EM v Department of Education and Training (No 2)

[2010] NSWADT 141

Set aside by Appeal:

CITATION:	EM v Department of Education and Training (no 2) [2010] NSWADT 141
DIVISION:	General Division
PARTIES:	Applicant: EM Respondent: Department of Education and Training
FILE NUMBER:	083033
HEARING DATES:	25 & 26 February 2010
DATE OF DECISION:	8 June 2010
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Jurisdictional issue. When applicant became aware of conduct constituting a breach of Privacy legislation
LEGISLATION CITED:	Privacy and Personal Information Protection Act 1998
REPRESENTATION:	Applicant Representative: The applicant appeared by his agent Respondent Representative: Ms K Edwards of Counsel
ORDERS:	1. The application for internal review was made within time so that the Tribunal has jurisdiction to determine the substantive matter under review. 2. The proceedings will be listed for further directions on 1 July 2010 at 12:30 pm.

REASONS FOR DECISION

1 The applicant commenced these proceedings pursuant to the Privacy and Personal Information Protection Act 1998 following an unsuccessful internal review application. The internal review application was dated 20 June 2007 and was received by the respondent on or about 04 July 2007. On 24 December 2007 the respondent declined to consider the application upon the basis that it had been lodged out of time. The applicant contends before the Tribunal that, in point of fact, it was lodged within the 60 day time limit provided in s.53(3)(d) of the Act. The single factual question upon which this issue turns is the point in time when the applicant first became aware of the conduct the subject of the application (s.53(3)(d)). This question determines the point in time from which the limitation period commences to run.

2 The applicant accepts that his dealings with the respondent have been conducted through an agent, who in fact is his mother, with the consequence that the relevant question is when his agent, rather than himself personally, first became aware of the conduct the subject of the privacy application. The applicant therefore has accepted that his agent’s knowledge, or awareness, is his, for the purpose of these proceedings. Equally, the applicant has accepted, for the purpose of this litigation, that whatever circumstances his agent ought to have been aware of are circumstances of which he ought to have been aware of as well.

3 The applicant was formerly a student at one of the educational facilities that is conducted by the respondent. Towards the end of the applicant’s schooling the respondent held a counselling file in relation to the applicant which concerned the special considerations that the applicant had sought with respect to his schooling. It is alleged that this file has gone missing in circumstances so as to give rise to breaches of the privacy legislation.

4 The initial consideration is to properly ascertain the nature of the conduct that is the subject of the review process. The difficulty is that what actually happened to the file is not known: to say that it has gone missing, or cannot now be located, is not very informative as it does not describe, nor identify, the actual conduct of the respondent that should be under consideration here, whether by way of acts of commission or omission. To say that a file cannot now be located does no more than to state the consequence of a search for the file. The fact that a file cannot be located may have come about because the file was destroyed, stolen or misplaced in some way. However, the parties have argued this matter upon the basis that the relevant factual question is the time at which the applicant’s agent first became aware that his counselling file was missing, that is, that it could not be located after due search. The parties agree that, from this point, time under the limitation period will commence to run. For the purposes of this interlocutory application as to jurisdiction this appears to be a sensible approach, no doubt by reason of the inferences that can be drawn from the fact that a file cannot be found in the location where it is supposed to be. It is noted, in this regard, that the application for internal review refers to the relevant conduct as being the missing files, although this may not state the issue precisely, for the reasons just given. To be precise, the relevant conduct is most likely the relevant security safeguards that were required in the circumstances to protect the applicant’s personal information from loss or other misuse (see s.12(c) of the Act). For present purposes the parties have equated awareness that the applicant’s file was missing with awareness of the absence of adequate safeguards.

5 Whilst there is much common ground factually, save for the ultimate issue, the parties differ on the proper construction of the legislation. The applicant submits that s.53(3)(d) speaks of subjective awareness of the relevant conduct, whereas the respondent takes the view that the test is an objective one. Consequently, the respondent argues that the question is when the applicant’s agent ought reasonably have become aware of the relevant conduct, that is, that the file was missing.

6 Advancing the subjective approach to the question, the applicant argues that his agent first became aware that the file was missing upon receipt of a letter from Mr. Palmer, an officer of the respondent, dated 16 May 2007 (exhibit A1 tab 19). This letter clearly reveals that the relevant file is missing, or cannot be located, and the applicant does not contend otherwise. The respondent accepts that if 16 May 2007 is the date from which the limitation period starts to run, then the application for internal review was within time.

7 The respondent though contends that the limitation period runs from one of two earlier alternative dates. The first is about 02 November 2005 when the applicant’s agent received certain documents from the respondent pursuant to a request for access under the Freedom of Information Act 1989. The second date is on or about 28 July 2006 when the applicant’s agent received a report relating to a privacy complaint that had been lodged with the respondent by the applicant’s brother. The applicant’s brother had attended the same school as the applicant and, following concerns about his own counselling file, lodged this complaint with the assistance of his mother. The respondent submits, in the alternative, that on the evidence the applicant’s agent was in fact aware, or ought reasonably have been aware, that the applicant’s counselling files were missing on one of these two dates. If either of these dates is the relevant one, the application for internal review is in fact out of time. The applicant accepts that this conclusion would follow if either of the dates suggested by the respondent are the commencement of the limitation period.

8 The applicant denies that his agent was in fact aware that the files were missing as at either of these two dates. He also argues that, in any event, the evidence does not establish that his agent ought reasonably have been aware that the files were missing as at either of these two dates. The respondent argues that, if the test is an objective one, the evidence shows that on each of these dates the applicant’s agent ought to have been aware that the file was missing. In the alternative, the respondent submits that, if the test be subjective, the same evidence shows that the applicant’s agent was in fact aware that the file had gone missing or, at least, that evidence that the agent was in fact unaware should not be accepted.

9 Section 53(3)(d) of the Act speaks in terms of awareness. It does not make time run from when the conduct in question in fact occurred, nor does it expressly provide for a test based on what an applicant ought to have been aware of. In normal usage, to be aware of anything a person must have a subjective belief about that thing, whatever it may be. A person may, of course, be aware of circumstances which would necessarily create in that person a subjective belief about the thing in issue: in such circumstances it is simply not possible to accept, as true, an assertion that the person in fact had no awareness about that thing. But this is a matter of evidence. The question here is whether the section requires an actual awareness of the conduct in question before the limitation period will run.

10 The better view is that the section does require an actual awareness of the conduct in question. The words used in s.53(3)(d) alone suggest this to be the proper construction. Also, any applicant must be aggrieved by certain conduct before an application for internal review may be made (s.53(1)) and must identify that conduct in the review application, this being a necessary requirement of s.53(1) and (3). These steps cannot be sensibly undertaken until there is an actual awareness of the conduct in question: a person cannot be aggrieved by something unless there is an awareness of that thing and, of course, awareness is required before that thing can be articulated and specified in an application.

11 However, conduct, for the purposes of Part 5 of the Act, includes a reference to alleged conduct (s.52(2)). Thus, where a person is presented with information which could suggest that conduct infringing the legislation has occurred, that person may, or may not, conclude that such conduct has possibly occurred. If that person does in fact form the view that such conduct has possibly occurred, then the Act permits the making of an internal review application on the basis of alleged conduct. If this be the case, then time will commence to run from the time that the subjective view comes into being. But if that person does not subjectively form that view, then time does not run under the section from the time when the information is received. This is still a subjective test: if a person forms the view that the relevant conduct has in fact occurred, or forms the subjective view that it has possibly occurred, then in both cases time will commence to run. However, it will not run if the person has not in fact formed, subjectively, either view.

12 The evidence in this matter falls into two categories. The applicant’s agent has given direct evidence as to her state of mind at material points in time and the respondent has adduced evidence showing what information, having a nexus with the issue under consideration here, was provided to the agent at material times. Much of the evidence itself is not in dispute, although the parties differ as to the findings that ought to be made and the legal implications of those findings.

13 The applicant’s agent gave evidence, by way of both written evidence and testimony, as follows. The applicant was a student at the school until the end of the 2004 academic year whilst his brother was a student at the same school until the end of the 2002 year. In 2005, the applicant’s agent had discussions with a parent of another student at the school and was informed that that student’s counselling file had gone missing, but had been later located. This caused her some concern about the applicant’s brother’s counselling file as she, at that time, was aware that there had been unauthorised access to the Counsellor’s office during the period that the applicant’s brother had attended the school (exhibit A1). She had no concern, at that stage, about the applicant’s own files at the school. The applicant’s counselling files had come into existence during 2004 (exhibit A1 paragraph 9). The applicant’s agent then spoke with an officer of the respondent, one Mr. Harrison, who advised her to seek copies of relevant documents from the respondent if she was concerned that files may have gone missing. Consequently, on or about 07.10.05 the respondent received applications, prepared by the applicant’s agent, pursuant to the Freedom of Information Act 1989 in relation to the school records of both the applicant and his brother. The application in relation to the applicant’s own files was made as an afterthought (exhibit A1 paragraph 8), the initial stimulus for the application being the concern that she, the agent, had in relation to the applicant’s brother’s files.

14 By letter dated 02.11.05 the applicant’s agent received copies of the requested documents in relation to both of her sons (contained in exhibit 7.1). This is the first of the two alternative dates relied upon by the respondent. The applicant’s agent did not read the documents relating to the applicant in any detail at this point, as her concern was about the file of the applicant’s brother. She read the file relating to the applicant’s brother and noted that it did not contain any counselling records, which she anticipated would have been there by reason of the extensive counselling that the applicant’s brother had been involved in (exhibit A1 paragraphs 11 and12). She contacted Mr Harrison about this and was told that the applicant’s brother’s counselling files had gone missing (exhibit A1 paragraph 12). No mention was made about the applicant’s own counselling records in that conversation.

15 The applicant’s agent then pressed enquiries in relation to the whereabouts of the counselling records pertaining to the applicant’s brother. Her view at that time was that these records would eventually be found with proper search, as was the case in relation to the friend’s daughter’s records referred to in paragraph 13 above (exhibit A1 paragraphs 15 and 21). She was not surprised about this situation due to her experience with the filing methods at the school (exhibit A1 paragraphs 17 to 21). At this point she did not press any enquiries in relation to the applicant’s file.

16 On 21.03.06 the applicant’s brother lodged a privacy complaint, through his agent, his mother, with the respondent in relation to the documents missing from his file. This was answered by letter dated 28.07.06 enclosing a copy of the internal report dated 04.07.06 (exhibit A1 annexure 9). The receipt of this letter, around 28.07.06, is the second of the alternative dates relied upon by the respondent. This letter and report advised, inter alia, that a number of unauthorised entries had occurred to the school counsellor’s office, that some files had been removed from secure locations or had gone missing and that it appeared that at least part of the applicant’s brother’s counselling file had “ gone missing” and perhaps, as a matter of speculation, had been removed during one of these entries (exhibit A1, annexure 9, report page 7, paragraph 38 in particular). The report specifically comments on an incident in early 2005 and advises that no files were believed to have gone missing by reason of that incident (exhibit A1, annexure 9, report paragraph 24).

17 The respondent does not dispute the abovementioned evidence. In fact the respondent relies upon this same evidence to argue that the applicant’s agent’s evidence (that she was not aware that the applicant’s files had gone missing as at 02.11.05, or 28.07.06) should not be accepted, and also in relation to its submission that as at one of these two dates the applicant’s agent ought to have been aware that the files were missing. As the Tribunal has already ruled that the test is subjective, this latter argument advanced by the respondent need not be considered further.

18 The evidence by the applicant’s agent was that she did not form any belief that the applicant’s counselling files had gone missing on 02.11.05, or shortly thereafter, by reason of the documents she had got from the respondent concerning the applicant’s records and those of his brother. On receipt of these documents, which came in one bundle separated by coloured paper, she perused them. She noted that the applicant’s documents in fact contained some medical documents authored by a particular practitioner, Dr. Hutchins, and then passed the documents to the applicant to read. At this point her evidence is that she did not believe that any records were missing. However, in relation to the applicant’s brother’s documents she did observe that documents she expected to be there were in fact missing, namely records apposite to counselling files. She spoke with Mr. Harrison about this, as noted above, on 01.02.06 (exhibit A1 paragraph 12) and was advised that the applicant’s brother’s counselling files could not be found. However, her subjective belief upon receiving this information was that if she pressed the matter the files would in fact be located, whereupon she proposed to request that they be stored safely (exhibit A1 paragraph 21). This plan was put in motion by the lodging of a privacy complaint on behalf of the applicant’s brother on 21.03.06. No steps had been taken by the agent at this stage in relation to the applicant’s own counselling files.

19 It is certainly true that upon receipt of the documents concerning the applicant’s brother the applicant’s agent could have developed concerns that it was possible that counselling files in relation to the applicant may have been missing as well. Of course it is equally possible that she could have thought that they simply could not be located, as was her belief in relation to the applicant’s brother. The respondent, quite correctly, argues that the Tribunal should not accept the agent’s evidence on this point by reason of the evidence and the obvious inferences that may be drawn.

20 However, the applicant’s agent was a credible witness and, without more, the Tribunal has no concerns with accepting her veracity on this point. The agent has been quite diligent in protecting the interests of both her sons and it is most persuasive that she took no steps in relation to the applicant’s files at this stage, whereas she did in relation to the applicant’s brother. The Tribunal cannot accept that she would not have acted in relation to the applicant if she in fact had formed the view that his counselling files had, or may possibly have, gone missing as well, or could not be located. When determining a person’s state of mind at any particular time it is often critical to see what acts they did, or did not do, after forming an alleged state of mind. It is also critical if such acts, or omissions, can be found in evidence that is recorded and incontrovertible, as may be found in a letter written shortly after the event. Here there is such evidence. The agent’s letter of 10.02.06 (exhibit A1 tab 4) concerns the applicant’s brother only. Thus the Tribunal is well persuaded that the applicant’s agent’s evidence, that she did not believe the applicant’s files to be missing, is truthful evidence and therefore should be accepted on this point.

21 As noted above the second relevant date relied upon by the respondent is 28.07.06, the date when the agent received a letter and report (dated 04.07.06) from the respondent concerning the applicant’s brother (exhibit A1 annexure 9). As noted above, this letter and report advised, inter alia, that a number of unauthorised entries had occurred to the school counsellor’s office, that some files had been removed from secure locations or had gone missing and that it appeared that at least part of the applicant’s brother’s counselling and student files had “ gone missing” and perhaps, as a matter of speculation, had been removed during one of these entries (exhibit A1, annexure 9, report page 7, paragraph 38 in particular). The report specifically comments on an incident in early 2005 and advises that no files were believed to have gone missing by reason of that incident (exhibit A1, annexure 9, report paragraph 24). The covering letter advised that after investigation a determination had been made that no breaches of the privacy legislation had occurred (second paragraph of the letter). The report is a little equivocal in relation to the unauthorised entries, see paragraph 31 thereof, and it is unclear as to what matters are verified fact and what matters are surmise, although it does appear that some parts of the files could, at least, not be located. However, a reader of this communication would clearly gain the impression that the role played by the suspected unauthorised entries in relation to missing documents was unclear, and a little speculative (see paragraph 38).

22 The applicant’s agent read this communication and report. Her evidence was that when she did this she did not form the view that any of the documents from the applicant’s files were missing, nor did she suspect that this may have occurred. In substance, her evidence was that the thought did not cross her mind. By way of argument, the applicant’s agent pointed to the fact that she had seen the applicant’s counselling file at the end of the 2004 year and that the report (paragraphs 22 and 24) advises that no files were believed to be missing as a result of the unauthorised entry, or entires, in 2005 and submits, by reason of these facts, she had “no reason to be alerted to think that (the applicant’s) file could be at risk (exhibit A1 paragraph 24). The applicant’s agent does not assert that this was in fact the thought processes that went through her mind at the time: she simply proffers this argument to substantiate, and provide good grounds for, her evidence that she did not suspect, upon reading this report, that the applicant’s files were at risk. This evidence has the ring of truth about it and, having come from a witness whose veracity is not in question, should therefore be accepted. The Tribunal notes in this regard that following this event the applicant’s agent pursued enquiries in relation to the applicant’s brother’s files, but made no enquiries about the applicant’s own files. Consequently, the Tribunal is persuaded that the applicant’s agent, and hence the applicant, did not at that stage become aware that parts of the applicant’s files had gone missing, nor did she become aware that this may have happened.

23 In addition the Tribunal accepts the evidence of the applicant’s agent that she did not become aware that parts of the applicant’s files were missing, or could not be located, until receipt of the letter dated 16.05.07 (exhibit A1 annexure 19). It follows therefore that the application for review under consideration here was made within time. Consequently, the Tribunal has jurisdiction to determine the application.

24 The matter will therefore be listed for further directions in relation to a substantive hearing. The Tribunal notes that the parties will in due course seek certain prohibition orders in relation to publication. By reason this, these reasons keep confidential matters that may concern the parties.