Od v Department of Education and Communities

[2013] NSWADT 136

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	OD v Department of Education & Communities [2013] NSWADT 136
Hearing dates:	On the papers
Decision date:	13 June 2013
Jurisdiction:	General Division
Before:	S Montgomery, Judicial Member
Decision:	The Tribunal decides not to take any further action on the matter.
Catchwords:	Privacy - Jurisdiction - Meaning of "Personal Information" - Exception in relation to Information or Opinion about Suitability for Employment
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998
Cases Cited:	AF v Minister for Health; Minister for Health v AF [2012] NSWADTAP 16 OD v Department of Education and Training [2006] NSWADT 312 Y v Department of Education and Training [2001] NSWADT 149
Category:	Principal judgment
Parties:	OD (Applicant) Department of Education & Communities (Respondent)
Representation:	OD (Applicant in person) S Butler, Senior Legal Officer (Respondent)
File Number(s):	123237

reasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is a matter brought pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 ("the Privacy Act").

1. In these reasons the names of all private individuals have been anonymised so as to preserve the privacy of their personal affairs. In these reasons the Applicant is referred to as OD.

Background

1. OD has been employed at a TAFE college operated by the Respondent for a number of years. He has also attempted a number of TAFE courses over the years and as such has at various times been a student of the Respondent.

1. By letter dated 21 May 2012 OD requested an internal review regarding conduct, which he asserted was in breach of his privacy.

1. He asserted that on 23 November 2011 he found a memo ("the memo") in a bookcase located in one of his areas of responsibility while he was working at his place of employment. The memo is dated 12 February 2004, was written by a Senior Officer of the Respondent ("the SO"), and was apparently addressed to OD. He asserted that he had never seen the memo before 23 November 2011.

1. The memo stated:

"Dear [OD]

[A specified course with which OD was involved] is not offered in 2004.

After consultation with ... Manager College Services, you are required to [perform the specified work].

This is in accordance with your qualifications, efficiencies in timetabling ... as determined by the timetable. Your [work roster] will allow you to have a Roster day off.

Your area of responsibility is [as specified]. ... From the College management view, you are under programmed.

It is your duty to ensure that [duties were performed as specified].

...

I wish to congratulate you on the successful completion of subjects in [a course OD had studied] and I wish to strongly encourage you to continue. You will have my full support in your studies. Completion of additional subjects will unable [sic] you to [carry out tasks currently carried out] by agency staff.

Please submit a new working roster for approval. Thank you for your cooperation"

1. OD asserted that his privacy has been breached, as he has never discussed his results with the SO or anyone else in the section of the Respondent from which the memo originated.

1. OD asserted that the Respondent had breached provisions of the Privacy Act in relation to

• the collection of his personal information;
• the security or storage of his personal information;
• the use of his personal information; and
• the disclosure of his personal information.

1. OD stated that his studies results are personal and that he decides to whom he give this information. OD further stated that it was his decision to never give the SO any personal information. The reason being that in the past she had breached his privacy and had unlawfully disclosed personal information to other staff members.

1. After finding the memo OD raised the issue with the SO. The SO sent OD an email in which she stated that at the time that the memo was written some staff, including OD, were required to upgrade their qualifications. She stated that this requirement was well known by other officers in OD's workplace and as Senior Officer she recommended approval for their study leave to the Manager. She stated that accordingly she was well aware of OD's studies at that time.

1. OD asserted that he enrolled and paid for the course referred to in the memo on his own account and nobody asked him to enrol in it. It was his sole decision. He asserted further that the SO unlawfully obtained his results from a source other than him, without his consent, that she used it to favour other Officers and that she unlawfully passed on this information to the Manager.

1. OD asserted that at the time the memo was written the SO was working in a role that probably gave her access to other students' records.

Applicable legislation

1. The Tribunal's jurisdiction to review the conduct of an agency is pursuant to section 55 of the Privacy Act and section 38 of the Administrative Decisions Tribunal Act 1998 ("the ADT Act").

1. Section 55(1) of the Privacy Act provides that a person who is not satisfied with the findings of an internal review or the action taken by the public sector agency in relation to the application for internal review may apply to the Tribunal for a review of the conduct that was the subject of the application for internal review under section 53.

1. Section 38 of the ADT Act provides that the Tribunal has jurisdiction to review a decision if an Act provides that applications may be made to the Tribunal for a review of the decision

1. Part 5 of the Privacy Act deals with review of the conduct of a public sector agency. The conduct that can be the subject of such a review is identified at section 52 and includes the contravention by a public sector agency of an information principle or a privacy code of practice that applies to the agency.

1. The information principles are set out at sections 8 to 19 of the Privacy Act. They apply only to personal information.

1. The expression of "personal information" is defined in section 4 of the Act as:

4 Definition of "personal information"

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

...

1. Many forms of information are not included in the definition and these are listed at subsection 4(3). They include

(3) Personal information does not include any of the following:

...

(j) information or an opinion about an individual's suitability for appointment or employment as a public sector official,

...

1. The parties agreed for the matter to be determined on the papers without the need for hearing.

The Internal Review

1. The A/Chief Legal Officer in the Respondent's Legal Services Directorate undertook an internal review in regard to OD's complaint. The review considered the issue of whether the information contained in the memo is "personal information" for the purposes of the Privacy Act. It concluded that the information is not personal information but rather information in the nature of information about OD's suitability for appointment or employment as a public sector official. The review concluded that the provisions of section 4(3)(j) of the Privacy Act capture the information.

OD's Case

1. OD referred to previous proceedings in which the Respondent was found to have breached provisions of the Privacy Act: see OD v Department of Education and Training [2006] NSWADT 312. In that matter the Respondent was ordered to render an apology to the Applicant and to pay damages of $500 to the Applicant. OD is clearly dissatisfied with the Respondent's actions since that determination. He also contends that the Respondent has continued in its failure to comply with the Privacy Act and its own policies.

1. OD pointed to a number of incidents within the workplace, which suggest that animosity exists between OD and various members of staff. He alleges that the current issue arose within that environment.

1. He contends that the Respondent's policy requires that student's records regarding attendance and results are to be kept private and confidential. He submitted that as a student his privacy was breached. His complaint is that his results were obtained from the student records without his consent and as an employee he suffered the collateral damage.

1. He further contends that at the time the memo was written he wasn't aware of his own results because none of the teachers of those subjects had informed him that he had passed his exams. He has been unable to establish how SO had obtained the information. He submits that it is probable that SO took the results from the Respondent's class management system - CLAMS.

1. OD does not dispute that the SO was aware of his enrolment in the course he had studied. His concern is the means by which she had learned that he had passed the subject.

1. OD further asserts that SO misused the information to transfer OD from work in an area in which he was qualified to one where he was not qualified. He submits that in doing so she was not doing what was expected from her but was following her own agenda and applying her own rules. OD asserts that the SO favoured other staff to his detriment. He also asserts that the SO's approach to rostering staff attracted numerous complaints from staff, teachers and students.

1. OD submits that section 4(3)(j) does not apply to this case as the information was collected from the student's record without his consent. He further submits that the information was not relevant to any purpose as it was never required. He says that this is because he was already qualified to perform the work for which he was rostered. He submits that the SO has breached sections 9, 10, 11, 12, 16.17.18 and 62(1) as she has consulted the information with her line supervisor.

1. As noted, the parties agreed for the matter to be determined on the papers without the need for hearing. As a consequence, OD's evidence has not been challenged.

1. OD seeks apologies from the Manager College Services for the following:

• breach of privacy;
• unlawful disclosure of personal information;
• defamation, harassment and discrimination;
• not complying with Equal Employment Opportunities Principles in regards to fair distribution of workload, complaints resolution and the right to apply for a vacant position;
• the enormous amount of extra unpaid work; and
• the loss of time and the inconvenience in pursuing this cause.

The Respondent's Case

1. The Respondent submits that the application should be dismissed for want of jurisdiction.

1. The information that is the subject of this application is confined to OD's results referred to in the memo. The Respondent submits that the information concerning OD's professional qualifications is not personal information and is not subject to the Privacy Act. It submits that the information is about OD's suitability for appointment and employment as a public sector official and therefore comes within the exemption to personal information at section 4(3)(j) of the Privacy Act. Consequently this Tribunal can have no jurisdiction to review the conduct in relation to it.

1. The Respondent pointed to the content of the memo and noted that the memo does not actually identify any particular subjects but refers in general terms to subjects that OD had completed.

1. The Respondent submits that the SO was responsible for allocating work to OD. To perform this role she needed to know the subjects in which staff, such as OD, were enrolled and the subjects they had successfully completed. Where the study was undertaken at the college where OD worked, the college held this information. There was no apparent formal process for obtaining results for those subjects.

1. The Respondent contends that it attempts to ensure that it is able to meet the teaching requirements for the subjects offered at OD's workplace by matching the qualifications of staff such as OD to the learning outcomes of the courses. The Respondent contends that it encouraged staff to upgrade their qualifications so they could undertake additional work.

1. In August 2003, OD completed a study leave form for the subjects he was studying in semester 2 that year. He identified the subjects to be undertaken. At the time it was the SO's responsibility to recommend approval for OD's study leave application. In an email dated 28 November 2011, from the SO to OD, the SO explained that she was aware of the subjects studied by OD.

1. The SO had the role of requesting and obtaining evidence of qualifications from staff for the assessment process. At the completion of the assessment the Manager College Services informed staff, including OD, of the role that they were required to perform. This was subsequently revised in light of additional information about OD's qualifications.

1. Failure to inform the SO of the successful completion of a subject may have restricted the work available to a staff member. Failure to inform the SO of unsuccessful completion of a subject may have resulted in a staff member performing work that he/she was not qualified to perform.

1. The SO advised that she received results directly from staff and teaching staff. The Respondent also contends that it is not unusual for staff to know the subjects being undertaken at the college by staff. The SO does not deny that she knew the results of subjects that OD studied in semester 2 of 2003. However she stated that she couldn't recall how she learned of OD's results.

1. The Respondent submits that the absence of a formal procedure to obtain results from staff does not negate the fact that the context in which this information was obtained is directly related to the employment of the staff member.

1. The Respondent submits that the question of whether or not information is "about an individual's suitability for appointment or employment as a public official" is to be determined by consideration of both the content and the context of the information. In this case the Respondent submits that both the content and context lead to the inevitable conclusion that OD's results is information about his suitability for employment. This information forms part of OD's professional qualifications as it is directly related to his work. Further, it is submitted that OD's suitability for employment was a live issue at the time the memo was written and there was no action that severed the nexus that the information had with OD's employment.

1. The Respondent acknowledges that OD's results were 'information' held on his student records. However, the Respondent relies on the test articulated in Y v Department of Education and Training [2001] NSWADT 149 at paragraph [33] in support of its submission that the information it can reasonably be said to be information about OD's suitability for employment. In that matter the Tribunal's President stated:

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'. ...

1. The Respondent submits that the content of the information confirms OD's eligibility to undertake work. The context in which the information was "collected" was to update records of staff employed in the section thereby enabling management to allocate work in accordance with their professional qualifications and to facilitate timetabling of staff.

1. The Respondent also relies on comments by the President in Y v Department of Education and Training at paragraph [36] where he identified the limits to the application of the exemption:

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).

1. The Respondent notes that this observation was considered by the Appeal Panel in AF v Minister for Health; Minister for Health v AF [2012] NSWADTAP 16. That case involved information in a referral letter from the RTA to Health Quest and advice about an employee's ability to perform her duties at work on medical grounds. The Appeal Panel stated at paragraph [43]

The use of the word 'must' in para [36] above is, we think on reflection, too strong. The question is always a broader one of context and content.

1. The Appeal Panel stated at paragraph [55]:

... In our view an opinion about 'suitability for employment' may extend to suitability for the type and grade of employment in which the officer is presently engaged. ...

1. And further at paragraph [58]:

The exemption should only be applied to material that goes to the subject matter of suitability for employment. But equally it is not unusual, we consider, for relatively elaborate detail to be given in situations where future continued employment and its nature is an issue.

1. The Respondent submits that OD's results are information that falls within the narrower interpretation of 'suitability' as it identifies his aptitude and competence in regard to work as part of his current employment. However, if this is found not to be the case, the Respondent submits that it is information that is necessary to determine OD's suitability for future continued employment as expressed in AF v Minister for Health; Minister for Health v AF.

Discussion

1. I agree with the Respondent's submission in regard to the applicable law. It is clear from the cases referred to that it is necessary to consider the content of the information in issue and the context in which it is found.

1. There can be no doubt that the context of the memo was the consideration of the work that OD was required to perform. The information in issue is a reference to results of subjects that OD had completed.

1. The information is framed as an offer of congratulations to OD however I accept that in the context of his employment, the work allocation was dependent on either OD being enrolled in the courses or having successfully completed them. In that regard, while the particular course that was referred to may not have been directly relevant to current roster, it was relevant to work to which he might have been allocated.

1. It follows in my view that the information falls within the exception provided by section 4(3)(j) of the Privacy Act.

1. Therefore, the information concerning OD's qualifications is not personal information and is not subject to the Privacy Act. It follows that the Tribunal has no jurisdiction to review the conduct in relation to it and the application should be dismissed for want of jurisdiction.

1. If I am wrong on that issue, it is my view that OD has not established that the Respondent has breached any provisions of the Privacy Act. In order to establish the alleged breaches it would be necessary to show that the SO had obtained the information in breach of the Privacy Act. It is not clear how the SO came to be in possession of the information. It is possible that it was obtained by accessing OD's student records but it is equally possible that it came from another source. Similarly, it is not clear that the SO used the information to favour other Officers or that she unlawfully passed on this information to the Manager. If she in fact did so, it is possible that she was acting on a frolic of her own. If that were the case the Respondent should not be held responsible for her actions. In any event, there is insufficient evidence to establish that the SO used the information to favour other Officers or that she unlawfully passed on this information to the Manager.

1. In my view no further action should be taken on the matter.

1. OD's assertion as to the circumstances in which the memo was located has not been challenged before the Tribunal. I note that the person who was responsible for placing the memo where OD was able to find has not been identified. It is my view that the circumstances in which the memo came to light are such as to suggest that it is probable that the person responsible for placing the memo where OD was able to find it would have done so deliberately. They would have been acting on a frolic of their own. That being the case, the Respondent should not be held responsible for the actions of that person.

Order

The Tribunal decides not to take any further action on the matter.

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Decision last updated: 13 June 2013