001] NSWADT 149
Category:	Principal judgment
Parties:	AFU (Applicant) Sydney Local Health District (Respondent)
Representation:	Counsel A Britt (Respondent) AFU (Applicant in person) GILD Insurance Litigation Pty Limited (Respondent)
File Number(s):	113277

REASONS FOR DECISION

1. By letter dated 29 June 2011 addressed to "Mr Robert (Bob) Harding, Cleaning Manager, Royal Prince Alfred Hospital", the applicant requested, pursuant to the Privacy and Personal Information Protection Act 1998 (PPIP Act) "access to my personal information you and your department has whether manually (document) or electronically".

1. On 8 July 2011, when no response or acknowledgement was received, the applicant again wrote to Mr Harding, the Manager of Environmental Services, Royal Prince Alfred Hospital (RPAH).

1. On 20 July 2011 the applicant contacted Mr Harding following up on his access request and on the same day a request for internal review was received, complaining of the following conduct pursuant to the PPIP Act:

1. I sent an urgent request to Mr Robert Harding (cc to you); the Cleaning Manager of RPAH to access (inspect) and check the accuracy of the follow (sic):

My personal information he has (manually and electronically)

My personal information his supervisors have (manually and electronically)

My personal information held by the department

Check the accurate of my personal information

1. An internal review was conducted on 20 September 2011.

1. The Applicant made an application to the Tribunal which was filed on 30 September 2011. In his application for review the applicant claimed a breach of IPP 7 (s. 14 of the PPIP Act). He also wrote:

Could be other principles. The applicant is not required to recognize them as per the guidelines of the NSW Privacy Cmr.

Legislative Provisions

1. There was no dispute that the Respondent is a public sector agency and subject to the PPIP Act.

1. Section 14 of the PPIP Act provides:

A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

1. The definition of "personal information" is contained in s. 4 of PPIP Act. It was conceded that, but for the exclusions from the definition of "personal information" - especially those in s. 4(3)(j) - that the material not provided to the applicant would be "personal information".

1. The exclusion in s. 4(3)(j) is as follows:

information or an opinion about an individual's suitability for employment as a public sector official.

ISSUES FOR THE TRIBUNAL

1. Was there was an excessive delay in providing the applicant with documents to which he sought access?

1. Has the respondent provided the applicant with all documents relevant to his request; and in particular whether documents identified by the applicant as omitted, were held by the respondent?

1. In respect to the documents held by the respondent and not produced to the applicant on 13 October 2011, do they fall within the definition of "personal information"?

1. If the Tribunal is satisfied that the respondent has breached the PPIP Act what remedy, if any, should be awarded?

Scope of the Tribunal's review

1. An application for internal review, reasonably construed, sets the scope of the review by the Tribunal: KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56 at [13]; OD v Department of Education and Training (GD) [2005] NSWADTAP 74 at [12]. This means that the Tribunal cannot review conduct that was not the subject of the internal review application: Department of Education & Training v GA (No 3) [2004] NSWADTAP 50 at [7]. It follows that the Tribunal can only consider the question of a breach of the PPIP Act and the respondent's conduct up until the internal review application, that is, 20 July 2011.

1. Was there was an excessive delay in considering the access application?

1. The applicant submitted that the relevant date is that when the documents were provided to him and he contended this was some 60 days after date of application - from 29 June 2011 to 13 October 2011.

1. The respondent submitted that the relevant date was when the review was completed - 11 September 2011 - and not when the applicant received the documents.

1. An internal review under section 53(1) of the PPIP Act is a review of the conduct of the public sector agency. Section 52(1)(a) of the PPIP Act provides that the conduct can include an allegation that a public sector agency has contravened an IPP, such as s. 14, as is the subject of this matter. It would be inconsistent, it seemed to me, with the concept of an internal review, for the timeframe relating to delays for the purposes of s. 14, to continue to run while the internal review is being conducted, given that one of the purposes of the internal review is to consider the respondent's conduct in originally dealing with the applicant's request.

1. Section 53(4)(a) of the PPIP Act requires an internal review to be carried out by a person who, as far as is practicable, was not substantially involved in any matter relating to the conduct the subject of the internal review application. The practical effect of this provision in relation to a review arising from an access request under s. 14 is that a different person will usually carry out the review to the person who initially dealt with the access request and that person starts afresh in considering the application. It is difficult to see that the timeframe for considering any "excessive delay" for the purposes of s.14 would continue to run while the internal review, conducted at the request of the applicant, is underway.

1. I agree with the submission of the Privacy Commissioner that the correct approach in this matter is to determine the timeframe between the date when the respondent received the applicant's request under s. 14 of the PPIP Act and the date when the respondent received the applicant's internal review application under s. 53. I do not consider that the terms of the PPIP Act support a view that extends the timeframe to the date when the applicant actually received the requested information through the internal review process, nor, as the respondent submitted, when the review was completed.

1. The respondent noted that the review needs to be completed as soon as is reasonably practicable in the circumstances: s. 53(6) and if the review is not completed within 60 days from the date of application, an applicant is entitled to make an application under s. 55 to the Tribunal for a review of the conduct concerned - a 'deemed refusal'. Therefore the failure to complete a review within 60 days merely affords an applicant with an opportunity to make an application under s. 55 for a review of the conduct referred to in the original application for an internal review: EM v NSW Department of Education and Training [2009] NSWADT 87 at [13].

1. The term "excessive delay" is not defined in the PPIP Act.

1. In LN v Sydney Local Health District (GD) [2012] NSWADTAP 9, the Appeal Panel was dealing with Health Privacy Principle 7 in the Health Records and Information Privacy Act 2002 (HRIP Act), which is the equivalent provision to s. 14 of the PPIP Act. The Appeal Panel commented that the term "excessive" is "not a term of art or a technical term": at [12].

1. In KT v Sydney South Western Area Health Services [2010] NSWADT 94, the Tribunal considered what is meant by the term "excessive" in the context of s. 14 of the PPIP Act and relied on the following definitions of "excessive" (at [43] to [44]):

(a)"...exceeding the usual or proper limit or degree; characterised by excess: excessive charges; excessive indulgence." (Online Macquarie Dictionary).

(b)"exceeding what is right, proportionate or desirable; immoderate, inordinate, extravagant." (Online Oxford Dictionary).

1. It follows that the term "excessive delay" in the context of s. 14 of the PPIP Act should be given its ordinary meaning, which essentially refers to delay that is beyond what would be usual or expected in the relevant circumstances.

1. In KT v Sydney South Western Area Health Service the Tribunal was of the view that the facts and circumstances surrounding a request under s. 14 of the PPIP Act should be taken into account in determining whether there has been excessive delay: at [45]. In that matter the Tribunal considered that a delay of 29 days between making the access request and submitting an application for internal review was not excessive in the circumstances of that matter as the applicant had made three separate requests for access to the information under the Freedom of Information Act 1989, the PPIP Act and the HRIP Act. That decision was confirmed on appeal: KT v Sydney South West Area Health Service (GD) [2010] NSWADTAP 60. It was not questioned by the Court of Appeal in Altaranesi v Administrative Decisions Tribunal [2012] NSWCA 19.

1. In KT v Sydney Local Health Network [2011] NSWADT 292, the Tribunal considered an access request under s. 14 of the PPIP Act and Health Privacy Principle 7. The timeframe between the applicant making the access request and putting in the application for internal review was six days. The Tribunal found that there was not excessive delay in those circumstances.

1. In QN & Ors v Commissioner of Fire Brigades [2011] NSWADT 125, the Tribunal considered that, in the circumstances or that matter a delay of almost four months in providing access to a personnel file was not excessive: at [71]. There, one of the major factors contributing to the delay was that the Freedom of Information Officer had custody of the file as he was responding to a separate request that the applicant had made under the Freedom of Information Act 1989.

1. The applicant in the present matter first made his access request by mail on 29 June 2011 and, on 8 July 2011, sent a further letter regarding his request. On 20 July 2011, the he contacted Mr Harding, regarding the request because he had not received any response. The applicant lodged his internal review request on 20 July 2011. The timeframe between the respondent receiving the application and the applicant lodging the internal review was approximately 14 working days. This is not, in my view, an 'excessive delay'.

1. Even if I were wrong in adopting the approach of the Privacy Commissioner, and the relevant date was when the review was completed - 11 September 2011 - I observe that the documents identified by the respondent as being relevant to the access request covered a long period - 2004 to 2008 - and consisted of some volumes of documents. The volume of material to be extracted and assembled is a factor, in my view, relevant to a consideration of whether in responding to an access request, there has been excessive delay. Further, it was necessary for the respondent to identify, from that material, what documents came within the exclusion in s. 4(3)(j). In the circumstances of the matter I consider there was no excessive delay.

1. Documents were eventually provided to the applicant on 13 October 2011. If, as the applicant submitted, the relevant date is that when the documents are eventually provided, and in this case, he contends some '60 days' after date of application - I agree that there was a delay. I do not accept however, given the complexity of the material to be assembled and sorted as discussed above, and in the circumstances of the matter, that the delay was excessive.

1. In summary, I do not consider that, in the circumstances of this matter, that there was excessive delay in considering the access application.

1. Has the respondent provided the applicant with all documents relevant to his request; and in particular whether documents identified by the applicant as omitted were held by the respondent?

1. Attached to his affidavit of 6 December 2011 the applicant made reference to a large number of documents or categories of documents he considered had been omitted from the material which had been extracted by the respondent in response to his access application.

1. The respondent provided a detailed list addressing each of the categories of documents referred to by the applicant, noting which documents were held by Mr Harding and/or the Environmental Services Department at the date of application, whether the documents held were provided to the applicant, and which were not provided. Copies of the documents not provided to the applicant were provided to the Tribunal on a confidential basis and are discussed below.

1. Mr Harding gave evidence that many of the documents or categories of documents listed by the applicant were not held by him or in the Environmental Services Department. He explained in his evidence that 'Environmental Services' meant the 'Cleaning Department'. He said he handed over all the files he and the Cleaning Department had to the Medico-Legal Manager for a response to be prepared. He did not know how many files he delivered, but he took 3 separate lots of files to the Medico-Legal Manager. He denied that he had been instructed not to respond to the applicant's access request.

1. He agreed in cross-examination that he was able to access payroll computer records, but on a 'read-only' basis. He can, for example, access sick leave records and information about the applicant's allowances and his workers' compensation claim. He can print off information when requested by a staff member, but otherwise does not hold any records himself or within his department; the pay office holds the pay records, not him. Consistent with this evidence was the applicant's evidence was that he had seen on Mr Harding's computer payslips and other summaries such as in relation to leave and other matters. The applicant produced a sick leave record which he said could have been printed by Mr Harding, but this also was consistent with Mr Harding's evidence of being able to print copies of information held elsewhere.

1. Mr Harding agreed he had located some of the applicant's bundy cards and did not know why others might have been missing. He was shown a file note by another person about a discussion that Mr Harding had had with the applicant about bundy procedures. He did not think he had seen it before and did not think it was one of the documents he had gathered for the response. It was unclear from whereabouts the applicant had obtained that document.

1. Mr Harding was asked in cross-examination about various certificates of competency that had been awarded to the applicant but he said he did not know about them, but did know that the applicant had passed one test.

1. He was asked in cross-examination about records in relation to the applicant's applications to attend training courses but said these were not retained because the courses applied for had not related to the applicant's job. In that regard, he was shown an email addressed to another person and said he did not remember seeing it when he gathered up the information for the response.

1. He was asked in cross-examination about employment contracts and job descriptions and said that those were provided to staff by the Human Resources Department and not by him.

1. Mr Harding was shown in cross-examination a document which had not been produced to the applicant which appears to be an annexure to an affidavit by Mr Harding ('the annexure') dated 21 December 2009 in an unrelated matter, in which the applicant is mentioned, and from its contents, who is likely to have been a party to the proceedings for which the affidavit appears to have been created. Mr Harding said he did not remember if the annexure was retained with the affidavit.

1. In determining what constitutes a sufficient search, the Tribunal has adopted the approach of the Information Commissioner of Queensland in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, in a number of cases, eg Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201, DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215; Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213; Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 at [14]; O'Hara v North Sydney Council [2005] NSWADT 100 at [11]; and, Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56.

1. In Shepherd it was said at [19] that there were two questions for consideration:

(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so,

(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.

1. Simply put, the Tribunal must come to a view whether there may be some further documents relevant to the application and, if so, whether the respondent has tried hard enough to find them.

Are there reasonable grounds to believe that there are additional documents?

1. The applicant provided a general description of documents said to be missing from what was provided by the respondent in response to his access application. In cross-examination Mr Harding's attention was invited to several documents. From that cross-examination, I understand him to contend that they were not provided and that they should have been.

1. Evidence was given by Ms Zarkos, the Executive Officer to the Executive Director and who was tasked to provide access to the extracted files and to assist the applicant to make copies as required. Although she was cross-examined at some length, and the applicant disputed much of what occurred, it remained clear that, at their meeting of 13 October 2011, the applicant declined to inspect all of the material provided to him.

1. In inviting attention to that evidence it was unclear if the respondent suggested that some of the 'missing' documents were in fact provided to the applicant and, if the applicant had chosen to look more carefully at what had been provided, would have seen them. The best available evidence as to what was located in response to the access request is the summary contained in the annexure to the respondent's submissions in response to the applicant's list of missing documents or categories of documents. In the absence of evidence to the contrary, I accept that such documents as were referred to there as being made available to the applicant, were in fact made available to him, whether he chose to look at them or not.

1. As to other documents or categories of documents, it was not altogether clear what the applicant alleged was missing. From his cross-examination of the respondent's witnesses and his submissions it was clear though that he considered payroll information, workers' compensation information, competancy certificates, his employment contract and job description should have been made available in answer to his access request. I accept that Mr Harding and his department held limited material relevant to the access application. While Mr Harding may have had access to some information he did not have that information. The respondent was entitled in my view to respond to the application, as addressed, that is to Mr Harding as 'Cleaning Manager'.

1. Applying the first limb of the Shepherd test, with one exception, I am not satisfied that there are reasonable grounds to believe that some further documents exist. That exception is in relation to the annexure. Mr Harding's evidence was that he did not remember if it was retained by him or in his department. It seemed to me, on balance, that it was unlikely that Mr Harding did not retain that correspondence to him, and, importantly, a statement by him, which formed part of the annexure.

Did the respondent undertake reasonable searches to find the documents?

1. It is only necessary for the Tribunal to find that a reasonable search has been undertaken. Although Mr Harding had provided an affidavit and gave evidence, the only evidence before me as to his search for documents was that he 'gathered all the documents he had on [the applicant]'. There was no evidence as to where he had searched and the overall extent of his search. When the annexure was brought to his attention in cross-examination there did not seem to me to be an adequate explanation as to why it had not been 'gathered' or where it might have otherwise have been located.

1. The standard of search which an agency is obliged to conduct is simply whether reasonable searches have occurred. The fact that there may be weaknesses in an agency's searches, or that there may be failures in its recordkeeping processes, do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Patsalis at [63]. In the absence of evidence about the search I am unable to form a view, in respect of the annexure, that it was reasonable.

1. It is somewhat problematic as to the appropriate orders that should be made in circumstances where the Tribunal comes to the view that a reasonable search has not been made. However, in this matter, it is unnecessary for me to have to come to any view about orders - the applicant has the annexure already. There is no purpose to be served in making any orders with respect to the annexure.

1. In respect to the documents held by Mr Harding or his department and not produced to the Applicant on 13 October 2011, do they fall within the definition of "personal information"?

1. The respondent submitted that a number of the categories of documents sought by the applicant are not personal information on the basis that they excluded by reason of s. 4(3)(j), namely that they contain information or an opinion about the applicant's suitability for employment as a public sector official.

1. 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: GA & Ors v Department of Education and Training and NSW Police (GD) [2004] NSWADTAP 18: at [48]. Consequently s. 4(3) (j) should be narrowly construed: PN v Department of Education and Training [2006] NSWADT 122 (at [58]).

1. The decisions in the matters of Y v Director General, Department of Education [2001] NSWADT 149, GL v Director-General, Department of Education and Training [2003] NSWADT 166 and EG v Commissioner of Police, New South Wales Police Service [2003] NSWADT 150 have established the general principle that the question as to whether or not information is "about an individual's suitability for appointment or employment as a public sector official" is to be determined by consideration of both the content and the context of the information. The information must meet both tests to be covered by the exemption: Department of Education and Training v PN (GD) [2006] NSWADTAP 66; OD v Department of Education and Training [2006] NSWADT 312.

1. Not all information that is relevant to a person's employment is necessarily information about that person's suitability for employment: AF v Healthquest & Another [2011] NSWADT 99 at [14]. In particular, "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': Department of Education and Training v PN (GD) [2006] NSWADTAP 66 at [60].

1. The collection of the information will "generally, if not invariably, be some kind of formal process which the relevant agency has instigated and is in the course of conducting": Department of Education & Training v PN (GD) [2006] NSWADTAP 66 at [61].

1. The respondent submitted that suitability for employment can embrace such matters as relationship between staff, cooperativeness and ability to work effectively as part of a team and interpersonal skills. In V v Director General, Department of Education & Training [2001] NSWADT 149, the Tribunal made the following comments at [36]:

1. 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).

1. The Tribunal recently held that suitability relates to an "attribute" of the relevant individual: AF v Healthquest & Anor [2011] NSWADT 99 at [17].

1. An applicant's suitability for appointment or employment must be a live issue at the time of the conduct in question or else the exemption in s. 4(3)(j) will not apply: GL v Director General, Department of Education & Training [2003] NSWADT 166 at [40]; Department of Education & Training v PN (GD) [2006] NSWADTAP 66; AF v Healthquest & Anor. It was noted that given the applicant had been dismissed, that his suitability for employment is was no longer in issue. However, at the time of the request the applicant, I was informed, had sought to re-ventilate his unfair dismissal claim and settlement in the Court of Appeal and I was referred to the relevant case reference.

1. Against this background I have carefully examined the confidential documents. I find that each document falls within the s. 4(3)(j) exemption in that each contains information or an opinion about the applicant's suitability for employment as a public sector official. I have considered whether the documents could be provided to the applicant with some redactions but, on careful review of the documents, do not find this a practical option.

CONCLUSION

1. I have found:

(1)   There was no excessive delay in providing the applicant with documents to which the applicant sought access.

(2)   Other than the annexure, the respondent provided the applicant with all documents relevant to his request. The applicant in fact already had the annexure.

(3)   In respect to the documents held by the respondent and not produced to the applicant on 13 October 2011, they are excluded from the definition of "personal information" and hence were properly not produced.

(4)   Having come to the above view it was unnecessary to consider the final issue, that is, in relation to remedy.

DECISION

1. Pursuant to section 55(2) of the Privacy and Personal Information Protection Act 1998 the Tribunal determines not to take any action on the matter.

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Decision last updated: 21 September 2012