GA v Department of Education and Training (No 2) [2005] NSWADT 119 (2 June 2005)

Last Updated: 2 June 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: GA v Department of Education and Training (No 2) [2005] NSWADT 119


PARTIES: APPLICANT
GA
RESPONDENT
Department of Education and Training



FILE NUMBERS: 043381

HEARING DATES: 26 May 2005

SUBMISSIONS CLOSED: 26/05/2005



DECISION DATE: 02/06/2005

BEFORE: Hennessy N - Magistrate (Deputy President)





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Privacy & Personal Information Protection Act 1998

CASES CITED: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Department of Education and Training v GA, GB, GC, GD & GE (GD) [2004] NSWADTAP 34 revised - 2/09/2004.)
FM v Macquarie University [2003] ADT 78
GA and Ors v Department of Education and Training and NSW Police [2004] NSWADT 2 (12/1/04)
Department of Education and Training v GA (No.3) [2004] NSWADTAP 50
GA v Department of Education and Training & NSW Police (No 2) [2005] NSWADT 10 (20/1/05)
GA v Department of Education and Training [2005] NSWADT 47)
GA v Department of Education and Training and NSW Police (No 3) [2005] NSWADT 70
HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214
HW v Director of Public Prosecutions (No 2) [2004] NSWADT 73
KO v Anor v Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 21

APPLICATION: Privacy - information protection principle - collection - from third party
Privacy - information protection principle - collection - notification
Privacy - information protection principle - collection - unlawful

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: In person

RESPONDENT REPRESENTATIVE: Dr A Bendall, solicitor

ORDERS: The Tribunal determines not to take any action on the matter


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 GA has made several applications to the Tribunal under the Privacy and Personal Information Protection Act 1998 (the PPIP Act) concerning the way in which the Department of Education and Training (the Department) and NSW Police have dealt with his personal information. This application concerns comments made by the Principal of a high school to another employee of the Department, Ms Lois Diamond on 16 August 2002. Ms Diamond was interviewing the Principal because GA had asked the Department to conduct an internal review of conduct under the PPIP Act. The conduct being reviewed related to the contents of a letter dated 23 October 2001 written by the Principal to NSW Police. When that conduct was being reviewed in the Tribunal, GA summonsed the notes that Ms Diamond wrote when interviewing the Principal as part of the internal review. On reading those notes GA took the view that further breaches of the PPIP Act had occurred and requested an internal review of the conduct reflected in the interview notes. That is the conduct that GA has asked the Tribunal to review in these proceedings.

2 GA’s initial applications under the PPIP Act arose from three events. On 5 November 2000 police attended his home to interview the girlfriend of one of his sons. This young woman, who I will refer to in these reasons as "the student" had been involved in a serious domestic dispute with her mother and her mother’s partner. The second event occurred on 10 November 2000 when police went to the High School which the student attended and spoke to the Principal about the student and her family. About a year later, on 23 October 2001, the Principal wrote to NSW Police in response to a letter from them relating to another complaint GA had made about the failure of police to take out an Apprehended Violence Order (AVO) to protect the student.

3 In a preliminary decision in relation to the current matter, (GA v Department of Education and Training [2005] NSWADT 47) the Tribunal decided that it had jurisdiction to deal with eight comments recorded by Ms Diamond in her notes of the interview with the Principal. In relation to one other comment (item 15), the Tribunal decided that the issue of whether it had jurisdiction in relation to that comment would be determined at the substantive hearing.

4 The Department’s primary submission was that the application should be dismissed under s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (ADT Act) because it is "frivolous or vexatious or otherwise misconceived or lacking in substance." Alternatively, the Department submitted that when the conduct complained of was identified, there was no breach of the PPIP Act. I have considered the Department’s application for summary dismissal and rejected it. It is not apparent on the face of GA’s complaint that it is necessarily frivolous, vexatious, misconceived or lacking in substance. The merits of his application cannot be assessed until the conduct is identified and the provisions of the PPIP Act applied to that conduct.

Issues

5 The issues the Tribunal must determine are:

Whether GA has standing in relation to item 15?

What is the conduct is about which GA is complaining?

Does the principle of res judicata or issue estoppel prevent the Tribunal from considering any of the conduct?

Is any conduct, which the Tribunal may review, in breach of any of the Information Protection Principles in the PPIP Act?

Standing in relation to item 15

6 Item 15 is a passage in Ms Diamond’s notes which states that:

Police gave copy of investigation to Principal who hasn’t got it now.

7 Mr Bendall from the Department acknowledged that the investigation report contains personal information about GA and that GA could be "aggrieved" by any conduct of the Department in relation to that report. Having reviewed that investigation report, I am satisfied that GA has standing in relation to any conduct he may identify which relates to the manner in which the Department dealt with the report. (See GA v Department of Education and Training [2005] NSW ADT 47 at [6] to [8].)

Identification of conduct

8 Despite being directed to do so, GA did not specify what the conduct was that he was complaining about until the hearing itself. GA identified further conduct when making submissions in reply at the conclusion of the hearing. Despite this extremely late notice of the conduct about which he was complaining I agreed to include that conduct in the Tribunal’s review. The Department did not object to that course and was given an opportunity to respond to the matters raised by GA. Although GA submitted that it was up to the Department to ensure that all the relevant evidence in relation to the alleged conduct was before the Tribunal, it was not able to do so in this case because GA did not identify the conduct about which he was complaining until the hearing date itself. (See KO v Anor v Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 21 at [44].)

9 The conduct all stems from nine passages in the hand-written notes of Ms Diamond. Ms Diamond was interviewing the Principal for the purposes of conducting an internal review under the PPIP Act of his conduct culminating in the writing of a letter to NSW Police dated 23 October 2001. Ms Diamond went through the points the Principal made in the letter and recorded his response as to why he made those points, where he obtained the information and whether the points were misleading. Below I have set out the points in the letter in italics and Ms Diamond’s record of the comments the Principal made in relation to those points underneath the italicised words. The words in brackets are not in the original text.

(The student) might well have been subject to undue influences by the GA family.

3. Observed influence of (GA) on (student) "He took over" – 100% support . . . very real influence therefore not misleading.

8. P (Principal) trying to convey that wasn’t (student) behind complaints it was (GA).

9. (Student) was a ‘pawn’ used by (GA).

10. P (Principal) believes (GA) is behind complaints.

Following a fire in the school in June 2001 one of the (GA) boys was apprehended by a security guard when he was seen leaving the building after police and fire brigade had left. He was consequently charged by Macquarie Fields police. Following that incident (one of GA’s sons) left school by his parents’ choosing.

11. P (Principal) believed complaint to It Affairs was prompted by relationship (GA) had to local police & based on knowledge of how police conducted interviews with principal & others involved.

12. Pregnancy test: In context of explaining (GA’s) complaint about police.

13. (Student’s) relations with (GA’s son) In context of explaining (GA’s) complaint about police.

15. Police gave copy of investigation to Principal who hasn’t got it now.

Issues

10 Based on GA’s oral submissions and on the evidence he tendered, the conduct about which he is complaining appears to be that:

a) The Principal collected information from various people including the student’s mother and her partner and teachers at the school and communicated that information to Ms Diamond. According to GA, on the basis that the Principal had collected certain unidentified information, the Department was in breach of the following IPPs:

(i) section 8 in that the Principal did not collect the information for a lawful purpose;

(ii) section 9 in that the Principal did not collect the information from GA directly;

(iii) section 10 in that the Principal did not take reasonable steps to ensure that GA was made aware of certain matters including the fact that the information was being collected and the purposes for which the information was being collected; and

(iv) section 11 in that the Principal collected information from an individual and did not take the steps set out in that section.

b) that Ms Diamond collected information from the Principal and that the Department was in breach of the following IPPs:

(i) section 8 in that Ms Diamond did not collect the information for a lawful purpose;

(ii) section 9 in that Ms Diamond did not collect the information from GA directly;

(iii) section 10 in that Ms Diamond did not take reasonable steps to ensure that GA was made aware of certain matters including the fact that the information was being collected and the purposes for which the information was being collected; and

(iv) section 11 in that the Ms Diamond collected information from an individual and did not take the steps set out in that section.

c) that the Principal held the information which he collected and the Department was in breach of the following IPPs:

(i) section 12(c) in that the Principal did not ensure that the requirements in that sub-section were met;

(ii) section 16 in that the Principal did not take reasonable steps to ensure that the information was relevant and accurate before using that information.

d) that the Principal used the information which he held and the Department was in breach of the following IPPs:

(i) section 17 in that the Principal used the information for a purpose other than that for which it was collected.

e) that the Principal disclosed personal information to Ms Diamond and the Department was in breach of the following IPPs:

(i) section 18 in that the disclosure was not directly related to the purpose for which the information was collected;

(ii) section 19 in that the disclosure of information about pregnancy test was a disclosure of information about sexual activities, contrary to that section.

Res judicata

11 The Department submitted that the Tribunal could not deal with any complaint about the conduct of the Principal which had been reviewed in other proceedings before the Tribunal. In particular, the conduct culminating in the writing of the letter dated 23 October 2001 by the Principal to NSW Police has been the subject of previous applications. The principle of res judicata or cause of action estoppel is that "if a dispute is judged by a court of competent jurisdiction, the judgement of the court is final and conclusive as to the rights and duties of the parties involved." (Butterworths Concise Australian Legal Dictionary, 2nd edition, Butterworths, 1998.) The aim is to ensure finality and non-duplication of litigation. A related principle is issue estoppel. The most authoritative statement of that principle is in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, per Dixon J, at 531-2:

A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties...The estoppel covers only those matters which the prior judgment...necessarily established as the legal foundation or justification of its conclusion,... Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded.

12 Normally the Tribunal should not allow the re-litigation of matters already finally decided between the same parties. However, the Tribunal should re-consider an issue if there is a good reason to do so. Such reasons include where it is the intention of the legislation that the Tribunal make another decision, where the first decision was not final or where there has been a change in circumstances since the first decision. GA submitted that the disclosures by the Principal to Ms Diamond put a whole new light on the nature of the information that the Principal had already revealed to the Police.

13 Even if the conversation the Principal had with Ms Diamond elaborated on the information he had already provided to Police, that does not mean that the conduct associated with the writing of the letter to the Police should be re-visited. I am satisfied that GA has already applied to the Tribunal for a review of all the conduct associated with the writing of the 23 October 2001 letter and that this Tribunal should not review any conduct falling into that category again. (See GA v Department of Education and Training and NSW Police (No 3) [2005] NSWADT 70,; GA v Department of Education and Training & NSW Police (No 2) [2005] NSWADT 10 (20/1/05); GA and Ors v Department of Education and Training and NSW Police [2004] NSWADT 2(12/1/04); Department of Education and Training v GA (No.3) [2004] NSWADTAP 50; Department of Education and Training v GA, GB, GC, GD & GE (GD) [2004] NSWADTAP 34 revised - 2/09/2004.)

14 In summary, the conduct which the Tribunal will not review, because it has been the subject of review in other proceedings, is as follows:

a) any collection by the Principal of information from "various people" including the student’s mother and her partner and teachers at the school. None of the evidence tendered by GA in support of these conversations related to any communication after the Principal wrote the 23 October 2001 letter. I find that if the Principal did collect information from anyone it was collected prior to that date and was conveyed to Ms Diamond some 10 months later during the course of the interview. Consequently GA cannot complain of a breach of s 8, 9, 10, 11 of the PPIP Act in relation to any collection of information by the Principal;

b) any holding by the Principal of information which he collected. If the Principal was "holding" information on 23 October 2001 when he wrote the letter then he was "holding" the same information when he spoke to Ms Diamond. The Tribunal has already reviewed the Principal’s conduct in relation to the holding of information. Consequently GA cannot complain of a breach of s 12 or s 16 which relate to the holding of information by the Principal.

15 The remaining conduct subject to review is any use or disclosure of the information on 16 August 2002 when the Principal met with Ms Diamond and any "collection" of the information by Ms Diamond. In addition the Tribunal still needs to consider any other conduct associated with the Principal’s receipt of the copy of the police investigation report (item 15).

Is non-compliance with any of the IPPs permitted under an Act?

16 The Department’s submission in relation to most of the conduct to which the principle of res judicata or issue estoppel does not apply is that the Department is not required to comply with sections 9, 10, 13, 14, 15, 17, 18 or 19 of the PPIP Act because under s 25(b) "non-compliance is . . .permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law." According to the Department, because Ms Diamond was conducting an internal review under the PPIP Act when the Principal conveyed the information to her, the conveying of that information (if it can be characterised as use or disclosure of personal information) and the recording of that information by Ms Diamond (if it can be characterised as collection of personal information) is necessarily implied or reasonably contemplated by the PPIP Act itself.

17 Section 53 of the PPIP Act obliges agencies to conduct an internal review of conduct in certain circumstances. In carrying out the internal review in this case, Ms Diamond interviewed the Principal and recorded his responses to her questions. That is a task that is reasonably contemplated under the PPIP Act. Consequently, sections 9, 10, 13, 14, 15, 17, 18 and 19 do not apply either to any "use" or "disclosure" of the information by the Principal or to any "collection" of that information by Ms Diamond.

Section 11, 12(c) and s 16

18 Section 11, s 12(c) and s 16 are not excluded by s 25(b). In relation to any "collection" of personal information about GA by Ms Diamond from the Principal, that conduct may be subject to the requirements in s 11. The Department submitted that even if the information was "personal" information, Ms Diamond did not "collect" it from the Principal. Section 11 states that:

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.

19 In HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214, O’Connor P noted at [50] that there are indications in the PPIP Act that the term individual in s 11 is used in contradistinction to public sector official so that collection from a public sector official would not be collection from an individual. Similarly, in HW v Director of Public Prosecutions (No 2) [2004] NSWADT 73 at [25], Montgomery JM concluded that the word "individual" in s 11 referred to the individual to whom the information relates not to any natural person. (See also NX v Office of the Director of Public Prosecutions [2005] NSWADT 74 at [31].) Even if s 11 does relate to individuals other than the individual to whom the information relates, an agency cannot "collect" personal information from its own officers. By definition, that information has already been collected because the agency "holds" that information. The information does not have to be in a material form in order to be "held" by an agency. (FM v Macquarie University [2003] ADT 78 at [54]. This decision was set aside on appeal, but not on this point.)

20 Even if Ms Diamond did "collect" personal information relating to GA from the Principal, I am satisfied that the Department took such steps as were reasonable in the circumstances to ensure that the information was relevant to the purpose for which it was collected and was accurate up to date and complete. Prior to interviewing the Principal Ms Diamond interviewed GA. In the circumstances it was not reasonable for her to interview the student’s mother or her partner or teachers in the school, in order to check on the accuracy of the information provided by the Principal. Ms Diamond was conducting an internal review of the Principal’s conduct and the steps which she took were reasonable in the circumstances.

21 Similarly, under s 16, if Ms Diamond, or other officers of the Department "used" the information it is obliged to 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. If s 16 is applicable to any "use" the Department made of the information, then I am satisfied that the Department took such steps as were 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. Those steps were the interviewing of GA about the information in the Principal’s letter.

22 Finally, in relation to s 12(c) (which was the only paragraph on which GA relied) there was no evidence whatsoever that any information had not been protected against loss, unauthorised access, use, modification or disclosure, or against any other misuse.

Conduct of Department in relation to investigation report

23 GA did not identify the conduct that relates to Ms Diamond’s note that "Police gave copy of investigation to Principal who hasn’t got it now." There is no evidence that the Principal solicited that information from the Police. In those circumstances, the Principal did not "collect" that information. (See s 4(5) of the PPIP Act.) GA did not identify what the Principal did or did not do with the information in the report which would constitute a breach of any of the other Information Protection Principles.

Privacy Code of Practice

24 If there is any conduct which GA identified and which is not exempt from the Information Protection Principles, then further exemptions are provided for in the Department’s Privacy Code of Practice. In particular, the Code provides that the Department may depart from sections 9, 10, 12(a), 13, 14, 15, 17, 18 and 19 of the PPIP Act if compliance might detrimentally affect or prevent the proper exercise of its complaint handling functions or investigative functions. I agree with the Department’s submission that Ms Diamond’s notes were created as part of the Department’s compliant handling or investigative functions and its only use was in relation to those functions and to subsequent legal proceedings.

Order

The Tribunal determines not to take any action on the matter.