ZR v NSW Department of Education and Training (GD)

[2009] NSWADTAP 69

Appeal Panel - Internal

CITATION:	ZR v NSW Department of Education and Training (GD) [2009] NSWADTAP 69
PARTIES:	APPELLANT ZR RESPONDENT NSW Department of Education and Training
FILE NUMBER:	099025
HEARING DATES:	31 August 2009
SUBMISSIONS CLOSED:	31 August 2009
DATE OF DECISION:	25 November 2009
BEFORE:	O'Connor K - DCJ (President); Fitzgerald K - Judicial Member; Bolt M - Non-Judicial Member
CATCHWORDS:	Privacy – Appeal – Attribution of Conduct to Agency – Union Meeting – Jurisdiction – Scope of Internal Review – Whether Conduct in issue involved Collection – Appeal Dismissed – Privacy and Personal Information Protection Act 1998
DECISION UNDER APPEAL:	ZR v NSW Department of Education and Training (No 2) [2009] NSWADT 84
FILE NUMBER UNDER APPEAL:	063440
DATE OF DECISION UNDER APPEAL:	04/21/2009
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Education Act 1990
CASES CITED:	Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 149 Bruce v Cole (1998) 45 NSWLR 163 CDJ v VAJ (1998) 197 CLR 172 Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44 Director General, Department of Education and Training v MT [2006] NSWCA 270; (2006) 67 NSWLR 237 Hinton v Commissioner for Fair Trading, Office of Fair Trading [2007] NSWADTAP 17 KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18 MT v Director General, NSW Department of Education & Training [2004] NSWADT 194 O’Sullivan v Central Sydney Area Health Service [2005] NSWADT 16 Patsalis v Commissioner of Police, New South Wales Police [2003] NSWADT 171 ZR v NSW Department of Education and Training (No 2) [2009] NSWADT 84
REPRESENTATION:	APPELLANT In person RESPONDENT J McDonnell, solicitor
ORDERS:	1. Interlocutory appeal dismissed. 2. Application for review remitted to the Tribunal for disposal.

1 ZR has applied to the Tribunal under the Privacy and Personal Information Protection Act 1998 (‘Privacy Act’) for review of certain conduct that occurred at a school falling under the authority of the Department.

2 The Privacy Act imposes obligations on public sector agencies in relation to the collection, storage, use and dissemination of personal information held in recorded form. The obligations are, primarily, to be found in the Information Protection Principles set out at ss 8-19 of the Act. The IPPs may be varied by approved Codes of Conduct. The Department’s schools are subject to the IPPs, as varied by the Department’s Code of Conduct.

3 The Tribunal has found that two of the items of conduct put in issue gave rise to contraventions of requirements of the Act: see ZR v NSW Department of Education and Training (No 2) [2009] NSWADT 84 (21 April 2009). Ordinarily the Tribunal, having found contraventions, would go on to deal with the applicant’s claim for relief.

4 ZR has lodged an appeal, as allowed by the Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113. As the appeal is interlocutory, it requires leave to proceed. That has been granted.

5 The appeal asserts errors of law, and applies for leave for the appeal to be extended to the merits, with the consequence that the Appeal Panel would dispose of the proceedings.

6 The appeal disputes: the Tribunal’s failure to find further contraventions in respect of those items of conduct that were the subject of adverse findings; and the Tribunal’s failure to find any contraventions in respect of other items of conduct. The appeal also asserts that the Tribunal failed to deal with the entirety of the appellant’s case.

Anonymity

7 At the outset of these reasons we note that the Tribunal’s decision continued in force an order that disclosure of the name or any other material which identifies, or might lead to the identification of the appellant, the school, or any other person referred to in these proceedings, be prohibited. In these reasons we have maintained, for the most part, the use of the descriptors used by the Tribunal in its reasons.

Background

8 At different points in the period 1997-2006 ZR’s two sons and daughter were enrolled at a selective high school. Throughout that period she and her husband were active members of the school community. ZR served on a number of committees of the Parents and Citizens’ Association (the P&C). Her husband, as at 2005, was the president of the School Council. These are both statutorily recognised bodies forming part of the school community, with differing roles. See further the Education Act 1990 (Education Act), ss 115, 116 as to Parents and Citizens Associations; and s 36 as to School Councils.

9 ZR is one of a number of parents who had raised concerns relating to aspects of the operation of the school over the period mentioned above. The P&C had, for example, constituted a committee called the Student Welfare and Academic Needs Committee (SWAN) whose membership included ZR and a number of other parents with concerns around these issues.

10 In 2005 ZR’s daughter was enrolled in Year 9. At a meeting of the P&C on Saturday 10 September 2005, ZR addressed comments and questions to teachers in attendance – the school’s head teacher in mathematics (the ‘Head Teacher’) and a deputy principal (‘Ms XA’).

11 ZR referred to the way the school had been handling student excursions, referring in particular to circumstances that had affected her daughter in recent days. Her daughter was one of a number of students involved in a dance performance to be presented at a public concert on Tuesday 13 September 2005. The organising teacher had scheduled a final rehearsal for that weekend, 10 and 11 September. She, ZR, had not received any information in advance, explaining for example where the rehearsal was to be held, travel information and consent forms. She raised these concerns at the P&C meeting, addressing them to Ms XA. Separately, she asked a question of the Head Teacher in which she queried why an academic prize had not been given in a particular category at the school presentation night the previous year, suggesting that the school seemed to be more concerned to acknowledge sporting achievement. The Head Teacher was the co-ordinator of the presentation night.

12 Ms XA and the Head Teacher drew the matters raised to the attention of another deputy principal (the ‘Deputy Principal’), and expressed concerns over their tone and content and the inappropriateness of them being raised in the way they were at a public meeting, rather than via internal channels.

13 On Monday 12 September the Deputy Principal drafted a letter to be sent to ZR. He also drafted a letter to go to the President of the P&C. He consulted Ms XA and the Head Teacher in relation to their contents. In the meantime, on the Monday an information letter was sent home to parents of students involved in the dance presentation covering the matters raised.

14 The letter to ZR was sent on 13 September. The letter to the President, P&C was sent on 14 September. The letters were in similar terms. The letter to ZR had a hostile tone at a number of points (‘I am bewildered …’ [by her not having raised the excursion issue directly with the senior executive]; ‘It saddens me to see this teacher’s effort and enthusiasm marred by the knowledge that parents of students involved in the activity complain about her professionalism’; and re the prize awards issue, ‘It is disappointing that a staff member from our school gave up his time on the weekend, to present to the P&C, and was met with unsubstantiated questions and a lack of respect and appreciation’.)

15 ZR was incensed by their contents which, as she saw it, contained a number of unfounded and unfair criticisms of her for raising these matters in the way that she did, and, more generally, her role in the school’s affairs. The Deputy Principal referred to the existence of the letter to the P&C in his letter to ZR, but she said at hearing that she did not see it until her FOI application was processed almost a year later.

16 She immediately made a complaint (by letter dated 15 September 2005) to the Minister for Education. The complaint was referred to the Department for investigation and resolution in accordance with its complaints resolution policy. She said in the letter to the Minister:

‘I am deeply offended by this letter, the subsequent letter that has been sent to the P&C Association and the private defamatory and untrue statements that are being circulated about me. I request a written apology from the school and a letter from the Minister assuring me that I have a right to raise such issues and that in the future, I will not be subject to the unwarranted character assassination that I am now. I also seek assurance that my daughter will not be the subject of any harassment as a result of this. If I do not receive a reply by Monday, I will be forced to take further action.’

17 She particularly objected to the suggestion that she had failed to raise her concerns as to one matter (the nature of a school excursion that her daughter was to be involved in on the weekend of 10 and 11 September). She stated that she had spoken to the organising teacher on Friday 9 September, and had received no response when she left messages with school executives to discuss issues of concern that afternoon.

18 In the days that followed she wrote to the Head Teacher and another teacher who was a head teacher for Teaching and Learning. The letters are dated 19 September 2005. She expressed her regret for any hurt they may have felt over what she said. She said at the Appeal Panel hearing that she has no concerns over their conduct towards her, her issues are with the school’s administration, in particular the behaviour of the Deputy Principal.

19 The material provided to the Tribunal indicates that there were considerable tensions in the school community by this time over the appropriate role of parents in the operation of the school, the role of the senior executive of the school (the principal, the deputy principals and senior teachers) and the independence of the teaching functions of the teaching staff.

20 On 12 October the school executive wrote to the P&C proposing that it pass two motions that might clarify understanding of the respective roles. The first motion declared, for example, that the P&C does ‘not exercise any authority over the teaching staff’. The second motion declared, for example, that the P&C and its members should communicate any ‘issues of concern to the senior executive for clarification’ and ‘should not engage in correspondence that undermines, critiques, questions or infers judgement over another staff member’. At its meeting on 15 October, the P&C declined to adopt the motions.

21 There followed a meeting of teachers on 18 October 2005. There was debate before the Tribunal as to whether it was a staff meeting of teachers, or a union meeting under the auspices of the school branch of the Teachers Federation. The meeting passed a motion applying a series of ‘bans’ to contact between teachers and the P&C, and stated that the bans will continue until the motions presented to the P&C on 15 October are passed.

22 In a letter dated 19 October under the signature ‘[local branch] of Teachers Federation’, circulated to about 22 persons or organisations connected with the school community, there was a detailed explanation of the concerns that had given rise to the letter. The letter included a specific reference to the issues raised by ZR, without naming her, but referring to the date they were raised and to it being at a P&C meeting. The letter referred, for example, to ‘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’.

23 The appellant widened her complaint to the Minister to refer to what, she believed, had been said about her at the meeting of 18 October 2005, in the letter of 19 October 2005 and within the school community in the aftermath to that letter. She considered that she had been further humiliated and her character tarnished.

24 The Department’s dispute resolution procedures give emphasis to negotiated resolution. On 10 November 2005, the Deputy Principal wrote to XR. He expressed regret as to three aspects of his letters of 13 and 14 September, gave two assurances to ZR in relation to the role of parents in raising concerns, and indicated that he ‘would like to withdraw’ the letters of 13 and 14 September. The Department’s complaints unit considered that ZR’s complaint had been adequately resolved by these actions, and closed the file.

25 ZR was not satisfied. On 4 April 2006 she made a formal application for review of the conduct, by reference to the Information Protection Principles as varied by the Department’s Code of Practice. The Department investigated the matters raised, and responded by way of an internal review report dated 30 November 2006.

26 The report dealt with the following matters: the conduct of the Deputy Principal and Ms XA in allegedly unlawfully disclosing to the members of the Teachers Federation the fact that ZR had made an official complaint concerning the correspondence from the Deputy Principal to her and the P&C; alleged unlawful disclosures to school staff other than the addressees of the two letters she sent on 19 September; allegedly inaccurate statements about ZR and her conduct in the Deputy Principal’s letter dated 14 September to the President of the P&C; the school’s role in allegedly adopting and facilitating the circulation of the letter prepared under the name of the Teachers Federation dated 19 October.

27 The internal review report found one ‘minor’ contravention of the Information Protection Principles – being the unlawful disclosure to the President, P&C of opinions held by the Deputy Principal about ZR’s behaviour, opinions that had been recorded in the earlier letter to ZR. The provision that regulates disclosure of personal information is s 18. The Tribunal said:

‘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.’

28 The report concluded, however, that the Deputy Principal had not breached s 16. This is the provision which imposes an obligation to take reasonable steps to ensure the accuracy, fairness and completeness of information (including information in the nature of opinions) before making use of that information or disclosing it. The report concluded that the Deputy Principal had taken reasonable steps to ensure the accuracy of the contents of the letter prior to sending it. It referred to the fact that he had consulted the two colleagues who had reported the concerns to him, and to their opinions that the letters reasonably reflected their concerns.

29 ZR was dissatisfied with this response, and exercised her right to apply to the Tribunal, which she did by application lodged 19 December 2006.

Findings of Tribunal

30 The Tribunal differed with the internal review report on the question of whether the Deputy Principal had taken reasonable steps to ensure the accuracy and completeness of the opinions contained in the letters. It found contraventions of s 16 in relation to both letters. In concluding that there had been a breach of s 16 of the Act, the Tribunal said:

‘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.’

31 It agreed with the author in regard to there being an additional breach in the case of the letter to the President, P&C, contravention of s 18.

32 The Tribunal did not find any other contraventions. It found that the teachers’ meeting was a union meeting. The statements made by the Deputy Principal at that meeting had an extraneous purpose. The letter dated 19 October 2005 was a letter from the union. The union is not regulated by the Privacy Act. It did not see it as necessary to address the question of whether any personal information about ZR had been communicated at the meeting, or by the letter dated 19 October 2005.

Ground of Appeal 3: The Meeting of 18 October 2005

33 The Tribunal rejected submissions by ZR that the meeting properly understood was an ordinary meeting of staff of a kind that occurs regularly within a school environment. On her submission, the respondent is vicariously responsible for what occurs at a staff meeting.

34 The Tribunal based its finding that the meeting was a union meeting on the evidence of the Deputy Principal and Ms XA. The outcome of the meeting was communicated, as noted earlier, by letter dated 19 October 2005. That letter was on NSW Teachers Federation letterhead.

35 The Tribunal said:

‘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 [also (2006) 67 NSWLR 237].’

36 The Tribunal noted that there was some lack of clarity in the day to day environment of the school in differentiating between staff meetings and union meetings. However, the Tribunal was satisfied by the evidence of the Deputy Principal and Ms XA in particular as to the auspices under which the meeting in issue was held, i.e. that of the union.

37 In our view, the Tribunal’s approach to the task of finding the facts has not given rise to any error of law. The law simply requires that there be some probative evidence. See generally, Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 149 at 155-156 and 157 per Glass JA; Bruce v Cole (1998) 45 NSWLR 163 at 188.2-189.5; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450-451; Trust Company of Australia Limited v Skiwing Pty Ltd [2006] NSWCA 185; 66 NSWLR 77 at [52]-[53] per Spigelman CJ.

38 ZR contends that if the meeting was a union meeting, nevertheless the Deputy Principal was present at the meeting as an official of the school, and consequently his communications bound the school. She submits that there is no reason why a person cannot be present in more than one capacity. In meeting this point, the Tribunal relied on the analysis of the Act by Spigelman CJ (Ipp JA, Hunt AJA agreeing) in the case cited (‘MT’).

39 In MT the Court upheld an appeal against a ruling of the Appeal Panel of this Tribunal to the effect that a school (and in turn the Department) was liable for wrongful disclosure. There, a teacher had accessed a confidential student file. He had used the information for a private purpose, to assist him as coach of a local sports team in making a decision whether to select the person for the grand final. The Chief Justice considered that the Privacy Act was directed to official conduct; and that conclusion was supported by the fewness of the references in the Act to non-official conduct. The Chief Justice noted that only two provisions referred to the ‘extraneous’ use of personal information – s 12(c) and s 62.

40 Section 12(c) (the Security Principle) refers to the risk of unauthorised access, use, modification or disclosure:

‘ 12 Retention and security of personal information

A public sector agency that holds personal information must ensure: …

(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 … (emphasis added).’

41 There is also a criminal offence provision that concerns itself with unauthorised use or disclosure:

‘62 Corrupt disclosure and use of personal information by public sector officials

(1) A public sector official must not, otherwise than in connection with the lawful exercise of his or her official functions, intentionally disclose or use any personal information about another person to which the official has or had access in the exercise of his or her official functions. (Emphasis added.)’

42 The Chief Justice continued:

‘43 The interaction of s12(c) and s62(1) is such that, in my opinion, it leaves no scope for the extension of each reference to conduct of the public sector agency to encompass any conduct by an employee or agent, irrespective of whether it is within the scope of his or her functions as such. Where, as here, the “use” or “disclosure” of information was for a purpose extraneous to any purpose of the Department, it should not be characterised as “use” or “disclosure” by the Department or conduct of the Department. It is not appropriate to adopt a rule of attribution that extends so far.’

43 The only evidence as to the capacity in which he attended the meeting is to be found in the Deputy Principal’s statement of evidence. He states that he attended as a union member not as a representative of the school executive. It is implicit in the Tribunal’s approach to this issue that it accepted this evidence.

44 On that basis, the Tribunal saw the circumstances as ones involving an ‘extraneous’ activity – participation in a union meeting. (It is perhaps unfortunate that the Tribunal chose to use the descriptor ‘Deputy Principal’ – one we have retained for ease of reference between this decision and the decision under appeal. The use of the descriptor does tend to convey the impression that that person was still acting in an official capacity when at the meeting.)

45 In our view, the Tribunal properly applied the reasoning in MT.

46 In MT, the Department admitted a breach of the Security Principle (s 12) in relation to the lack of adequacy of its arrangements for managing school files so as to prevent inspection of the files by teachers for private purposes.

47 We acknowledge ZR’s submission that the circumstances in MT are not the same as those here. In this case, the opinion formed by the Deputy Principal (and reduced to writing in the letters of 13 and 14 December), did not derive from any unauthorised access. It is also the case that a union meeting of members belonging to a workplace has a much closer connection to the affairs of the workplace than does a community sports team. Nonetheless, it was open, on the evidence, for the Tribunal to find that use of the information in the union meeting involved an ‘extraneous’ activity. If the Deputy Principal engaged in any breach of his obligations as an officer of the agency in discussing interactions with a parent (or parents) at a union meeting, that must be dealt with by reference to public service obligations of a personal character, not by reference to the IPPs.

48 At the appeal hearing ZR also raised the issue of whether the Deputy Principal conveyed ‘personal information’ within the meaning of the Act to the other persons at the union meeting. The Tribunal did not need to deal with this issue given its primary conclusion. As we have upheld that conclusion, it is not necessary to deal with this point.

Ground 1: The Security Issue

49 Related to the preceding discussion is ZR’s first ground of appeal. She submits that the Tribunal should have assessed whether the Department had contravened the Security Principle in allowing a state of affairs under which the Deputy Principal disclosed, on her submission, personal information contained in school records. The argument is that the Department failed to have in place sufficient arrangements (by way, for example, of training and instruction) to safeguard persons the subject of information held by the school from extraneous use and disclosures of that information.

50 In our view, this issue was not before the Tribunal. The Tribunal explained at [15]-[22] of its reasons how it reached its conclusion as to the matters before it. It referred, in our view, accurately to the relevant provisions of the Act, and the related case-law. The parameters of the matters that can be considered by the Tribunal are set by the internal review process. The scope of the internal review process is set by the original complaint to the agency, or the complaint as varied following consultation between the agency and the complainant. See generally, KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18 at [10] ff; and Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44 at [18].

51 In this case there was a process of consultation following receipt of the application. An exchange of emails dated 12-14 July 2006 occurred between ZR and the responsible officer in the Department, Ms Kelly Morgan, Legal Services Directorate. They appear at Tab 3 of the Department’s internal review report dated 30 November 2006.

52 While it is the case, as ZR states, that in her original application she drew attention to all of the Information Protection Principles, including the Security Principle, it was not, in our opinion, one of the matters that was maintained as a live concern in the complaint as revised by the process recorded in the exchange of emails. Consequently, our conclusion is that the Tribunal could not deal with this issue.

Ground 4: The School’s Conduct after Receipt of the Union Letter

53 ZR contends that the Tribunal also failed properly to deal with another matter she put in issue – the conduct of the school after receipt of the letter of 19 October 2005 from the union. In her appeal submissions she refers to the way in which the school executive dealt with the letter from the union, and the extent of further dissemination that took place. She objected specifically to the conduct of the school in faxing the letter to the P&C. She saw the contents of the union letter as directly reflecting on her in an unfair and distressing way. This matter is addressed at [61] and [62] of the Tribunal’s reasons.

54 She contends that because there was use made of the many school facilities to transmit, at the least, one copy of the Teachers Federation letter to people on the circulation list (in this instance the President, P&C), the school adopted the letter, and the communication became a use or disclosure of personal information governed by the Act. The Tribunal said at [61]:

‘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.’

55 In our view, this conclusion was open to the Tribunal to reach on the evidence. The school’s administration belongs to a wider communal environment, as contemplated by the Education Act, of which the P&C and the School Council are key additional elements. The mere transmittal of a communication of relevance to the wider environment (the announcement by the union of bans affecting the relationship between teachers and the P&C) can not, we think, without more, convert the communication to one adopted by the agency, and to which the regulatory framework of the Privacy Act applies if it contains personal information.

Ground 2: Alleged Contraventions of the ‘Collection’ Principles in relation to the Events of 12-15 September 2005

56 ZR raises, at Ground 2 of her appeal, an issue of interpretation that was canvassed in the Department’s internal review report, but did not receive any attention in the Tribunal’s decision, i.e. what conduct of a public sector agency is caught by the Collection principles (ss 8-11), and whether the Department contravened any of these provisions.

57 ZR argues that the Tribunal must have misunderstood the law by not having considered in its decision whether the agency breached one or more of the Collection Principles.

58 The internal review report considered that the Collection Principles had no application to the circumstances.

59 The Department’s submission to the Tribunal was to similar effect. The Department submitted that the relevant IPPs (ss 8-11) were not engaged because the personal information about ZR in the letters of 13 and 14 September 2005 did not result from any process of collection of personal information from an individual undertaken by the Department.

60 There are four IPPs dealing with collection of personal information. They are set out in the decision under appeal. The term ‘collection’ is not defined except to the extent that its meaning is limited by s 4(5) which provides:

‘(5) For the purposes of this Act, personal information is not collected by a public sector agency if the receipt of the information by the agency is unsolicited.’

61 There is some uncertainty as to how this limitation affects references to ‘collection’ in Principles addressed to conduct that occurs at later points in the information cycle than the collection stage. See discussion at [41] of the Tribunal’s reasons.

62 In this instance, the fact that ZR expressed concerns at a P&C meeting, the nature of those concerns and the way she conducted herself would, we think, give rise to a body of information that was ‘unsolicited’ (i.e. ‘unasked’, see Oxford English Dictionary, 2nd ed., and MT v Director General, NSW Department of Education & Training [2004] NSWADT 194 at [132]). At this point the officers of the agency, the teachers, were not engaged in any process of collection of information.

63 We agree with the submissions of the Department that the later transmission of that information, still at this point held in the minds of the teachers, did not involve any activity regulated by the Act (as to which see Vice-Chancellor Macquarie University v FM [2005] NSWCA 192). When the Deputy Principal reduced the information to writing he was engaged in the activity of creating a record, and, therefore, a material object to which the obligations imposed by the Privacy Act attached if it contained regulated personal information. It is artificial, we think, to describe this as a process of collection which engages the requirements of ss 8 to 11 of the Act.

64 Sections 8 to 11 apply, in our view, to a planned process of collection relating to what the agency sees as the exercise of its official functions. The opposite party to the relationship must be an ‘individual’, and, normally that would be an individual belonging to the ordinary community – a ‘citizen’, using that term broadly. These provisions are not concerned with internal movements of personal information within agencies. The position is different where the agency is collecting information from its own personnel for administrative purposes connected with, for example, the employment relationship. In that circumstance, while it might be said that this in an ‘internal’ activity, the personnel are entitled to the usual protections other members of the community have in relation to compliance with the Collection Principles.

65 What happened in this case was that officers of the agency briefed a relevant senior officer in relation to the matters raised at the meeting. They referred to concerns they had as to the appropriateness of the way the matters had been raised, and the impact on them of what had occurred. The senior officer took notes and composed a letter of reply. Circumstances like this will often give rise to the creation of records containing personal information that, thereby, attract the obligations imposed by the Privacy Act. In our view, the Tribunal was correct in approaching the issues that arose by reference to the Use and Disclosure principles. It would be artificial in the extreme to apply the Collection Principles to the internal recording process that took place.

Application for Leave to Extend to the Merits

66 As the Appeal Panel noted in Hinton v Commissioner for Fair Trading, Office of Fair Trading [2007] NSWADTAP 17:

‘85 While the Appeal Panel’s discretion to grant leave is not qualified by the ADT Act (see, for example, Sunol v Collier [2006] NSWADTAP 51 at [29]), it should be exercised with caution and in the interests of justice. It is not enough that the appellant disagrees with the decision. The Appeal Panel is not designed to be a second trial level of the Tribunal. As McHugh J said in CDJ v VAJ (1998) 197 CLR 172 at [111] the power to permit an appeal on a question of fact is ‘not intended to have the practical effect of obliterating the distinction between original and appellate jurisdiction’. Appeal Panels must recognise the importance of not interfering with soundly-made decisions. An appellant should normally, we think, demonstrate on persuasive grounds that a substantial injustice would result if the decision was allowed to stand.’

67 Key findings of the Tribunal depended on findings of fact (most importantly, the findings as to the nature of the meeting on 18 October 2005, and the aegis under which the letter of 19 October 2005 was written).

68 The Department has not challenged the rulings of contravention. The appellant’s success below, albeit in her eyes a limited one, means that she will have the opportunity to proceed with her case for compensation, a public apology and other relief.

69 The Tribunal dealt comprehensively, and in our view satisfactorily, with the issues over which it was entitled to exercise jurisdiction.

70 Leave to extend to the merits is refused.

Summons

71 On application by ZR, the Registrar issued a Summons on 20 August 2009, and made it returnable before the Appeal Panel at the appeal hearing, 31 August 2009. The Summons commanded the Director General of the Department to produce a letter dated 23 October 2005 written by the President of the P&C to Mr Peter Phelps, the School Education Director, Glenfield Office of the Department. The Department produced the summonsed document in confidence to the Appeal Panel, and objected to its disclosure.

72 The Department informed the Appeal Panel that the document was the subject, separately, of a Freedom of Information application. The Department had refused access. ZR had applied separately for review by the Tribunal of that decision on 11 August 2009.

73 In these circumstances, ordinarily it would not be appropriate to allow the access applicant to see the document in other proceedings. The summons may be seen as an abuse of the process in connection with the other proceedings. See generally, Patsalis v Commissioner of Police, New South Wales Police [2003] NSWADT 171; see also O'Sullivan v Central Sydney Area Health Service [2005] NSWADT 16 at [23].

74 Moreover, in this case, in light of our rulings as to the substance of the appeal, we do not consider that any legitimate forensic purpose relevant to these proceedings would be served by granting access to the document.

75 Accordingly the summons is set aside.