Od v Department of Education and Training

[2005] NSWADT 161

Pending Appeal:

CITATION:	OD v Department of Education and Training [2005] NSWADT 161
DIVISION:	General Division
PARTIES:	APPLICANT OD RESPONDENT Department of Education and Training
FILE NUMBER:	043323
HEARING DATES:	27/05/2005
SUBMISSIONS CLOSED:	05/27/2005
DATE OF DECISION:	07/14/2005
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Jurisdiction - Privacy - information protection principle - contravention of
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Privacy and Personal Information Protection Act 1998
CASES CITED:	Y v Director-General, Department of Education & Training [2001] NSWADT 149
REPRESENTATION:	In person J Harrison, solicitor
ORDERS:	Orders made 27 May 2005: The information that is the subject of the application is not 'personal information' for the purposes of the Act. Accordingly the Tribunal has no jurisdiction to make the orders sought.

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.

2 OD has been employed by the Department of Education and Training for a number of years. OD has also attempted a number of TAFE courses over the years and as such has at various times been a student of the Department.

3 OD complained that information regarding his overseas qualifications and their assessed equivalence to Australian courses, was collected from the National Office of Overseas Skills Recognition (“NOOSR”), without OD’s consent and used and disclosed by staff of the Department, again without consent, and that the information collected from NOOSR was unnecessary, irrelevant, inaccurate and out of date.

4 OD feels deeply aggrieved that he has been the subject of false allegations and that information and opinions adverse to him have been distributed throughout the area within the Department in which he works. This has caused him a great deal of stress and anxiety and his efforts in trying to resolve this case have consumed an enormous amount of his time. He has sought to utilise the Act’s processes as a way of dealing with what he sees as inaccurate, misleading, unfair and defamatory material.

5 OD has asserted that the Department has breached the Information Protection Principles in sections 9, 10, 11, 12, 16, 17 and 18 of the Privacy and Personal Information Protection Act 1998 (“the Act”). His complaint was investigated and the conclusion reached that was no breach of the Information Protection Principles as alleged. An internal review that was conducted pursuant to section 53 of the Act affirmed this position.

6 The present proceedings are brought pursuant to section 55 of the Act. The matter was heard and determined on 27 May 2005 and I gave brief reasons for my determinations. OD has requested written reasons for those determinations and these reasons are provided in response to that request.

7 On 27 May 2005 I made the determination that the information that is the subject of the application is not ‘personal information’ for the purposes of the Act. Accordingly I found that the Tribunal has no jurisdiction to make the orders sought. In making the determinations, I accepted the arguments presented on behalf of the Department.

8 The information that is the subject of the application is information about OD’s formal qualifications. It seems that at various times since OD commenced working with the Department, information about the qualifications of staff members was generally available to both other staff and members of the public. Qualifications were at one time displayed on a noticeboard within the Department, and that noticeboard was accessible to the public.

9 In more recent times the area within the Department in which OD works was the subject of a restructure. Staff members were asked to provide information with respect to their qualifications in order that the Department could make an assessment of staff suitability to perform various tasks. OD provided information in response to this request. An inquiry was made to NOOSR on behalf of the Department to ascertain the assessed equivalence of overseas qualifications of the kind held by OD to Australian courses. The Department contends that these inquiries were of a general nature and that no information about OD was given to NOOSR as part of those inquiries.

10 The Department has argued that the information regarding OD's qualifications was sought as a consequence of the need to align staff qualifications with the various positions within the new structure. It says that the information is not ‘personal information’ in terms of the Act and therefore it is not subject to the Information Protection Principles in the Act.

11 The definition of "personal information" is contained within section 4 of the Act. Section 4(1) provides:

“(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.”

12 However section 4(3)(j) of the Act provides:

“(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”.

13 The term ‘public sector official’ is defined in section 3 of the Act to include a person who is employed or engaged by a public sector agency. Accordingly OD must be considered to be a ‘public sector official’ for the purposes of the Act.

14 The Act provides for the protection of personal information of individuals. OD has asserted that the Department has breached various Information Protection Principles contained in the Act. Each of those Information Protection Principles deals with "personal information" and breaches of the Information Protection Principles relate to misuse of personal information. The existence of personal information is a prerequisite to any established breach of Information Protection Principles.

15 In my view, information regarding OD's qualifications is "information or an opinion about an individual's suitability for appointment or employment as a public sector official" within section 4 (3)(j) of the Act and is therefore not personal information in terms of the Act. The conduct by the Department about which the Applicant has complained does not involve "personal information". This is consistent with the position adopted by O'Connor DCJ in Y v Director-General, Department of Education & Training [2001] NSWADT 149. The President's findings as to section 4(3)(j) are set out at paragraphs [33] to [36] of his reasons. At paragraph [33], the President said that the test was, "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’."

16 In this case, I agree with the Department’s submission that both content and context lead to the inevitable conclusion that the information is about the OD's "suitability for appointment or employment". The information concerns his academic and professional qualifications and was collected for the purposes of assessing these qualifications and matching them to the work situation. The information is not personal information and is not subject to the Act. Consequently, this Tribunal can have no jurisdiction to review conduct in relation to it. Accordingly, the application should be dismissed.