RL v Department of Education and Training

[2009] NSWADT 257

CITATION:	RL v Department of Education and Training [2009] NSWADT 257
DIVISION:	General Division
PARTIES:	APPLICANT RL RESPONDENT Department of Education and Training
FILE NUMBER:	053263
HEARING DATES:	14 February 2007, 13 June 2007, 4 December 2007 and 7 April 2008
SUBMISSIONS CLOSED:	29 April 2009
DATE OF DECISION:	1 October 2009
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Privacy Act: whether information can be solicited by an agency otherwise than by specific request - whether personal information can be disclosed to a person already aware of that information
LEGISLATION CITED:	Privacy and Personal Information Protection Act 1998
CASES CITED:	ZR v NSW Department of Education and Training [2008] NSWADT 199 OA v NSW Department of Housing [2005] NSWADT 233 MT v Director-General, Department of Education and Training [2004] NSWADT 194 Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 Director General, Department of Education and Training v MT [2005] NSWADTAP 77 Foster v FCT (1951) 82 CLR 606 at 614-615
REPRESENTATION:	APPLICANT In person RESPONDENT J McDonnell (first two days hearing) A Johnson (second two days of hearing)
ORDERS:	1. The proceedings are adjourned for a planning meeting on 27 October 2009 at 3:30 pm to progress the matter, the parties being granted leave to approach the Registry should this date be not suitable.

REASONS FOR DECISION

1 These proceedings have been commenced by the applicant in which she alleges breaches of the Privacy and Personal Information Protection Act 1998 and in which she seeks damages, an apology and rectification of misleading or incorrect records.

2 The relevant factual matrix covers a significant period of time although the background materials may be succinctly summarised. During the year 2002 events were unfolding which centred on Lisarow Public School, a relatively small school situate on the Central Coast of New South Wales. At an earlier point in time the applicant had become concerned about the schooling that her children were receiving at this school. She raised these issues with the appropriate school personnel. Towards the latter half of 2002 these concerns had developed to the extent that serious disputes had arisen which required resolution. Senior officers in the respondent’s employ stepped in to facilitate resolution. Meetings and discussions ensued following which the applicant decided to relocate her children to a nearby school as from the commencement of the 2003 school year. Matters then settled down, to some degree at least, as the 2003 academic year progressed.

3 Quite a lot of evidentiary materials were adduced by the parties dealing with investigations into, and assessment of, the problems that had affected this school. This Tribunal is not concerned with making any findings about how these problems developed and who, if anybody, was at fault or otherwise caused the problems to develop. It is quite clear from the evidence that this particular school may have been plagued with a number of significant problems, apart from the issues with which the applicant was directly concerned. The parties take different stances on this; although the respondent’s evidence does suggest that a number of issues at the school were being looked at (see the evidence of Ms Blanch on 04.12.07 at pages 6.53 and 8.2). However, the only relevance of much of these materials is to establish that problems had developed and that the parties had set about resolving them. The critical factual questions for the Tribunal are what was done and said during the resolution process, as it is these circumstances upon which the applicant’s claim is based. The Tribunal only has jurisdiction to resolve the Privacy issues raised by the applicant, and it can do no more than this.

4 During the course of addressing these several problems, two meetings of significance occurred. The first meeting occurred in early December 2002 at the District office of the respondent. The applicant attended this meeting with a friend, Ms. Leanne Taylor, as it was convened, in part at least, to discuss the concerns that the applicant had for her children’s schooling. Officers of the respondent also attended, including one Ms Blanch. Ms. Blanch was tasked by the respondent with resolving the problems. At this meeting a proposal was discussed that involved the applicant relocating her children to another school. The feasibility of this proposal was discussed during the course of which the applicant informed those at the meeting that she had been diagnosed with multiple sclerosis. This disclosure was made on a confidential basis, its relevance being that, given this medical condition, the applicant wished her children to attend a school nearby her home so that she could walk her young children to school. Lisarow School was so placed. This was clearly a relevant matter for discussion and consideration, to say the least. This relocation proposal was later to be adopted and carried out.

5 A second meeting then occurred in early 2003 at Lisarow School between Ms Blanch and staff who taught at the school. By this time the applicant had relocated her children to another school. This meeting occurred on 12.02.03 and was attended by Ms Blanch together with staff of the school, who had not attended the first meeting. At this stage, the school staff still had concerns and issues which the respondent needed to address. The applicant was not present at this meeting, but she was discussed by those who were. During these discussions Ms Blanch informed those at the meeting that the applicant had been diagnosed with multiple sclerosis. This was in the context that Ms. Blanch was proffering an explanation in relation to the applicant’s past conduct and her current situation. Resolving the concerns that the staff had in relation to the applicant, it was submitted, was part of the duties that Ms. Blanch had to perform. The applicant asserts that this disclosure by Ms Blanch breached relevant privacy legislation by way of user (s.17) or disclosure (s.18). It is common ground that such a communication was in fact made by Ms Blanch at this second meeting. This is said to be the first of three breaches of the Privacy legislation.

6 Following these events, a staff member of the school who had been present at the second meeting, one Lorraine Cook, spoke with Leanne Taylor and discussed the applicant’s medical condition. It is alleged that Ms Cook told Ms Taylor that Ms. Blanch had told those present at the second meeting that the applicant suffered from multiple sclerosis. This is said to constitute the second breach. The precise content of these communications are considered later in these reasons.

7 The third breach alleged is that staff members of the school then advised parents of students at the school of the applicant’s diagnosed medical condition, this being information that they had obtained at the second meeting. This allegation was based on the fact that the applicant was approached by a person who sought to ascertain whether rumours about the applicant’s medical condition were in fact true. Two other breaches were raised during the course of the proceedings, but these matters have now been resolved between the parties (see exhibit R5 paragraph 9 and submissions at hearing).

8 Many factual issues are not in dispute. For example, in relation to the first alleged breach it is common ground that the applicant’s personal information was used, or disclosed, by Ms Blanch and there is similarly much common ground in relation to the second alleged breach. Despite this, the matter is attended by some difficulty, mainly by reason of the reliability of the precise evidence that the Tribunal must consider in order to make necessary factual determinations. Thus, whilst it is clear that employees of the respondent have in fact disclosed personal information concerning the applicant to others, there still remain significant issues as to whether the legislation has been breached. This should not be read as a criticism of the parties, as the representatives on both sides have confined their attention to matters that are truly in dispute between them and have otherwise conducted the proceedings in a professional manner. The essential problem is the reliability of the evidence, given the time that has passed.

9 The first two alleged breaches are attended by a further difficulty. When the applicant advised those present at the first meeting about her medical condition, for the reasons set forth below, she requested that the information be kept confidential. When her medical condition became known generally she was, to say the least, very disturbed. Her reaction is understandable. This is one side of the picture. The other side is that, when Ms Blanch advised those present at the second meeting about the applicant’s disclosed medical condition, she was acting within the course of her duties and the disclosure was relevant to the task at hand and the objects she was endeavouring to achieve. The second alleged breach, that by Ms Cook, involved the type of enquiry that would be made in the normal course of human affairs when one person had a natural concern about the welfare of another. Ordinarily, neither disclosure, in the circumstances attending each disclosure, would attract strenuous criticism. However, the legislation imposes its own regime in relation to each of these disclosures and it mandates what limitations must be observed and what acts are permissible. It is by applying the provisions of the legislation that the disputes before the Tribunal must be resolved.

THE FIRST BREACH ALLEGED

10 In relation to the first breach alleged, the communication by Ms. Blanch effecting the disclosure is common ground. However, the material circumstances under which Ms. Blanch acquired this information and the circumstances under which she later disclosed it to staff members at the second meeting, require factual determinations to be made.

11 At the first meeting, that in December 2002, the applicant disclosed her medical condition to those present (exhibit A2). This was in the context of explaining why she needed to be within walking distance of the school at which her children were to attend. The applicant’s evidence is that she first requested that the information be kept confidential and that those present agreed to this by nodding their consent (exhibit A2 paragraph 16). In her oral evidence the applicant said that she was asked why she did not change schools, to which she replied that it was a complex health issue (transcript 14.02.07 at pages 68.51 ff and 72.23). She then asked those at the meeting whether they wished her to explain. Following an affirmative response, she then disclosed her medical condition. The applicant also gave evidence that the question posed in relation to her re-locating her children to another school was in the context of pressing the point of view that staff members should be relocated, rather than her children (transcript 14.02.07 pages 72.26 ff and 74.29).

12 Ms Taylor’s evidence tentatively confirms parts of the applicant’s evidence as to this meeting in December 2002, but with some hesitation as to detail by reason of the passage of time (statement exhibit A2 and transcript of evidence 14.02.07 at page 35.13). In her statement, Ms Taylor said that the applicant spoke about her medical condition in the course of a conversation about moving to live in a nearby area (page 2, first paragraph), whereas, in her oral evidence, she put this statement in the context of explaining why the applicant believed that she needed to live close to the school attended by her children (transcript page 35.13). Her evidence also suggests that the school was experiencing difficulties from sources that were not directly related to the applicant; she speaks, for example, of the strained relationship between the members of the P & C Association and the Principal of the school.

13 Ms Blanch gave evidence by way of written statement (exhibit R3) and orally. Her evidence was that the applicant first disclosed her medical condition at the meeting during discussions, after which an offer was made to relocate the applicant’s children to another school. Following this offer the applicant said that this would make transport difficult because of her medical condition. In her oral evidence she accepted the possibility that the applicant could have given her medical information on a confidential basis, but there was no elaboration upon the sequence of events as set forth in her statement. She did not include this information in any of her subsequent reports, but she said that she probably recorded the meeting in her daily diary, although she could not recall whether she had entered details of the applicant’s disclosure of her medical condition (transcript 04.12.07 page 4).

14 It is common ground that Ms Blanch acquired knowledge of the applicant’s medical condition at this meeting and that there is no other way in which the applicant’s medical condition became known to Ms Blanch. However, it is still necessary to make findings of fact as to what occurred at this meeting in a little detail, if this be possible, in order to consider two points raised in argument by the respondent: the first being that this information was not solicited by the respondent’s officers, and therefore not collected by it; and the second being that the information was not recorded, and therefore, was not held by the respondent.

15 Considerable time has passed since this first meeting and the evidence of those present differs as to the sequence of events. On the applicant’s evidence, and the evidence of Ms Taylor, she provided the information as to her medical condition when requested to do so; the request following an earlier statement by her that she had medical reasons for not wishing to relocate her children to another school. According to Ms Blanch’s evidence, she was informed of the applicant’s medical condition before any such request was made. Both versions of the sequence of events are perfectly plausible in the circumstances. To choose between these two versions of the sequence of the relevant conversations would be mere speculation, in the absence of any evidence to show that one version was more probable than the other and, given the passage of time, it is quite likely that a degree of reconstruction could be involved, from all three witnesses, when recalling the events in question. Whilst not doubting the truthfulness of these witnesses in any way, the evidence is not reliable for these reasons.

16 However, there does not need to be an identifiable request for specific information in order to establish that information was solicited for the purposes of the definition of collected information in s.4(5) of the Act. Here the information was disclosed and obtained during the course of the meeting that was convened in order to discuss issues concerning the school and the people that attended there. The information disclosed by the applicant was relevant to the issues that were raised and discussed at this meeting. The meeting itself was sufficient to show that both sides were soliciting discussion about any fact, point of view or argument that was relevant. Consequently, any relevant information provided by either the applicant or the officers of the respondent to those present at the meeting cannot be regarded as unsolicited (cf the discussion in ZR v NSW Department of Education and Training [2008] NSWADT 199).

17 The respondent submitted that, if the information was not solicited, then s.17 is not applicable as the information has not been collected by the agency. Whilst it is not necessary to decide this aspect, there is clear authority that s.17 would have application to any information held by an agency, even if it had not been solicited (OA v NSW Department of Housing [2005] NSWADT 233; MT v Director-General, Department of Education and Training [2004] NSWADT 194). However, here the information was in fact solicited, albeit not by a direct and specific request.

18 The respondent also submitted that there is no evidence upon which the Tribunal can be satisfied that the information acquired by Ms. Blanch concerning the applicant’s medical condition was ever recorded. It was argued that that this is a prerequisite to the application of s.17 of the Privacy Act (Vice-Chancellor Macquarie University v FM [2005] NSWCA 192).

19 Ms Blanch’s evidence was that she probably would have made notes about the first meeting in her “day diary book” (transcript 04.12.07 page 4.8) but she could not recall whether she made a note of the applicant’s medical condition in that record. One of the issues under discussion at this first meeting was whether the applicant should relocate her children to another school. On any view of the evidence, the applicant’s disclosure of her medical condition was clearly relevant to this issue, irrespective of the precise time when it was first proffered. It is more likely than not that such a fact would have been recorded, particularly by the person who had the responsibility of achieving a resolution of the issues at hand. It was a fact that was clearly material to one of the significant issues, namely whether relocation was a feasible solution. Consequently, there is sufficient evidence to enable a finding that the information was recorded by Ms Blanch and to hold that the information was thereby held by the respondent.

20 The respondent next submitted that, assuming the information to have been solicited and thereafter held by the respondent, its actual disclosure by Ms Blanch, at the February 2003 meeting to staff members, did not constitute a breach of the Act. This disclosure, it was argued, was directly related to the purpose for which it had been collected, or, was necessary to prevent or lessen a serious and imminent threat to the health of staff members (see exhibit R5 paragraph 16 and s.17(b) and (c) of the Act). In later submissions, the respondent also relied upon s. 25 of the Act (see exhibit R9 paragraphs 35 and 36).

21 The primary evidence concerning the actual disclosure at the 12 February 2003 meeting is that of Ms Blanch, she being the person who made the disclosure. It is set forth in her statement (exhibit R3) and her oral evidence. In her statement Ms Blanch explains her reason for disclosing the applicant’s medical condition as being to explain that the applicant had a valid reason for being unwell and to explain why the applicant’s daughter may have been suffering difficulties in her schooling (paragraph 23). Her oral evidence was more specific in that she accepted that her reason for the disclosure was to alleviate the stress that staff members had shown: in substance she was endeavouring to explain to the staff that the applicant had a medical reason for wishing to return her children to the school, should she decide to do so (transcript 04.12.07 pages 25.34 ff and 29.41 ff). This disclosure occurred in the context of discussing the effectiveness of the management plan that Ms Blanch had developed. Ms Blanch also wished the staff to know that their allegations that the applicant was suffering from another medical condition, or drug usage, was incorrect. Ms Blanch also said that she requested the staff to keep the disclosure confidential and, at the time, she expected that they would honour this confidence.

22 The critical question then is whether s17 of the Act has application, this being the predominant section considered by the parties in submissions. This involves determining whether the information was used for the same purpose with which it was collected and, if used for another purpose, whether that other purpose was directly related to the purpose for which the information was collected. Whether or not the applicant imposed a condition of confidence when she proffered the information is only relevant to this particular question in so far as it affects the purpose for which the information was collected. For clarity, it should be noted that the use of the information was by way of a disclosure, or more accurately, a statement, to those present at the meeting.

23 The witness Lorraine Cook was also present at the meeting on 12.02.03. Her statement is exhibit R4, and she gave oral evidence in the proceedings. She was uncertain whether the topic of the applicant returning her children to the school was raised (transcript 13.06.07 page 12.25). She could not say what conversation preceded Ms Blanch’s disclosure of the applicant’s medical condition and she reasoned that something must have been said about the applicant (see page 13.8). As to Ms Blanch imposing confidence upon the disclosure, Ms Taylor said that she could not remember that being said (page 13.40). The critical issue is whether the possibility of the applicant returning her children to the school was raised and, unfortunately, Ms Cook’s evidence on this point is of little assistance, for the reason given.

24 On the applicant’s evidence, as noted above, she informed the first meeting of her medical condition in the specific context of discussing why relocating her children to another school could be difficult. By the time of the second meeting, the applicant had in fact relocated her children to another school. At this second meeting, according to Ms Blanch’s evidence, there was discussion about the possibility that the applicant may return her children to the school and Ms Blanch made the disclosure during such discussions, specifically in the context of the question “what guarantee could the Department give them (the staff) that (the applicant) would not come back (to the school)” (transcript 04.12.07 at pages 24.20 ff and 25.44). Ms Blanch’s objective in making this statement had a number of facets: speaking in general terms, she wished to reduce the stress some staff were experiencing and she wished to dispel some erroneous views that the staff appeared to hold in relation to the applicant. She also wished to explain to the staff that the applicant had a bona fide medical reason should she decide to bring her children back to the school. If the applicant’s evidence as to the sequence of events at the first meeting be accepted, then there are clear differences between the specific context in which she proffered information about her medical condition and the broader context in which Ms Blanch disclosed this information to staff members. In making the disclosure Ms Blanch was clearly concerned with assisting some staff members by giving them a better understanding of the applicant’s position. This would suffice, if the applicant’ evidence be accepted, to establish that the information had been used for a much wider purpose other than that for which the applicant had proferred it. However, Ms Blanch’s evidence is that the applicant gave this information to the first meeting in a different, and more general, context. This evidence has been noted above. The import of Ms Blanch’s evidence is that the applicant proffered this information at the first meeting to explain the difficulties she and her children were encountering generally, rather than specifically for the purpose of explaining why relocation would be difficult (in particular see exhibit R5 paragraph 27). From this, the respondent argues, the disclosure was made by Ms Blanch for the same purpose as the information was collected, namely “assisting the applicant and her children” (as it is put in exhibit R5 paragraph 29). Perhaps a better way to put this argument is that the first meeting was convened as an information gathering exercise directed towards resolving difficulties at the school, and that Ms Blanch disclosed the applicant’s medical condition at the second meeting, being information that had been gathered at the first meeting, when putting a resulting plan of action into place. Consequently, it is argued, the disclosure (user) of the applicant’s medical condition was made for the same purpose as that with which it had been collected or, even if it was made for another purpose, that other purpose was directly related to that purpose and therefore s.17(b) of the Act has application. If Ms Blanch’s evidence concerning her acquisition of the information is accepted, then the first of these two arguments should prevail.

25 However, as noted above, the evidence in the proceedings does not enable the Tribunal to confidently determine, even on the balance of probabilities, whether the applicant’s evidence as to how she disclosed her medical condition should be preferred over the quite different evidence given by Ms Blanch. To choose would be to speculate. There was nothing in Ms Blanch’s evidence, nor in the way she gave it, to cast doubt on her veracity: she bore no malice towards the applicant and she was apologetic for her disclosure of the information. In substance, she appeared to be of the mind that the disclosure had been an error of judgment on her part. Her motivation was not malignant in any way and she saw the disclosure as being a proper defence against what the staff had put against the applicant as well as being a disclosure that could assist the staff in resolving their own personal issues at the school. In the normal course it was a most reasonable step to take, and it is one which deserves no personal criticism of her.

26 There is one further aspect to consider. The applicant gave firm evidence that when she informed the meeting of her medical condition she required that the information be kept confidential. Ms Taylor agreed that this was the case and, whilst she could not recall this requirement, Ms Blanch accepted in her oral evidence that the applicant could possibly have required this confidentiality. The applicant’s evidence on this point should be accepted: she gave the evidence quite firmly and it was supported by the evidence of Ms Taylor. Whilst the applicant had in fact revealed this information to other persons before the meeting, it is most likely that she would have sought confidentiality at the first meeting, given the circumstances. The respondent’s evidence did not really offer any contradiction. However, whilst this finding does not affect the purpose for which the information was acquired by the respondent’s officers: it may well limit the disclosures that the respondent could make in giving effect to this purpose, but not the scope of the purpose itself.

27 Given this assessment of the evidence, there is no basis for choosing between the evidence given by the applicant and that given by Ms Blanch concerning the precise events which occurred when the applicant proffered the information concerning her medical condition at the first meeting. Therefore it is not possible to confidently make any finding that in fact the purpose for which the information was collected differed from the purpose for which it was later used. The applicant must establish, to the Tribunal’s satisfaction, that these two purposes were in fact different before the Tribunal can hold that there was a breach of s.17 of the Act in relation to the first breach alleged.

28 Whilst not strictly necessary, the respondent’s second argument should be considered briefly. If the applicant’s evidence be accepted as to the context in which she first disclosed her medical condition, then the purpose for which this information was disclosed by her, and collected by the respondent, was quite specific, as it was disclosed by the applicant to explain why she might experience difficulties in having her children attend another school. This purpose was therefore different to the purpose for which Ms Blanch used the information at the second meeting, Ms Blanch’s purpose being much broader. However, the acquisition of the information by Ms Blanch was, of course, relevant to the formulation of a course of conduct to resolve the several issues under discussion. Ms Blanch’s later disclosure, or use, of this information was made to explain why, even though the course of relocation had been adopted and put into place, the applicant might need to return her children to the school. There is clearly a direct relationship between the purpose of Ms. Blanch’s use of the information, by way of disclosure to the second meeting, and the purpose for which it had been collected: the medical information had been collected, and was disclosed, in relation to assessing the re-location plan at different points in time: to see whether it was feasible at the outset, on the one hand, and in informing staff why it may not be a permanent solution, on the other. Therefore, on the assumption made, the respondent’s second argument would be correct (see the analysis in NZ v Director-General, NSW Department of Housing [2005] NSWADT 58 at [69 to 71]).

29 There is still the question whether Ms Blanch’s use of the information at the second meeting amounted to a breach of s.18 of the Act. This sections concerns disclosures of information, as distinct from user. As an initial point, the respondent argued that this section has no application as the disclosure was only made to employees of the respondent agency. The argument here is that s.18 only applies to disclosures made to persons or bodies outside the employ of the agency, following the principle stated in Director general, Department of Education and Training v MT [2005] NSWADTAP 77 at [39] (see exhibit R5 paragraph 14). This decision was appealed to the Supreme Court, but the principle relied upon was not affected by the judgment by the Court of Appeal.

30 In its reasons for decision the Appeal Panel clearly stated that sections 17 and 18 have different spheres of operation: s.17 involves the internal use of information, that is, use within the confines of the agency, whereas s.18 involves disclosures to external parties. However, the Appeal Panel did note that the facts of a particular case may involve both sections (at paragraph [40]).

31 The point argued by the respondent is perhaps made clearer by the decision in NZ v Director General, NSW Department of Housing [2005] NSWADT at paragraphs [69] to [71]. There the Tribunal has clearly treated sections 17 and 18 as having different spheres of operation.

32 In the present case the disclosure made by Ms Blanch was to employees of the respondent only. Consequently, following the authorities on this point, section 18 of the Act has no application to the circumstances upon which the first breach is based.

THE SECOND BREACH ALLEGED

33 It is common ground that Lorraine Cook spoke with Leanne Taylor and asked her this question: “Is Kim alright? Does she have MS” (exhibit R5 paragraph 42), or something quite close to it (Ms Cook’s oral evidence at transcript 13.06.07 page 14.24 was that she simply asked, in the classroom discussion, if the applicant was okay). The issue is whether this amounts to a disclosure for the purposes of the legislation under consideration. On one view, the question implies that Ms Cook had information as to the applicant’s medical condition which was disclosed by the asking of the question. The respondent does not argue otherwise. Asking a question like this, with nothing more, may not amount to a disclosure of information. At best, it may only suggest that the person asking the question has some reason to make the inquiry. The reason could well have arisen from the persons own personal observations concerning the subject matter of the question. This will of course depend on the circumstances. However, in this case this aspect has not been argued as there were subsequent communications between the two persons, as noted below, such that there is no doubt that personal information concerning the applicant’s medical condition was in fact disclosed by Ms Cook to Ms Taylor during the course of these several communications.

34 However, the respondent does argue that as Ms Taylor was already aware of the applicant’s medical condition, therefore there has been no disclosure. It is common ground that Ms Taylor did in fact already know of the applicant’s medical condition. Both persons involved in this conversation gave written and oral evidence. It occurred in a classroom at the school. There was a subsequent telephone conversation between the two of them that same night: Ms Taylor rang Ms Cook to enquire further about the source of Ms Cook’s information. Whilst there is very little evidence about what was said in that telephone conversation (exhibit A1), the respondent accepts that Ms Cook has passed personal information about the applicant to Ms Taylor. The point in issue arises from Ms Taylor’s prior knowledge of this information, which is common ground, so that there has been no disclosure within the meaning of the Act.

35 The word disclose has several applications in ordinary speech: it may mean to make known, to uncover, to tell, to divulge or to lay open to view, to name some possibilities. Some of these applications do suggest that a disclosure, of information in particular, may well involve stating something that was unknown to the listener prior to the making of the statement. But, so it seems, the word may also be used where the maker of the statement simply believes that the listener was unaware of the fact disclosed (Foster v FCT (1951) 82 CLR 606 at 614-615; Nakhal Nasar v State of NSW [2007] NSWCA 101 at [127]): in such circumstances the maker of the statement could be said to have disclosed the information. Also, there would appear to be no distortion of language in saying that a person disclosed his knowledge of the matter to those listening, it being irrelevant whether the listeners were aware, or not, of the information so revealed.

36 In principle, it could be cogently argued that the import of the legislation is to require agencies to keep personal information secret unless its use or communication to others is authorised by the Act itself (see NZ v Director General, NSW Department of Housing op cit at [69] to [71]).This gives s.18 a stringent application.

37 However, the question must be approached as a matter of statutory construction: the question being whether the word disclose in s.18 means to provide information to a person who, or to an entity which, is not already aware of that information. The alternative formulation is that the word means no more than to tell or to reveal.

38 The respondent submits that the construction question has already been considered by the Court of Appeal in Nakhal Nasar v State of New South Wales [2007] NSWDC 101 where it was decided that the word disclose in s.18 means the provision of information where the person receiving was previously unaware of that information ( at paragraphs [127] and [132]). There is the possible qualification that the word may also encompass the provision of information where the provider believed, or thought, that the receiver was in fact unaware of the information. Whilst this authority dealt primarily with disclosure under other legislation, the reasoning developed was clearly applied to s.18 of the Act under consideration by the Tribunal in these proceedings (see paragraph [132]). Consequently, the Court of Appeal has clearly said that the provision of personal information would only amount to a disclosure within s.18 if the person receiving the information was unaware of the information prior to the information being provided. In so holding, the Court of Appeal did not further deal with the possible qualification noted above, being one which arises from a judgment of the High Court in Foster v FCT (1951) 82 CLR 606 at 614-615. The Tribunal of course is bound by this authority.

39 It is common ground, and clearly established by the evidence, that Ms Taylor was aware of the applicant’s medical condition at the time that Ms Cook asked her the question noted above. Consequently, even if Ms Cook’s question did pass on personal information as to the applicant’s medical condition, an issue attended by some doubt perhaps, the respondent argues it was not an act which amounts to a disclosure within s.18. because Ms Taylor was already aware of the applicant’s medical condition. The Court of Appeal decision requires the Tribunal to hold that this argument is correct. By asking the question she did, Ms Cook did not disclose the fact that the applicant suffered the medical condition referred to, within the meaning of s.18, as Ms Taylor was already aware of this fact.

40 However, there were subsequent discussions between Ms Cook and Ms Taylor on the same topic wherein Ms Cook did disclose facts unknown to Ms Taylor. The evidence clearly shows that Ms Taylor obtained information from Ms Cook as to how Ms Cook had obtained the information, that is, by way of Ms Blanch’s statement at the second meeting. In providing this information Ms Cook has also informed Ms Taylor that the staff members at the second meeting, including Ms Cook, became aware of the applicant’s medical condition. These facts were unknown by Ms Taylor prior to her discussions with Ms Cook. The question though is whether either of these facts fall within the definition of personal information, that is, whether either of them amount to information or an opinion about a person (the applicant) within s.4(1) of the Act.

41 The relevant evidence is as follows. Ms Cook, in her statement (exhibit R4, paragraph 14) states that, in a classroom visit, she said to Ms Taylor words to the effect of : “Is Kim alright. Has she got MS?”, to which Ms Taylor replied: “How did you know that?”. There is no further evidence in point in this statement. In her testimony, Ms Cook said that she did not discuss the applicant’s medical condition with anyone, save Ms Taylor. She initially said that she did not actually discuss it with Ms Taylor, but simply asked whether the applicant was “okay”. However, she then agreed that she had told Ms Taylor how she had acquired the information, following Ms Taylor’s question to her (transcript 13.06.07 page 14). This informed Ms Taylor that the applicant’s medical condition was revealed by Ms Blanch at the meeting and that those present at the meeting had thereby become possessed of this information.

42 In her statement, exhibit A1, Ms Taylor relates the classroom meeting with Ms Cook and the discussions that followed, both at that time and later that night (page 3, paragraphs 2 and 4). Her oral evidence confirmed her statement as to the events at the classroom meeting with Ms. Cook and the later telephone conversation (transcript 14.02.07 pages 36.46 ff and 37.21).

43 Clearly then Ms Cook has informed Ms Taylor of facts which Ms Taylor was unaware of: namely, that Ms Blanch informed the second meeting of the applicant’s medical condition and that those present at the meeting became possessed of this information. However, these are not disclosures of information personal to the applicant; rather, they are disclosures about what Ms Blanch did and what knowledge those at the meeting acquired. The only information personal to the applicant was her medical condition, and this Ms. Taylor already knew.

44 Consequently, the second breach alleged by the applicant is not established, given Ms Taylor’s existing knowledge of the applicant’s medical condition.

45 For the sake of completeness it should be noted that the applicant has given evidence that she was on good terms with Ms Cook and that, after she discovered that Ms Cook was aware of her medical condition, the applicant went to her home and spoke with her about the matter (exhibit A2 paragraphs 62 ff). Also, the applicant had already confided in Ms Taylor by informing her of her medical condition. Therefore it is unlikely that the applicant suffered any distress by reason of Ms Cook’s disclosure to Ms Taylor. The substantive cause of the applicant’s distress was the later dissemination of her medical condition in the playground, as she puts it, following the statement at the second meeting by Ms Blanch.

THE THIRD BREACH ALLEGED

46 The case being made out by the applicant here is that, shortly after the second meeting in February 2003, the information about her medical condition which she provided to those at the meeting was disseminated to members of the wider school community: in particular she asserts that her medical condition became common knowledge in the playground of the school. The argument advanced is that this knowledge was disseminated by those present at the second meeting to parents of children attending the school during the course of discussions in the playground (refer transcript 14.02.07 at page 49.48ff). This is the applicant’s general submission as to the third breach. The applicant had no direct knowledge of the relevant events, but she was contacted, shortly after the second meeting, by friends who advised her of the events in question (exhibits A11 and R6). After learning of these events she sought medical attention (exhibit A8). There is very little direct evidence in point, but the circumstantial evidence is quite persuasive.

47 In addition, the applicant submits that a similar breach arises from the particular fact that this information was also passed by the then Principal of the school to a particular parent who is named. The applicant grounds this argument in information she obtained from discussions with members of the parent community. However, this particular submission is given more as an assertion, based on hearsay information, than as a detailed exposition of observed fact. As the respondent points out, it would be too speculative to make any finding that the former Principal had passed knowledge of the applicant’s medical condition on to the named parent. This may have well occurred, but the evidence does not enable the Tribunal to determine the question one way or the other. This aspect must be put to one side as findings cannot be made to support the argument.

48 However, in relation to her general submission, which is essentially based on inference, more evidence is available for consideration. The applicant agreed that she had told others about her medical condition over the years since her diagnosis (transcript 14.02.07 page 66.54 ff): Ms Taylor was aware, as was another parent at the school, and she had told the wife of a former colleague who knew one of the parents at the school, as well as others in her circle of friends. The evidence is not very detailed on this point, but it suffices to show that there were other possible ways that her medical condition could have reached parents in the playground, apart from dissemination by teachers following the second meeting. This is common ground.

49 The respondent commissioned an investigation and report into this allegation, the results of which are partly collected in exhibit R7 (the decision on internal review: see also exhibit A7). A report of this nature, whilst of assistance, is a far cry from hearing direct testimony from witnesses, so that the assertions made therein must be closely examined for reliability. This is of course not to be critical of the maker of the report, but to note that the best course is always for the Tribunal to reach its own conclusions, on evidence that it finds to be reliable, as to contentious factual issues and, where a report like this is taken into account, the Tribunal must be satisfied as to its reliability.

50 In that report a finding is stated as follows: That there is a probability that the information about (the applicant’s) health condition reached people in the community both as a result of the (second) meeting and from people that (the applicant) had informed personally (exhibit R7 page 4.2). It should be noted that this finding attributes a causal nexus to both the second meeting and to third parties (who had been separately informed by the applicant herself).The investigator interviewed a number of relevant persons in this regard, but only one of the persons whom the applicant has specifically named in her evidence (see paragraph 46 above). It also appears that the investigator did establish that the applicant’s medical condition was in fact discussed within the community a short time after the second meeting.

51 As the respondent points out, there is little direct evidence concerning the dissemination of this information in the playground. However, the applicant relies upon circumstantial evidence and the inferences of fact that are properly available there from. The respondent’s argument on this point is that the evidence is not sufficient to establish, as an available inference of fact, that any teacher disclosed the information obtained at the second meeting to any parent (exhibit R5 paragraph 50; exhibit R9 paragraph 41). Further, the respondent argues, even if this did occur, there is no evidence, in any event, establishing that any one person involved in the playground discussions was previously unaware of the applicant’s medical condition, this being a critical consideration.

52 Whilst the respondent’s adopted position is understandable, and it is a course that may properly be taken, it appeared to the Tribunal that this aspect of the proceedings should not be determined without giving the parties an opportunity to adduce further evidence, and make further submissions, should they wish to do so. To act otherwise would not only breach the rules of natural justice, but it would also put the Tribunal in the position where it could not reach the correct and preferable decision. For these reasons both parties were given an opportunity to consider whether they wish to adduce further evidence, and make appropriate submissions, as to this aspect of the case. They have availed themselves of this opportunity as they saw fit.

53 At the Tribunal’s invitation the parties addressed the question whether, given that this issue would involve fact finding by inference, consideration should be given to the use that could be made of either party’s failure to call certain witnesses. The parties did address this question and provided assistance for which the Tribunal is grateful. These submissions have persuaded the Tribunal that the circumstances are not apposite to call the relevant principles into play. Consequently, these principles should be put to one side. Having done this, it is now appropriate for the Tribunal to make relevant findings touching upon this third alleged breach.

54 The respondent’s first argument is that there is no evidence upon which the Tribunal is able to find that any teacher revealed the information about the applicant, obtained at the second meeting, to any parent. The point here, the respondent argues, is that such a finding is not open on the evidence. In light of the investigations conducted by the respondent and the conclusions expressed in exhibit R7, discussed at paragraphs 49 and 50 above, this submission cannot be accepted. These investigations were undertaken at a more relevant time and were thoroughly and thoughtfully carried out. The findings in the Report are therefore reliable. Consequently, there is sufficient evidence in exhibit R7 upon which a finding can be made that teachers at the second meeting subsequently discussed the applicant’s medical condition with parents who were not present at that meeting, in the sense that such a finding is at least open. On the evidence it is possible that such discussions occurred during interaction in the school playground between teachers and parents. This is based on the reporting of the events to the applicant: whilst the evidence here is hearsay, it is sufficiently reliable to act upon. To this can be added the fact that the playground discussions immediately followed the second meeting. It is likely then that the information from the second meeting was disseminated in the course of discussions in the playground. On the evidence this is a plausible scenario.

55 The question then becomes, it being open to the Tribunal on the evidence to find by way of inference that the applicant’s medical condition was discussed in the playground as she alleges, whether the Tribunal is satisfied that that inference is the correct one to draw. It can only be properly drawn if there is evidence to show that it is more likely than not the way, or one of the ways, in which the information reached the playground at the school. The competing inference, suggested by the respondent, is that the parents at the school learned of the applicant’s medical condition from third parties to whom the applicant had herself revealed the information. Clearly, this inference is also available. However, the fact that this information reached the playground immediately after the second meeting, as the applicant became aware of what was said at the second meeting shortly thereafter, suffices to persuade the Tribunal that, more likely than not, the information obtained by teachers at the second meeting about the applicant’s medical condition was subsequently discussed shortly thereafter by those teachers, or at least some of them, with parents in the playground. Given human nature, it is most unlikely that, in the unsettled circumstances at the school and the applicant’s central position in the scheme of things, that the discussions at the second meeting did not reach the playground in the way that the applicant alleges. It is well to note here that the respondent does not argue that the applicant herself directly informed the other parents of her medical condition, it being quite clear from the applicant’s evidence that she did not do so. Instead, the respondent argues for the availability of the competing inference it has raised. However, as just stated, the inference argued by the applicant is the more likely of the two, for the reasons just given.

56 The respondent’s second submission, however, is that, even if such a finding be made, there is no evidence establishing that any one person involved in the playground discussions was previously unaware of the applicant’s medical condition. There can be no disclosure, the respondent argues, if the parents were already aware of the applicant’s medical condition. Determination of this point requires considering the inferences that are available.

57 The applicant’s evidence was that she had kept her medical condition secret, save for disclosure to a small group of acquaintances. It is clear that she only disclosed it to the relevant officers of the respondent when, at the first meeting, she needed to offer an explanation of her reluctance to move her children from the school. There is no suggestion in the evidence that any of the respondent’s officers, who are relevant to this submission, were aware of the applicant’s medical condition prior to the first meeting.

58 Neither party adduced evidence to the effect that the applicant’s medical condition was generally known amongst the parents at the school. The Tribunal is of the firm view that if the applicant’s medical condition was generally known amongst the parents, and the applicant was aware of this, she would have readily revealed it in evidence and would not have reacted in the way she did on learning about the playground discussions. The applicant gave her evidence credibly and reliably: when she asserted facts of which she had no direct knowledge, she readily acknowledged that this was so. Also, she agreed that Ms Taylor, Ms Rodgers and Ms Evers did not obtain information about her medical condition from teachers at the school. The applicant’s reaction of surprise and concern, when she ascertained that other parent’s at the school had become aware of her medical condition, shortly after the playground discussions, properly grounds the finding that, as far as she was aware, her medical condition was not generally known by this group of parents. It is most unlikely that, if other parents at the school did know about her medical condition, the applicant would have been unaware of their knowledge. Of equal importance is the fact that the playground discussions occurred within a short period following the second meeting, as the Tribunal has found above: if the applicant’s medical condition was well known amongst the parents at the school these discussions would not have occurred as the information would have been “old news” at that stage. The fact that they did occur suggests that there were matters of interest to discuss. By that time the applicant’s children were no longer attending the school.

59 The evidence of Lorraine Cook is also persuasive on this point. Ms Cooke was a teacher at the school who had a good working relationship with the applicant, the applicant being on friendly terms with her and also assisting her in the classroom. However, Ms Cooke did not know of the applicant’s medical condition until she heard of it at the second meeting (exhibit R4). Clearly this supports the applicant’s evidence that she kept her medical condition secret from people generally. Consequently, more likely than not, there were people associated with the school, both teachers and parents of children attending the school, who were unaware of the applicant’s medical condition prior to the second meeting and the playground discussions.

60 By reason of these circumstances, the Tribunal is well persuaded that some of the parents, at least, who participated in the playground discussions, were previously unaware of the applicant’s medical condition prior to the playground discussions about her. The Tribunal therefore finds that following the second meeting an unidentifiable number of the respondent’s staff disclosed the applicant’s medical condition to parents of children attending the school. This was in breach of the legislation.

61 As the respondent has reserved its position in relation to damages, should breach be found, the proceedings will be adjourned to a planning meeting on 27 October 2009 at 3:30 pm to enable the matter to be progressed, the parties being granted leave to approach the Registry for another date if this should not be a suitable time. There also remains an issue as to correction of the respondent’s records so as to show that the applicant has been in fact diagnosed only as possibly having the medical condition in question. This issue will also be discussed at the planning meeting, although it seems that this issue is capable of resolution by discussion between the parties.