Vice-Chancellor Macquarie University v FM

The dispute before the Court of Appeal of New South Wales concerned the application of the *Privacy and Personal Information Protection Act 1998* (NSW) to information held within the mind of an employee of a public sector agency. The appellant, the Vice-Chancellor of Macquarie University, sought to appeal a decision of an Appeal Panel which had overturned a decision of the Administrative Decisions Tribunal. The core of the disagreement revolved around whether certain information, not formally recorded but known to an employee, constituted "personal information" for the purposes of the Act.

The primary legal issue for the court to determine was the interpretation of the definition of "personal information" as contained within the Act, specifically whether information "held" by a public sector agency extended to information residing solely in the memory of an employee. This required the court to consider the meaning of "held" and related terms such as "collected" and "possession or control" within the statutory framework, and whether these terms encompassed information that was not physically documented or readily accessible in a tangible form.

The Court of Appeal, in allowing the appeal, reasoned that the Act's definition of "held" in relation to personal information required more than mere knowledge or recollection by an employee. It necessitated that the information be in the possession or control of the agency in a manner that allowed for its retrieval or use in the ordinary course of its activities. The court found that information existing solely in an individual's mind, without being recorded or capable of being accessed by the agency as an entity, did not meet this threshold. Consequently, the court set aside the Appeal Panel's order and dismissed the application to the Tribunal.