EN v University of Technology, Sydney

[2009] NSWADT 50

CITATION:	EN v University of Technology, Sydney [2009] NSWADT 50
DIVISION:	General Division
PARTIES:	APPLICANT EN RESPONDENT University of Technology, Sydney
FILE NUMBER:	093040
HEARING DATES:	17 February 2009
SUBMISSIONS CLOSED:	17 February 2009
DATE OF DECISION:	5 March 2009
BEFORE:	Handley R - Deputy President
CATCHWORDS:	Privacy - jurisdiction - internal review application out of time
LEGISLATION CITED:	Privacy and Personal Information Protection Act 1998 Health Records and Information Privacy Act 2002 Administrative Decisions Tribunal Act 1997
CASES CITED:	BE v University of Technology, Sydney [2008] NSWADT 139 Y v Director-General, Department of Education and Training [2001] NSWADT 137 MG v Director-General, Department of Education and Training [2004] NSWADT 137 MG v Director-General, Department of Education and Training [2004] NSWADTAP 45
REPRESENTATION:	APPLICANT BE, agent for EN RESPONDENT R Henderson, barrister
ORDERS:	(1) The Tribunal has jurisdiction with regard to EN’s application in relation to (a) the lost correspondence, and (b) the alleged inaccurate information about EN’s teaching (2) The Tribunal does not have jurisdiction with regard to the alleged inaccurate information about EN’s PhD candidature (3) The Tribunal is not satisfied that there is clear evidence of a request by EN for the amendment of specific personal information held by the University of Technology, Sydney falling within the scope of the internal review applications, other than that in respect of the ‘fail’ entry on EN’s academic record.

REASONS FOR DECISION

1 EN has applied to the Tribunal for the review of conduct of the University of Technology, Sydney (‘UTS’) which he claims to be in breach of Information Privacy Principles (‘IPPs’) contained in the Privacy and Personal Information Protection Act 1998 (‘the PPIP Act’) and Health Privacy Principles (‘HPPs’) contained in the Health Records and Information Privacy Act 2002 (‘the HRIP Act’).

Background

2 The background to this matter is set out in my decision in BE v University of Technology, Sydney [2008] NSWADT 139 (‘BE v UTS’), a decision that is currently under appeal to the Tribunal’s Appeal Panel. That decision involved an application by EN’s wife, BE, for the review of conduct which BE claimed to be in breach of a number of IPPs. In the present proceedings, EN has authorised BE to act as his agent.

3 On 31 August 1997, EN, who was employed as a lecturer in the Faculty of Business at UTS, enrolled as a part-time PhD student at UTS. In my decision in BE v UTS, I stated that the Graduate Students Committee of the Graduate School Board endorsed a recommendation of the Research Student Review Panel of the School of Finance and Economics within the Faculty of Business, dated 8 February 2000, recommending that EN’s PhD candidature be terminated. I based this finding on a chronology supplied by UTS in those proceedings. This chronology may, it appears, have been based on an endorsement on a Memorandum from Professor Rob Lynch, Associate Dean (Research and Development) of the Faculty of Business, to Professor Mairead Browne, Chair of the Graduate Students Committee, dated 28 February 2000, the subject of which was EN’s doctoral assessment. The endorsement on the Memorandum states: “Termination approved at GSC 00/02 7/3/00.” The endorsement appears to be signed with the initials ‘KD’.

4 The Minutes of the Graduate School Committee meeting 00/02 held on 7 March 2000 have been produced under summons in the present proceedings. Those minutes show that there was no reference to EN in the course of that meeting, and the Committee did not endorse the termination of EN’s PhD candidature.

5 In April 2000, EN was notified that his PhD candidature had been terminated. He appealed this decision to the Faculty Appeals Committee, which dismissed the appeal. EN appealed against this decision to the Appeals Committee of the Academic Board, which, on 21 July 2000, upheld his appeal. The events that followed concerning EN’s PhD candidature are recited in BE v UTS.

6 On 27 November 2007, BE, acting on behalf of EN, signed a request for an internal review, alleging in an accompanying letter of the same date that UTS had breached IPPs in the PPIP Act and also HPPs, in particular, “by using, circulating and refusing to correct” inaccuracies in 12 listed documents.

7 On 5 December 2007, BE signed another internal review request, and in an accompanying letter of the same date alleged that UTS had breached the PPIP Act by making false statements about EN. On 17 December 2007, UTS responded, requesting a signed authority from EN authorising BE to act on his behalf. BE replied by letter dated 5 January 2008, enclosing an authority from EN and providing a “tabulated summary”. UTS received this on 7 January 2008. In the tabulated summary, BE requested that UTS take specified actions concerning the claimed breaches of the PPIP Act, including removing “the false ‘fail’ mark for Spring Semester 2002” on EN’s academic record.

8 On 30 January 2008, BE lodged an application for review with the Tribunal. In an accompanying letter of that date, BE stated that EN was seeking a review of conduct complained of in her internal review applications dated 27 November 2007 and 5 December 2007. At the end of the letter, BE indicated that she was making the application to the Tribunal because UTS had not completed their review within 60 days.

9 UTS forwarded a draft report on its internal review to the Privacy Commissioner with a letter dated 12 March 2008, providing copies to BE. After submissions on the draft report from the Privacy Commissioner dated 20 March 2008, UTS finalised its report, which was sent to BE with an accompanying letter dated 21 April 2008.

10 I conducted a Planning Meeting with the parties on 25 March 2008, a Directions Hearing on 26 May 2008, a further Planning Meeting on 21 October 2008, and Directions Hearings on 12 November 2008 and 21 January 2009. Pursuant to s 55(7) of the PPIP Act, the Privacy Commissioner elected to exercise his right to be heard in these proceedings and to appear before the Tribunal in order to make submissions as appropriate.

11 At the hearing on 17 February 2009, there was discussion about whether EN’s application to the Tribunal was lodged prematurely, given that, UTS argued, EN’s request for an internal review was not received by UTS until 7 January 2008. This would mean that the 60 day period referred to in s 53(6) of the PPIP Act had not expired by 30 January 2008. The matter was resolved by BE lodging a new application for review by the Tribunal on behalf of her husband and, pursuant to s 55 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’), I determined that in the circumstances, there being no objection by UTS, the application should be treated as having been lodged with the Tribunal within a reasonable time.

12 It then became clear that it would be necessary for me to determine two preliminary issues before proceeding to deal with the substantive matters raised in EN’s application for review. The first (jurisdictional) issue is whether EN applied for an internal review of the conduct claimed to be in breach of the IPPs or HPPs within six months of first becoming aware of that conduct, as required by s 53(3)(d) of the PPIP Act. The second issue is whether EN applied to UTS for alteration of personal information held about him under s 15 of the PPIP Act. These issues are addressed below.

Did EN apply for an internal review in accordance with s 53(3)(d)?

13 Section 53(3)(d) of the PPIP Act provides that an application for internal review of conduct of a public sector agency must:

Ò(d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the applicationÓ

14 Thus, to determine whether EN complied with this provision, it is necessary to identify the conduct about which EN complains, when that conduct occurred, and when he first became aware of that conduct. In terms of the conduct about which EN complained, I agree with Ms Morris’s submissions, on behalf of the Privacy Commissioner, that there are appear to be two broad complaints relevant to the PPIP Act and the HRIP Act. First, that UTS lost correspondence between BE and the former Chancellor of UTS, Sir Gerard Brennan, containing EN’s personal and/or health information. This correspondence, which was also the subject of the proceedings in BE v UTS, comprises four letters that BE sent to the Chancellor, dated 28 October 2002, 29 October 2002, 15 March 2004 and 29 March 2004, together with a letter from the Chancellor to BE dated 30 March 2004.

15 Secondly, that UTS allegedly used, circulated and/or refused to correct inaccurate information about EN. In BE’s internal review application letter dated 27 November 2007, she identified 12 relevant documents, dated between February 2000 and December 2006, including EN’s student academic record. I note, as Ms Morris pointed out, that EN’s broader grievances against UTS concerning his PhD candidature and employment are beyond the jurisdiction of the Tribunal, which is limited to reviewing conduct concerned with personal and health information claimed to be in breach of the PPIP Act and the HRIP Act.

The Lost Correspondence

16 With regard to the lost correspondence between BE and the Chancellor, BE states that she became aware of the loss of her four letters to the Chancellor on 3 July 2007 on receipt of an email from UTS’s Privacy Officer to this effect. BE said she told EN of this on the same day. With regard to the Chancellor’s letter to BE dated 30 March 2004, BE said she became aware of the loss of this letter on 23 August 2007 when Helen Fleming of Eakin McCaffery Cox, UTS’s former solicitors, provided her with a copy of UTS’s Privacy Officer’s note of 5 April 2007 confirming that this was missing. Again, BE said she told EN of this on the same day that she became aware – that is 23 August 2007. UTS does not appear to dispute this.

17 BE contends that UTS were aware well before receipt of EN’s authority on 7 January 2008 that her husband had authorised her to act on his behalf in relation to his complaints against UTS, and he had previously supplied the necessary authorisation to this effect. Reviewing the correspondence between UTS and BE over a number of years prior to November 2007, this would certainly appear to the case. I therefore find that the request for an internal review signed by BE on behalf of EN was made within six months of EN becoming aware of the loss of the letters. Thus, the Tribunal has jurisdiction with regard to EN’s application with respect to the lost correspondence.

The Inaccurate Information

18 With regard to EN’s second complaint, that UTS allegedly used, circulated and/or refused to correct inaccurate information about EN, UTS contends that EN was aware of the relevant conduct more than six months before the internal review applications were made. I take the same view as above as to the date the application for internal review was made – that is on 27 November 2007, in the absence of any evidence from UTS as to when the application signed on that date was received.

19 As mentioned above, in her letter accompanying the internal review application dated 27 November 2007, BE referred to 12 documents containing inaccurate information, the first document being “Student’s Academic Record”, and the other documents comprising correspondence from staff of UTS concerning EN and, in one case, a “Research Degree Progress Report” on EN’s PhD candidature for the autumn semester of 2006. Accompanying a letter to UTS dated 5 January 2008, BE attached a summary of the conduct complained about in the two internal review applications. She claimed that UTS:

“has been FALSELY stating in its verbal and written communications with my husband and other people inside and outside UTS during the past 7 years (a) that my husband failed his doctoral assessment because he does not have expertise in QUANTITATIVE TECHNIQUES, (b) that my husband is required to undertake further doctoral assessment, and (c) that my husband’s job performance as a UTS lecturer is less than satisfactory.”

20 BE stated that EN became aware of the conduct in either August or October 2007. On 23 August 2007, Ms Fleming, of Eakin, McCaffery Cox, solicitors, provided BE with copies of a number of emails. On 2 October 2007, Teresa Whitters of UTS provided BE with a copy of the Academic Promotions Committee Report of 5 March 2003 and, on the same day, Grant Van Wingerden of UTS provided BE with a copy of a letter from Professor Tennant to Professor Lynch of 21 February 2003. In each case, BE said she gave these to EN on the same day.

21 In the UTS report on the internal review, provided to BE under cover of a letter dated 21 April 2008, Helen Juillerat, Manager, Governance Policy and Support of UTS’s Governance Support Unit, only dealt with one part of the complaint relating to inaccurate information – that relating to EN’s academic record (with particular reference to Spring Semester 2002) - on the ground that EN would have been aware of the conduct complained of in October 2002. Ms Juillerat said:

“In several items of correspondence both [EN] and [BE] were advised that should they wish to seek to have University records amended in relation to [EN]’s candidature in the Doctor of Philosophy, they should have applied under the Freedom of Information or privacy legislation. According to a memorandum prepared by the then FOI Officer and Privacy Contact Officer, she had several telephone conversations with [BE] at that time, but no application was made.”

22 Thus, UTS declined to accept the internal review request on the ground that it was not made within six months of EN becoming aware of the conduct, as required by s 53(3)(d) of the PPIP Act. UTS has continued to rely on this in its submissions to the Tribunal, noting that a request for internal review that is lodged out of time is not reviewable by the Tribunal: Y v Director-General, Department of Education and Training [2001] NSWADT 137 at [73] (per O’Connor DCJ, President); MG v Director-General, Department of Education and Training [2004] NSWADT 137 at [41], a decision upheld by the Appeal Panel in MG v Director-General, Department of Education and Training [2004] NSWADTAP 45.

23 As Ms Morris pointed out in her submissions, the above decisions establish that the Tribunal does not have jurisdiction to review an agency’s refusal to accept an internal review request on the ground that it was made out of time. However, the Tribunal does have jurisdiction to consider whether the internal review request was, in fact, out of time. The relevant question to ask, therefore, is when EN became aware of the conduct comprising the alleged use and/or disclosure of inaccurate personal information by UTS.

Alleged inaccurate information about EN’s PhD candidature

24 BE said that instead of utilising the provisions of the PPIP Act or the Freedom of Information Act 1989, she sought the help of the Student Ombud, Dr John Twyford, with regard to EN’s PhD candidature. She said Dr Twyford found no valid discontinuation of EN’s candidature. However, in part because Dr Twyford’s role did not extend to staffing issues, she also contacted the Chancellor, Sir Gerard Brennan, asking him to intercede on behalf of her husband, which he did, initiating an investigation.

25 BE said it was not until 23 August 2007 that EN became aware UTS had accepted that he did not fail his doctoral assessment, when she was furnished with a copy of Professor Mark Tennant’s letter to Professor Ian Palmer dated 26 October 2006. However, it appears from his letter to EN dated 27 October 2006, that what Professor Palmer was saying was that he did not accept that EN had successfully completed a doctoral assessment. In my view, Professor Palmer was not saying that EN had failed a doctoral assessment – merely that EN had not successfully completed one, which Professor Palmer said was a requirement of EN’s candidature. I note Professor Palmer’s quoting of Professor Tony Hall on page 4 of the letter of 27 October 2006. Professor Palmer acknowledged that the Research Student Review Panel’s recommendation was later appealed successfully, but said their recommendation “does provide an indication of what they regarded as the problematic parts of your academic work”. My point in referring to this letter of 27 October 2006, is that, in my view, it is clear that EN was aware of the alleged conduct relating to the doctoral assessment at that date. It is therefore unnecessary for me to consider the evidence of other documents to which UTS referred in support of its contention that EN became aware of the conduct at an earlier date.

26 With regard to BE’s claim that it was not until 2 October 2007 that EN became aware of Professor Tennant’s letter to Professor Lynch dated 21 February 2003 recommending that, because of the particular circumstances, EN not be required to undertake a doctoral assessment, this was the subject of the letter from Professor Tennant to EN dated 4 March 2003. In that letter, Professor Tennant asked EN to sign and return a copy of the letter to acknowledge his agreement to the proposed arrangement. EN did not do so and, as the Chancellor said in his letter to BE dated 30 March 2004, quoted by Professor Palmer in his letter to EN dated 27 October 2006, because EN did not accept the proposed arrangement, “requirements for his ongoing candidature reverted to normal process”. Again, I find that it is clear that EN was aware of the alleged conduct referred to in Professor Tennant’s letter dated 21 February 2003 more than six months before BE lodged the internal review applications.

27 I conclude from the above that EN’s applications for internal review in relation to the alleged inaccurate information about his PhD candidature were not made within six months of his becoming aware of the alleged conduct. Indeed, the evidence indicates that EN had long disputed the accuracy of the alleged conduct. Thus, UTS was entitled to decline to deal with this part of the internal review applications and, consequently, the Tribunal has no jurisdiction to review that conduct.

Alleged inaccurate information about EN’s teaching

28 BE also refers to UTS furnishing her with a copy of the Academic Promotion Appeals Committee’s report dated 5 March 2003 on 2 October 2007. This report refers to EN’s teaching being given a ‘Major’ ranking by the Senior Lecturer Promotions Committee when considering his application for promotion. According to BE, a ‘Major’ ranking means ‘more than satisfactory’. BE says that this contradicts a statement dated 11 September 2002 prepared by Associate Professor Christopher Terry, then Head of School in the School of Finance and Economics, in which EN was a lecturer, to NRMA Insurance, apparently in relation to a workers compensation claim made by EN against UTS. In this statement, Professor Terry, commenting on EN’s teaching, said:

“My view is that [EN] performs less than satisfactorily as a Lecturer. I would say his main problem is lecturing and speaking to large groups. He is better with smaller groups and tutorials.”

29 While EN may not have received a copy of the report dated 5 March 2003 until 2 October 2007, it seems likely that EN would have had knowledge of how his teaching was ranked at around the time of his application for promotion to senior lecturer in 2002. However, in the documents provided by BE is a letter dated 14 August 2007 from CGU Insurance to her husband concerning his workers compensation claim. The letter states it encloses a copy of the factual investigation report by SC Hall & Co dated 1 October 2002. In her ‘Chronology’, BE states that this report enclosed the statement by Professor Terry dated 11 September 2002, which EN had never seen before.

30 While I have no direct evidence from EN as to this, I am prepared to accept that it is likely that he would not have previously seen such a report prepared for these purposes. I therefore find that, on the balance of probabilities, EN did not become aware of this statement until he saw this letter with enclosures on or about 14 August 2007, within a period of six months of the internal review applications. Thus, in my view, UTS was not entitled to decline to deal with this part of the internal review applications on the basis that the applications were out of time.

31 I note that in the UTS report on the internal review, provided to BE under cover of a letter dated 21 April 2008, Ms Juillerat has not addressed the issue of the alleged inaccurate information in this statement. On page 1 of the report she stated:

“I also advised [BE] that the references in her letters on [EN]’s behalf to such matters as workplace bullying and defamation were outside the scope of the privacy legislation and could not be dealt with in the internal review.”

32 While defamatory remarks are not of themselves within the scope of the privacy legislation, the accuracy of any personal information held by an agency is a relevant matter. To that extent, the alleged conduct may be within the Tribunal’s review jurisdiction. This is a matter on which I will invite further submissions from the parties.

Did EN apply to UTS for alteration of personal information held about him?

33 Section 15(1) of the PPIP Act states:

(1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information:
(a) is accurate, and
(b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading.

34 I have reviewed the summary of her internal review applications that BE attached to her letter to Ms Juillerat dated 5 January 2008. The only action requested involving the amendment of personal information held by UTS about EN is the following:

“To remove the false ‘fail’ mark for Spring Semester 2002 on [EN]’s Academic Record and write a letter to [EN] that this correction has been done.”

35 There is no dispute between the parties that the ‘fail’ entry on EN’s academic record has now been removed. BE states that on 12 March 2008 Ms Juillerat sent her confirmation of this and provided a copy of UTS’s internal transcript of EN’s academic record.

36 UTS acknowledges that BE has made requests for various UTS staff to write letters declaring particular statements in documents to be incorrect, but contends the requests were not for the amendment of the actual documents.

37 BE pointed to her letters to Teresa Whitters, HR Partnership Manager, UTS dated 9 September 2007 and 30 September 2007. In both these letters, copies of which have been provided by BE, BE focuses on an allegation of workplace bullying against her husband and canvasses remedies in general terms. In my view, it is not clear that either letter is seeking a specific amendment of EN’s personal information held by UTS.

38 While the possibility of EN requesting UTS to amend the personal information held about him has been raised on several occasions in Planning Meetings in these proceedings, I am not satisfied that there is clear evidence of a request for the amendment of specific personal information held by UTS falling within the scope of the internal review applications, other than that in respect of the ‘fail’ entry on EN’s academic record referred to above, upon which UTS has acted. I note, however, that this does not prevent EN from making a fresh application in the future.

Decision

39 In conclusion:

(1) The Tribunal has jurisdiction with regard to EN’s application in relation to (a) the lost correspondence, and (b) the alleged inaccurate information about EN’s teaching.

(2) The Tribunal does not have jurisdiction with regard to the alleged inaccurate information about EN’s PhD candidature.

(3) The Tribunal is not satisfied that there is clear evidence of a request by EN for the amendment of specific personal information held by UTS falling within the scope of the internal review applications, other than that in respect of the ‘fail’ entry on EN’s academic record.

40 After publication of this decision, the Tribunal will arrange a Directions Hearing with the parties to discuss a timetable for the exchange of any further evidence and submissions on the outstanding substantive issues in this matter.