Department of Education and Training v PN

[2006] NSWADTAP 66

Appeal Panel - Internal

CITATION:	Department of Education and Training v PN (GD) [2006] NSWADTAP 66
PARTIES:	APPELLANT Department of Education and Training RESPONDENT PN
FILE NUMBER:	069026
HEARING DATES:	22/08/06
SUBMISSIONS CLOSED:	08/22/2006
DATE OF DECISION:	12/06/2006
BEFORE:	Chesterman M - ADCJ (Deputy President); Pearson L - Judicial Member; Blake C - Non Judicial Member
CATCHWORDS:	statutory interpretation - jurisdiction
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	053113, 053114
DATE OF DECISION UNDER APPEAL:	04/26/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Workers Compensation Act 1987
CASES CITED:	EG v Commissioner of Police, New South Wales Police Service [2003] NSWADT 150 GL v Director General, Department of Education & Training [2003] NSWADT 166 OD v Department of Education and Training [2005] NSWADT 161 OD v Department of Education and Training (GD) [2005] NSWADTAP 74 PN v Department of Education and Training [2006] NSWADT 122 TA v Director General, Department of Education & Training [2006] NSWADT 246 Y v Director General, Department of Education & Training [2001] NSWADT 149
REPRESENTATION:	APPELLANT A Johnson, solicitor RESPONDENT L Goodchild, barrister
ORDERS:	1. The application for leave to appeal is granted; 2. The appeal is dismissed; 3. The matter is remitted to the Tribunal for determination; 4. The Registry is to re-list the matter for a further planning meeting on a date to be fixed in consultation with the Tribunal, the parties and the Privacy Commissioner.

REASONS FOR DECISION

Introduction

1 The issue raised in this appeal concerns the meaning of a provision of the Privacy and Personal Information Act 1998 (‘the Privacy Act’) reducing the scope of this Act’s definition of ‘personal information’.

2 The Appellant is the Department of Education and Training (‘the Department’). The Respondent is designated in these proceedings by a pseudonym, PN. At all material times, she was employed at a school (‘the School’) operated by the Department.

3 PN instituted proceedings in the Tribunal under s 55 of the Privacy Act, claiming that officers of the Department conveyed certain information to investigators and rehabilitation providers in breach of the Information Protection Principles set out in that Act. She did so after it had been determined in an internal review, conducted pursuant to s 53, that no such breach had occurred.

4 The Department contended that the information in question was not ‘personal information’ within the definition contained in s 4 of the Privacy Act. This issue was set down for determination as a preliminary matter, on which the Tribunal’s jurisdiction to hear PN’s application was dependent.

5 In a decision delivered on 26 April 2006 (PN v Department of Education and Training [2006] NSWADT 122), the Tribunal, constituted by Judicial Member Montgomery, rejected the Department’s contention and gave directions for the further hearing of PN’s application. The Department’s appeal against this decision is the subject of the present judgment.

6 Section 113(2A) of the Administrative Decisions Tribunal Act 1997 states that an appeal to an Appeal Panel against an interlocutory decision of the Tribunal can only be made with the leave of the Panel. Due to uncertainty as to whether the decision being challenged in this appeal was an interlocutory or a final decision, the Department’s notice of appeal was accompanied by an application for leave to appeal.

7 At the commencement of the hearing, we indicated that, if indeed leave was required under s 113(2A), we considered that it should be granted. Our main reasons for so doing were (a) that the Department’s contention was clearly arguable and (b) that if we allowed the appeal, the proceedings would be brought to a conclusion.

Relevant provisions of the Privacy Act

8 The definition of ‘personal information’ in s 4 of the Privacy Act commences as follows:

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.

9 Subsection (3) of s 4 sets out a number of exclusions from this general description. The relevant parts of the subsection are as follows:
(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….

10 ‘Public sector official’ is 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…

The ‘information’ allegedly conveyed

11 It is useful to draw attention at this stage to the fact that this statutory definition of ‘personal information’ includes opinions along with information in the traditional sense. In both s 4(1) and s 4(3)(j) the phrase ‘information or an opinion’ appears. In the ensuing discussion, the term ‘information’ will be taken to include opinions, except where otherwise indicated expressly or by implication.

12 Early in 2003, PN signed an ‘Employee’s Compensation Claim’ in which she alleged that she was suffering from depression. Having been absent from work for a period that is not specified in the Tribunal’s judgment, she returned to work on a return to work rehabilitation program on 20 October 2003. These events constitute the background to her claim of breaches of the Privacy Act.

13 Particulars of this claim were set out in two complaints that she lodged with the Department in November 2004. In the Tribunal’s judgment, they are labelled ‘the Principal complaint’ and ‘the Staff Member complaint’ respectively. The explanation for these labels is that one complaint was based on alleged disclosures by the Principal of the School of information about PN to specified parties and the other was based on alleged disclosures of a similar nature by a person whom the Tribunal described as ‘an executive staff member’ and an ‘alternate head teacher’ in the School.

14 It is difficult to determine precisely what information was conveyed in this way. The reason is that the Tribunal’s account of the relevant facts is largely drawn from the complaints lodged by PN. It did not receive any oral evidence. In these complaints, PN’s summaries of the information alleged to have been conveyed were mingled with assertions that parts of this information were incorrect in a number of respects and/or were conveyed in bad faith and without her authorisation. It is evident, as the representatives of both parties acknowledged, that the accuracy of information allegedly disclosed in breach of the Privacy Act and the propriety of any such disclosure are not directly relevant to the question whether the information falls within the statutory definition of ‘personal information’.

15 The following summary of the relevant information is drawn from the Tribunal’s judgment, with some abridgments and interpolations.

The principal complaint

16 PN set out this complaint in an 11 page hand-written document with two sets of 11 numbered appendices consisting of 69 pages. It contains five allegations, which the Tribunal labelled S1, S2, S3, S4 and S5.

17 S1. This allegation related to information in a Workplace Injury Notification Form, dated 11 February 2003, that the Principal completed. It reported an alleged injury to PN, which PN described as ‘depression due to workplace difficulties’. This Form was provided to GIO Injury Management Centre (‘GIO’) and the Personnel Support Officer with the Department’s St George District Office (‘the Support Officer’).

18 The specific information about which PN complained comprised comments by the Principal appearing under a heading that asked:

‘(Optional) is this claim questionable?’
19 In answer to this question, ‘Yes’ was circled. Then in response to the question ‘If Yes, please comment’, the Principal wrote:-
There has been ongoing conflict in the faculty. Mediation has been implemented & ongoing strategies are in place to manage situation.
20 S2 . This allegation related to information contained in an Employer's Report of Injury, dated 27 February 2003, that the Principal completed and sent to GIO and to the Support Officer. The information identified by PN comprised comments by the Principal appearing in two sections of the form.

21 In a section headed ‘Details of previous related injuries if known’, the Principal wrote: -

On going conflict.
22 Another heading was as follows: -
GIVE DETAILS OF OTHER CIRCUMSTANCES WHICH WOULD ASSIST THE INSURER TO ASSESS THE CLAIM (Eg. Do you query the validity of the claim? If so, why?)
23 Under this heading, the Principal wrote
In my opinion, this is part of a complex, ongoing situation.
24 S3 . PN’s compensation claim was investigated by GIO. A document prepared during the investigation, headed ‘employer’s perspective’, recorded the content of interviews with the Principal and a welfare officer. PN alleged that the Principal made a number of fabricated and unsubstantiated statements to the investigator.

25 Relevantly, the information contained in this document included a suggestion that there were ‘possible cultural differences’ between PN and the head teacher in the School and some comments on what the Department summarised as PN’s co-operativeness, her capacity to work as part of a team and her interpersonal skills in the course of her employment (see the Tribunal’s judgment at [27] and [40]).

26 S4. PN’s allegation here was that the Principal (a) provided to the Staff Member all her notes of interviews with members of the School staff, including PN, regarding an incident at a faculty meeting on 25 November 2003, and (b) authorised the Staff Member to send these notes to the GIO Insurance based Rehabilitation Provider.

27 So far as relevant, the information contained in these notes is related to pre-existing difficulties in the relationship between PN and the head teacher.

28 S5. As outlined in the Tribunal’s judgment at [23], this allegation by PN was as follows: -

PN complains that she did not authorise the Principal to exchange information with her Rehabilitation Provider or the doctor nor was the Principal authorised to do so by PN’s employer. PN’s employer has not assessed the Principal’s information for its accuracy and validity. PN was not given an opportunity to make corrections or amendments. PN complains that the Principal's actions were beyond the scope of her duties and constitute abuse of power and that she provided unauthorised information in a bad faith and displayed corrupt conduct.
29 This allegation does not clearly identify the information to which it refers. It is however implicit from the Tribunal’s judgment at [41] that it included, and may indeed have solely comprised, the Principal’s notes to which allegation S4 related. If this is correct, allegation S5 does not enlarge the range of information with which this appeal is concerned.

The Staff Member complaint

30 PN set out this complaint in a 20 page hand-written document with 9 numbered appendices consisting of 50 pages. It contained two allegations, which the Tribunal labelled T1 and T2.

31 At [42], the Tribunal recorded what appeared to be a finding that, as part of the plan under which PN was to return to work, she was to have no direct contact with the head teacher. Instead, the Staff Member was ‘act as a buffer between PN and the head teacher’.

32 T1. PN alleged here that after her return to work on 20 October 2003 the Staff Member conveyed the following information to PN’s Rehabilitation Provider: (a) disappointment about PN’s participation in the School's life; (b) the opinion that PN was a difficult person to communicate with; and (c) an offer to prepare and send a detailed report on PN’s rehabilitation progress to the Rehabilitation Provider.

33 PN alleged that the Staff Member’s actions in this regard were illegal, corrupt and beyond the scope of her duties and that they constituted abuse of power. PN claimed also that the Staff Member did not have PN’s permission or the authority of her employer to exchange information with PN’s Rehabilitation Provider or with a doctor.

34 T2. PN’s allegation here was that in a Report to the Rehabilitation Provider dated 9 December 2003, the Staff Member made numerous inaccurate, misleading and dishonest statements and expressed personal, discriminatory opinions based on intentional bias.

35 As claimed by the Department without apparent opposition from PN’s counsel at the Tribunal hearing, this Report contained comments by the Staff Member on PN’s co-operativeness, her capacity to work as part of a team and her interpersonal skills in the course of her employment (see the Tribunal’s judgment at [27], [34] and [44]).

The Tribunal’s decision

36 In accepting the contention by Ms Goodchild, counsel for PN, that the information about which PN complained was ‘personal information’ under the Privacy Act, the Tribunal referred, at [48 – 55], to three earlier Tribunal decisions dealing with the interpretation of s 4(3)(j) of this Act. These are Y v Director General, Department of Education & Training [2001] NSWADT 149, EG v Commissioner of Police, New South Wales Police Service [2003] NSWADT 150 and GL v Director General, Department of Education & Training [2003] NSWADT 166. These decisions are analysed below.

37 At [56], the Tribunal stated: -

In the present matter the parties are in agreement that these decisions establish the 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.
38 At [57 – 58], the Tribunal said that a purposive approach should be adopted in interpreting the Privacy Act and that as this Act was ‘beneficial legislation’, any exclusion from the definition of ‘personal information’ should be interpreted narrowly.

39 The Tribunal’s judgment continued as follows:-

58… In my view, the interpretation urged by the Department is too restrictive. I do not agree that all information touching upon the issue of PN’s employment with the Department is necessarily information about PN’s suitability for employment. Taken to its logical conclusion would mean that even the most vindictive gossip about an individual could attract exclusion under section 4(3)(j) of the Privacy Act. This is inconsistent with the protection of the privacy of individuals generally and in my view could not have been the intention of the legislature.

59 I generally agree with Ms Goodchild’s argument that information in issue is personal information for the purposes of the Privacy Act. I have formed this view in regard to the complaints that are identified as S1 and S2 because of the context in which the information was provided. Had it been provided at another time the same information might well have attracted the exclusion under section 4(3)(j) of the Privacy Act. In their context I do not consider that the information was relevant to PN’s injury but rather it is related to other matters. In that context the information was not relevant to PN’s suitability for employment.

60 I also agree with Ms Goodchild’s arguments with respect to the remaining complaints however, my view is not subject to the same qualification as it is for complaints S1 and S2. For example, I have difficulty in imagining any circumstance where the provision of information about issues that PN had raised at a Federation meeting could ever attract the section 4(3)(j) exclusion. Similarly, any cultural differences that may exist between PN and a head teacher are not relevant to PN’s suitability for employment.

Relevant case law

40 In addressing this topic, it is useful first to discuss, in chronological order, the three decisions dealing with s 4(3)(j) that were considered in the Tribunal’s judgment, together with three more recent decisions on the topic (the latest of which was cited at the hearing of the appeal).

41 In Y v Director General, Department of Education & Training [2001] NSWADT 149, the applicant was a part-time senior assistant employed by the respondent Department at a country school. The respondent initiated a wide-ranging management review of the school, from which a number of staff had previously departed after short periods of service.

42 In the course of this review, the team conducting it sought answers from the applicant to ten questions relating to allegations of a negative character regarding her conduct. About a fortnight later, she attached certain material to the school’s newsletter, contrary to the principal’s wishes. The report by the review team included conclusions (the Tribunal referred to them as ‘texts’) to the following effect (a) that she had been non-responsive to the ten allegations put to her; (b) that her attachment of material to the newsletter was improper; (c) that she had contributed to a significant breakdown in interpersonal relations within the school; and (d) that she should be transferred to another school.

43 The applicant applied to the Tribunal (as PN has done in this case) under s 55 of the Privacy Act. The respondent claimed on three grounds that the Tribunal had no jurisdiction. One of these grounds was that the relevant information – which the Tribunal identified as the four conclusions in the review report that have just been outlined – fell within s 4(3)(j) of the Act.

44 At [29 – 31], the Tribunal, which was constituted by President O’Connor, rejected a submission made on behalf of both the Privacy Commissioner and the applicant, to the effect that the exclusion in s 4(3)(j) ‘should be construed as referring only to information that was collected in the course of a selection process or a formal disciplinary process’.

45 The Tribunal ruled instead that a more flexible approach was required. It described this approach as follows:-

33 The test, as I see it, must be in each case 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’. The management review team did not set out on its task with any specific term of reference relating to the applicant. The terms of reference were general ones. In light of the history that gave rise to the review, it is not surprising that issues arose in the course of the review as to the nature of the relationships between staff at the school. The review formed views as to the applicant’s suitability for continuing her employment at this school. The three texts that precede the fourth text making the transfer recommendation should be viewed in that context….

34 I acknowledge the Privacy Commissioner’s submission that a management review does not belong to the routine personnel process of agencies. I accept that this is not an instance of information being generated in, for example, a selection, promotion, discipline or involuntary retirement process. But a management review is itself an orthodox instrument of administration, and one which will frequently look at the performance of employees.

35 A management review of a small primary school triggered by parent complaints will, it seems to me, inevitably focus on (among other things) work practices and work arrangements. The principal and the teaching staff face the risk that their performance in the work place may be assessed. Information may be collected and opinions formed by the management review which bear on the suitability of the employment of individual members of staff. The applicant has found herself in that unhappy situation.

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).

46 Applying this approach, the Tribunal held that the four ‘texts’ all fell within the exception in s 4(3)(j) of the Privacy Act and that the Tribunal therefore lacked jurisdiction.

47 The next case, EG v Commissioner of Police, New South Wales Police Service [2003] NSWADT 150, concerned a letter sent by the respondent Commissioner to the Legal Practitioners Admission Board raising issues about whether the applicant, a police officer, was a person of good fame and character. The Tribunal, constituted by Deputy President Hennessy, held that the information so conveyed did not fall within the exclusion in s 4(3)(j). It gave the following reason at [37]:-

… neither the information nor the opinion… is about the applicant's suitability for appointment or employment as a public sector official. This is a case where it is clear from the context in which the information appears that it relates to his suitability for admission as a legal practitioner.
48 In GL v Director General, Department of Education & Training [2003] NSWADT 166, the principal of a school (‘the first school’) at which the applicant was employed as a teacher conducted an investigation into complaints that two parents had made against the applicant. The principal sent a copy of a report that she had prepared, entitled ‘Results of Investigation into Complaint’, to an officer of the respondent’s Industrial Relations Service (‘IRS’) who was preparing a ‘risk assessment’ of the applicant. An entity called Healthquest subsequently assessed the applicant as fit to continue her duties. She was transferred to another school (‘the second school’). At the suggestion of the IRS officer, another officer employed by the respondent then sent a copy of the report that the principal of the first school had prepared to the principal of the second school.

49 The Tribunal, again constituted by Deputy President Hennessy, held that the information contained in this report did not fall within the exclusion in s 4(3)(j) of the Privacy Act. It stated its reasons as follows, at [40]:-

On the basis of this evidence, it is apparent that the document is a report resulting from the investigation of a complaint against the applicant. When the matter before the IRS had been finalised, the report was sent to the applicant’s new Principal for his information. The content of the document and the context in which it was provided lead to the conclusion that the applicant's suitability for appointment or employment was not a live issue. Healthquest had already assessed the applicant as fit to teach and her suitability for appointment or employment was not in question….
50 In OD v Department of Education and Training [2005] NSWADT 161, the Tribunal, constituted by Judicial Member Montgomery, held that information about the overseas qualifications of the applicant, who was an employee of the respondent, and about the assessed equivalence of the courses leading to these qualifications to courses in Australia, was information within s 4(3)(j). At [15], the Tribunal referred to the four paragraphs in the judgment in Y v Director General, Department of Education & Training that are quoted above at [45]. At [16], it observed that the information in question concerned the applicant’s academic and professional qualifications and that it was ‘collected for the purposes of assessing these qualifications and matching them to the work situation’.

51 On appeal, the Appeal Panel, in OD v Department of Education and Training (GD) [2005] NSWADTAP 74, set aside this decision on the ground that the Tribunal had characterised unduly narrowly the information to which the applicant’s complaint related. It added at [24] the observation that information which was ‘protected at source’ by the exclusion in s 4(3)(j) might lose that protection if it was subsequently used or disclosed in another context. Arguably, it said, this could occur when the way in which an agency used the information severed its connection with employment in the public sector and ‘replace it with a new connection with another object (following the reasoning in Y v Director General, Department of Education & Training [2001] NSWADT 149)’.

52 In the last of the cases now being discussed, TA v Director General, Department of Education & Training [2006] NSWADT 246, the applicant was a teacher employed at a school by the respondent. At some time before 28 June 2000, a parent of a child at the school made a complaint against him. On 28 June 2000, the deputy principal of the school interviewed the parent. Shortly afterwards, the applicant lodged a claim for workers compensation. On 27 July 2000, ‘AB’, who was an officer of the Occupational Health, Safety and Rehabilitation Taskforce employed by the respondent, prepared a file note recording a conversation between him and the principal of the school, in which conduct and statements of the principal, the deputy principal and the applicant were described.

53 The file note related to the handling of the complaint that had been made by the parent. It recorded that the principal had discussed with the applicant how the complaint should be handled and that there had been a previous disagreement between the applicant and the deputy principal. It concluded with the statement that, in the view of the Task Force, the claim ‘fell under s 11a – Reasonable Action of the Employer’. Attached to the file note was a record of the interview between the deputy principal and the parent.

54 As the Tribunal pointed out at [30], the ‘s 11a’ mentioned in the file note was evidently s 11A of the Workers Compensation Act 1987. This states as follows in subsection (1):-

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.
55 So far as is relevant here, the applicant’s claim under s 55 of the Privacy Act related to the information contained in the file note and the record of interview.

56 The Tribunal was constituted by Judicial Member Pearson, who is a member of the present Panel. It held that the information contained in the file note and the record of interview fell within s 4(3)(j) of the Privacy Act and was therefore not ‘personal information’. Having referred at [32] to the Tribunal’s decision in Y v Director General, it formulated as follows the basis of its conclusion that this information was ‘information about [the applicant’s] suitability for employment by the respondent’:-

While the file note appears to have been made in the context of the applicant’s claim for workers compensation, its central concerns relate to the complaint made against the applicant by the parent, and how this complaint was handled by the Deputy Principal and the Principal, including reference to the respondent’s complaint handling procedures.
Principles to be derived from these cases

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.

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.

The principal matters raised in the appeal

64 In addressing us at the appeal hearing, Ms Johnson submitted on the Department’s behalf that, having regard particularly to the terms of s 11A(1) of the Workers Compensation Act and to the fact that workers compensation claims regularly led to a break in employment, any such claim by a public sector official should be deemed to raise the issue of suitability for employment under s 4(3)(j) of the Privacy Act as a ‘live issue’, until such time as it had been shown that the alleged injury was not such as to have this effect.

65 As an alternative submission, Ms Johnson argued that since PN had alleged in her workers compensation claim that she was suffering from depression the possibility that s 11A(1) might apply to the claim was present from the outset. The lodgement of her claim created immediately a ‘context’ in which her suitability for employment was a ‘live issue’.

66 Furthermore, Ms Johnson submitted, the content of the information to which PN’s complaint referred – for example, the opinions, forming parts of T1 and T2, regarding co-operativeness, her capacity to work as part of a team and her interpersonal skills – clearly was ‘about’ her suitability for employment. It followed, she said, that both of the components required by the Tribunal’s decision in Y v Director General were present and the information was not ‘personal information’ on account of the exclusion in s 4(3)(j).

67 Ms Johnson acknowledged that s 11A of the Workers Compensation Act had not been cited to the Tribunal at first instance. The same, it should be said, applies to the decision in TA v Director General (on which she relied), for the simple reason that it was delivered after the Tribunal’s decision in the present case. In addressing us in reply, Ms Johnson acknowledged further that the Department’s position in this appeal might not be compatible with the Tribunal’s conception of a ‘live issue’ in GL v Director General.

68 We have not found it easy to determine this aspect of the appeal. The Department’s position is clearly an arguable one. But our conclusion is that it should be rejected, for the following two reasons.

69 First, while the circumstances in TA v Director General demonstrate quite clearly that a ‘context’ in which suitability for employment becomes a ‘live issue’ may readily arise following the lodgement of a workers compensation claim, this should not be treated as an invariable consequence. So to hold would be to give an unduly wide scope of potential operation to s 4(3)(j).

70 Secondly, in the particular circumstances of the present case, a ‘context’ in which suitability for employment was a ‘live issue’ did not arise, even though much of the information that was collected following PN’s lodgement of her workers compensation claim was indeed ‘about’ her suitability for employment. In this connection, the principal distinction that we perceive between the present facts and those of TA v Director General is that there was here no suggestion that the relevant officers of the Department considered, in the course of dealing with PN’s claim, that the factors set out in s 11A(1) might be relevant. In the present case, the Department’s recourse to s 11A(1) in order to establish a link between the workers compensation claim and the question of suitability for employment was evidently an afterthought.

Two subsidiary arguments advanced by the Department

71 Two further arguments were advanced in the Department’s written submissions and by Ms Johnson at the hearing. They may be disposed of more briefly.

72 First, it was submitted that the Tribunal had erred in law by taking irrelevant considerations into account. These considerations were, in summary form, that (a) the information to which PN’s application related was, in her opinion, inaccurate, unfounded and tainted by bias; (b) a person to whom information relates is entitled to know its content and to be given an opportunity to check its accuracy; and (c) information collected by an agency can only be used by a properly authorised person for the purposes for which it is collected.

73 The short answer to this submission, as Ms Goodchild, appearing for PN, pointed out, is that while the Tribunal referred to all of these matters in the course of its judgment, it only did so in the course of summarising the case advanced by PN. In outlining the basis of its decision in PN’s favour, the only implicit reference that it made to any of these considerations was in suggesting, at [58], that if the Department’s view of s 4(3)(j) were taken to its logical conclusion, then ‘even the most vindictive gossip about an individual could attract exclusion under s 4(3)(j)’. In our view, this is insufficient to indicate that it treated the accuracy or good faith of information that an agency has collected as having any significant bearing on whether or not it is ‘personal information’.

74 Secondly, it was submitted that the Tribunal made a number of findings of fact without having taken any evidence on the relevant matters. There were in fact no witness statements or oral testimony.

75 To a significant extent, the same ‘short answer’ applies again. A number of the claimed findings by the Tribunal were not findings at all, but merely elements of the case that PN sought to advance.

76 In its judgment at [59 – 60], however, the Tribunal did make somewhat unclear findings regarding the ‘relevance’ of the information in the different complaints by PN to her injury and to her ‘suitability for employment’, adding in [59] that if this information had been ‘provided at another time’ it might well have ‘attracted the exclusion in s 4(3)(j)’.

77 If, however, the making of these findings without any supporting evidence constituted an error of law as asserted by the Department, it was not in our opinion an error such as would warrant allowing this appeal. The correctness of the Tribunal’s conclusion that the information to which PN’s application relates does not fall within s 4(3)(j) is not in any way dependent on these factual findings.

Concluding observations

78 Our opinion of the true construction of s 4(3)(j), based as it is on prior decisions of the Tribunal, attributes to it a narrow scope of operation. In this general sense, our opinion accords with the Tribunal’s proposition in the present case (see its judgment at [58]) that since the Privacy Act is ‘beneficial legislation’, any exclusion from the definition of ‘personal information’ should be ‘interpreted narrowly’. We have however reached our conclusions as to the interpretation of s 4(3)(j) by a rather more elaborate route than that adopted by the Tribunal. As we see it, the difficulties of interpretation posed by this legislation require close attention both to the precise nature and content of the information to which the proceedings relate and the precise context or contexts in which it is ‘collected’ by the relevant agency

79 We order that the appeal is dismissed and that the matter should be remitted to the Tribunal for determination. As was directed by the Tribunal at the conclusion of its judgment, the Registry is to re-list the matter for a further planning meeting on a date to be fixed in consultation with the Tribunal, the parties and the Privacy Commissioner.