EY v Department of Corrective Services (GD)

[2009] NSWADTAP 25

Appeal Panel - Internal

CITATION:	EY v Department of Corrective Services (GD) [2009] NSWADTAP 25
PARTIES:	APPELLANT EY RESPONDENT Department of Corrective Services
FILE NUMBER:	089079
HEARING DATES:	24 March 2009
SUBMISSIONS CLOSED:	24 March 2009
DATE OF DECISION:	27 April 2009
BEFORE:	O'Connor K - DCJ (President); Pearson L - Judicial Member; Blake C - Non-Judicial Member
CATCHWORDS:	Privacy – “Personal Information” – Scope of Exclusion – section 4(3)(j) – Information relating to Suitability for Employment – Construction – Privacy and Personal Information Protection Act 1998, s 4(1), s 4(3)(j)
DECISION UNDER APPEAL:	EY v Department of Corrective Services [2008] NSWADT 317
FILE NUMBER UNDER APPEAL:	083054
DATE OF DECISION UNDER APPEAL:	11/28/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998 Workers Compensation Act 1987
CASES CITED:	Department of Education and Training v PN (GD) [2006] NSWADTAP 66 EG v Commissioner of Police, New South Wales Police Service [2003] NSWADT 150 EY v Department of Corrective Services [2008] NSWADT 317 GL v Director General, Department of Education & Training [2003] NSWADT 166 OD v Department of Education and Training (GD) [2005] NSWADTAP 74 PN v Department of Education and Training [2006] NSWADT 122 TA v Department of Education and Training [2006] NSWADT 246 Wickstead v Browne (1992) 30 NSWLR 1 Y v Director General, Department of Education & Training [2001] NSWADT 149
REPRESENTATION:	APPELLANT In person RESPONDENT N Sharp, counsel / G Singer, solicitor
ORDERS:	1. Leave to appeal granted. 2. Appeal dismissed.

1 EY has worked for many years in the Department of Corrective Services (the Department). The Department is a public sector agency bound to observe the Privacy and Personal Information Protection Act 1998 (the Privacy Act).

2 In or around 2007 he occupied the position of Senior Correctional Officer and applied for promotion to the position of Assistant Superintendent, Armoury Security & Intelligence Branch. His application was unsuccessful. He appealed to the Government and Related Employees Appeal Tribunal (GREAT).

3 At the appeal, in accordance with the usual process, the Department’s submissions took the form of a report from the convenor of the selection panel. They were filed on or around 17 July 2007. The report gave an account of the selection panel’s deliberations as they related to the selection of the preferred applicant, and included comments on the application of EY. The report also included a section headed ‘additional information’. The information dealt with work-related events in EY’s employment by the Department belonging to the period 1985-1988, and the years 1995 and 1998. In EY’s opinion, by furnishing this additional information to the appeals tribunal, the Department had contravened various protections afforded to him by the Privacy Act in relation to the handling of his personal information.

4 As required by the Privacy Act, he first complained to the Department (3 December 2007) and it, as required, undertook an internal review. The Department decided (on 22 January 2008), following internal review, that it had not contravened the Act principally on the ground that the personal information was not regulated by the Act.

5 As permitted by the Act, EY applied to this Tribunal for review of the conduct (on 18 February 2008). The Tribunal ruled in favour of the Department’s submission that the circumstances were not regulated by the Act, and held that it was without jurisdiction: see EY v Department of Corrective Services [2008] NSWADT 317 (28 November 2008).

6 The additional information is described as follows at para [2] of the Tribunal’s reasons:

‘(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.’

7 A decision summarily dismissing an application is an interlocutory one (see Administrative Decisions Tribunal Act 1997 (ADT Act), s 24A(1)(h); and also, Wickstead v Browne (1992) 30 NSWLR 1 at 11). An appellant requires the leave of the Appeal Panel to appeal an interlocutory order: ADT Act, s 113(2A). Subject to that requirement, the appeal proper may, as of right, raise a question of law, and, with the leave of the Appeal Panel, may be extended to the merits: s 113(2).

The Appeal

8 EY appealed by notice of appeal filed 10 December 2008, accompanied as required by an application for leave to appeal. The Department opposes the grant of leave.

9 There is no dispute that the information described above falls within the Privacy Act’s primary meaning of ‘personal information’ (s 4(1)), i.e.:

‘ 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’.

10 The issue is whether the following exclusion from the primary meaning is applicable (s 4(3)(j)), i.e.:

‘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.’

11 In our view, the question of law raised by the appeal, relating as it does to the proper interpretation of an exclusion from the meaning of ‘personal information’, involves an issue of general significance for the operation of the Privacy Act. The Department has in its submissions addressed all of the issues raised by EY in his leave application and in his notice of appeal. In these circumstances, the convenient course, we think, is to grant leave and deal with the issues raised by the appeal. They fall within a narrow compass.

12 The appeal questions the correctness of a line of authority in the Tribunal as to the proper interpretation of the exclusion. The Tribunal below saw itself as bound by that line of authority. In the alternative, EY argues that s 4(3)(j) should be read as only applicable to the situation of a first-time applicant for public service employment or a first-time candidate for an appointment, and in particular that it is not applicable to continuing employees such as him.

13 EY emphasised that he was not aggrieved by the ultimate decision to appoint someone else to the position, but by the fact that the Department had introduced into the employment appeal hearing, personal information about him that ought not have been revived.

14 EY submitted that the description given by the Tribunal of the personal information in issue was incomplete and inaccurate in certain respects. In its submissions to the Appeal Panel, the Department divided the information that it had given to GREAT into seven categories of which the first three were in similar terms to those used by the Tribunal. The Department submitted that the conclusion reached by the Tribunal was equally applicable to all seven items of information, and nothing turned on the omission of the further four items from the Tribunal’s list.

15 We will return to EY’s submissions on this matter later in these reasons. For the present, we will deal with the Tribunal’s decision as it relates to the above three items of information. In our view, as explained later in these reasons, the Tribunal’s description accurately reflected the contents of the Department’s submission to GREAT.

Line of authority

16 The first Tribunal case to deal with the meaning to be given to s 4(3)(j) was Y v Director General, Department of Education & Training [2001] NSWADT 149 at [33], before the President sitting at first instance.

17 As we have noted, the information of concern to EY was recorded in a submission to an appeal against a selection decision. On the other hand, in Y’s case the context fell outside the formal process of employment decision-making. The personal information under notice appeared in a management review report prepared for the Department. Y had for many years been a senior administrative assistant at a small rural primary school. The report sought to examine the reasons for staff leaving the school after short periods of service. In her complaint to the Department and her subsequent application to the Tribunal, Y put in issue four texts that appeared in the final report of the review.

18 The first text referred to Y’s non-responsiveness to the allegations put to her by the review team at a meeting. The second text referred to a finding by the review team relating to an alleged improper attaching of notes of a meeting to a newsletter distributed to students and parents. The third text was the review team’s conclusion relating to a significant breakdown in interpersonal relations in the school to which it is said Y had contributed. The fourth text was a recommendation that Y be transferred.

19 The Tribunal referred to the submissions of the applicant, the agency and the Privacy Commissioner (who exercised his right to intervene in the proceedings and make submissions). The Tribunal concluded:

‘33 The test, as I see it, must in each case be 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. (As it has transpired the transfer recommendation has not been implemented.)

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 in 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 the operation 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).’

20 The test propounded at para [33] has been accepted and applied in a number of Tribunal decisions to contexts seen as involving the suitability of a person for employment or appointment as a public sector official beyond those described as ‘routine’ or ‘orthodox’ in the above dicta. See for example, EG v Commissioner of Police, New South Wales Police Service [2003] NSWADT 150 at [24] (dealing with provision of information about a serving officer’s suspended employment status to a legal profession admission authority where the officer was an applicant for admission); GL v Director General, Department of Education & Training [2003] NSWADT 166 at [40] (results of a complaint investigation reported by previous principal to the new principal of the school to which the applicant had transferred); TA v Department of Education and Training [2006] NSWADT 246 at [33] (information in a file relating to a worker’s compensation claim made by the applicant that concerned behaviour of the applicant in dealing with a complaint made by a parent of a student, and whether that was appropriate as a teacher).

21 The decision in TA was further considered in the cases of PN v Department of Education and Training [2006] NSWADT 122, where an agency defence relied on the exclusion in s 4(3)(j); and on appeal, appeal dismissed, in Department of Education and Training v PN (GD) [2006] NSWADTAP 66.

22 In PN, a teacher had made a worker’s compensation claim after suffering depression. In response to enquiries from the insurer, the school administration supplied the insurer with information relating to her performance as a teacher. While the ‘content’ of the information could be said to bear on her suitability, the Tribunal at first instance was not satisfied that ‘context’ was an employment or appointment one. The Appeal Panel agreed, and noted in particular that the information had not been generated with a view to assessing her suitability for employment or appointment.

23 The Appeal Panel reviewed the Tribunal case-law as follows:

‘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. [[2005] NSWADTAP 74]

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. …’

24 In PN the agency raised a new point before the Appeal Panel. It argued that s 4(3)(j) was applicable, having regard to a then recent amendment to the Workers Compensation Act 1987 – s 11A. Section 11A provides that a psychological injury is not compensable under that Act if it is the result of action reasonably taken by an employer in connection with such matters as transfer, demotion, promotion, performance appraisal, discipline, retrenchment, dismissal or provision of employment benefits (Workers Compensation Act 1987, s 11A).

25 The Appeal Panel rejected the submission. It said:

‘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.’

26 More generally, the Appeal Panel agreed with the Tribunal below that it was appropriate to apply an interpretation of the exclusions from the meaning of ‘personal information’, including s 4(3)(j), an approach which was conservative or narrow. Such an approach promoted the beneficial purpose intended to be achieved by the protections given by the privacy legislation. In conclusion it said:

‘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.’

27 In our view, the approach taken in the above line of authority remains persuasive. We agree with the observations in PN about the need for care in applying the exception, and in ensuring that the circumstances are ones where suitability for employment was a live issue.

28 In our view, Y was a clear case falling on one side of the line and PN provides a good illustration of a case falling on the other side of the line. In Y the management review’s terms of reference were such that it was possible that recommendations might result that bore on the future employment of staff or change in their employment circumstances, such as relocation. In PN the live issue was the determination of a compensation claim to which a past history as to conduct in the workplace was relevant. It was not a process which was assessing suitability for employment in a prospective way.

The Present Case

29 We have dealt at some length above with the case law of the Tribunal dealing with the application of s 4(3)(j) as it has developed in relation to situations lying at the margins.

30 This is not a case of that kind. Here, the information was furnished to an employment appeals tribunal. The information was squarely cast by its presenter (the convenor of the selection panel) as information relating to EY’s suitability for employment in the position for which he had applied.

31 The emphasis given in Y and subsequent cases to ‘context’ and ‘content’ is simply designed to assist the trier of fact in applying the exclusion to the facts. They are not legislative requirements.

32 The Tribunal in the present case said at [25]:

‘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.’

33 The position was Assistant Superintendent, Armoury Security & Intelligence Branch. The position description sets out the reporting line, and states that the position is responsible for overseeing the provision, maintenance and evaluation of all Departmental weapons and associated equipment. The position has supervisory responsibility for one senior correctional officer, one part time worker and a number of inmates.

34 The submission to GREAT by the convenor of the selection panel gave an account of the selection process, and the panel’s reasons for preferring the selected applicant and its comments on the appellant to GREAT, i.e. EY. It then addressed EY’s claim to greater merit. That assessment was followed by a heading ‘Additional Information supplied by the Department’ (p 14) which stated that ‘a review of the appellant’s personal file [sic] has established serious concerns about his suitability for such a sensitive role’.

35 The three items to which the Tribunal referred at para [2] of its reasons are an accurate record of the ‘summary of key events’ given by the convenor at p 14 of the submission.

36 The fuller text that appears after the summary of events is based on comments received from previous supervisors of EY. There is no question that some of the information is very damaging to EY, for example the comment referring to a fixation with guns, and other comments that criticise EY’s capacity for mature judgement. There are also references to what is seen as the limited nature of his operational experience. Many of these comments are more in the nature of opinions than pure assertions of fact.

37 In his written and oral submissions to the Appeal Panel, EY sought to dispute the fairness and accuracy of these comments. That course can only be ventured upon within the framework of an application for review under the Privacy Act if the Tribunal has jurisdiction.

38 In our view the Tribunal’s finding was correct. The information contained in the additional comments was relevant to the suitability of EY for a position involving responsibility for the safekeeping and maintenance of firearms equipment and for a position of greater seniority than his present one. It was for the appeals tribunal to assess how much weight should be given to the information, and to weigh it against EY’s overall record of performance and to have regard to his submissions and other evidence.

Other Matters

39 As to EY’s alternative submissions (exclusion only applicable to first-time applicants), there is nothing in the words used in s 4(3)(j) to support a limitation of this kind. If there was a limitation of this kind, to take one example, the very odd circumstance would arise that external candidates for a public service position would be deprived of the Act’s protections while internal candidates for the same position would retain the Act’s protections. We would expect very clear words to be used if such a result had been intended by the legislature.

40 EY also notes that his application to the Tribunal sought to invoke the protections afforded by the Health Records and Information Privacy Act 2002 (HRIPA). It is arguable whether this legislation was engaged by his application for internal review, and whether therefore it fell within the scope of the internal review, and consequently the scope of the application to the Tribunal: see further, the Tribunal’s reasons at [9].

41 We will deal with the point briefly. HRIPA and the Privacy Act have the same definitions for the primary term, ‘personal information’. They differ in some respects in relation to the categories of exclusion. However, HRIPA has an exclusion in identical terms to the one under notice in this case: see HRIPA, s 5(3)(m). The function of HRIPA is to regulate a particular sub-set of ‘personal information’ which is described as ‘health information’ (as to which, see s 6). Necessarily, the ‘health information’ can not include any category of ‘personal information’ that has been excluded from the meaning of ‘personal information’. We agree with the Department’s submission that the Tribunal would have been compelled, had it chosen to address the question expressly, to repeat the conclusion it reached in relation to the Privacy Act.

42 Finally, we also agree with the Tribunal’s conclusions as to the non-applicability of the protections afforded by spent convictions legislation to that part of the information given to GREAT which had that character: see Tribunal reasons at [26].