VK v Department of Education and Training (No 3)
[2011] NSWADT 168
•13 July 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: VK v Department of Education & Training (No 3) [2011] NSWADT 168 Hearing dates: 26.03.07, 28.03.07, 18.07.08, 20.04.09 and 17.09.10 Decision date: 13 July 2011 Jurisdiction: General Division Before: R Wilson, Judicial Member Decision: 1.The decision under review is set aside.
2. In lieu thereof the Tribunal decides that the respondent has acted contrary to s.16 and s.18 of the Act in relation to personal information concerning the applicant as set forth in paragraphs 25, 26 and 37 of these reasons.
3. The parties are directed to file and serve upon each other evidence and submissions as to any remedial orders sought pursuant to s.55 of the Act, the applicant to file and serve by 05.08.11, the respondent to file and serve by 19.08.11, and the applicant to file and serve in reply by 26.08.11.
4. The proceedings are listed for further directions on 01.09.11 at 12:30 pm.
5. The parties are granted liberty to apply to the Registrar to vary any of the directions in orders 3 and/or 4 upon the giving of 7 days notice to the other side.
Catchwords: Privacy legislation: Disclosure of personal information: Use of personal information: Whether a law reasonably contemplates non-compliance with information protection principles within s.25 of the Act Legislation Cited: Privacy and Personal Information Protection Act 1998 Cases Cited: VK v Department of Education and Training [2007] NSWADT 285
Department of Education and Training v VK (GD) [2010] NSWADTAP 52
PN v Department of Education and Training (GD) [2010] NSWADTAP 59
Director-General, Department of Education and Training v MT (GD) [2005] NSWADTAP 77
JD v Department of Health [2005] NSWADTAP 44
PT v NSW Medical Board [2010] NSWADT 107Category: Principal judgment Parties: VK (Applicant)
Department of Education & Training (Respondent)Representation: VK (Applicant in person)
State Crown Solicitor (Respondent)
File Number(s): 063020 Publication restriction: Publication of the applicant's true name is prohibited.
REASONS FOR DECISION
By these proceedings the applicant seeks review of a decision made by the respondent under the provisions of the Privacy and Personal Information Protection Act 1998. The applicant claims that the respondent, by its officers, used information about him contrary to the provisions of the Act as articulated in his initial application for departmental review. However, once in the Tribunal, the proceedings have undergone appellate review before the Tribunal's Appeal Panel with the consequence that the only matter for consideration now is the conduct set forth in item number 2 of the applicant's initial claim (see Department of Education and Training v VK (GD) [2010] NSWADTAP 52 ). This matter is there set forth in these terms, namely, "Inaccurate Information provided by Principal John Norris which was used to refuse my Workcover claim".
By consent, the parties have requested the Tribunal to determine, at this stage, only the question of whether the respondent engaged in conduct, within the scope of item 2, contrary to the provisions of the Act. The parties further agreed that this issue could be determined on the evidence already adduced, but supplemented by written submissions. Directions were made on 17.09.10 to give effect to the parties wishes. The respondent's submissions, dated 22.12.10, outline the developments and the issue in more detail (exhibit R5).
As noted in the Tribunal's earlier interlocutory decisions, the background facts are common ground to a large degree. By 27 July 2004 at the latest, the staff at the school at which the applicant taught became aware of the existence of a particular website, although the actual date may have been much earlier (see exhibit AA1 appendix 3). The information displayed on this website made derogatory comments about a number of staff members at the school which were distressing to all concerned. The students at the school accessed this website on various occasions by using computers at the school which had internet access. This was revealed by the conduct of students during the days that followed, particularly by the ridicule that was directed towards particular teachers, the applicant included.
Upon becoming aware of the website, the applicant immediately sought a meeting with the principal, Mr. John Norris, to discuss this situation. He eventually met with the principal the following Friday, 30 July 2004. In the meantime the principal, having become aware of the website on 27 July 2004, had commenced to investigate the situation. These steps were subsequently recorded by the principal: they included investigations into the incident and reporting it to those within the respondent's employ who were responsible for maintaining the school's internet access. In consequence of these steps access to the website using the school's computers was precluded by the afternoon of Thursday 29 July 2004. Sometime on Monday 02 August 2004, with the assistance of the proprietors of the network in which the website was located, the website was closed down.
The applicant was deeply disturbed by these events with the consequence that he commenced on stress leave and lodged a worker's compensation claim. He did not attend the school again after 17 August 2004, following a stressful interaction with one of the students. The Tribunal accepts the applicant's evidence as to the effect that these events had upon him.
As a result of the applicant's workers compensation claim, a consulting psychologist, one Ms. Henderson, came to interview the principal on 03 September 2004. It is the information concerning the applicant that was exchanged at this interview that is the gravamen of the applicant's claim set forth in item 2, noted above. The applicant alleges that certain information about him was given to Ms Henderson by the principal on that day in contravention of the Act.
The notes made by Ms Henderson at this meeting are in evidence (exhibit AA5) as is a subsequent report, dated 09 September 2004, which she prepared by reference to these notes (exhibit AA3). There can be no doubt from these exhibits that at the meeting between Ms Henderson and the principal the latter provided to Ms Henderson information about the applicant which identified the applicant as being the person the subject of the information: section 4(1) of the Act is clearly satisfied. In particular see the report at paragraph 3.1. The respondent does not in fact contend otherwise.
Ms Henderson gave evidence at an earlier hearing confirming that she obtained information from the principal concerning the applicant which she recorded at the time and later embodied in her report (exhibit AA3 report dated 09.09.04). This information was quite extensive but, as matters developed, only a limited number of items of information require consideration. These particular items are noted hereunder. Ms Henderson's report notes that the principal provided her with a typed document recording the actions he had taken in relation to the website (report page 9). After setting forth her investigations, Ms Henderson, in her report, concludes with the opinion that the workplace was a substantial contributing factor to the applicant's "current low level distress" (at page 18 exhibit AA3). She identifies the relevant factors in the workplace as being defamatory comments and death threats made against the applicant on the website and lack of support for him following these events. She notes that the applicant's level of symptoms does not have the severity necessary for clinical classification and that the applicant reports that he is (then) unable to work. Clearly the report is directed towards the question of liability for a workplace related injury. The assessment that Ms Henderson conducted, of which the interview with the principal was a part, was therefore to determine liability for a workplace related injury and not for the purpose of determining whether the applicant was fit to return to work, the Tribunal having earlier so held ( VK v Department of Education and Training [2007] NSWADT 285 ).
The principal made a written statement of evidence (exhibit RR2) and gave oral evidence. The principal's statement of evidence did not contest the information that Ms Henderson said that he had supplied to her concerning the applicant, the principal having been provided with a copy of Ms Henderson's report prior to making his written statement. Consequently, there is no issue on this point between the witnesses. The principal accepts that at interview with Ms Henderson he had recourse to a document that recorded the steps that he had taken with regard to the website. He also said that he may possibly have had reference to a file note of a conversation between the applicant and one Donna Bensch, a colleague of the applicant employed at the same school. Apart from these documents, according to his statement, he could not recall any other documents he had reference to at the interview and that, apart from the documents referred to, his statements to Ms Henderson were "responses of the top of my head".
In his oral evidence, the principal accepted that much of the information that he gave to Ms Henderson was information that he had recorded in a diary that he maintained. He accepted that the references in Ms Henderson's report (paragraph 3.1) to the applicant's abusive and aggressive behaviour, to "bringing the school down" and a scurrilous remark ("that I was evil and heading for a big fall") were recoded in his diary. He accepted that information concerning the applicant's time and alleged behaviour at another school, which had been earlier passed to him, had been recorded by him as well. He was uncertain as to whether he had recorded the "racial" vilification he said was uttered by the applicant towards him. Clearly the oral evidence of this witness has significantly enhanced the evidentiary basis from that set forth in his written statement. The Tribunal accepts the evidence of this witness as to the matters and information concerning the applicant, which he, the principal, said he had recorded.
The respondent's submissions correctly summarise the information about the applicant that the principal provided to Ms Henderson, being the particular items of information in issue, as being the following:
(a) that the applicant had made scurrilous remarks about the principal, the content of which is unclear on the evidence;
(b) that the applicant had said to the principal, during a telephone conversation that he, the principal, "was evil" and "heading for a big fall";
(c) that he, the principal had been told that the applicant had caused problems at another (named) school. This was information about the applicant obtained by the principal from a parent of one of the students (see Ms Henderson's report at page 10); and
(d) that he, the principal, had been told by that parent that the applicant had been "an activist" and had "polarised" that other school.
Ms Henderson's report indicates that this information was given to her following her requests of the principal to firstly, describe the applicant "as a person" and, secondly, whether he could advise her of any "personal issues which may be impacting on him (the applicant) at the present time" (report pages 8 and 10). The information noted at sub-paragraphs (c) and (d) above was supplied following the second request mentioned. The other information was supplied following the first request (report pages 8 and 10).
In addition to these items of information, Ms Henderson's report also notes that the principal had informed her that the applicant had engaged in racial vilification by making a reference to the principal's ethnic origin in a derogatory manner and had been "abusive and aggressive towards him (the principal)", (report page 8).
Whilst there are some nuances to the evidence just described, it is sufficient to formulate it as has been set forth above and the Tribunal makes findings accordingly. In general terms, the principal conveyed to Ms Henderson information about the applicant which had arisen from his own observations of the applicant's conduct or from communications to him from a third party. The Tribunal notes that the applicant contested the veracity of the principal's evidence. There are certainly a number of aspects of his evidence that would raise questions to an enquiring mind. Certainly, his assertion that the telephone call from a parent, or parents, that he received about the applicant's time at another school as being an anonymous call could well have prompted a vigorous cross-examination on the point, as well as his assertion that a critical diary could not be located. However, there is insufficient evidence before the Tribunal to persuade it that this evidence should not be accepted. This of course does not mean that the information given to the principal over the telephone was in fact the truth. It was no more than mere information.
It remains now to consider whether the factual matrix accepted by the Tribunal involves conduct of the respondent contrary to the provisions of the Act.
In summary, the respondent's position is that it has not engaged in conduct contrary to sections. 8, 11 or 16 and that, with respect to other alleged contraventions, its conduct is excused by s.25 of the Act (exhibit RR5 paragraph 16). It should be noted here that the respondent also argues that some of the information was not collected, as it was unsolicited, and that some of the applicant's submissions raise issues that were not the subject of internal review, hence raising the question of "jurisdiction". There arguments are dealt with in the respondent's submissions.
DISCLOSURES CONTRARY TO s.18
The information provided by the principal to Ms Henderson at interview was personal information about the applicant within the meaning of the Act. The evidence is sufficient to activate s.18(1) of the Act, leaving sub-sections (a), (b) and (c) to one side, given that Ms Henderson was a consulting psychologist engaged to investigate the applicant's workers compensation claim. The respondent's submissions do not press the application of any of the three sub-sections, but rather the application of s.25(b) of the Act. Section 25(a) was also not pressed, there being no basis for arguing that the respondent was lawfully authorised to make the disclosures in question.
The issue then becomes whether the principle embodied in s.18 of the Act has no application to the acts of the principal in making the several disclosures about the applicant, to Ms Henderson, that he did. The question here is whether non-compliance with the principle is permitted, or is necessarily implied or reasonably contemplated under an Act or other law (s.25(b)).
The respondent's position is that, in answering this question, the broad approach established in PN v Department of Education and Training (GD) [2010] NSWADTAP 59 is the applicable test (exhibit RR 5 paragraphs 37 ff) . This is clearly correct. This test requires the Tribunal to "consider the subject matter of the alternative law and ask itself, first, is this the kind of subject matter with which a relevant IPP is concerned in the circumstances of the case before it" ( PN v Department of Education and Training at [55]). This will be so where "the transactions in issue (here, one instance of indirect collection and otherwise disclosures) are of a type that is contemplated by the regime (of the alternative law); and that they are genuinely undertaken for the purpose of the scheme" (at [57]). Clearly, as the respondent submits, the workers compensation legislation that is involved here provides that an employer, when requested, will provide, to an insurer, personal information that it holds about an employee who has made a claim about a work related injury. This legislation therefore envisages that, in relevant circumstances, the provision of information about a claimant will not be constrained in any way, provided of course that the information in question is relevant for the purposes of that legislation. This latter qualification necessarily arises from the fact that the obligation to provide information about a claimant cannot extend beyond information that is relevant for the purposes of workers compensation legislation. The Appeal Panel in PN v Department of Education and Training gave recognition to this when it added the qualification " and that they (the transactions) are genuinely undertaken for the purpose of the scheme " (at [57]). The significance of this qualification is greater than being a simple reference to the absence of charade or sham, as the respondent submits (exhibit RR 5 paragraph 46). A transaction, such as a disclosure of personal information, cannot be genuinely undertaken for the purposes of the workers compensation scheme if the information conveyed is not relevant for the purposes of the workers compensation legislation. Equally, it cannot be argued that a legislative scheme would reasonably contemplate the disclosure of information that was not relevant to the operation of that scheme. There can be no objection to such a requirement upon the basis that the task of determining whether information is relevant to an enquiry is too onerous, because this same type of test is employed in s.16 of the Act: prior to user, an agency must take reasonable steps to ensure that the information to be used is relevant to the proposed purpose.
However, when the transaction in question involves, for example, the provision of information to an insurer in response to a request concerning a workers compensation claimant, and the information is relevant to the claim that is involved, then it may be properly found that non-compliance with certain information protection principles is reasonably permitted by the workers compensation legislation. This is a question of fact ( PN v Department of Education and Training at [57]) which, if established, brings s.25(b) of the Privacy and Personal Information Protection Act 1998 into play. Section 25 itself then provides that the public sector agency is not required to comply with the specific section enumerated therein. It should be noted here that the role of the workers compensation legislation is that of reasonably contemplating non-compliance so as to satisfy the requirements of s.25(b) and no more: section 25 itself has the role of excusing non-compliance.
To take a specific example that is relevant to these proceedings. Where an employer discloses personal information about a claimant to its workers compensation insurer that was acquired by the employer during the course of, say, annual performance assessments, the disclosure is necessarily for a purpose (the workers compensation claim) other than the purpose for which it was obtained (general employment purposes such as promotion and continued employment) and cannot be said to be a disclosure for a purpose directly related to the purpose for which it was obtained (or collected). Consequently, other things being equal, a disclosure of the information in these circumstances would be contrary to s.18 of the Privacy and Personal Information Protection Act 1998. Depending of course on the nature of the compensable injury claimed, this information may well be relevant to issues arising out of the compensation claim. If this be so, it would be proper to find that the workers compensation legislation reasonably contemplates that such information, in such circumstances, may be properly provided despite non-compliance with s.18.
The actual disclosures made by the principal to Ms Henderson about the applicant were of course much greater in content and detail than the items of information set forth at paragraphs 11 and 13 of these reasons. Ms Henderson's report clearly shows that this was the case. The reason for the narrow focus in these proceedings is simply because of the conduct about which the applicant makes complaint. Given the fact that Ms Henderson was investigating the respondent's liability in relation to the applicant's workers compensation claim it is clear that much of this additional information about the applicant that was supplied, or, more correctly, the acts involved in supplying that additional information, was conduct in relation to which non-compliance with s.18 was permitted, or necessarily implied or reasonably contemplated, by workers compensation legislation. For example, the information about the applicant's work history, the website and the applicant's reactions to the website. It is only with the provision of such information that liability for a work related injury could be properly determined in this particular case. The basis of the compensation claim was, of course, that the information contained on the website and the alleged failure to deal with its existence promptly, as well as the absence of proper support following the incident, gave rise to a stress reaction that prevented the applicant from engaging in employment, at least for a period.
The items of information listed at sub-paragraphs 11 (a) and (b) and at paragraph 13 of these reasons are in a similar position. These items concern the alleged making of scurrilous remarks, the statements (by the applicant) to the principal that he (the principal) was evil and heading for a fall, the racial statement and the abusive and aggressive behaviour of the applicant towards the principal. The conduct of the principal in making these disclosures must be regarded as providing information about the applicant that was relevant to Ms Henderson's investigation. The logic behind this relevance is shown by Ms Henderson's report where she identifies the principal's error in not perceiving the applicant as requiring support. Ms Henderson explains that an experienced school administrator would be expected to interpret such out of character behaviour as suggesting the possible need of support (exhibit AA3, report dated 09.09.04 at pages 15 and 16). This is the relevance nexus in this particular case, but, without it, there would be none. Consequently, s25 of the Act, because of this nexus, would permit non-compliance with s.18 with respect to the provision of these particular items of information.
This leaves the disclosure of the items of information noted at sub-paragraphs 11(c) and (d) for consideration. The principal, as noted above, informed Ms Henderson that he had been informed by a parent (or parents) that the applicant had caused problems at another school and that he was an activist who had polarised that other school. This information had been obtained, according to the principal's evidence, during the course of an anonymous telephone call, however, the particular school had been named. The principal made no enquiries to ascertain whether this information he was given was truthful or accurate, although he did record the information in his diary. This diary could not be located at the time that the principal gave evidence.
There is no suggestion in any of the evidence before the Tribunal that one of the precipitating factors (of the applicant's stress reaction) was that he was a troublemaker or an activist at the school at which he was then employed. Equally there is no suggestion in the evidence that one of the precipitating factors could have been that he had conducted himself in a way that polarised that school community. There is no basis in the evidence upon which it can be said that any item in this information had relevance to the enquiries that Ms Henderson was conducting. Therefore it cannot be said that non-compliance with s.18 of the Privacy and Personal Information Protection Act 1998 is reasonably contemplated by the workers compensation legislation in play with respect to such information, being information of no relevance to the scheme laid down by that legislation. Here the Tribunal notes that the respondent only relied upon this aspect of s.25 (see respondent's submissions exhibit RR 5 paragraph 44). The Tribunal also notes that the authorities have not yet canvassed the question whether the several parts of s.25(b) have individual application or are to be regarded as a composite.
Given the Tribunal's findings at paragraph 17 of these reasons, it therefore follows that, in disclosing this particular information to Ms Henderson, the respondent, by the actions of the principal, has contravened s.18 of the Act.
THE s.16 ISSUE
Section 16 of the Privacy and Personal Information Protection Act 1998 imposes an obligation upon an agency to ensure, having regard to its proposed user of that information, that the information is relevant, accurate, up to date, complete and not misleading. This obligation only requires that reasonable steps be taken in the circumstances. The circumstances therefore dictate whether any enquiries need be made at all, and if they should be, what specific steps should be taken. The agency must be satisfied that the information meets the criteria specified in the section, although there is no requirement that this includes satisfaction that the information is factually true. The criteria concerning relevance and completeness are important here as it is clear that the information held by the respondent which was obtained by the principal during the course of the anonymous telephone call (sub-paragraphs 11 (c) and (d) of these reasons) was neither complete, nor was it relevant to the purpose for which Ms Henderson gathered it.
The respondent's position here was that the obligation imposed by s.16 of the Act has no application to the conduct of the principal in disclosing, to Ms Henderson, any of the information about the applicant that he so revealed to her at the interview (exhibit RR 5 paragraph 23). Section 16, the respondent argues, only has application where an agency uses the information and this does not include a disclosure to a third party. This argument assumes that to use information is distinct from to disclose information, the two being, for the purposes of the Act, mutually exclusive. Here, the respondent relies upon what was said in PN v Department of Education and Training that " the data quality standard (in S16) does not apply to an external disclosure of personal information. The only way it can be brought into account is if it can be shown that the external disclosure was preceded by some form of internal use of the information" (at [35]).
The respondent of course relies upon the first part of this passage, in particular. However, it should be noted that the quoted passage from the Appeal Panel's decision was a comment which recognised that this quoted passage was in fact what the Tribunal at first instance had held. Thus, at its highest, all that can be said here is that the Appeal Panel gave its approval, or at least did not disapprove, of the findings below on this point. This is still, of course, a matter of significance for present purposes.
The Appeal Panel then further commented on this point at paragraph [36]. Here the Appeal Panel made two points. First, the Appeal Panel noted that the act of disclosing personal information in the circumstances at hand could be regarded as serving an internal administrative purpose, being compliance with an obligation to provide the information upon request. Upon this basis the Appeal Panel then said that the conduct (of the person making the disclosure) could be regarded as involving a use of the information preceding disclosure. Secondly, the Appeal Panel recognised the possibility that the act of disclosure could be regarded as not being a 'mere' disclosure, where no forethought could practically be given, as where answer is made to a subpoena, for example. The import of these statements is, or could well be, that the series of actions involved in making the actual disclosure, including the acts leading up to disclosure and the acts whereby disclosure is made, could involve both a user (for the purposes of s.16) and a disclosure (for the purposes of both s.17 and s.18). This is suggested by the fact that the only conduct then under consideration was the acts of a person (a school principal) in revealing certain subjective views to another (a workers compensation insurer) about a teacher who had made a workers compensation claim, the facts being very similar to the facts involved in the current proceedings before this Tribunal. It is also suggested by the Appeal Panel's statement that "it", referring to the principal's conduct, may not have been "a mere disclosure". Unfortunately, the Appeal Panel here did not consider the earlier case of Director-General, Department of Education and Training v MT (GD) [2005] NSWADTAP 77, as it was not brought to its attention it seems.
The respondent's submissions, after giving recognition to the last part of the statement of the Appeal Panel just quoted (the reference to the possibility of a user preceding disclosure) note the earlier decision of the Appeal Panel in Director-General, Department of Education and Training v MT (GD) [2005] NSWADTAP 77, and takes the point that, as the two decisions differ, PN v Department of Education and Training should be preferred as it is later in time . However, these two decisions of the Appeal Panel can stand together, save for one aspect, and when analysed they both point to the same conclusion, namely, that the acts of an agency in revealing information to a third party may well involve both a s.16 user and a s.18 disclosure.
The facts in Director-General, Department of Education and Training v MT differ to the facts in PN v Department of Education and Training and the facts in the present proceedings. However, the Appeal Panel in the earlier decision discussed the relationship between sections 16, 17 and 18 of the Act (at paragraphs [39] and [40]). The import of this discussion was that, depending upon the circumstances, personal information may be the subject of both a s.17 user and a s.18 disclosure (see paragraph [40] in particular).
However, there is one aspect where the two decisions do differ, namely in relation to whether s.16 applied to an external disclosure with which s.18 of the Act is concerned. The earlier decision held that s.16 did so apply (at [39] and [40]) whereas the later decision held that it did not (at [35]). It should be noted that, related to this difference, the earlier decision envisaged that a disclosure could also be a user of information, whereas the later decision did not. This difference, however, does not detract from the principle common to both decisions that the acts of an agency may well involve both a user and a disclosure of personal information.
In PN v Department of Education and Training it was said that this would be so where the conduct involved (which was the revealing of a personal view about the applicant's workers compensation claim) served an internal administrative purpose of the agency (at [36]). Applying this test the Tribunal is well satisfied that in the circumstances of these proceedings before it, the revelation by the principal, to Ms Henderson, of the personal information about the applicant served internal administrative purposes of the respondent, namely the purpose of discharging its obligations to its workers compensation insurer and the purpose of determining whether it, the respondent, was liable for a work related injury suffered by the applicant. Consequently, before using the applicant's personal information for these two purposes the respondent was required to observe the provisions of s.16 with respect to all of the information so used, including the items of information obtained from the anonymous telephone call as set forth at sub-paragraphs 11(c) and (d) of these reasons. The question now is whether it failed to do so.
Before passing to this aspect though, it is worth comment that, upon reflection, the approach of the Appeal Panel in Director-General, Department of Education and Training v MT has much to commend it. In normal parlance the word use has very wide import and it would include acts whereby an agency uses information internally as well as acts whereby information is revealed to a third party outside the agency. This approach does not distort the operation of the Act in any way. The prime importance of s.16 is recognised and there is ample protection elsewhere in the legislation to enable disclosures required or permitted by other laws to be made without compliance with s.16. However, this is a matter for the Appeal Panel on another occasion as this Tribunal, at first instance, should follow the superior decisions that are existing record.
Returning now to the question whether the respondent has observed its s.16 obligations concerning the information given by the principal to Ms Henderson. Ms Henderson's report contains a great deal of information about the applicant obtained from the principal and from Ms Bensch, another employee at the school. The applicant only places in issue the information provided by the principal, limited to the specific items of information set forth in paragraph 11 of these reasons by reason of the Tribunal's earlier interlocutory decision ( VK v Department of Education and Training [2007] NSWADT 285 at [29] ). Of this limited category of information, the only parts that require consideration here are those listed in sub-paragraphs 11(c) and (d), being the information supplied to the principal by the anonymous telephone call, the circumstances in evidence not suggesting any need to make further enquiries with regard to the scurrilous remarks and the applicant's statements to the principal on the telephone (sub-paragraphs 11(a) and (b)). The reason for this is that those items of information are sourced in records or observations and there is no basis to require that any s.16 enquiries be made with respect thereto.
The information supplied to the principal concerning the applicant's alleged earlier time and conduct at another school (sub-paragraphs 11(c) and (d)) however are in a different category. The matters of relevance are set forth in JD v Department of Health [2005] NSWADTAP 44 at [70]. These items of information clearly required investigation given the anonymity of the source and the fact that the other school was known. This information clearly was incomplete and the use of the information for workers compensation purposes had doubtful relevance. No endeavour was made to follow up the information with personnel at the other school, nor with the applicant. This is sufficient to establish a breach of s.16 at the time that the information was used, the respondent failing to take such steps which were reasonable in the circumstances.
COLLECTION OF INFORMATION: SECTIONS 8 and 11
The respondent submitted that the information itemised at paragraph 11 of these reasons was not collected by the respondent for the purposes of the Act, by reason of the circumstances whereby this information came to be held by the respondent (exhibit RR 5 paragraphs 17ff). This aspect was not developed fully during the course of the evidence so that there are serious questions involved should the Tribunal endeavour to make findings on this point. However, even if the information was not collected under the Act this will have no significance for the conclusions that the Tribunal has reached as set forth ante in these reasons. Consequently, there is no need to determine this point in these proceedings when looking at the respondent's position. Also the real gravamen of the applicant's case concerns what was done with this information, rather than its collection. Therefore, even if the information was collected in breach of s.8 or s.11, the Tribunal would be minded to disregard these particular breaches in the circumstances (see s.55(2) of the Act). These comments are subject to one proviso.
The applicant's essential claim is set out in paragraph 1 of these reasons as being "Inaccurate information provided (by the named principal) which was used to refuse my Workcover claim" (see item 2 of the original application). The applicant submits that the principal's provision of the information about him itemised in sub-paragraphs 11(c) and (d) of these reasons is a breach of s.17 of the Act. The Tribunal has earlier determined that this was in breach of s.18 (see paragraphs [25] and [26] ante). The Tribunal has also determined that these acts of the principal constitute a use of the information for the purposes of the Act (see ante at [34]). Thus s.17 may come into play. However, s.17 requires that there be a collection of information by the agency ( PT v NSW Medical Board [2010] NSWADT 107 at [24] . Consequently, a determination must be made on this point in order to deal with the applicant's s.17 argument.
The respondent's submissions on this point culminate in paragraph 22 of its written submissions. The evidence concerning the anonymous telephone call is fairly bare. It is certainly possible that the principal could have asked questions of the caller, or callers, which could bring about a solicitation of the information that was obtained. It is difficult to accept that the principal did not participate in the conversation to some degree at least, but the evidence is silent on this. Consequently, most weight must be given to the evidence to hand that the calls were not initiated by the principal and the caller's identity is not known. This being so the Tribunal finds that there was no collection of this particular information, as the respondent submits. It follows that no breach of s.17 can be established.
RESIDUAL ISSUES
There remain some arguments developed by the applicant in his submissions dated 24.11.10 (exhibit AA 9) that have not yet been considered. The respondent deals with these submissions in paragraphs 11 to 15 of its own written submissions (exhibit RR 5). The applicant's additional arguments may be dealt with briefly.
First, the argument that breaches have arisen from the loss of the principal's diary cannot be considered in these proceedings as the matter falls outside the scope of item 2 of the original application and outside the scope of the issues that the Appeal Panel has remitted to this Tribunal for determination (see paragraph 1 above).
Secondly, the argument that breaches have arisen from disclosures to other personnel, executive meetings or third parties cannot be considered in these proceedings, for the same reasons.
ORDERS AND DIRECTIONS
The Tribunal finds that the respondent has acted contrary to s.16 and s.18 of the Act in relation to personal information concerning the applicant (see paragraphs 25, 26 and 37 of these reasons.
The Tribunal makes orders, set forth above, in accordance with these reasons.
The Tribunal makes directions as set forth above.
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Decision last updated: 13 July 2011
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