AHC v Fire and Rescue New South Wales

[2012] NSWADT 258

Administrative Decisions Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	AHC v Fire and Rescue New South Wales AHC v Charles Sturt University [2012] NSWADT 258
Decision date:	10 December 2012
Jurisdiction:	General Division
Before:	S Higgins, Deputy President
Decision:	Pursuant to subsection 55(2) of the Privacy and Personal Information Protection Act 1998, the Tribunal takes no further action in this matter.
Catchwords:	"Privacy - personal information" - section 4(3)(j) exclusion - whether information is about an individual's suitability for appointment or employment as a public sector official - whether conduct of the agency was a breach of the collection, protection and security, use and disclosure information protection principles.
Legislation Cited:	Freedom of Information Act 1989 (repealed) Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998
Cases Cited:	AF v Minister for Health [2012] NSWADTAP 66 Department of Education and Training v PN (GD) [2006] NSWADTAP66 Director General, Department of Education and Training v MT (2006) 67 NSWLR 237: [206] NSWCA 270 EY v Department of Corrective Services (GD) [2009] NSWADTAP25 Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 Y v Department of Education and Training [2001] NSWADT 149
Category:	Principal judgment
Parties:	AHC (Applicant) Fire and Rescue New South Wales (Respondent in file No. 113304) Charles Sturt University (Respondent in file No. 113341)
Representation:	N Poynder (Applicant) S Walsh (Respondent in file No. 113341) Williamson Isabella Lawyers (Applicant) Sparke Helmore (Respondent in file No. 113304 Thompson Cooper Lawyers (Respondent in file No. 113341) J McAteer Deputy Privacy Commissioner
File Number(s):	113304 and 113341

Reasons for decision

Introduction

1. The applicant, AHC, has made an application seeking external review of conduct of the respondents, Fire and Rescue New South Wales (FRS) and Charles Sturt University (CSU), that he alleges contravened an information protection principle (IPP) under the Privacy and Personal Information Protection Act 1998 (PPIP Act) in regard to his personal information. Although the applicant made separate applications for external review in regard to the conduct of each respondent, the conduct is related in time and also subject matter.

1. The conduct in issue concerns requests made by officers of the FRS, in February, March and late 2010, to the CSU about the applicant's qualifications and enrolment in a master's degree at the CSU. An officer of the CSU, provided the information requested. The applicant contends that the information requested and provided was personal information about him and that the conduct of the officers of the FRS in collecting the information from the CSU was a breach of the collection IPPs set out in sections 8 and 9 of the PPIP Act. He also asserted that the conduct of the CSU in providing the information requested, was a breach of the security and retention, use, and disclosure IPPs set out in sections 12, 16 and 18 of the PPIP Act.

1. In his internal review application, the applicant relied on 5 separate incidents where he asserted the conduct of the FRS and the CSU was in breach of the PPIP Act. However, of these only 4 incidents were pressed at the hearing.

1. There is no dispute that the FRS and CSU are a public sector agency for the purpose of the PPIP Act and that, they 'must not do anything, or engage in any practice, that contravenes an information protection principle applying to the agency': see section 21 of the PPIP Act. While the PPIP Act contains some exceptions to compliance with the IPPs and provision is made for the IPPs to be modified by privacy codes of practise, these provisions are not relevant to this application.

1. What is in dispute is whether the information requested and subsequently provided was 'personal information' about the applicant. The FRS and CSU contend that it is not 'personal information' about the applicant as it falls within the exception set out in paragraph 4(3)(j) of the PPIP Act. That is, the information was information 'about' the applicant's suitability for appointment or employment as a public sector official. In the event the Tribunal were to find that the information did not fall within this exception, the FRS and the CSU went on to contend that their respective conduct was not a breach of an IPP.

1. By consent the parties agreed that the issue of liability should be determined as a preliminary issue. In accordance with that agreement, the issue of liability was heard on 28 and 29 May 2012.

1. The hearing proceeded on the basis of an outline of submissions, prepared by Mr Poynder, counsel for the applicant. These submissions clearly identified the conduct that was in dispute and also the IPP that the FRS and the CSU were alleged to have breached in regard to the applicant's personal information. Written outline of submissions were also provided by the legal representatives of the FRS and the CSU. For the reasons set out below, I have found that the disputed conduct of the FRS and the CSU in regard to the applicant's personal information was not a breach of an IPP of the PPIP Act. Nevertheless, as I have explained, there is a question as to the appropriateness of the officers of the FRS being authorised to engage in the conduct they did. However, this is a matter for the FRS and not the Tribunal.

The conduct in dispute (i.e. the incidents)

1. It is convenient to briefly set out the background to the conduct in dispute and then set out the specific incidents for which the applicant seeks review.

1. On 30 September 2009, the applicant, a long time member of the FRS, lodged a written application for the advertised position of fire investigation officer in the Fire Investigation and Research Unit of the organisation. He was interviewed for the position on 20 November 2009. Superintendent Robert Alexander (also a member of the FRS and an Inspector at that time), Inspector Chris Lewis and Miss Bernadette Gregory made up the interview panel for the advertised position. The applicant was not the successful candidate for the position. Inspector Moore, also a member of the FRS, was appointed to the position on 11 December 2009.

1. On 21 December 2009, the applicant lodged an appeal against the appointment of Inspector Moore with the then Government Related Employee's Tribunal (GREAT). In his appeal, the applicant listed 10 matters which he contended supported his claim that he was more entitled than Inspector Moore to be appointed to the position. The matters he listed included his superior skills, experience and knowledge for the position, that the composition of the interview panel had compromised the overall selection process and that he possessed 'national and international qualifications in fire investigation.'

1. On 2 February 2010, Peter Hearn, the FRS Senior Legal Officer, prepared the FRS's written submission for the GREAT Appeal.

1. Incident 1: The first incident is evidenced in an exchange of emails between Inspector Moore and Ms Cranston of the CSU on 2 and 3 February 2010. The relevant sections of that exchange were as follows:

Inspector Moore (2.2.10 at 17:38)

'Hi Cathy,

My name is Graham Moore and I am an inspector in the N.S.W. Fire Brigades.

I understand you work in the degree/qualification verification section.

I would like to determine the qualifications of someone who has applied for a position within the N.S.W. Fire Brigades.

The person's name is [ACH] who has listed on his written application as having completed the following Charles Sturt University studies;

Graduate Diploma in Fire Investigation (with Distinction)

Masters in fire investigation

Many thanks for any assistance you are able to provide'.

Cranston (3.2.10 at 8:48):

'Hi Graham

This is to confirm that [ACH] attended Charles Sturt University and was awarded a Graduate Diploma of Fire Investigation (with Distinction) on 28th October 2004. [ACH] was enrolled in the Masters of Arts (Fire Investigation), however he withdrew, therefore did not complete the course. '

Moore (3.2.10 at 9:56)

'Hi Cathy,

Further to our telephone conversation this morning could you confirm by email that the last time that [ACH] was enrolled in the Masters of Arts (Fire Investigation) was 2005.'

Cranston (3.2.10 at 9:28)

'Hi Graham

This is to confirm that [ACH] attended Charles Sturt University and was awarded a Graduate Diploma of Fire Investigation (with Distinction) on 28 October 2004. [ACH] was involved in the Masters of Arts (Fire Investigation) he studied from February 2005 to November 2005, however he withdrew, therefore did not complete the course.

1. Incident 2: The second incident is evidenced in an email exchange between Inspector Alexander and Miss Cranston on 4 February 2010. The relevant extracts of this email exchange were as follows:

Alexander (4.2.10 at 12:55)

'I am looking at the qualifications of [ACH]. The subjects I am interested in are the Grad Cert in Fire Investigation. The diploma in Fire Investigation and the Masters in Fire investigation. Can you confirm what qualifications he holds and what he does not?

Cranston (4.2.10 at 14:28)

'This is to confirm that [ACH] was a student at Charles Sturt University, he was awarded a Graduate Certificate in Fire Investigation on 24th October 2003.

Graduate Diploma of Fire Investigation on 28th October 2004

[ACH] was involved in the Masters of Arts (Fire Investigation), he studied this course from February 2005 to November 2005, he withdrew from this course therefore did not Graduate.'

1. Incident 3 was not pressed.

1. On 16 February 2010, the applicant's application before GREAT was heard. Inspector Moore and Superintendent Alexander were both present at the hearing. They each attempted, without success, to place before the Tribunal the emails they had received from Ms Cranston in regard to the applicant's personal and academic transcript.

1. Incident 4: The fourth incident is alleged to have occurred sometime prior to 4 March 2010 and concerns 'informal information' Superintendent Alexander received from the CSU about the applicant's Master's thesis. In a report, prepared by Superintendant Alexander, dated 4 March 2010, for submission to the Professional Standards and Conduct Officer of the FRS, he said that he had obtained 'informal information' from the CSU to the following effect:

'Informal information I have from CSU is that F/F [ACH] submitted a thesis for his Masters about one year ago. This was subsequently returned to him with major corrections and development required to be able to submit again. I would suggest a formal approach to CSU to obtain the facts of this claim by F/F and [ACH].'

1. The report prepared by Superintendant Alexander was a misconduct complaint about the applicant alleging that he had falsified/misreperesented his qualifications and aspects of his experience in his application for the advertised position. The applicant was informed about this complaint on 8 March 2010. He was also advised that an investigation would be undertaken in regard to the complaint.

1. On 5 March 2010, GREAT delivered its decision in regard to the applicant's appeal. It allowed the applicant's appeal and the decision to appoint Inspector Moore was set aside and a decision was made appointing the applicant to the position. At the hearing I was informed that the applicant did not take up the position. I was informed that the reason for not taking up the advertised position is unrelated to the liability issues in these proceedings.

1. On 24 March 2010, Superintendent Brieley, the FRS Professional Standards and Conduct Officer, wrote to the CSU seeking verification of the applicant's claimed qualifications and research undertaken with the CSU. The Manager, Examinations Officer responded to this request on 25 March 2010. In her response, she outlined the applicant's graduation details and said that the other information was protected under the PPIP Act. However, she went on to say that an application for that information could be made under the Freedom of Information Act 1989 (FOI Act) and that the CSU FOI Officer would contact the applicant and seek his permission to release the information. Superintendent Kenneth Murphy, a member of the FRS, was requested to investigate the complaint made against the applicant.

1. Incident 5: Some time after his appointment, Superintendent Murphy made a formal application, to CSU, for access to documents about the applicant's qualifications and research experience. The application was made under the FOI Act. In his application for access to the CSU, Superintendent Murphy requested access to the following:

'I request access to documents and/or information confirming that senior fire fighter [ACH]:

1. has completed his 'research Masters in Fire Investigation on spatial geographical profiling of wildfire arson' and that the papers were submitted to be marked in May 2009;

2. is in the processs of research for his PhD;

3.is addressing a number of contemporary issues emerging in the field of fire investigation in the process of research for his PhD;

4. has researched and written a 'Training Manual' entitled 'Wildfire Investigation' which, without amendment, was incorporated by the Charles Sturt University in the graduate certificate course in fire investigation; and

5. has presented the 'Wildfire Investigation' training package to a wide range of audiences on behalf of the Charles Sturt University;

6...

7...

8 ...

1. Ms Dayhew, the CSU Ombudsman, responded to the acess application on 4 January 2011. Her response was made under the Government Information (Public Access) Act 2009 (GIPA Act), which had come into force on 1 January 2011. The FOI Act was repealed at the same time. In her response, Miss Dayhew, determined to refuse access to the information sought at item 1, 2, 3, 6 and 8 of the request for access as there was an overriding public interest against disclosure 'as per Section 12(2)(d) and as per Section 14(3) of the GIPA .' For the purpose of this application, it is the CSU response to item 4 and 5 of the access request which the applicant contends to be a breach of the use IPP in section 16 of the PPIP Act. That response was in the following terms:

'4 [ACH] has delivered one lecture on a short course on behalf of CSU following a paper he submitted as part of his study.

5 I can find no evidence to support the statement 'he delivered the "Wildfire Investigation" training package to a wide range of audiences on behalf of Charles Sturt University'.

1. In regard to the complaint made against the applicant, I note that on 22 December 2011, the FRS Commissioner wrote to the applicant advising him of the outcome of the investigation. He was informed that of the 20 allegations that had been made, there was no evidence to support 9 of these and of the remainder there was insufficient evidence to establish these. However, it was found that his statement of academic qualifications was 'ambiguous or unclear'. The Commissioner also advised that no further action would be taken in regard to the complaint.

The evidence

1. The FRS tendered into evidence the following affidavits:

• Affidavit, sworn on 17 January 2012, by Mark Andrew Dolahenty
• Affidavit, sworn on 18 January 2012, by Inspector Alexander
• Affidavit, sworn on 24 May 2012, by Inspector Alexander
• Affidavit, sworn on 23 January 2012, by Chief Superintendent Craig Allan Brierley
• Affidavit, sworn 25 May 2012, by Inspector Moore

1. Inspector Alexander and Inspector Moore both gave oral evidence at the hearing. In addition to the affidavit evidence the FRS tended into evidence a copy of the applicant's internal review application.

1. The CSU tendered into evidence the following statements:

• Statement, dated 7 February 2012, by Ross Brogan, Adjunct Lecturer, Subject Coordinator and Assignment Marker
• Statement, dated 6 February 2012, by Tracy Green, Lecturer and Associate Professor
• Statement, dated 13 February 2012, by Cathy Cranston, Clerical Officer
• Statement, dated 13 February 2012, by Peter Branca, a Subject Coordinator at CSU

1. Ms Cranston, Ms Brogan, Mr Branca and Professor Green also gave oral evidence at the hearing. In addition to this the CSU tendered into evidence a copy of a letter, dated 5 May 2008, to the applicant in regard to his withdrawal from the Master of Arts (Fire Investigation) course. Attached to that letter was a copy of the applicant's Academic Transcript dated that day.

1. The applicant relied on the material he had lodged with his application to the Tribunal. He also tendered into evidence:

• a series of emails between himself and Tracey Green, on 5 February 2010, concerning his Masters Thesis
• a copy of the FRS's submission to GREAT, dated 2 February 2010
• a series of email exchanges between the applicant and Chris Lewis in June and July 2009 concerning his Masters Course.

1. The applicant also gave oral evidence at the hearing.

1. I have dealt with the evidence in so far as it is relevant to the matters in issue in these proceedings.

The meaning of 'personal information' and the s(4)(3)(j) exception to it

1. 'Personal information' is defined in section 4 of the PPIP Act and it relevantly provides:

4 Definition of "personal information"

(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:

(a)...

...,

(j) information or an opinion about an individual's suitability for appointment or employment as a public sector official,

(ja)...

1. There is no dispute that the information the subject of the abovementioned incidents is 'personal information' about the applicant. An issue is whether the information falls within the exception in paragraph 4(3)(j) of the PPIP Act. In EY v Department of Corrective Services (GD) [2009] NSWADTAP 25, at [16] to [28], the Appeal Panel considered in detail the established lines of authority in regard to the exception in paragraph 4(3)(j) of the PPIP Act. At [27], the Appeal Panel agreed with its earlier observations, at [78], in Department of Education and Training v PN (GD) [2006] NSWADTAP 66. That observation was that the exception is to be construed narrowly so as to promote the beneficial purpose of the legislation.

1. In Director General, Department of Education and Training v MT (2006) 67 NSWLR 237: [206] NSWCA 270, at [49], Spigelman CJ (Ipp JA and Hunt AJA agreeing) said that while the 'Act is beneficial legislation which must be liberally interpreted in order to achieve its beneficial purpose ... does not mean that it must be interpreted in such a way that whatever may be regarded as improving its enforcement must fall within the intention of the legislature.'

1. In Y v Department of Education and Training [2001] NSWADT 149 at [33], the President said that the test, for the purpose of determining whether the exception in paragraph 4(3)(j) applies, was '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".' His Honour went on to say, at [36,] that the information in question '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.' These remarks were recently adopted by the Appeal Panel in AF v Minister for Health [2012] NSWADTAP 66 at [43].

1. In my view, His Honour's reference to 'context' in the abovementioned test is a reference to the 'context' in which the information was collected, stored, used or disclosed by the agency.

1. In this application, the content of the information concerns the applicant's CSU academic record. It is the context in which it was requested and provided that is in issue. The FRS and CSU contend it was requested and provided in the context of the applicant's suitability for promotion to the advertised position. The applicant contends that the information was of no relevance to his suitability for promotion to the advertised position and therefore it could not be said that it was requested or provided in that context.

1. As the context differs between the incidents (other than incident 1 and 2) it is appropriate to consider them separately.

Incident 1 and 2 - the email exchanges of 2, 3 and 4 February 2012

1. As I have explained, the context in which this information was sought by the FRS and provided by the CSU, was the applicant's appeal to GREAT concerning his claim that he was 'more entitled' than Inspector Moore to be appointed to the fire investigator position.

1. I share the applicant's concerns about Superintendent Alexander and Inspector Moore's involvement in the FRS's response to his appeal to GREAT. However, on the material before the Tribunal, their level of involvement was authorised by the organisation. It is not for the Tribunal to determine the appropriateness of their involvement, other than to note that Superintendent Alexander, nor Inspector Moore were a party to the proceedings before GREAT. Nor were they authorised to represent the FRS at the appeal. In this regard I note the FRS had instructed its in-house solicitor, Mr Hearn, to represent it before GREAT.

1. In his evidence, Mr Moore said that at a meeting with the FRS senior solicitor, he was told he would be required to defend the decision to appoint him to the fire investigator position. If this is correct, it would appear to have been misconceived. Inspector Moore said that when he received a copy of the applicant's application for the position he asked the senior solicitor if he could present evidence to GREAT about the accuracy of the applicant's qualifications. He said, the senior solicitor had said he could do this. It was on that basis that he made his request to Ms Cranston of the CSU.

1. Superintendent Alexander said that the applicant had only been interviewed for the position on the basis of his stated Master's qualifications. He went on to say that he had made his request to Ms Cranston on the basis of having been the convenor of the interview panel for the position. Again he seems to have understood that he would be required to defend the decision of the interview panel and be required to appear at GREAT. During cross-eamination, he acknowledged that he had not received any such request from GREAT.

1. On the material before the Tribunal, the evidence is that when the applicant lodged his application for the position he had not been awarded a Master's Degree. He had completed his research project (thesis) for the degree but it had not been finalised (i.e. he had not made his corrections) and it was not until mid 2011 that the degree was formally conferred on him. While I accept the applicant's explanation for the delay in the conferral of his Masters Degree, this is not the issue for determination. The issue for determination is whether the information requested by Inspector Moore and Superintendent Alexander was made in the context of the applicant's sutabilty for promotion (i.e. appointment) to a fire investigator position in the FRS.

1. As I have indicated, the applicant argued that a Master's qualification was of no relevance to the position and hence of no relevance to his GREAT appeal. I am not persuaded by this argument as it was he who raised his qualifications in his application for the position and also in his appeal. I accept that the selection criteria for the position did not require a Master's Degree. However, in his application for the position the applicant clearly raised his research in his Master's Degree in Fire Investigation and that he was going on to do a PhD research project on the same subject matter. He clearly did so in an endeavour to bolster his claim for the position. Regrettably, he was not altogether clear about the status of these and this lack of clarity seems to have led Inspector Moore and Superintendent Alexander to seek some clarification from the CSU. As I have already indicated, it is the position of the FRS that they were authorised to do so. Again I question whether they were the appropriate persons to do so.

1. As Inspector Moore and Superintendent Alexander were authorised to make the enquiries of the CSU, on behalf of the FRS, and the enquiries were made for the purpose of the GREAT proceedings, I am satisfied that the personal information about the applicant in their respective emails, on 2, 3 and 4 February 2010, concern the applicant's suitability for promotion and falls within the terms of paragraph 4(3)(j) of the PPIP Act.

1. I make a similar finding in regard to the email responses of Ms Cranston. Ms Cranston is employed as a Clerical Officer with the CSU. In her evidence she explained that, in her position at the CSU, she is authorised to access the University data base containing the academic record and transcript of students and former students at the CSU. She is also authorised to release that information to the graduate to whom the information relates, or 'people in the public sector' where the information is sought for the purpose of appointment to a position in the public sector. Although Ms Cranston said she had not received any training in regard to the obligations placed on the CSU under the PPIP Act, she did note that Inspector Moore's request appeared to be made in an official capacity (i.e. from a FRS email address) and that he expressly said the information was being sought for the purpose of a position in the FRS. She agreed in cross-examination that Superintendent Alexander's request did not specify that the information was being sought for this purpose. However, given the circumstances and the fact that Inspector Moore had made a similar request 2 days before, I am satisfied that Ms Cranston understood the request to have been made for the same purpose.

1. Accordingly, for the reasons set out above, I find that the information, the subject of incident 1 and 2, is not personal information about the applicant for the purpose of the PPIP Act. Hence, there has been no breach of an IPP by the FRS or the CSU in regard to incident 1 and 2.

Incident 4 - the 'informal information' about the applicant's Masters thesis

1. As I have explained the conduct that is the subject of this incident is that evidenced by the comment in the misconduct complaint made by Superintendent Alexander on 4 March 2010. The comment related to Superintendent Alexander having received 'informal information' about the applicant's Master's thesis.

1. It is the contention of the applicant that the 'informal information' to which Superintendent Alexander referred was information provided by the CSU. That is, it was provided by Ms Cranston, Mr Branca, or Professor Green. In his evidence, Mr Branca, who had marked the applicant's thesis, said he had discussed the applicant's thesis with Professor Green, but had not otherwise discussed it with anyone else. Professor Green said that she had at no time discussed the applicant's academic progress with any person from the FRS. Mr Branca and Professor Green were both cross-examined on this evidence at the hearing. They both continued to adhered to their written evidence. There was no evidence to suggest that Ms Cranston had any knowledge about the applicant's thesis, let alone that she disclosed information about it.

1. In his affidavit, sworn on 24 May 2012, Superintendent Alexander said that the 'informal information' was information that he 'overheard at an industry conference' he attended some time prior to making his complaint. He said he could not recall whether he knew the person who had made the comment about the applicant's thesis or the person to whom it was said. During cross-examination, Superintendent Alexander acknowledged that his 4 March 2010 complaint was incorrect to the extent he said that he had received the 'informal information' from CSU. He also said that he could not recollect which conference he had overheard the information.

1. In some respects I was troubled by this evidence of Superintendent Alexander. He is a senior officer within the FRS and he of all people should understand the seriousness of making a formal complaint on the basis of an unsubstantiated overheard conversation. Furthermore, he does not appear to have made a contemporaneous record of when, where and between whom, he overheard the conversation. In any event this is not a matter falling within the jurisdiction of the Tribunal.

1. What is in issue is whether there is any evidence of relevant conduct by an officer of the CSU, giving rise to the 'informal information' as contained in Superintendent Alexander's complaint about the applicant. For the reasons stated above, I find that there is no such evidence.

1. It is the contention of the applicant that the conduct of Superintendent Alexander was a breach of the collection IPPs in sections 8 and 9 of the PPIP Act. These sections are in the following terms:

8 Collection of personal information for lawful purposes

(1) A public sector agency must not collect personal information unless:

(a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and

(b) the collection of the information is reasonably necessary for that purpose.

(2) A public sector agency must not collect personal information by any unlawful means .

9 Collection of personal information directly from individual

A public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates unless:

(a) the individual has authorised collection of the information from someone else, or

(b) in the case of information relating to a person who is under the age of 16 years-the information has been provided by a parent or guardian of the person.

1. The word 'collect' is not defined in the PPIP Act. However, subsection 4(5) of the PPIP Act provides that 'unsolicited information' is not information 'collected' by the agency for the purpose of the Act: see also Vice-Chancellor Macquarie University v FM [2005] NSWCA 192.

1. In my view, on the basis of the evidence of Superintendent Alexander, the 'informal information' referred to in his complaint was not 'collected' by him in the relevant sense of sections 8 and 9 of the PPIP Act.

1. Accordingly, for the reasons set out above, I find that there has been no breach of an IPP by the FRS or the CSU in regard to this incident.

Incident 5 - the GIPA request by FRS and the response by CSU

1. As I have explained above, this incident arose by Superintendent Murphy making an application to the CSU for access to information about a trainining manual researched and written by the applicant and also a presentation he had given. Again, these were matters the applicant had raised in his application for the fire investigator position and the subject of the misconduct complaint made against him.

1. The applicant contends that the conduct of Superintendent Murphy was a breach of the collection IPPs in sections 8 and 9 of the PPIP Act and that the conduct of Ms Dayhew was a breach of the use IPP in section 16 of the PPIP Act. Section 16 is in the following terms:

16 Agency must check accuracy of personal information before use

A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

1. In my view, the provisions of the PPIP Act have limited application to the conduct the subject of this application.

1. As I have mentioned, Superintendent Murphy, sought access to the information under the GIPA Act. There was no suggestion that he, on behalf of the agency, was not entitled to do so. In this regard, section 5 of the PPIP Act provides that the provisions in the PPIP Act do not affect the operation of the GIPA Act. It is in the following terms:

5 Government Information (Public Access) Act 2009 not affected

(1) Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009.

(2) In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency.

1. Subsection 9(1) of the GIPA Act provides that every:

'person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.'

1. There are no restrictions on the class of government information a person can seek access to under the GIPA Act. And as indicated by subsection 9(1), access is to be provided to the information sought, unless there is an overriding public interest against the public interest against disclosure. The test to be applied in determing this is found in section 13 of the GIPA Act. That test is in the following terms:

'There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure'

1. The public interest considerations against disclosure are limited to those matters set out in the table to section 14 of the GIPA Act. This includes information, if disclosed 'could reasonably be expected to reveal personal information': see clause 3(a) of section 14.

1. The public interest considerations in favour of disclosure are not limited and includes personal information about the access applicant: see section 12 of the GIPA Act.

1. 'Personal information' is defined in clause 4 of Schedule 4 of the GIPA Act to mean:

4 Personal information

(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 (whether living or dead) 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:

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.

1. No regulations have been prescribed for the purpose of clause 4(3)(c) of the above definition.

1. As can be seen from the abovementioned terms of clause 4(1) and (2) of Schedule 4 of the GIPA, they are in the same terms as section 4(1) and (2) of the PPIP Act. There are also similarities, in some of the exceptions contained in clause 4(3) of Schedule 4 of the GIPA Act and section 4(3) of the PPIP Act. However, the clause 4(3) exceptions in Schedule 4 of the GIPA Act do not include a 'suitability for appointment or employment' exception as is contained in section 4(3)(j) of the PPIP Act.

1. The information sought by Superintendent Murphy was not his personal information. He sought personal information about the applicant and by reason of section 54 of the GIPA Act, the CSU was required to consult with the applicant, if the CSU determed to release that information. That consultation is required to occur prior to the release of the information to the access applicant. There is no dispute, that no such consultation took place prior to the CSU releasing the relevant information to Superintendent Murphy.

1. While the applicant might be aggrieved by this failure, and the decision of the CSU to release the information that is contained in item 4 and 5 above, these are not matters that can be addressed in this application. Any right of review of the decision of Ms Dayhew is found in sections 80 and 100 of the GIPA Act. This application does not concern decisions made under the GIPA Act, it concerns 'conduct' of the FRS and the CSU and their obligations under the PPIP Act.

1. In my view, Superintendent Murphy's conduct in making a request for access to information under the FOI Act cannot be categorised as a 'collection' under the PPIP Act. As I have explained above, subsection 5(1) of the PPIP Act provides that the provisions of that Act do not affect the operation of the GIPA Act (and previously the FOI Act). That Act gives every person a right to seek access to government information. On the evidence, the conduct of Superintendent Murphy, was an exercise of that right, on behalf of the agency. That right, on the proper construction of subsection 5(1), is not affected by the collection provisions in the PPIP Act.

1. Even if I am wrong, I am satisfied that the information was sought for the purpose of ascertaining the suitability of employment of the applicant as it was sought in the context of a misconduct complaint as to whether the applicant had falsified his qualifications and knowledege. As the misconduct complaint could lead to disciplinary action, I am satisfied that the information requested about the applicant was, in this context, information falling within paragraph 4(3)(j) of the PPIP Act.

1. I make a similar finding in regard to the conduct of the CSU. That is, the provisions of the GIPA Act, in regard to how an agency is to determine an access application is not affected by the provisions of the PPIP Act. Under the GIPA Act there is no requirement on an agency to check the accuracy of information it holds. Indeed it is contrary to the objects of that Act concerning access to information held by an agency: see section 3 and paragraphs 15(c) and (d) of the GIPA Act.

1. As I have mentioned, the CSU did not give Superintendent Murphy access to all the information he had sought about the applicant on the ground that the the public interest consideration against disclosure under clause 3 of the table in section 14 was an overriding public interest consideration. Included in this clause is information that could reasonably be expected to reveal personal information, or contravene an IPP of the PPIP Act (see clause 3(a) and (b)). The inference to be drawn from Ms Dayhew's decision to disclose the information that was requested at item 4 and 5 of the access request, is that she determined that the public interest consideration against the disclosure of that information was not an overriding one.

1. Accordingly, for the reasons set out above, I find that there has been no breach of an IPP by the FRS or the CSU in regard to this incident.

Conclusions and orders

1. On the basis of my findings above, the FSU and CSU are not liable for the alleged breaches of the PPIP Act in regard to the conduct relevant to incidents 1, 2, 4 and 5.

1. On this basis the appropriate order is to take no further action on the matter pursuant to subsection 55(2) of the PPIP Act.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

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Amendments

24 December 2012 - Typographical error corrected, ACH to be AHC

Amended paragraphs: Numerous

Decision last updated: 24 December 2012