PN v Department of Education & Training

[2006] NSWADT 122

CITATION:	PN v Department of Education and Training [2006] NSWADT 122
DIVISION:	General Division
PARTIES:	APPLICANT PN RESPONDENT Department of Education and Training
FILE NUMBER:	053113; 053114
HEARING DATES:	31/12/05
SUBMISSIONS CLOSED:	12/31/2005
DATE OF DECISION:	04/26/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Privacy and Personal Information Protection Act 1998 Teaching Services Act 1980
CASES CITED:	EG v Commissioner of Police, New South Wales Police Service [2003] NSWADT 150 GL v Director-General, Department of Education and Training [2003] NSWADT 166 Y v Director General, Department of Education [2001] NSWADT 149
REPRESENTATION:	APPLICANT L Goodchild, barrister RESPONDENT M Filippeli, solicitor
ORDERS:	1. The information that is the subject of each of PN’s complaints is ‘personal information’ for the purposes of the Privacy and Personal Information Protection Act 1998; 2. The Registry is to re-list the matter for a further planning meeting on a date to be fixed in consultation with the Tribunal, the parties and the Privacy Commissioner.

REASONS FOR DECISION

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 PN.

2 The present proceedings are brought pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 (“the Privacy Act”) and follow an internal review that was conducted pursuant to section 53 of that Act.

3 PN’s complaints concerned the allegation that officers of the Department of Education and Training (“the Department”) provided information to investigators and rehabilitation providers in breach of the Privacy Act’s Information Protection Principles (“IPPs”).

Background

4 PN was employed as a teacher at a school (“the School”) operated by the Department. In early 2003, PN signed an "Employee's Compensation Claim" where she stated that she was suffering from depression. She returned to work on a return to work rehabilitation program in October 2003.

5 In November 2004 PN lodged two complaints with the Department in which she alleged breaches of the Privacy Act by officers of the Department. The first complaint was against the Principal of the School ("the Principal complaint") and related to the Principal’s completion of a "Workplace Injury Notification Form" and “Employer's Report of Injury", and her interview with the workers compensation investigator.

6 The second complaint was against an executive staff member at the School ("The Staff Member complaint") and related to The Staff Member’s communication with Rehabilitation Injury Management (Aust) Pty Ltd (“RIM”) reporting on comments made at the School by PN as well as providing notes regarding PN’s return to work plan.

7 The Director of Legal Services for the Department undertook the internal review and determined that there had been no breach of the IPPs and that no further action should be taken on the matter. PN has filed an application with the Tribunal seeking review of the conduct that was the subject of her complaints.

8 The question of whether the information that is the subject of PN’s complaints is "personal information" under the Privacy Act is to be decided as a preliminary matter. The Tribunal has no jurisdiction if the information disclosed is found not to be personal information.

9 The matters were heard together with the hearing limited to this issue. Ms Filippeli filed written submissions and also made oral submission on the issue. She also provided what I consider a reasonable summary of the two complaints. Ms Goodchild made oral submissions on the issue.

The Privacy Act provisions

10 The definition of "personal information" is contained in section 4 of the Privacy Act which states:

“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.

(2) Personal information includes such things as an individual’s fingerprints, retina prints, body samples or genetic characteristics.”

11 Subsection 4(3) provides fro a number of exclusion from the definition. It provides in part:

“(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"

12 "Public sector official" is defined in s 3 of the Privacy Act as follows:

""public sector official" means any of the following:

…

(c) a person employed in the Public Service, the Teaching Service or the Police Service"

13 The Principal complaint consists of an 11 page hand-written document with two sets of 11 numbered appendices consisting of 69 pages. It contains allegations or complaints, which are identified as S1, S2, S3, S4 and S5.

S1

14 The Principal completed a Workplace Injury Notification Form (dated 11 February 2003) reporting an alleged injury "(as described by "PN") depression due to workplace difficulties". This Form was provided to GIO Injury Management Centre (“GIO”) and the Personnel Support Officer with the Department’s St George District Office (“the Support Officer”).

15 PN complains about the comments that appear on the form under a section that asks:

“(Optional) is this claim questionable” [Yes was circled]:

If Yes, please comment:

16 The Principal wrote

“there has been ongoing conflict in the faculty. Mediation has been implemented & ongoing strategies are in place to manage situation."
S2

17 The Principal completed an Employer's Report of Injury (dated 27 February 2003) reporting to GIO and the Support Officer. PN complains about a comment that appears on that form under a section that requests:

"Details of previous related injuries if known”

18 The Principal wrote

“On going conflict.”

19 Under a section that requests:

GIVE DETAILS OF OTHER CIRCUMSTANCES WHICH WOULD ASSIST THE INSURER TO ASSESS THE CLAIM (Eg. Do you query the validity of the claim? If so, why?)

20 The Principal wrote

“In my opinion, this is part of a complex, ongoing situation”
S3

21 The Principal provided ‘employer’s perspective’ information with respect to PN’s injury claim. PN complains that the Principal made a number of fabricated, unsubstantiated statements to the workers compensation investigator.

S4

22 PN complains that the Principal provided all her unauthorised records regarding an incident at the faculty meeting on 25 November 2003 to The Staff Member, and authorised her to send these documents to the GIO Insurance based Rehabilitation Provider.

S5

23 PN complains that she did not authorise the Principal to exchange information with her Rehabilitation Provider or the doctor nor was the Principal authorised to do so by PN’s employer. PN’s employer has not assessed the Principal’s information for its accuracy and validity. PN was not given an opportunity to make corrections or amendments. PN complains that the Principal's actions were beyond the scope of her duties and constitute abuse of power and that she provided unauthorised information in a bad faith and displayed corrupt conduct.

The Staff Member complaint

24 The Staff Member complaint consists of a 20 page hand-written document with 9 numbered appendices consisting of 50 pages. It contains allegations or complaints identified as T1 and T2:

T1

25 PN complains that shortly after her return to work on 20 October 2003 The Staff Member began to contact her Rehabilitation Provider and reported her disappointment about PN’s participation in the school's life. PN says that on 8 December 2003 The Staff Member advised PN’s Rehabilitation Provider that PN was a difficult person to communicate with and offered to prepare and send a detailed report on PN’s Rehabilitation progress to PN’s Rehabilitation Provider.

PN submits that The Staff Member’s actions were illegal and corrupt. PN says that The Staff Member did not have PN’s permission to exchange information with PN’s Rehabilitation Provider or the doctor nor was she authorised by PN’s employer to undertake such actions. PN says that The Staff Member's actions were beyond the scope of her duties and constitute abuse of power.

T2

26 PN complains that in her Report dated 9 December 2003 The Staff Member made numerous inaccurate, misleading and dishonest statements and expressed personal, discriminatory opinions based on intentional bias.

The Department’s case

27 The Department contends that in this case, all relevant information collected, used or disclosed was information touching upon the issue of PN’s employment with the Department. As such, that information is "information or an opinion about an individual's suitability for appointment or employment as a public sector official", and thus excluded from the definition of "personal information" by section 4(3)(j) of the Privacy Act. The Department says that the information dealt with:

· PN’s conduct in the course of her employment,

· PN’s co-operativeness in the course of her employment,

· PN’s ability to work effectively as part of a team in the course of her employment,

· PN’s interpersonal skills in the course of her employment,

· PN’s workers' compensation claim, and

· PN’s return to work.

28 Ms Filippeli submits that the information in issue can be summarized as follows:

a. Form completed by The Principal (referred to in S1)

b. Relevant parts of the form completed by The Principal (referred to in S2)

c. The Principal spoke to persons investigating PN’s compensation claim (referred to in S3). From such communication, a Pre-liability Assessment was prepared by the workers compensation investigator.

d. The Principal interviewed members of staff of the school, including PN, in relation to a meeting that was held at the school on 25 November 2003 and made notes of those interviews. (Referred to in S4)

e. The Staff Member communicated with RIM reporting on comments made at the school by PN. (Referred to in T1)

f. The Staff Member provided RIM with her "notes" regarding PN’s "return to work plan". (Referred to in T2)

29 Ms Filippeli referred to decisions in the matters of 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") and EG v Commissioner of Police, New South Wales Police Service [2003] NSWADT 150 ("EG") and submits that these matters have established the general principle that the question as to whether or not information is "about an individual's suitability for appointment or employment as a public sector official" is to be determined by consideration of both the content and the context of the information.

30 In this case, PN was at all relevant times an employee of the Department. She was employed as a teacher under the Teaching Services Act 1980. The Department contends that information about the conduct of employees at work and their fitness for duties are relevant to the functioning of the Department. It argues that in this case, suitability was a live issue as PN had submitted an ‘Employee's Compensation Claim’ and as a result of alleged injury was absent from work and subsequently returned to work. In these circumstances, both the content and context lead to the inevitable conclusion that the information is about PN’s "suitability for appointment or employment".

31 The Department contends that in S1, the comments made by The Principal on the "Workplace Injury Notification Form" which PN complains about describe in general terms the circumstances in the faculty. There is no personal information disclosed - there is no identification of parties involved or information about an individual.

32 The Department contends that in S2, the comments made by The Principal on the "Employer's Report of Injury" relate to the circumstances of the claim. There is no personal information disclosed - there is no identification of parties or information about an individual.

33 The Department contends that in S3, the comments made by The Principal to the workers compensation investigator were in the context of PN’s suitability for employment following her alleged injury and therefore not personal information.

34 The Department contends that in S4, S5, T1 and T2 the information provided by The Principal and The Staff Member to the Rehabilitation Provider was in the context of PN’s suitability for appointment or employment following her return to work, and went towards issues of her conduct in the workplace, including her co-operativeness, ability to work effectively as part of a team, and her interpersonal skills. Accordingly, it is submitted, adopting the case law discussed previously, that it is not personal information.

35 For these reasons, the Department submits that the information subject of this application is not personal information and is not subject to the Privacy Act. Consequently, this Tribunal can have no jurisdiction to review conduct in relation to it.

PN’s case

36 Ms Goodchild submits that the Department’s approach is too simplistic. She says that this view ignores the step-by-step process outlined by the Tribunal’s President at paragraph’s 33 to 36 in Y’s case, and the ‘content of the document and the context in which it was provided’ approach taken by the Deputy President in GL. She further submits that a purposive approach to interpretation is to be adopted which considers the aims and objects of the legislation. As the Privacy Act is beneficial legislation, any exclusion should be interpreted narrowly.

37 Ms Goodchild contends that in S1, the information included in the ‘optional’ section of the form is likely to be a breach of privacy. A principal lodges the Injury Notification form within 48 hours of becoming aware of an injury. Its purpose was to notify the Department’s St George District Office of the injury. However, The Principal has discussed matters that were not directly related to the injury. She has referred to conflict and issues within the faculty with respect to the question of whether the claim is questionable. The optional information is personal information concerning management issues known to The Principal. At that stage such commentary was unnecessary and would be irrelevant until the investigative stage was reached. Ms Goodchild concedes that as part of the investigative process this information could be provided without breach of the Privacy Act. There would be no breach then because of the context in which it would be provided. She raises a similar argument in relation to S2.

38 She submits that the notation is not to be taken in isolation. PN’s identity is apparent when the documents are read as a whole.

39 Ms Goodchild also submits that the Tribunal should not ignore the fact that the information was provided by The Principal who had been the subject of criticism by PN. She says that the information is tainted because of The Principal’s involvement.

40 Ms Goodchild contends that in S3, The Principal’s employer’s perspective information contains information that is not directly relevant to PN’s injury but rather it is related to other matters. She also contends that it is incomplete, contains information that is unfounded and contains information that is not necessary for the investigation of PN’s injury claim. For example, the reference to cultural differences between PN and a head teacher should not have been discussed, as that is not a matter necessary for the further investigation of PN’s injury. It is not relevant to PN’s suitability for employment and is not for The Principal to consider. The Principal has been implicated and therefore there can be no suggestion that these comments can fall within the suitability for employment exception. They are matters that should have been the subject of investigation by the Department’s injury management unit.

41 Ms Goodchild contends that in S4 and S5, the context of the release of The Principal’s notes to The Staff Member to the Rehabilitation Provider is important. She argues that this is clearly personal information, PN’s identity is apparent from the notes and the information is not relevant to PN’s suitability for employment. These notes concern an incident at the school and deal with workplace issues. PN didn’t see the material before it was sent, she was not told it was going to be sent and PN did not authorise the provision of the information to the Rehabilitation Provider.

42 The context of The Staff Member’s role is that of alternate head teacher. As part of PN’s return to work plan there was to be no direct contact between PN and the head teacher. The Staff Member was to act as a buffer between PN and the head teacher. The incident which was the subject of The Principal’s notes is said to have arisen because of and the head teacher having direct contact with PN contrary to that plan. It therefore does not relate to PN’s suitability for employment. Ms Goodchild also contends that The Staff Member’s role did not give her any authority to forward material to the Rehabilitation Provider. Her only role was that of alternate head teacher. The system that was established as part of PN’s return to work plan was such that there was no need for The Staff Member’s involvement and it was not authorised.

43 Ms Goodchild contends that in T1, the issue concerns the many contacts between The Staff Member and RIM regarding PN and the incident at the school. The Staff Member informed RIM about issues that PN had raised at a Federation meeting. Ms Goodchild contends that The Staff Member was a colleague at the School and had no authority to contact RIM. She says that the discussion that took place at a Federation meeting is of no relevance to PN’s suitability for employment and is of no concern to The Staff Member. Ms Goodchild says that for some reason The Staff Member took it upon herself to have direct contact with RIM and discuss occupational health and safety issues. The issues raised are of no relevance to PN’s suitability for employment.

44 Ms Goodchild contends that in T2, The Staff Member’s notes contain personal information but The Staff Member’s views are of no relevance to PN’s suitability for employment. They are unsolicited comments. PN was not told that The Staff Member was doing this, she had no opportunity to check it and she did not authorise it.

45 Ms Goodchild contends that there is an overriding principle that information about an individual must be accurate and used for the purpose for which it was collected. She queries whether information or an opinion about an individual can ever be about their suitability for employment if it is inaccurate, where proper procedures are not followed and the individual's privacy is not protected.

46 She submitted that the ramifications of the release of this information are significant. She contends that the medico-legal report provided in relation to PN’s was changed in light of the information that The Staff Member provided. The release of unauthorised notes, evidencing an opinion that has not been checked for accuracy is exactly what the Privacy Act is designed to address.

Findings and Decision

47 This is a preliminary issue with respect to whether or not the information that is the subject of PN’s complaints is "personal information" under the Privacy Act. If the information is not personal information then the projections afforded by the Privacy Act have no application.

48 The Tribunal’s President considered the operation and scope of section 4(3)(j) of the Privacy Act in Y’s case. In that matter the Department argued that the application was not competent, as information concerning the applicant that had been disclosed was not "personal information" as defined by the Privacy Act and for that reason, there was no jurisdiction. The President rejected a submission that section 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.

49 At paragraph [33], the President was of the view that:

"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’."

50 Further, at paragraphs [35] and [36], the President found that information:

“35 ... 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 … which bear on the suitability of the employment of individual members 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-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).”

51 Section 4(3)(j) of the Privacy Act was also considered in GL and EG.

52 In GL, the Tribunal’s Deputy President considered the issue of whether information contained in a report about a complaint from the parents of a pupil about GL's teaching methods and behaviour that was sent to the principal of the school that GL had transferred to, for his information, was exempt from the definition of "personal information" under s 4(3)(j) of the Privacy Act. GL argued that the report did not contain information about her suitability for appointment or employment because the report was sent to the new principal after the Government medical office found her 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 lead to the conclusion that the applicant's suitability for appointment or employment was not a live issue"

53 Accordingly the information in the report was "personal information" within the meaning of the Privacy Act and the Tribunal had jurisdiction.

54 The Deputy President again considered the issue in EG in relation to a letter sent by the NSW Police to the Legal Practitioners Admission Board raising issues about EG’s suitability for legal practice. The letter was written at a time when EG was under suspension from NSW Police and after an article in a daily paper referred to his suspension.

55 In the Tribunal, NSW Police argued that the information fell outside the definition of personal information because, inter alia, it was information about EG’s suitability for public sector employment. The Deputy President found that the information in question was not information about EG's suitability for public sector employment, as distinct from his suitability as a legal practitioner.

56 In the present matter the parties are in agreement that these decisions establish the principle that the question as to whether or not information is "about an individual's suitability for appointment or employment as a public sector official" is to be determined by consideration of both the content and the context of the information.

57 I agree with Ms Goodchild’s argument that a purposive approach to interpretation is to be adopted. The scope and purpose of the Privacy Act is reflected in the long title which begins “An Act to provide for the protection of personal information, and for the protection of the privacy of individuals generally …”. Such a purpose is also evident from the wide definition of “personal information” in section 4.

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 section 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.

59 I generally agree with Ms Goodchild’s argument that information in issue is personal information for the purposes of the Privacy Act. I have formed this view in regard to the complaints that are identified as S1 and S2 because of the context in which the information was provided. Had it been provided at another time the same information might well have attracted the exclusion under section 4(3)(j) of the Privacy Act. In their context I do not consider that the information was relevant to PN’s injury but rather it is related to other matters. In that context the information was not relevant to PN’s suitability for employment.

60 I also agree with Ms Goodchild’s arguments with respect to the remaining complaints however, my view is not subject to the same qualification as it is for complaints S1 and S2. For example, I have difficulty in imagining any circumstance where the provision of information about issues that PN had raised at a Federation meeting could ever attract the section 4(3)(j) exclusion. Similarly, any cultural differences that may exist between PN and a head teacher are not relevant to PN’s suitability for employment.

61 In summary, it is my view that the information that is the subject of each of PN’s complaints is ‘personal information’ for the purposes of the Privacy and Personal Information Protection Act 1998. Accordingly, the Tribunal has jurisdiction to hear and determine this matter.

62 The Registry is to re-list the matter for a further planning meeting on a date to be fixed in consultation with the Tribunal, the parties and the Privacy Commissioner.