EY v Department of Corrective Services

[2008] NSWADT 317

CITATION:	EY v Department of Corrective Services [2008] NSWADT 317
DIVISION:	General Division
PARTIES:	APPLICANT EY RESPONDENT Department of Corrective Services
FILE NUMBER:	083054
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	3 June 2008
DATE OF DECISION:	28 November 2008
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Privacy - information protection principle - disclosure to third party
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Criminal Records Act 1991 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998
CASES CITED:	EG v Commissioner of Police, NSW Police Service [2003] NSWADT 150 GL v Director General, Department of Education and Training [2003] NSWADT 166 PN v Department of Education and Training [2006] NSWADT 122 Y v Director General, Department of Education [2001] NSWADT 149
REPRESENTATION:	APPLICANT In Person RESPONDENT G Singer, solicitor
ORDERS:	The Tribunal has no jurisdiction to hear and determine this application

Publication Restriction: In accordance with Practice Note No.13 the publication of the name, address, or any other material that identifies the applicant is prohibited.

REASONS FOR DECISION

Introduction

1 This is an application by EY (‘the applicant’) seeking review of conduct by the Department of Corrective Services (‘the respondent’) which he alleges was a breach of his privacy under the Privacy and Personal Information Protection Act 1998 (‘the PPIP Act’). EY is an employee of the respondent and the conduct he complains of is the respondent’s disclosure of three events concerning EY and other matters to the Government and Related Employees Appeal Tribunal (‘GREAT’). This information was contained under the heading ‘Additional information supplied by the Department’ in written submission the respondent had filed in response to an appeal EY had lodged with GREAT. EY had lodged the appeal after his application for an Assistant Superintendent position within the respondent had been unsuccessful.

2 The matters that were disclosed in the respondent’s submissions included the following events:

(a) EY’s suspension in 1985 to 1988 pending determination of criminal charges relating to firearms offences allegedly committed by him. He had pleaded guilty to two of the charges and the Court found these charges to be proven but did not enter convictions against the applicant;

(b) the issue of a warning letter to EY in 1995, following his conviction of larceny in the District Court;

(c) the formal counselling of EY in 1998 in regard to an alleged breach by him of the Code of Conduct and Ethics, following his alleged inappropriate display of Department pictures and information on his personal website.

3 The other matters of concern to EY were comments about his ability to get on with his peers and supervise a small team and other comments relating to his past work performance.

4 In his application for review, EY asserted that the above three events were of no relevance to his application before GREAT. Each of the matters he said had long been resolved, or ‘spent’ under the Criminal Records Act 1991. He also asserted that this and the other information was either incorrect (i.e. false), out of date or misleading.

5 In its internal review determination under section 53 of the PPIP Act, the respondent found that the conduct of which EY complained was not conduct that fell within the terms of the PPIP Act as it did not involve his ‘personal information’ as defined in that Act. The information it said fell within the terms of the exception in paragraph 4(3)(j) of the PPIP Act. That is it was information or opinion about his suitability for appointment to the position he had applied for and which was the subject of the appeal to GREAT.

6 In the alternative, the respondent determined that there was no breach of the PPIP Act as the information had been collected for a lawful purpose which was directly related to the functions or activities of the respondent and its disclosure was for a purpose for which it was collected.

7 When the matter came before the Tribunal, the respondent contended that the issue as to whether the conduct the subject of review involved EY’s ‘personal information’ as defined in the PPIP Act was an issue going to the Tribunal’s jurisdiction to hear and determine this application and it should be determined as a preliminary matter. That this was the case was not disputed and the parties agreed that it was an issue that could be determined on the papers. Orders were made for the filing and serving of submissions. The respondent also filed a copy of its written submissions to GREAT.

Issues

8 There is really only one issue for determination in this preliminary issue and that is whether the matters complained of by EY as contained in the respondent’s submissions to GREAT was information about EY that fell within the terms of paragraph 4(3)(j) of the PPIP Act.

9 In his application for review, EY had also asserted that the conduct of the respondent was a breach of the Health Records and Information Privacy Act 2002. In my opinion the information that is the subject of this application does not fall within the terms of that Act. In the event I am incorrect, the provisions of that Act are very similar to those contained in the PPIP Act and on this basis I have not considered the conduct in context of the Health Records and Information Privacy Act 2002 any further.

Relevant Legislation

10 The Tribunal’s jurisdiction to hear and determine an application for review of conduct under the PPIP Act arises pursuant to s.38 of the Administrative Decisions Tribunal Act (‘the ADT Act’) and s.55 of the PPIP Act. Section 38 of the ADT Act gives the Tribunal jurisdiction to review a decision of an administrator where the enactment under which the decision has been made makes provision for applications to be made to the Tribunal for review of that decision or such a class of decision. Section 55(1) of the PPIP Act gives the Tribunal jurisdiction to review the findings of an agency made in regard to an internal review application (see s.53(1) of the PPIP Act) where the internal review applicant is not satisfied with the findings of the agency.

11 Section 52(1)(a) sets out the ‘conduct’ which may be the subject of an internal review application under s.53(1). That ‘conduct’ is described as being a ‘contravention’ by the agency of an ‘information protection principle’ that applies to the agency. An ‘information protection principle’ is defined in s.3 to mean the provisions that are set out in Div 1 of Pt 2 of that Act. These provisions are ss.8 to 19 and they concern the collection, retention and security, access, use and disclosure of ‘personal information’ by a government agency. There is no dispute that the respondent is subject to the provisions of the PPIP Act in regard to the collection, retention and security, access, use and disclosure of ‘personal information’.

12 The term ‘personal information’ is defined in s.4 of the PPIP Act and relevantly provides 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 data base 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) …

(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.”

13 The application of paragraph 4(3)(j) of the PPIP Act was considered by the Tribunal in Y v Director General, Department of Education [2001] NSWADT 149 (‘Y’s case’); GL v Director General, Department of Education and Training [2003] NSWADT 166 (‘GL’s case’); EG v Commissioner of Police, NSW Police Service [2003] NSWADT 150 (‘EG’s case’) and PN v Department of Education and Training [2006] NSWADT 122 (‘PN’s case’).

14 In Y’s case, at paragraph [33], the Tribunal’s President described the test as set out in paragraph 4(3)(j) as follows:

“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’.”

15 In Y’s case the applicant, a part-time senior assistant employed at a country school sought review of the conduct of the respondent in disclosing an edited version of a management review report of the school at which she worked. This report contained comments about the applicant’s work performance that had been obtained during the course of the review. At [37] the President found that this information about Y came within the paragraph 4(3)(j) exception to ‘personal information’. In making this finding, at paragraphs [35] and [36], the President said:

‘35. … the principal and teaching staff face the risk that their performance in the workplace may be assessed. Information may be collected and opinions formed … which bear on the suitability of the employment of the individual member of staff. …

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-cooperativeness, 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).’

16 In Y’s case, the President rejected a submission of Y that paragraph 4(3)(j) ought to be construed as referring only to information that was collected in the course of a selection process or a formal disciplinary process.

17 In GL’s case, the Tribunal’s Deputy President, Magistrate Hennessy, considered whether the conduct of the respondent in providing a risk assessment report about GL, prepared by the Principal of GL’s former school, to the Principal of GL’s new school was personal information and did not fall within the exception in paragraph 4(3)(j). The report arose from a complaint that had been made by parents of a pupil at GL’s former school. The complaint concerned GL’s teaching methods and behaviour and it was investigated. GL was subsequently assessed as fit for work by Healthquest and a recommendation was made that GL be transferred to a new school. In being transferred an officer of the respondent suggested that, for information purposes, the report of the Principal from GL’s former school be provided to the Principal of GL’s new school. The respondent argued that the information about GL in this report came within the terms of paragraph 4(3)(j) of the PPIP Act. GL argued that the report was not provided in the context of her suitability for appointment or employment because at the time the report was sent she had been found fit for work as a teacher. The Deputy President agreed and stated (at paragraph [40]):

‘The content of the document and the context in which it was provided led to the conclusion that the applicant’s suitability for appointment or employment was not a live issue.’

18 In EG’s case, the Deputy President found that a letter sent by NSW Police to the Legal Practitioners’ Admission Board raising issues about EG’s suitability for legal practice in light of his suspension from the NSW Police was not information that came within the terms of paragraph 4(3)(j) exemption. The Deputy President found that having regard to its content and context it was information concerning EG’s suitability as a legal practitioner and therefore personal information falling within s.4(1) of the PPIP Act.

19 In PN’s case, Judicial Member Montgomery found that specific comments about PN’s work performance, made by the Principal of the school where PN taught, on a ‘Workplace Injury Notification Form’ and a ‘Employer’s Report of Injury’ did not fall within the terms of the exemption in paragraph 4(3)(j). The forms were completed as part of PN’s claim for compensation and not for the purpose of her suitability for employment. A similar finding was made in regard to the comments about PN’s work performance that were made by an executive staff member of the school to PN’s rehabilitation providers as a result of her compensation claim.

20 Judicial Member Montgomery also made his finding by having regard to the content and context of the information. In regard to the paragraph 4(3)(j) exception he also said the following:

“58. As the Privacy Act is beneficial legislation, any exclusion from the definition of “personal information” should be interpreted narrowly. 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 s.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.”

21 In the following paragraph (i.e. [59]), Judicial Member Montgomery stated that in his opinion there could be circumstances where some of the matters complained of by PN would fall within this exclusion.

22 In this application, having regard to the content of the information of which EY complains and the context in which it was given, for the reasons set out below, I find that the matters of which EY complains is ‘personal information’ falling within the paragraph 4(3)(j) exception.

23 As mentioned above, the information was contained in written submissions of the respondent to GREAT in regard to EY’s appeal of the respondent’s selection committee having chosen an applicant other than him for the position he had applied for. The submissions were written by the convenor of the selection committee for the position EY had applied for. The convenor of the committee is also an officer of the respondent and the submissions provide details of the interview process and the findings of the committee in regard to the successful candidate and EY. The matter complained of by EY is towards the end of the submissions and is identified as being additional information provided by the respondent. EY submitted that these were added for the purpose of the GREAT appeal. This was not disputed by the respondent.

24 It was EY’s submission that paragraph 4(3)(j) of the PPIP Act had no application to persons who were already appointed to or employed by a public sector agency. On its proper construction, he said the paragraph only applied to those persons who were seeking employment or appointment to a public sector agency. In my opinion the wording of the paragraph and the section as a whole does not support such a construction. It is also contrary to the findings of the Tribunal in the abovementioned decisions.

25 The information complained of by EY is clearly information about and opinions of EY and therefore personal information coming within s.4(1) of the PPIP Act. However, in my opinion having regard to the content and context of the information it is also information about and opinion about EY that concerned his ‘suitability for appointment or employment as a public sector official’ and it was given in this context. The thrust of the information and opinions concerns EY’s performance over time as an employee of the respondent and it is given in the context of EY’s suitability for the position he had applied for. That position being a sensitive managerial position. The Tribunal’s task for the purpose of determining its jurisdiction to hear and determine an application for review under s.55(1) of the PPIP Act, is to make a finding that the information of which the applicant complains is in fact ‘personal information’ concerning the applicant. By virtue of the definition of ‘personal information’ in section 4 of the PPIP Act it is also necessary to consider whether the information falls within one or more exceptions in s.4(3). If it is found to fall within one of these categories then the conduct complained of does not fall within the PPIP Act. In this application, from its content and context, I have found that the information of which EY complains does fall within one of these exceptions. This does not mean that they were not matters that GREAT could not assess as to their relevance, or correctness.

26 In regard to EY’s submissions concerning the application of the provisions of the Criminal Records Act 1991 concerning the offences of which he had been convicted or found guilty. That legislation makes provision for certain offences to be ‘spent’ after a particular period of time and prohibits the disclosure of ‘any information concerning a spent conviction’ to another person other than a ‘law enforcement agency’ or in other prescribed circumstances: see s.13 of that Act. No evidence, other than the respondent’s submissions to GREAT, was provided to the Tribunal in this regard. These submissions primarily deal with disciplinary action that had been taken against EY in the past. In any event having found that the information and opinion concerning EY falls within paragraph 4(3)(j) of the PPIP Act this is not a matter for the Tribunal to have regard to. Whether it was a matter raised before and considered by GREAT was not referred to in the submissions.

27 For the reasons set out above I find that the Tribunal has no jurisdiction to hear and determine this application.