ZR v NSW Department of Education and Training

[2009] NSWADT 84

CITATION:	ZR v NSW Department of Education and Training [2009] NSWADT 84
DIVISION:	General Division
PARTIES:	APPLICANT ZR RESPONDENT NSW Department of Education and Training
FILE NUMBER:	063440
HEARING DATES:	21 February 2008, 7 March 2008
SUBMISSIONS CLOSED:	23 July 2008
DATE OF DECISION:	21 April 2009
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	Privacy - Information Protection Principles – Use, Disclosure
LEGISLATION CITED:	Privacy and Personal Information Protection Act 1998
CASES CITED:	Department of Education and Training v MT [2005] NSWADTAP 77Department of Education and Training v PN (GD) [2007] NSWADTAP 66Director General, Department of Education and Training v MT [2006] NSWCA 270FM v Macquarie University [2003] NSWADT 78GL v Director General, Department of Education and Training [2003] NSWADT 166JD v Department of Health (GD) [2005] NSWADTAP 44JD v Director General NSW Department of Health [2006] NSWADT 353JD v Department of Health (No 2) [2004] NSWADT 227JD v NSW Department of Health [2007] NSWADT 219KO and KP v Commissioner of Police, NSW Police (GD) [2005] NSWADTAP 56Macquarie University v FM [2005] NSWCA 192Nasr v State of NSW [2007] NSWCA 101NZ v Commissioner of Police, NSW Police [2007] NSWADT 132NZ v Commissioner of Police, NSW Police [2007] NSWADT 263OA v New South Wales Department of Housing (No 2) [2006] NSWADT 94Vice-Chancellor, Macquarie University v FM (GD) [2003] NSWADTAP 43WL v Randwick City Council (GD) [2007] NSWADTAP 58ZR v NSW Department of Education and Training [2007] NSWADT 239ZR v Director General New South Wales Department of Education and training [2008] NSWADT 28
REPRESENTATION:	APPLICANT In person RESPONDENT J McDonnell, solicitor
ORDERS:	1. The disclosure of the name or any other material which identifies, or might lead to the identification of the applicant, the school, or any other person referred to in these proceedings, is prohibited 2. The matter is listed for further directions at 3pm on 12 May 2009.

1 In these reasons the names of private individuals, and other information which might identify them, have been anonymised so as to preserve the privacy of their personal affairs. The names of the Department’s officers and the school at which they are employed have also been anonymised.

2 The applicant is the mother of three children who have attended a school conducted by the respondent (“the School”). This application relates to matters arising from a meeting of the School Parents and Citizens Association (“the P&C”) on Saturday 10 September 2005, at which two members of the School staff attended, “Ms XA” and “the Head Teacher”. On 13 September 2005 “the Deputy Principal” wrote to the applicant expressing concerns about what took place at that meeting, and stating that he had passed these concerns on to the President of the P&C. On 14 September 2005 the Deputy Principal wrote to the President of the P&C. The applicant contacted the office of the Minister for Education. On 18 October 2005 there was a meeting of School staff, and on 19 October 2005 a letter was sent to a number of people advising of a decision made at the 18 October 2005 meeting concerning involvement of School staff in activities relating to the School P&C. This letter referred to two motions put by the Principal and Deputy Principals to a P&C meeting on 15 October 2005 which were not ratified. On 10 November 2005 the Deputy Principal wrote to the applicant withdrawing the letter of 13 September 2005.

3 The applicant applied on 25 March 2006 under s53 of the Privacy and Personal Information Protection Act 1998 (“the PPIP Act”) for review of conduct described in the following terms:

1. Breach of my right to confidentiality when making a complaint according to DET policy and writing to staff at [the School]

2. The publication of information about me that is false, unsubstantiated and misleading, which places me in a negative light in the public eye.

4 The applicant provided details of the conduct as follows:

On 9 September 2005 I contacted the school concerning the lack of information about a school excursion involving my daughter the next week. Despite several phone calls to the school (which they failed to keep records of but Telstra substantiated) I did not obtain the essential information and so raised my concerns at the P & C meeting the following day (10/9/05). It is important to note that other parents spoke of their concerns in the same manner as was common for parents to do at previous meetings. At no time was a specific teacher’s name mentioned or any aspersions made about school staff by myself or other parents present. I also asked a simple question about a way to acknowledge the wonderful academic achievements of school students in a particular category at presentation night. Again, no names were mentioned. I spoke to the Executive teacher representing the school at the meeting after it had finished and there was no discontent expressed concerning the preceding meeting. Five days later, on 15/9/04, I received the letter attached (No 1) which notified me that a complaint about me was to be sent to the P & C President with the expectation that it would be tabled at the next meeting (No 2). However, I did not see this 2nd letter myself until obtained under FOI legislation (you will have these dates). Both these letters contain false and unsubstantiated comments about me made by [the Deputy Principal], who was not present at the meeting.

Because of the defamatory nature of the 2nd letter, I lodged a complaint with the DET and understood it would be managed according to the 'Responding to Suggestions, Complaints and Allegations' Policy ensuring me the appropriate confidentiality while it was being investigated. However, a letter was publicly distributed by [the School] Branch of the Teachers' Federation to the School Education Officer and members of the P&C Executive, School Council Executive, school employees and Teachers' Federation on 19 October 2005 (letter 3). All P&C members attending the meeting were aware that the comments were specifically targeting me.

Clearly information had been given to the staff, which breached my right to privacy and was publicised in the letter, namely:

1. the fact that I made a complaint to the Department concerning the correspondence received from [the Deputy Principal]. Under the Policy “Responding to Suggestions, Complaints and Allegations” (p.36) any person making a complaint is entitled to confidentiality and it is the responsibility of the person who is allocated to investigate this complaint, to ensure this occurs.

2. revealing that fact that I had written confidential letters to two head teachers and misrepresenting their intent. They contain no personal comments that seek to deliberately undermine the integrity of the Deputy Principal other than might arise from defending myself against unsubstantiated and untrue defamatory statements, which I am within my rights to do. At the time of writing the letters, as you know, I was not even aware of the exact nature of the letter written to [the President] of the P&C but only the rumours that I heard were being circulated about me (I am happy to supply these letters if the school does not).

With specific reference to the comments regarding the [X] Committee, it is obvious to all, that these must have referred to me as at the time of writing of the letter (19 October) I was the only ‘key’ member of the [X] Committee who had children remaining at the school. When the [X] Committee was in existence, the minutes of the P & C Association meetings published in [the School newsletter] had identified me as the contact person. The [X] Committee was established to assist the School in the area of […]. A representative of the school executive, who also signed on as a member, always attended these meetings. The minutes show that at no time were issues discussed without the School Executive’s knowledge and input. Certainly, the Principal never indicated to the Committee that our activities constituted ‘harassment’ of staff and his continued attendance until the last meeting in 2004 could be taken as evidence of support for our activities.

No attempt was made by staff to contact me or other P & C members to ascertain the accuracy of the information. The public distribution of this information in [the School] Teachers’ Federation letter appeared to be a deliberate act to ensure that [the School] community saw me in a negative light.

5 At Part 5 of the application for internal review the applicant indicated that her complaint related to the security or storage of her personal information; accuracy of her personal information; use of her personal information; disclosure of her personal information; and “giving information to staff and subsequently parents and community members that lowered others’ opinion of me and exposed me to hatred, contempt and ridicule”.

6 On 30 November 2006 the respondent’s Director, Legal Services, advised the applicant that he had considered an investigation report prepared by an Acting Legal Officer, and, on behalf of the respondent, accepted its findings and recommended actions. The Internal Review determined that there had been no breach of s16 of the PPIP Act by the letters written by the Deputy Principal to the applicant and to the P&C President; that there had been no breach of s18 by the letter written to the applicant; and that while there had been a breach of s18 by the letter to the P&C President, that breach was not at the serious end of the spectrum. The Internal Review determined that it was questionable whether the letters sent by the applicant to two teachers at the School on 19 September 2005 were "held" by the respondent; and that even on the assumption that they were, the information in the letters was not held in breach of s17 of the PPIP Act. In relation to information provided to the School Teachers Federation, any information communicated at a meeting of the Teachers Federation would not have been communicated in the capacity of an employee of the respondent.

7 The applicant applied to the Tribunal for review on 19 December 2006. The respondent raised the issue of whether the Tribunal had jurisdiction to review that part of the complaint that related to letters written by the Deputy Principal in September 2005. That jurisdictional issue was determined in ZR v NSW Department of Education and Training [2007] NSWADT 239. The respondent subsequently raised a further jurisdictional issue said to arise from submissions filed by the applicant on 25 January 2008 that the respondent had contravened sections 8-15 of the PPIP Act. In written submissions filed on 20 February 2008 the respondent submitted that the Tribunal’s jurisdiction was limited to the alleged contraventions of sections 16-18 that had been considered in the internal review. I provided both parties an opportunity to address this jurisdictional issue in written submissions.

8 The applicant filed written submissions and supporting documents (including three witness statements) on 20 March 2007; further submissions and annexures on 8 June 2007; submissions on the jurisdictional issue determined in ZR v NSW Department of Education and Training [2007] NSWADT 239 on 17 July 2007; further submissions and a witness statement with annexures on 25 January 2008; and submissions relating to evidence given at the hearing and in reply to the respondent’s submissions on jurisdiction on 2 May 2008. The respondent filed written submissions on 6 July 2007 on the jurisdictional point considered in ZR v NSW Department of Education and Training [2007] NSWADT 239, substantive matters relating to the complaints, and responding to the applicant’s submissions of 20 March 2007; submissions in reply on 20 February 2008; and further final written submissions on 23 July 2008. The respondent provided witness statements by the Deputy Principal, the Head Teacher, the School Administration Manager, and the Principal, and Ms XA (a Deputy Principal). These witnesses, and the applicant, gave oral evidence and were cross examined at hearings on 21 February and 7 March 2008. At the hearing on 21 February 2008 two observers attended as the Senior Administration Manager was giving evidence. It was apparent that their presence was likely to interfere with how that evidence was presented, and I ordered pursuant to s75(2) of the Administrative Decisions Tribunal Act 1997 (the ADT Act), that those parts of the hearing at which current School staff were giving evidence be conducted in private.

9 The respondent objected to some of the material contained in the submissions and witness statement filed by the applicant, on the basis of form, and also on the basis that some of the material is either hearsay or irrelevant or both. The applicant objected to certain parts of the witness statements provided by the respondent. Some of those objections are based on form, others on relevance or on the basis that the material is opinion or hearsay. The Tribunal is not bound by the rules of evidence: s73(2) ADT Act. I admitted all the documents subject to their contents being relevant to the issues to be determined. In so far as those documents contain assertions of fact, I note that both the applicant and the respondent exercised their right of cross-examination, and both took advantage of the opportunity to file written submissions after the hearing.

Legislation

10 The Tribunal’s jurisdiction to review conduct is conferred by s55 of the PPIP Act:

Review of conduct by Tribunal

(1) If a person who has made an application for internal review under section 53 is not satisfied with:

(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application,

the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53.

(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:

(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

(c) an order requiring the performance of an information protection principle or a privacy code of practice,

(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,

(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,

(f) an order requiring the public sector agency not to disclose personal information contained in a public register,

(g) such ancillary orders as the Tribunal thinks appropriate.

(3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997.

(4) The Tribunal may make an order under subsection (2) (a) only if:

(a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and

(b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.

(4A) The Tribunal may not make an order under subsection (2) (a) if:

(a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and

(b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and

(c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.

(5) If, in the course of a review under this section, the Tribunal is of the opinion that the chief executive officer or an employee of the public sector agency concerned has failed to exercise in good faith a function conferred or imposed on the officer or employee by or under this Act (including by or under a privacy code of practice), the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister (if any) for the public sector agency.

(6) The Privacy Commissioner is to be notified by the Tribunal of any application made to it under this section.

(7) The Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to a review under this section.

11 The requirements for the internal review referred to in s55 are set out in s53 of the PPIP Act:

Internal review by public sector agencies

(1) A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.

(2) The review is to be undertaken by the public sector agency concerned.

(3) An application for such a review must:

(a) be in writing, and

(b) be addressed to the public sector agency concerned, and

(c) specify an address in Australia to which a notice under subsection (8) may be sent, and

(d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and

(e) comply with such other requirements as may be prescribed by the regulations.

(4) Except as provided by section 54 (3), the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practicable, a person:

(a) who was not substantially involved in any matter relating to the conduct the subject of the application, and

(b) who is an employee or officer of the agency, and

(c) who is otherwise suitably qualified to deal with the matters raised by the application.

(5) In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by:

(a) the applicant, and

(b) the Privacy Commissioner.

(6) The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for a review of the conduct concerned.

(7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following:

(a) take no further action on the matter,

(b) make a formal apology to the applicant,

(c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant),

(d) provide undertakings that the conduct will not occur again,

(e) implement administrative measures to ensure that the conduct will not occur again.

(7A) A public sector agency may not pay monetary compensation under subsection (7) if:

(a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and

(b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and

(c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.

(8) As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of:

(a) the findings of the review (and the reasons for those findings), and

(b) the action proposed to be taken by the agency (and the reasons for taking that action), and

(c) the right of the person to have those findings, and the agency’s proposed action, reviewed by the Tribunal.

12 The relevant “conduct” for the purposes of the application for review under s53 is set out in s52 of the PPIP Act:

(1) This Part applies to the following conduct:

(a) the contravention by a public sector agency of an information protection principle that applies to the agency,

(b) the contravention by a public sector agency of a privacy code of practice that applies to the agency,

(c) the disclosure by a public sector agency of personal information kept in a public register.

(2) A reference in this Part to conduct includes a reference to alleged conduct.

13 The information protection principles concern the collection, storage, use and disclosure of “personal information”, which is defined in s4(1) as follows:

In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

14 The information protection principles referred to in s52(1) are set out in Div 1 of Part 2 of the PPIP Act:

8 Collection of personal information for lawful purposes

(1) A public sector agency must not collect personal information unless:

(a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and

(b) the collection of the information is reasonably necessary for that purpose.

(2) A public sector agency must not collect personal information by any unlawful means.

9 Collection of personal information directly from individual

A public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates unless:

(a) the individual has authorised collection of the information from someone else, or

(b) in the case of information relating to a person who is under the age of 16 years—the information has been provided by a parent or guardian of the person.

10 Requirements when collecting personal information

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following:

(a) the fact that the information is being collected,

(b) the purposes for which the information is being collected,

(c) the intended recipients of the information,

(d) whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided,

(e) the existence of any right of access to, and correction of, the information,

(f) the name and address of the agency that is collecting the information and the agency that is to hold the information.

11 Other requirements relating to collection of personal information

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that:

(a) the information collected is relevant to that purpose, is not excessive, and is accurate, up to date and complete, and

(b) the collection of the information does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates.

12 Retention and security of personal information

A public sector agency that holds personal information must ensure:

(a) that the information is kept for no longer than is necessary for the purposes for which the information may lawfully be used, and

(b) that the information is disposed of securely and in accordance with any requirements for the retention and disposal of personal information, and

(c) that the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse, and

(d) that, if it is necessary for the information to be given to a person in connection with the provision of a service to the agency, everything reasonably within the power of the agency is done to prevent unauthorised use or disclosure of the information.

13 Information about personal information held by agencies

A public sector agency that holds personal information must take such steps as are, in the circumstances, reasonable to enable any person to ascertain:

(a) whether the agency holds personal information, and

(b) whether the agency holds personal information relating to that person, and

(c) if the agency holds personal information relating to that person:

(i) the nature of that information, and

(ii) the main purposes for which the information is used, and

(iii) that person’s entitlement to gain access to the information.

14 Access to personal information held by agencies

A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

15 Alteration of personal information

(1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information:

(a) is accurate, and

(b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading.

(2) If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought.

(3) If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency.

(4) This section, and any provision of a privacy code of practice that relates to the requirements set out in this section, apply to public sector agencies despite section 25 of this Act and section 21 of the State Records Act 1998.

16 Agency must check accuracy of personal information before use

A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

17 Limits on use of personal information

A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless:

(a) the individual to whom the information relates has consented to the use of the information for that other purpose, or

(b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or

(c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person.

18 Limits on disclosure of personal information

(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:

(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

Scope of the review

15 The terms in which the applicant requested review under s53 of the PPIP Act are set out in [3]-[4] above. Following receipt of the application there was an exchange of correspondence between the applicant and the Acting Legal Officer, intended (as summarised at [26] in ZR v NSW Department of Education and Training [2007] NSWADT 239) “to enable the applicant to provide further details of her complaints, and to enable the investigating officer to clarify her understanding of the complaint”. The Internal review summarised the conduct claimed to be in breach of the PPIP Act in the following terms:

2.1 Breach of [right to confidentiality] when making a complaint according to DET policy

Particulars

[The applicant] complained to the Minister for Education and Training in relation to correspondence from [the Deputy Principal] dated 13 September 2005. This correspondence concerned issues raised by [ZR] at [the P&C meeting] on 10 September 2005.

The matter was referred to [the Director, School and Regional Policy] for management consistent with the Responding to Suggestions, Complaints, Allegations Procedures.

It is alleged that a member of staff/or staff members at [the School] disclosed to members of the [School] Branch of Teachers Federation, the fact that [ZR] had made a complaint concerning the correspondence from [the Deputy Principal].

[ZR] asserts that this allegation is supported by the contents of the letter from ‘[The School] Branch of the Teachers Federation” (hereafter “School TF”) letter to [Mr YA] (the applicant’s husband), dated 19 October 2005.

2.2 Breach of confidentiality when writing to staff at [the School]

The correspondence to [ZR] from [the Deputy Principal] dated 13 September 2005 asserted that [the Head Teacher] was “affronted by a question asked by [ZR] during the [School] P& C meeting on10 September 2005. The [School] P & C President also advised [ZR] that she had been “accused of making derogatory remarks about the Maths Department.” Following receipt of the correspondence from [the Deputy Principal] and hearing the advice of the President, [ZR] wrote to [the Head Teacher] and [Ms ZA]. These two letters were an attempt by [ZR] to apologise for any offence caused to [the Head Teacher] and/or [Ms ZA] arising from the P & C meeting on 10 September 2005 and her alleged conduct at the [School] P & C meeting.

[ZR] asserts that:

2.2.1 All members of the [School] TF were advised that she had written these “confidential” letters to two members of staff.

2.2.2 members of the [School] TF were advised that the letters referred to above, were written to “undermine the role and integrity of [the] Deputy Principal”.

In the less likely alternative to 2.2.1, members of the [School] TF were provided with copies of the correspondence.

2.3 Publication of information concerning [the applicant] that is false, unsubstantiated and misleading

2.3.1 Correspondence from [the Deputy Principal] to [the President] dated 14 September 2005

It is alleged that information about [ZR] was “published’ in correspondence from [the Deputy Principal] to [the President] dated 14 September 2005. It is asserted that this correspondence contained incorrect information about [ZR]. The particulars of the incorrect information are set out in detail in section 3.1 of TAB 2.

It is further alleged that a copy of the letter from [the Deputy Principal] to [the President] dated 14 September 2005 was provided to members of the [School] TF. [ZR] argues that this allegation is evidenced by the content of the letter from the [School] TF letter to [YA] ([ZR]’s husband) dated 19 October 2005. Specifically the statements in that letter that “this concern was communicated to both the President of the P & C and the parent in question” and “the correspondence regarding these issues was not tabled at the P&C on Saturday the 15th October”.

2.3.2 Correspondence from [School] Branch of the Teachers Federation

Whilst [ZR] acknowledges that the letter to [YA], President of the School Council of 19 October 2005 is reportedly from the [School] TF, she argues that [the School] had some role in its distribution and is therefore indirectly responsible for its publication and the disclosure of information contained in it. Issues that [ZR] raises in support of this allegation are that:

-The meetings held by the [School] Branch of the Teachers Federation were conducted at [the School] during school hours (possibly lunch or recess) and the writers of the correspondence used [the School] equipment to duplicate it;

-While the correspondence is reportedly from the “[School] Branch of the Teachers Federation”, the Teachers Federation has confirmed in a letter to [ZR] dated 18 April 2006 that the correspondence “was written without consultation with the Teachers Federation”;

-The letter was sent to [ZR]’s husband’s private PO Box. [ZR] alleges that this could only have occurred if those details had been supplied to the [School] Branch of the Teachers Federation by [the School]. [ZR] has confirmed that while she is not complaining specifically about the disclosure of her address details to the [School] TF, she claims this is evidence that [the School] played a part in the publication of the letter and disclosure of information it contained about her.


Alternatively, [ZR] claims it is possible that [School] staff addressed and sent this letter on behalf of the Teachers Federation.

2.4 General Disclosure of Information

In addition to or in the alternative to the allegation that a copy of the letter from [the Deputy Principal] to [the President] dated 14 September 2005 was provided to members of the [School] Branch of the Teachers Federation, [ZR] claims that incorrect/misleading information about the comments that she made to the P& C meeting on 10 September 2005, were communicated by staff of [the School] to members of the [School] Branch of the Teachers Federation.

16 As noted above, in her written submissions of 25 January 2008 the applicant asserted that there had been breaches of ss 8, 9, 10, 11, 12 and 15 of the PPIP Act. In submissions in reply filed on 20 February 2008 the respondent submitted that the Tribunal has no jurisdiction to hear and determine the applicant’s allegations of conduct, not considered in the internal review, in particular those allegations of contraventions of ss 8-15 of the PPIP Act. In the respondent’s submissions, the Tribunal’s jurisdiction is limited to the alleged contraventions of ss 16, 17 and 18 of the PPIP Act.

17 In her submissions filed on 2 May 2008, the applicant submits:

-there is no requirement for an applicant to identify the precise contravention on which he or she relies when applying for an internal review, and that she ticked all the boxes describing the complaint indicating that she was concerned about all Information Privacy principles

-the respondent would have access to information that was not available to the applicant, and it was not her obligation to supply it;

-she was not aware at the time of lodging the application of the exact events that lead to the breach of her personal information; some of the information obtained by the investigating officer as a consequence of the internal review process was not considered or given to the applicant in the internal review report but was obtained by her under an FOI application;

-the respondent collected evidence of ‘conduct” and chose to ignore some of it

-an application for review to the Tribunal is an application for review of conduct of an agency that was the subject of the application, not a review of the agency’s findings on internal review.

18 The nature of the review task conferred on the Tribunal by s55 of the PPIP Act was described by the Appeal Panel in JD v Department of Health (GD) [2005] NSWADTAP 44 in the following terms:

114. … The Tribunal is clearly not engaged in the review of a reviewable decision. What occurs in this area is that the agency makes an original decision on the action it will take or not take in relation to the complaint. Then the Tribunal makes an original decision going to the same matter, taking account of the agency’s report. What occurs is a second external review of the administrative actions or ‘conduct’ of the agency. The process is one that is connected conceptually to the administrative law theory that underpins a Tribunal of this kind when dealing with cases involving citizens and government, in that it involves the ‘review’ of a species of administrative action being ‘conduct’ rather than a ‘decision’.

19 While the Tribunal is reviewing the agency’s conduct, and not the agency’s internal review report, an application for internal review under s53 of the PPIP Act is a precondition for the Tribunal’s jurisdiction under s55, and the agency’s report is part of the material to be considered by the Tribunal. An applicant is not required to identify in an application for internal review the precise contravention on which he or she is relying: GL v Director General, Department of Education and Training [2003] NSWADT 166. However, the application under s53 must be sufficient to identify that the applicant is seeking review of conduct falling within the scope of the PPIP Act: NZ v Commissioner of Police, NSW Police [2007] NSWADT 132; NZ v Commissioner of Police, NSW Police [2007] NSWADT 263. In KO and KP v Commissioner of Police, NSW Police (GD) [2005] NSWADTAP 56, the Appeal Panel outlined the basis on which an internal review application provides the scope for the agency’s examination of the application, and for the Tribunal’s review:

13 …In our view, it is clear from the scheme of the Act, in particular ss 53 and 55, that the scope of the application for internal review, reasonably construed, provides the scope for the agency’s examination of the application. Unless there is some widening of the application within that process which is accepted by the agency, the application for internal review, reasonably construed, sets the scope for the application for review of the conduct by the Tribunal. It is plain from the scheme of the Act that the Parliament intended that the agency have the first opportunity, always, to deal with the matters of complaint. Except in the case where the agency fails to respond to the application for internal review, the scheme of the Act contemplates that the internal review report and its outcomes will be among the material that is placed before the Tribunal. …

14 The question of what is the scope of the application, reasonably construed, is one of fact but, as we have indicated, affecting jurisdiction. Its determination is not driven, in any significant way, in our view by any recitation of Information Protection Principles that may appear in the applicant’s application. Often there will be no recitation of Information Protection Principles. Sometimes there will be a detailed recitation seeking to bring into play many, or every one of, the Principles. The key question is what facts and circumstances has the applicant referred to which might give rise to questions of compliance with the Information Protection Principles, and to identify the relevant Principles.

20 Once the parameters of the internal review application are identified in this way, an agency must consider all the conduct relevant to that request. As put in JD v Director General NSW Department of Health [2006] NSWADT 353 by Higgins JM at [41]:

It was the Department and not JD who had the knowledge of the entire conduct relevant to [the issue of use of personal information] and to limit the conduct to what was known by JD would in my opinion circumscribe the objectives of the PPIP Act. In these circumstances it is incumbent on the agency to consider all the conduct relevant to the internal review request.

21 The Information Protection Principles (IPPs) are set out in ss 8-18 of the PPIP Act. Sections 8 to 11 relate to the collection of personal information; and ss 12 to 18 relate to personal information that is “held” by an agency, in particular how it is retained and secured (s12), its accuracy (s15), its use (ss 16,17) and disclosure (s18). The scope of an internal review application should be construed broadly by reference to these principles. In KO and KP v Commissioner of Police, NSW Police [2005] NSWADT 18 the Tribunal noted that while the applicant had named the IPPs in the internal review application, the application itself plainly related to a particular disclosure by an officer of the respondent, and characterised the scope of the application as being about the disclosure of personal information. This analysis was approved on appeal: KO and KP v Commissioner of Police NSW Police [2005] NSWADTAP 56).

22 In the present matter there was correspondence between the applicant and the Acting Legal Officer to clarify the conduct complained of in the internal review application. The terms of the internal review application, and the scope of the internal review examination as outlined in Part 2 of the Privacy Internal Review Report, confirm that the application was focussed on the sending of the two letters by the Deputy Principal, and the disclosures in the meeting of 18 October 2005 and letter of 19 October 2005, including the information that the applicant had sent letters to two teachers. The scope of the application, accordingly, concerns the use, and disclosure, of personal information. I accept the submission of the respondent that the application for review before the Tribunal is about use and disclosure of personal information, and is limited to alleged contraventions of ss 16, 17 and 18 of the PPIP Act.

Submissions

23 The applicant and respondent have filed detailed written submissions, addressing the jurisdictional issue determined in ZR v NSW Department of Education and Training [2007] NSWADT 239; the scope of the Tribunal's review; the evidence given at the hearing; and the substantive issues. The central submissions made concerning the alleged breaches of ss 16, 17 and 18 of the PIP Act are as follows.

Letters from the Deputy Principal to the applicant and P&C President

24 The letters contain statements about the applicant’s conduct at the P&C meeting on 10 September 2005. The Internal Review accepted that this falls within the definition of “personal information” in s4(1) of the PPIP Act, which is to be interpreted broadly: WL v Randwick City Council (GD) [2007] NSWADTAP 58; Department of Education & Training v PN (GD) [2006] NSWADTAP 66.

25 The applicant submitted that the contents of these letters were false and misleading, and based on information obtained from others which the Deputy Principal did not attempt to check. The information was collected by the Deputy Principal, and held by the respondent once it was put in written form in the letters. Even though the letters were subsequently withdrawn, there was still a breach of ss16 and 17 in the use of the information, and a breach of s18 in the disclosure to the P&C President.

26 The respondent submitted that unsolicited personal information received through those School staff present at the P&C meeting was not “held” by the respondent until the Deputy Principal reduced it to writing in the letters; and that there was no breach of s18 in disclosing information to the applicant, the individual to whom the information related. In a subsequent submission the respondent submitted that there was no breach of s16 because the evidence was that the Deputy Principal checked the accuracy of the letters; that there was no breach of s17 as the use of the personal information was for the purpose for which it was retained. In relation to the letter addressed to the P&C President, the Internal Review found that there had been some disclosure of personal information contrary to s18 of the PPIP Act. In the submissions filed as part of the Tribunal review the respondent submitted that this disclosure in correspondence between the School Executive and the P&C was lawfully authorised, otherwise permitted, necessarily implied or reasonably contemplated under s25 of the PPIP Act when read with s116(1) and (2)(d) of the Education Act 1990.

Meeting of 18 October 2005

27 The applicant submits that this meeting was not a meeting of the Teachers Federation or any sub-branch, and was a meeting of School staff; and that the Deputy Principal attended that meeting in his capacity as Deputy Principal. The applicant submits that at this meeting the Deputy Principal disclosed the following personal information:

-The fact that she had written to the Head Teacher and Ms ZA, which was a use for a purpose other than that for which she had provided the personal information

-That in his opinion a parent had asked inappropriate questions at a P&C meeting

-That he had sent letters to the School P&C and to a parent

-The fact that a parent had taken concerns to the attention of senior departmental personnel

28 The applicant submitted that her identity would be apparent or reasonably ascertained from these disclosures; that this information was used to influence the decision of the School staff members in breach of s17; and that if the meeting was not a departmental meeting the disclosure was a breach of s18.

29 The respondent submits that the meeting of 18 October 2005 was a Teachers Federation meeting. Any personal information disclosed to the meeting was done in the capacity of members of the Teachers Federation and not within the scope of their functions as employees of the respondent. Alternatively, any information disclosed at the meeting was not "personal information". The applicant was not mentioned by name, and her identity could not reasonably be ascertained. Alternatively, the operation of s209 of the Industrial Relations Act 1996 and s25 of the PPIP Act had the effect that the respondent was not required to comply with s18 insofar as personal information was disclosed or discussed at the meeting.

Letter dated 19 October 2005

30 The applicant submits that this letter is a departmental document on a number of grounds, including that it does not include Teachers Federation letterhead and is not signed; some copies of the letter were sent in a school envelope and franked on the School franking machine; a copy of the letter was faxed by the Principal to the P&C President; the letter was sent to a PO address for the President of the School Council, an address that could only have been supplied by the School. The Principal did not check the accuracy of the information contained in the letter before acting on it. She would be identified as the key individual associated with the X Committee referred to in the letter. Even if the meeting was not a school meeting, by using the letter to place a ban on P&C parents participation in school activities and sending a copy to the P&C President, the Principal accepted the accuracy of the information in the letter in breach of s16.

31 The respondent submits that any disclosure of the applicant's personal information in this letter is outside the purview of the PPIP Act as the Teachers Federation (and its branches) is a separate entity and not a “public sector agency" within the meaning of the PPIP Act. The letter was not School correspondence. Alternatively, if the meeting was a staff meeting and the letter was school correspondence there was no disclosure of "personal information" in the letter. The applicant was not mentioned by name, and her identity could not reasonably be ascertained from the information contained in the letter.

Discussion

32 The focus of the PPIP Act is on the actions of public sector agencies in their collection, storage, use and disclosure of "personal information", as defined in s4(1) of the PPIP Act. The definition of "personal information" is not limited to information concerning the "personal affairs" of a person, and is to be interpreted broadly: WL v Randwick City Council [2007] NSWADTAP 58. Information held in the minds of employees of a public sector agency subject to the PPIP Act is not "personal information" for the purposes of the Act. Such information, including opinion, is "personal information" only when recorded in written or electronic form: Macquarie University v FM [2005] NSWCA 192.

33 The conduct complained of in this review relates to use and disclosure of personal information contrary to ss 16, 17 and 18 of the PPIP Act. The relationship between those sections was described by the Appeal Panel in Department of Education and Training v MT [2005] NSWADTAP 77 in the following terms:

[39] We see the relationship between ss 16, 17 and 18 as follows. Section 16 applies a data quality standard to all uses of personal information by an agency including conduct involving disclosure of personal information by the agency. Then s17 and s18 operate in separate spheres. Section 17 deals with internal use of personal information by the agency, while s18 deals with external disclosure of the personal information by the agency.

Letters by the Deputy Principal to the applicant and P&C President

34 The letters of 13 and 14 September 2005 written by the Deputy Principal contain statements concerning the conduct of the applicant at the meeting of 10 September 2005. The letter to the P&C President identifies the applicant by name. I am satisfied that both these letters contain personal information of the applicant.

35 It is not in dispute that the Deputy Principal did not attend the meeting, and that Ms XA and the Head Teacher did. Ms XA, the Head Teacher, and the Deputy Principal gave oral evidence. Ms XA's evidence was that she attended on behalf of the Principal, and that the two matters on which the applicant had spoken at the meeting were concerning the School's recognition of academic achievement at presentation events, and the organization of the excursion for the dance rehearsal. In his witness statement the Deputy Principal stated that he was contacted by Ms XA by telephone after the meeting, and that he spoke to both Ms XA and the Head Teacher on Monday 12 September 2005. In his witness statement the Head Teacher stated that he met Ms XA on Monday 12 September 2005 as his direct line manager, and that he and Ms XA then spoke to the Deputy Principal. This is consistent with Ms XA’s witness statement. In his witness statement the Deputy Principal states that he showed drafts of the letters to Ms XA, who advised him that the information contained in them concerning the applicant’s conduct at the meeting was accurate. This is consistent with Ms XA’s witness statement.

36 I am satisfied, based on the witness statements and oral evidence, that the Head Teacher was upset by the applicant’s question concerning presentation events, and expressed this both to Ms XA on Monday 12 September 2005 and again to the Deputy Principal when he and Ms XA spoke to him later. I am satisfied, based on the evidence of Ms XA and the Deputy Principal, that Ms XA contacted the Deputy Principal after the meeting by telephone. In her witness statement Ms XA said that this was because the rehearsals were continuing on Sunday 11 September 2005 and the Deputy Principal was the appropriate person on call. Ms XA's evidence was that she discussed arrangements for the rehearsal and outlined events at the meeting. This is consistent with the evidence of the Deputy Principal. I am satisfied, based on the evidence of the Deputy Principal, Ms XA and the Head Teacher, that the Deputy Principal showed the draft of the letters to Ms XA before sending them, and that Ms XA confirmed that the content was consistent with the information she had provided to the Deputy Principal. The Head Teacher's evidence was that he did not see the letters until 2007, and that the content was consistent with what he had told the Deputy Principal.

37 The letters of 13 and 14 September 2005 were written on School letterhead and signed by the Deputy Principal as Deputy Principal, and the personal information relating to the applicant contained in them was held by the Department. Whether or not drafts of the letters were retained (and there is no evidence that they were), in the final form kept in the School records these letters contain personal information held by the Department.

38 Section 16 refers to the "use" of personal information. The term “use” is to be given its ordinary meaning and is not to be construed narrowly: JD v Department of Health (No 2) [2004] NSWADT 227, JD v NSW Department of Health [2007] NSWADT 219. The term has been defined as being “to employ for some purpose, put into service; turn to account” (GL v Department of Education and Training [2003] NSWADT 166) and “to avail oneself of; to apply to one’s own purposes” (FM v Macquarie University [2003] NSWADT 78). The Appeal Panel in JD v Department of Health [2005] NSWADTAP 44 held that the relevant purpose for s16 is the purpose for which information is proposed to be used, which may not be the purpose for which it was collected. The letter by the Deputy Principal to the applicant is in part expressing concerns about appropriate avenues of communication between parents and the school; that to the P&C President also refers to relations between staff and parents. The reference to the applicant’s conduct at the meeting was a “use” of that information for the purpose of expressing those concerns.

39 Section 16 requires consideration of whether the Deputy Principal took reasonable steps to ensure that the information contained in the letters was relevant, accurate, up to date, complete and not misleading, having regard to “the purpose for which the information is proposed to be used”. The Appeal Panel in JD v Department of Health [2005] NSWADTAP 44 indicated that the following considerations are relevant:

70 Having regards always to ‘the purpose for which the information is proposed to be used’ the critical question is what steps were ‘reasonable’ in the circumstances. The circumstances will include, we think:

(a) the gravity of the information, taking account of the context;

(b) impact on the privacy and reputation interests of the subject and other possible impacts the information might have if it is wrong or defective in the ways referred to in s 16;

(c) how recently the information was collected;

(d) the experience and competence of the author of the information;

(e) the significance of the information in the context;

(f) the extent to which it was possible to check back the information with the providers of the information, or the subject;

(g) whether check back is unnecessary, because for example, of the known reliability of the source system;

(h) whether check back is impractical because of operational issues, such as time constraints or needs to do with maintaining the confidentiality of the process;

(i) whether particular recording methods might have been used that militate against error (such as a tape recordings in an interview setting); and

(j) whether there are other steps that may be taken before any final action is taken in relation to the information, and whether they are likely to occur soon.

40 The statements about the applicant’s conduct at the meeting, and the questions she asked, were based solely on what was reported to the Deputy Principal by Ms XA and the Head Teacher, and I accept the Deputy Principal’s evidence that he did not check this with the applicant. Both the Head Teacher and Ms XA were senior teachers at the school, and in my view the Deputy Principal was entitled to rely on their observations and recollections of the meeting, reported to him on the same day and two days later. In both letters the Deputy Principal refers to his concerns that the applicant had raised her concerns about the rehearsal at the meeting without having conveyed them to himself or other senior executives beforehand. In his oral evidence the Deputy Principal conceded that he became aware later that the applicant had phoned the school on the Friday afternoon, and stated that he was surprised that the applicant had not left a message to ask for him to call her back. The Deputy Principal could not recall whether he contacted the office to check whether the applicant had called. That would have been a relatively simple step to take, and in my view should have been taken to comply with s16.

41 Section 17 applies to the internal use of information by an agency. The agency may use the information for the purpose for which it was collected, and for other purposes only if the individual to whom the information relates has consented to that use, if the other purpose is directly related to the purpose for which the information was collected or if the use for that other purpose was necessary to prevent or lessen a serious and imminent threat to a person’s life or health. There is some difference of opinion as to whether s17 applies to unsolicited information. Section 4(5) of the PPIP Act provides that information is not "collected" if it is unsolicited; if information is unsolicited, an agency need not comply with ss 8 to 11 of the Act. In OA v New South Wales Department of Housing (No 2)[2006] NSWADT 94 the Tribunal found that an agency had “collected” unsolicited information when it decided to make use of that information to conduct investigations. In this matter, the information provided to the Deputy Principal by Ms XA and the Head Teacher was unsolicited, in the sense used by the Appeal Panel in Vice-Chancellor, Macquarie University v FM (GD) [2003] NSWADTAP 43 as being “information that an agency finds itself receiving”. I agree with the respondent’s submissions that it was not “held” by the respondent until reduced to writing in the form of the letters of 13 and 14 September 2005. The use of the personal information in that form was a use for the purpose for which it was collected, namely to address concerns about appropriate avenues of communication between parents and the school, and more broadly, relations between staff and parents.

42 Section 18 is concerned with disclosure of personal information to a person or body outside the agency. The Court of Appeal has held that the "essence of disclosure of information is making known to a person information that the person to whom the disclosure is made did not previously know": Nasr v State of NSW [2007] NSWCA 101.

43 The letters contain comments by the Deputy Principal concerning the applicant’s conduct at the P&C meeting, and his opinions about that conduct. Section 18 specifically excludes disclosure of personal information to the individual to whom the information relates, and the letter addressed to the applicant did not breach s18. The Internal Review report accepted (in 5.1.4.2) that the letter addressed to the P&C President involved a breach of s18, while concluding that the breach would not be regarded as one at the serious end of the spectrum. In the Tribunal the respondent has submitted that the disclosure of personal information in correspondent between the School executive and the P& C is authorised under s25 of the PPIP Act when read together with s116(1)(a) and (2)(b) of the Education Act 1990.

44 Section 116 sets out the objects and functions of the P&C Association in the following terms:

(1) The objects of an association are:

(a) to promote the interests of the school by bringing parents, citizens, students and teaching staff into close co-operation, and

(b) to assist in providing facilities and equipment for the school and in promoting the recreation and welfare of the students at the school, and

(c) to encourage parent and community participation in curriculum and other education issues in schools where there is no school council.

(2) The functions of an association are the following:

(a) to report, when requested by the Minister, on the material requirements of the school and to advise on the subject of maintenance of the school, alterations and additions to school facilities, and the selection of new sites,

(b) to assist and co-operate with the teaching staff in public functions associated with the school,

(c) to be responsible for the election of parent representatives to any school council constituted at the school in consultation with the principal of the school to ensure consistency with any guidelines for elections issued by the Director-General,

(d) to assist in any other matters in which the Minister may seek the co-operation of the association and to exercise such other functions as may be prescribed by the regulations.

45 Section 25 of the PPIP Act provides:

A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if:

(a) the agency is lawfully authorised or required not to comply with the principle concerned, or

(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

46 The respondent submits that s116(1)(a) and (2)(b), read broadly, "lawfully authorises" non-compliance with s18, and that non-compliance is "otherwise permitted (or is necessarily implied or reasonably contemplated)". The basis for this argument is that there must be free communication about issues relevant to the interests of the school, and those communications not infrequently will involve personal information.

47 I agree that the objects and functions of a P&C Association include co-operation between parents and teaching staff at a school, and that communication from a school to a P&C about proper processes for effective communication by parents of concerns about school activities might well be included. In ZR v Director General, New South Wales Department of Education and Training [2008] NSWADT 28 I concluded (at [20]) that the two letters at issue here contained information available for use by the School and respondent “in connection with its administrative functions”. However, that issue arose under s39(b) of the Freedom of Information Act and not the PPIP Act. As noted by the Appeal Panel in WD v Randwick City Council (GD) [2007] NSWADTAP 58, caution should be exercised in interpreting the PPIP Act by reference to considerations arising under other legislation. The PPIP Act is beneficial legislation, and should be interpreted liberally in order to achieve its beneficial purpose: Director General, Department of Education and Training v MT [2006] NSWCA 270. Any exclusions or exceptions should receive a correspondingly narrow interpretation. In my view the content of the letter addressed to the President of the P&C Association goes further than simply commenting on general issues of communication between parents and a school. It includes questioning the motive for the applicant raising the issue at the P&C meeting rather than directly with the School, and the comment that while the Head Teacher was speaking, the applicant "…rolled her eyes and spoke to another parent allowing [the Head Teacher] to hear a statement suggesting that some of his staff were not good". Even if some disclosure of personal information might be authorised or permitted as part of the general dialogue between a school and a P&C by virtue of s25 of the PPIP Act, the disclosures in the letter of 14 September 2005 go further than warranted for any legitimate purpose within s116 of the Education Act.

48 The applicant was made aware in the letter addressed to her dated 13 September 2005 that the Deputy Principal had “passed on [his] concerns” to the P&C President; however there was nothing about the circumstances to indicate that the applicant would not object to the disclosure. The exceptions in paragraphs 18(a), (b) and (c) do not apply. The disclosure of personal information about the applicant in the letter dated 14 September 2005 from the Deputy Principal to the P&C President breached s18 of the PPIP Act.

Meeting of 18 October 2005

49 The meeting of staff on 18 October 2005 followed a P&C meeting held on 15 October 2005. In a letter dated 12 October 2005 addressed to the President of the P&C, the Principal and Deputy Principals had asked that the P&C consider ratifying two motions as follows:

Motion 1

That the [School P&C] not exercise any authority over the teaching staff and not interfere in any way with the control of the management of the school. The focus of the [School P&C] meetings is to be directed towards the discussion of the association’s activities that contribute towards supporting the school within the objectives of the [School P&C].

Motion 2

That the [School P&C] and individual association members communicate any school management issues of concern to the senior executive for clarification. The association and individual members should not engage in correspondence that undermines, critiques, questions or infers judgment over another staff member. That any issues, identified by the chair person, as school management issues asked or offered for discussion at the meeting of the P&C be stopped immediately and that the school communications strategies as outlined in [the School newsletter] be adhered to.

50 The Minutes of the P&C meeting held on 15 October 2005 record that the Vice President for the Metropolitan area from the P&C Federation attended the meeting. The discussion of the two motions is recorded as follows:

Discussion was held for the first motion. A copy of the constitution was given to all the members & explained in regards to the motion. We affirm that the [School P&C] do not have authority to exercise over the teaching staff or any matter relating to the control or management of the school.

Moved [Name] Seconded [Name]

Discussion continued for the 2nd motion re communication. [The Vice President] explained that members are allowed to discuss general school issues of concern in their meetings. He will speak at the November P&C meeting re its role, by-laws, what the P&C does not have authority to discuss. These issues will be discussed in detail in the next meeting. A multicultural parents meeting will take place to discuss the chain of contact with eh school. A DET community Liaison officer to be contacted to promote co operation.

Recommendation 15 in the school review was discussed – Communication strategy – The members raised their concerns in regards to the second motion. Discussion ensued re school management issues, the chain of communication in [the School] and what is appropriate to discuss at a P& C meeting. The 2nd motion was not seconded. The motion was rejected.

51 In his written statement the Deputy Principal refers to the meeting of 18 October 2005 as a "union meeting", held during the school lunch period and attended only by members of the Teachers Federation employed at the School. He attended as a member of the Teachers Federation. In his witness statement the Deputy Principal stated:

28 During that meeting I advised other NSW Teachers Federation members of the events concerning the recent [School P&C] activities. The focus of the meeting was in relation to the correspondence to the [School P&C] regarding motions relating to school management issues of 12 October 2005. My advice to the participants of this meeting served to provide an overview on what had been happening with regard to the [School P&C] and the latest events that had drawn attention to [School P&C] activity. I therefore provided advice on the following matters:

-that I had sent correspondence to the [School P&C] and “a parent” expressing my disappointment that the parent chose to use the [School P&C] forum to air concerns on matters that would have been better raised with the school than a public meeting such as the P&C

-that “a parent’ had written to two head teachers and that I was referred to in these letters in a manner which I felt passed negative judgment on me

-that “a parent” was continuing to take concerns outside the [School].


29 While the letters to [the President] and [ZR] of 14 and 13 September 2005 (respectively) were referred to in the meeting, individual naming of parents was avoided at the meeting. This correspondence was not tabled at the meeting. The focus of the discussion at the meeting was the correspondence sent to the P&C regarding motions relating to the P&C constitution and their involvement in school management issues. Advice regarding “a parent” was only raised to place the concerns in context.

52 Following the meeting on 18 October 2005, a letter (dated 19 October 2005) was sent in the name of “The [School] Branch of Teachers’ Federation”. This letter was sent to a number of people, including various individuals in the P&C, the President of the School Council (husband of ZR), and to the School Education Director of the Department. The letter refers to a meeting of “the Teachers’ Federation branch at [the School]”, and goes on to state:

The following motion was passed unanimously at this meeting:

The staff of [the School] cease all involvement in activities relating to the [School P&C] and its sub-committees. In doing so, an initial ban of activities will include and may not be limited to:

53 There followed a list of activities, including staff presentations at P&C meetings, and P&C involvement in the year 12 cocktail party.

54 The applicant submitted that the meeting of 18 October 2005 and the letter dated 19 October 2005 were not a Teachers Federation meeting or correspondence respectively. The applicant submitted that there are no “branches” of the Teachers Federation, and that teachers at the School do not refer to themselves in correspondence or minutes as the “[School] Branch of the Teachers’ Federation”; there are no minutes for any meeting in October or December. The letter of 19 October 2005 was sent to the addresses of parents held on school files and posted in a franked School envelope.

55 The first issue to consider is the status of the meeting of 18 October 2005. None of the four School witnesses who gave evidence on this issue could recall how the meeting was called, or who called it. The Head Teacher had little recollection of the meeting and stated that it was more than likely he had attended. The Head Teacher stated that staff were notified of meetings by a message to staff, a phone call to specific faculty, or by email. Ms XA in her oral evidence stated that there were differences between a Teachers Federation meeting and a normal staff meeting, in that for the latter there would be presentations by School executive while for the former there would be more open discussion. Both the Deputy Principal and Ms XA gave evidence that they were in no doubt it was a Teachers Federation meeting. This evidence was not challenged in cross examination. In his oral evidence the Deputy Principal referred to the motions that had been taken to the P&C meeting of 15 October 2005, and later described the matters discussed as a "workplace issue". In her oral evidence Ms XA described the purpose of the meeting as being to discuss where to go after the P&C had rejected the motions.

56 The copies of minutes from meetings held in 2004 indicate that there is no consistent pattern in how discussions at meetings of School members of the Teachers’ Federation are recorded. The Head Teacher’s evidence was that minutes were distributed as a matter of course; the Deputy Principal’s evidence was that it was not unusual for there not to be minutes of a Teachers Federation meeting, as the School was unusual and there were a lot of meetings. The oral evidence was that there is also no consistent manner in which such meetings are called, and how staff are notified. The fact that, according to a letter from the General Secretary dated 19 April 2006, the central Teachers Federation was not aware of the letter of 19 October 2005, does not establish one way or the other what the status of the meeting was. I accept, based on the evidence of the School witnesses, that they regarded themselves as attending the meeting in their capacity as members of the Teachers Federation. Whether or not this was a formally constituted meeting, any use or disclosure of personal information by the Deputy Principal in breach of the Information Protection Principles that may have occurred at the meeting would have been for a purpose extraneous to any purpose of the Department, and would therefore not be use or disclosure by the Department: Director General, Department of Education and Training v MT [2006] NSWCA 270.

Letter of 19 October 2005

57 The next issue to consider is the letter of 19 October 2005. The letter purports to be from “The [School] Branch of Teachers’ Federation”, and the copy provided to the Tribunal is addressed to Mr YA in his capacity as President of the School Council. It commences:

This letter was sent out to [School] Central P&C members. It is passed onto you out of courtesy to keep you informed of current actions undertaken by the [School] Teachers’ Federation with the Central P&C. The actions do not affect the operation of your group.

58 The letter ends with a list of 16 persons to whom a copy of the letter was sent, including the President, Vice President, Secretary and Treasurer of the Central P&C, persons associated with various committees, the City Organiser of the relevant District, NSW Teachers’ Federation, and the School Education Director. The letter refers to “the continuous interfering of a small group of parents in issues clearly relating to the management of the school, and attempts to exercise authority over teaching staff”. It refers to the X Committee “abandoned by the P&C” in 2005, and states that “key individuals of this committee continue to involve themselves in such issues...”. The letter states:

This issue was brought to a head when one of our deputy principals communicated disappointment with a parent about items raised at a meeting on Saturday the 10th September 2005. This concern was communicated to both the president of the P&C and the parent in question. The issues raised were inappropriate for that occasion and were centred around:

-questions raised about recognising a student’s academic performance at speech night in 2004;

-the organisation of a dance group rehearsal (...), and

-aspersions made regarding the professionalism of some teaching staff.


The correspondence regarding these issues was not tabled at the P&C meeting on Saturday the 15th of October. Furthermore, the parent had taken their concerns outside the school bringing these to the attention of senior departmental personnel and had written letters to two head teachers about these issues. The substance and implications of these letters served to undermine the role and integrity of our deputy principal.

59 The letter refers to the failure to ratify the motions placed before the P&C meeting of 15 October, and continues:

As a result, the Teachers’ Federation branch at [the School] met on Tuesday the 18th of October to discuss the issues surrounding the interference of some parents and the unanimous decision of the P&C not to ratify these motions. As a result, this meeting chose to undertake a course of action that highlights the determination we have as a whole staff to ensure that we are able to undertake our core business of teaching and the promotion of outstanding student learning outcomes.

The following motion was unanimously passed at this meeting:

The staff of [the School] cease all involvement in activities relating to the [School P&C] and its sub-committees. In doing so, an initial ban of activities will include and may not be limited to:

...

These bans will continue until such time that the Central P&C adopts the motions presented on the 15th of October by the senior executive. And, in line with this motion, the P&C follows the strategy defined by the school principal.

60 The applicant submits that this letter is a departmental document; the respondent submits that it is Teachers’ Federation correspondence, and not School correspondence. The applicant relied in part on an argument that there are no “branches” of the Teachers’ Federation. Whether or not that is correct in a formal sense, it is clear from letters (dated 2 May 2006 and 1 March 2007) provided to the Tribunal by the applicant, addressed to the applicant from a former Teachers’ Federation representative at the School, that it was not unknown for there to be references to the “[School] branch” of the Teachers Federation. For example, the letter dated 2 May 2006 is signed by the sender as “Teachers Federation Representative [School] Branch of Teachers Federation”. Ms XA’s evidence was that such a reference was common at a range of schools. More significantly, in its content the letter purports to reflect a decision taken by staff at a meeting of the Teachers Federation. It uses the term “bans”, and was understood, at least by the Principal and Ms XA according to their oral evidence, as imposing bans on teacher involvement in activities involving the P&C. According to the Minutes provided by the applicant, the letter was discussed at a meeting of the School Council on 5 November 2005, in the context of the “action taken by the Teachers Federation”.

61 I accept that at least one copy of the letter dated 19 October 2005 was sent using School mail facilities. The Senior Administration Manager could not recall ever being approached by a Teachers Federation representative to send mail on their behalf. The Senior Administration Manager conceded that staff might give her mail in a School envelope to post and she would not know what was in it. That does not of itself make the recording of any information in the letter, or its disclosure, a use or disclosure by the School. I accept that the Department’s policy on use by staff of department facilities permits limited personal use of its communication devices. The Department’s Policy Statement of October 2004 specifically permits (at 7.10) reasonable access by accredited trade union delegates to telephone, facsimile, and email facilities for authorised union activities. Even if addresses had been obtained from School records and School mailing facilities had been used, that would not, in my view, be sufficient to convert Teachers Federation correspondence to school and departmental correspondence. Applying Director General, Department of Education and Training v MT [2006] NSWCA 270, any use or disclosure of personal information in the letter of 19 October 2005 was not use or disclosure by the Department.

62 This conclusion makes it unnecessary to decide whether, as contended by the applicant, the disclosures made at the meeting of 18 October 2005 or in the letter dated 19 October 2005, contain “personal information” as defined in s4(1) of the PPIP Act. While there is no evidence that the applicant was identified by name, the applicant’s case is that her identity was apparent or could reasonably be ascertained from the information. The Appeal Panel in WL v Randwick City Council [2007] NSWADTAP noted (at [15]) that context is critical. I note also that while much of the respondent’s cross examination of the applicant was directed at her credit, it has not been necessary in this aspect of the matter to make findings based on her evidence.

63 In conclusion, for the reasons given I am satisfied that there was a breach of s 16 of the PPIP Act in the use of personal information in the Deputy Principal’s letter to the applicant dated 13 September 2005 and the letter to the President of the P&C dated 14 September 2005, and a breach of s18 of the PPIP Act in the disclosure of personal information in the Deputy Principal’s letter to the President of the P&C dated 14 September 2005. In her application to the Tribunal, ZR sought an order pursuant to s55(2) of the PPIP Act, and the matter is to be relisted to consider further progress in regard to that issue.

Orders

1. The disclosure of the name or any other material which identifies, or might lead to the identification of the applicant, the school, or any other person referred to in these proceedings, is prohibited

2. The matter is listed for further directions at 3pm on 12 May 2009.