AF v Healthquest & Another [2011] NSWADT 99 (10 May 2011)

Last Updated: 1 June 2011

Administrative Decisions Tribunal New South Wales

Case Title:	AF v Healthquest & Another
Medium Neutral Citation:	[2011] NSWADT 99
Hearing Date(s):	17 - 19 February 2010, 22 - 23 February 2010, 12 - 14 July 2010 and 25 August 2010
Decision Date:	10 May 2011
Jurisdiction:
Before:	Judicial Member R B Wilson
Decision:	1. On 20.06.07 the respondent acted contrary to s.11 Health Records Information and Privacy Act 2002 in that it did not comply with Health Privacy Principle 3 when collecting information about the applicant contained in the referral HQ1 dated 14.06.07 and attachments (exhibit R3 annexure 'C'), save to the extent that these reasons provide otherwise. 2. The proceedings are listed for directions on Thursday 26 May 2011 at 02:00 pm.
Catchwords:
Legislation Cited:	Privacy and Personal Information Protection Act 1998 Health Records and Information Privacy Act 2002 Administrative Decisions Tribunal Act 1997
Cases Cited:	AF v Healthquest [2009] NSWADTAP 42 Y v Department of Education and Training [2001] NSWADR 149 GL v Department of Education and Training [2003] NSWADT 166 EY v Department of Corrective Services [2009] NSWADTAP 25 OD v Department of Education and Training [2005] NSWADTAP 74
Texts Cited:
Category:	Principal judgment
Parties:	AF (applicant) Healthquest (respondent) Minister for Health NSW (third party)
Representation
- Counsel:
- Solicitors:	In person (applicant) Dr J Lucy (respondent)
File number(s):	073365
Publication Restriction:	Applicant's name has been anonymised

REASONS FOR DECISION

1. The applicant commenced this proceeding in the Tribunal pursuant to the provisions of the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 (the Privacy legislation) alleging a series of acts done by the respondent in breach thereof. At material times the named respondent was a statutory instrumentality with designated functions under its enabling legislation. At the time of hearing the respondent had been dissolved and, by reason of this, the named third party was joined as an interested party. The parties have filed extensive evidence and submissions, and there has been 9 days of hearing of evidence and oral submissions. At the request of the parties, the hearing and arguments to date have been limited to the question of breach of the privacy legislation. The proceedings have been protracted at first instance, in part by reason of an appeal to the Appeal Panel in relation to summonses that the applicant wished to issue ( AF v Healthquest [2009] NSWADTAP 42) and in part by reason of the complexity of the issues raised. Whilst the applicant's claims are numerous, and each one must be duly considered, in the final analysis the only significant issues concern (a) whether the information supplied with the referral documents was information about the applicant's suitability for employment and (b) whether that information was collected by the respondent in breach of privacy legislation.

2. It is common ground that the applicant at material times was employed by the Roads and Traffic Authority NSW (the RTA) during the course of which three significant events occurred. First the applicant had some time away from her employment by reason of a work related illness and this gave rise to a worker's compensation claim, which was processed administratively as time went by. Secondly, the applicant returned to work and in due course she sought appointment to the position of a Project Engineer after her recuperation, both events giving rise to further administrative steps. One such step, in particular was that the RTA sought the assistance of the respondent in relation to the applicant. Thirdly, the applicant and the RTA fell into dispute following which the applicant commenced legal proceedings alleging that she had been victimised by her employer. As these several processes unfolded the RTA passed on to the respondent information concerning the applicant, and the respondent communicated from time to time with the RTA about the applicant's affairs. On a number of occasions, occurring within this general process, the applicant alleges, information about her was collected, used, or passed on, by the respondent, in breach of applicable Privacy legislation.

3. Running throughout the applicant's several claims is the question whether information about her falls within either the Privacy and Personal Information Protection Act 1998 (the PPIP Act) or the Health Records and Information Privacy Act 2002 (the HRIP Act). As this question concerns different types of information it cannot be determined globally and therefore must await consideration on a piecemeal basis. Where appropriate, the legislation is referred to collectively as the privacy legislation , but differentiated when necessary to do so .

THE REFERRAL ISSUE

THE EVIDENCE

4. A significant part of the proceedings have been concerned with what may be described as the referral issue. On 20 June 2007 the respondent received a referral from the RTA, about the applicant, containing a number of documentary attachments, itemised in exhibit R1 paragraph 1 (and reproduced in exhibit A4 pp11 ff (in part) and exhibit R3 pp 7 to 74 (in toto), as well as in the s.58 documents). Ex facie, this referral was entitled "Request for Services" (exhibit A4 pp 27 and 28) and sought an assessment of the applicant's "Fitness to Continue" (exhibit A4 pp11 ff). The request was signed by one Richard Boggan, an employee of the RTA on 14.06.07. The attachments received by the respondent bear a Healthquest stamp and date (20.06.07). By letter dated 18.06.07 Mr. Boggan advised the applicant about this referral, the letter enclosing copies of relevant documents (exhibit R3 page 10). This letter stated that "as a result of recent correspondence from you, the RTA is concerned about your health and is directing you to be assessed for your fitness to continue employment". The "recent correspondence" referred to is not identified in the letter. The applicant alleges that the collection of the information about her ( that is, the acceptance of the referral documents) by the respondent was in breach of privacy legislation. The respondent however submits, apart from any question of substantive breach, that the information concerned does not fall within the purview of privacy legislation upon the basis that it was information about her suitability for employment and therefore it falls within the statutory exemption that both statutes provide for (s.4(3)(j) PPIP Act and s.5(3)(m) HRIP Act). This issue is a significant part of the respondent's case as it covers most, if not all, of the information about the applicant which is under review. Consequently, it requires an early consideration although, again, this must be considered on a piecemeal basis in relation to the information that is involved in each of the separate claims. The information concerned with the referral issue is a convenient place to start.

5. As noted, Mr Boggan advised the applicant about her referral to the respondent by letter dated 18.06.07. This letter refers to recent discussions and communications about the applicant's health and states that the RTA wished to have an assessment done about the applicant's fitness to continue employment, the only issue raised therein being the then current health of the applicant. It advised her that an appointment would be made shortly for this purpose. Most importantly, the letter advises the applicant to take all her medical records to that appointment, there being no reference to any other documents, such as her academic qualifications or work history for example. The Request for Services form (HQ1, exhibit R3 p7) contains information about the applicant and identifies the service required as being that of assessing the applicant's fitness to continue (see also the "Checklist, exhibit R3 p9, in the same terms) . The form identifies a number of specific services that the respondent could provide as well as allowing for the circumstance that an employer may wish to identify some other type of service (see the box entitled "Any other (specify)"). An accompanying document entitled "Information for Referring Employees/Organisations" specifies the information that the respondent required in the case of a referral for fitness to continue (exhibit R3 p8). Given this requirement, any information supplied by reason of it, would appear to have been solicited by the respondent for the purposes of the privacy legislation. This point though the respondent puts in issue, and therefore will need later consideration in these reasons. However, one such requirement was the submission of a written report.

6. The RTA in fact supplied such a report (exhibit R3 pp 10 to 16, signed by Mr Boggan), which clearly contained information about the applicant. It noted that the referral was made pursuant to the RTA's Sick Leave policy and to its statutory obligation to ensure the health, safety and welfare of staff (at p10), and it gave a particular example of the situation where an employee is frequently ill so as to question the employee's fitness to carry out the duties of the position occupied. When briefly outlining the applicant's employment history, the report states that "displaced and excess staff are required to undertake projects or tasks that they have the ability to carry out" (exhibit R3, p10 paragraph 1.3). The report attaches the applicant's sick leave records and notes a statement by her in an email dated 25.05.07 that her "health condition is currently deteriorating" (exhibit R3, p11, paragraph 2.4). Clearly, this statement by the applicant was made in the context of the several work place issues that were then on foot (see the emails at exhibit R3 pp 72 to 74). These issues did not directly concern the applicant's professional expertise or ability to carry out the duties of the position she then occupied.

7. The report then outlines in detail the steps involved in the legal proceedings that were then on foot and, in particular, the several steps that the applicant had taken in pursuing these proceedings. This chronology culminates by stating that, on 08.03.07 and 16.03.07, the proceedings had been adjourned pending confirmation by way of a medical report and written undertakings that the applicant was fit to continue the proceedings (exhibit R3 p15). Three months after this adjournment, the HQ1 request (the referral) was made to the respondent. In the interim, the report states that the applicant had sick leave between 14.03.07 and 17.04.07 and again in April and May 2007, and that she commenced further proceedings in another jurisdiction on 02.05.07.

8. The report then attaches a series of documents to meet the respondent's requirements, which included an outline of the applicant's then current duties. Also attached were copies of medical certificates/reports covering the period between 25.06.04 and 08.06.07. The vast majority of these certificates/reports are headed "Workcover NSW Medical Certificate" (exhibit R3, pp 22 ff). During 2004 these certificates report depression, headaches and insomnia from harassment and work stress and, from July 2004, adjustment disorder with depression. During this period, and after, there are repeated references to the need for the applicant to report to another supervisor. Later certificates diagnose the applicant's medical condition as being adjustment disorder with anxiety and provide for closed periods off work. Again there are references to the need to report to a different manager (for example, exhibit R3 pp 44 ff). Some such certificates advise the applicant as being unfit for work for closed periods, however, others state that she is fit for suitable duties whilst recommending that she report to another supervisor. This is the situation in the later months of 2006 (exhibit R3 pp 44 ff), until her return to work in December 2006. The applicant was then said to be unfit to work for periods in the first few months of 2007 until 27.04.07, when she was said to be fit for suitable duties (p 68). Following this the applicant had a few discrete days away from work on sick leave.

9. The report then attaches a series of emails between the applicant and the RTA dealing with a number of issues and concerns, which are, perhaps, related to each other.

10. The report then culminates with the request that the respondent report on 5 specific issues (page 16). In summary, the RTA wished to know whether the applicant was suffering a medical condition which would affect the performance of her current duties. If she suffered from a medical condition, the RTA wished to be advised what it was and whether it affected the applicant's fitness to carry out her current duties, either partially or totally. The RTA also sought to be provided with an assessment of what other duties (if any) the applicant could perform despite her medical condition. It also sought to be provided with a reasonable estimation of when the applicant could resume her then current duties, if applicable in the circumstances.

11. The forgoing evidence describes the information about the applicant passed by the RTA to the respondent, particularly its nature and the context in which it was obtained by the respondent. Of course, the respondent would not have had knowledge of this information and context prior to the acquisition of the referral documents. That information consists of the information contained in the report, the information contained in the several medical certificates and the information, about the applicant, contained in the emails. There are, of course, significant differences between the several categories of information about the applicant that was received by the respondent by way of these referral documents.

THE EXEMPTION PROVISIONS

12. The exemption under consideration comes into play where the particular information is information or an opinion about an individual's suitability for appointment or employment as a public sector official (s.4(3)(j) PPIP Act and s.5(3)(m) HRIP Act), provided of course that the information initially is personal information as defined. The exemption provision is similar in each Act so they may be conveniently considered together. There are two questions here: first, the proper construction of the exemption provisions and, secondly, whether the relevant evidence is confined to the information itself or extends to other contextual matters as well, such as some purpose, or process, attending the collection or user of the information. These issues have been discussed in past decisions.

13. Without considering these authorities at present, it is clearly open to construe these exemptions broadly and to read them as embracing any "personal information" (as defined) that has a nexus, for one reason or another, with appointment or employment as a public sector official. To adopt such a construction would not distort the meaning of the words employed in the exemptions, but would simply apply an acceptable meaning to them. On this broad construction it necessarily follows that the referral, given that it is concerned with the applicant's ability, on medical grounds, to engage in her employment, would fall within the exemption. The authorities, discussed further below, though have not followed this simple course as they have consistently acknowledged that the exemptions should be construed narrowly so as to limit any overreaching effect that the exemptions would otherwise have. These authorities have had no hesitation, where appropriate, in ruling that information relevant to employment in a general sense nevertheless falls outside these exemption provisions.

14. Alternatively, the words used in the exemptions themselves could well suggest a distinction between information that is relevant, or has a connection with, a person's employment (or appointment) and information about a person's suitability for employment (or appointment). The reason for this is that the actual words used are not the familiar words often used in statutes, such as relevant to or in connection with , to establish a nexus with a broad compass. This suggested distinction, of course, cannot be a distinction in the nature of a dichotomy as information about a person's suitability for employment would logically be information that is relevant to a person's employment. Therefore the suggested distinction is that information relevant to a person's employment is not necessarily information about that person's suitability for employment. Thus the first mentioned class is wider than the latter. Of course, the authorities must be considered in due course to ascertain whether this distinction may be properly drawn, this question being considered hereunder. However, it is important to note that should information, which is relevant to employment, not fall within this exemption an employer is not prohibited from using this information for employment purposes; falling outside the exemption simply means that the employing agency must observe the requirements of the privacy legislation when seeking to use the information for any such purpose. For example, where an employee of an agency applies for holiday leave, and submits personal information for this purpose, that information is not about the employee's suitability for employment , although it is clearly relevant to employment matters. Should the agency wish to use this information for some employment issue, to which it may be important, other than to consider the grant or refusal of recreation leave, it may do so provided it observes the requirements of the privacy laws that apply. Of course, where the agency gathers information in another context, say during the course of a worker's compensation claim by an existing employee, the user of that information may become problematical.

15. The actual words used, about an individual's suitability (for appointment or employment), are significant ( Y v Department of Education and Training [2001] NSWADT 149 at [36] ). There are two aspects arising from this. First, it was said in the authority just cited that these words establish a protection against an overreaching application of this particular exemption, the words about and suitability in particular being important in this regard. This statement is consistent with the argument that the information must not only be relevant to employment (a broad concept), it must also be about suitability for employment (a narrower concept) before the exemption is engaged. Other authorities have clearly accepted the correctness of limiting the reach of the exemption provisions ( Department of Education and Training v PN [2006] NSWADTAP 66 at [78] ).

16. Also, the distinction between relevance and suitability is implicit in the authorities, and this confirms the correctness of the distinction noted above at paragraph 14. The information under consideration in both GL v Department of Education and Training [2003] NSWADT 166 and Department of Education and Training v PN [2006] NSWADTAP 66 was relevant to employment yet was held, in both cases, to fall outside the exemption provisions. The correctness of these decisions has been confirmed in EY v Department of Corrective Services [2009] NSWADTAP 25. The point of the distinction is that establishing a nexus of logical relevance between information and employment does not necessarily establish that the information is about suitability for employment.

17. Secondly, in the exemption provisions the word suitability is employed as a noun and therefore it denotes the name of something. In the present context the word suitability, therefore, must denote an attribute of the individual concerned, albeit an intangible attribute. Even though this attribute is intangible, determining just where an individual stands in relation to this attribute is a question of fact. It is much the same as determining whether a person is a happy person, a well balanced person, an aggressive person or an incompetent person, or, to put it generally, determining any specific aptitudes or abilities that the person may, or may not, have. It follows that, accepting the significance of the word suitability , the information attracted by the exemption must be information about this particular question of fact. It will not have this relevance where, for example, the individual's suitability for employment is not a "live issue" in the precise circumstances under consideration ( GL v Department of Education and Training [2003] NSWADT 166; EY v Department of Corrective Services [2009] NSWADTAP 25 at [27] ); OD v Department of Education and Training [2005] NSWADTAP 74 at [24] ). It will not have this relevance where circumstances are such that any nexus with a person's suitability for employment is severed, OD v Department of Education and Training [2005]NSWADTAP 74 at [24] providing a good example . In circumstances like these the information does not in fact have any nexus with suitability for employment and therefore it is not information about an individual's suitability for employment in point of fact . Consequently, the circumstances under consideration may well affect the question whether particular information is actually about an individual's suitability for employment. By way of further example, information concerning an employee's health during periods of absence from work may be about that employee's sick leave or worker's compensation entitlements rather than about the employee's suitability for employment , even though, should the circumstances change, that same information could then become information about suitability for employment. The authorities usually refer to circumstances that could effect such a change as being the context in which the nature of the information is to be assessed.

18. Accepting then that (a) the exemptions are to be construed narrowly, (b) that the exemptions are narrower than simply requiring that the information have some nexus with employment and (c) that circumstances, or context, must be considered, for the reasons given above, there still remains the question of ascertaining the meaning of the words used, particularly the word suitability. The authorities have held that the correct test required by the words of the exemption in s.4(3)(j) of the PPIP Act is whether, having regard to the content of the information in issue, and the context in which it is found, it can reasonably be said to be about an individual's suitability for appointment or employment ( Y v Department of Education and Training op cit at [33]; EY v Department of Corrective Services op cit at [20] ) . Thus the proper test is as just stated, rather than a test of determining whether the information is simply relevant to employment. This test was first propounded in Y v Department of Education and Training (op cit). After stating the test in this way, the President went on to explain that an overreaching application of this test is avoided by the words about and suitability , which require that the information in question must contain within it language which indicates to a reasonable observer that the information canvases the aptitude and competence of the employee with respect to their current or prospective employment (at paragraph [36]). By this explanation the President has further explained the proper construction, or meaning, of the test propounded. The President gave as examples such matters as co-operativeness, ability to work in a team and interpersonal skills. This explanation clearly addresses the meaning of the word suitability in the exemption provisions, it is not simply a gloss or obiter dictum . This test, and the meaning of the word suitability just stated , ought to be followed in relation to both the PPIP Act and the HRIP Act, given the equivalence of the provisions and their mutually exclusive relationship. However, it should be noted that the actual words used in the statutes, namely about and suitability for employment, must be given effect to in the final analysis.

APPLICATION OF PRINCIPLES

19. These principles must now be applied to the facts under consideration. As noted above, the information the subject of enquiry was that which was supplied by the RTA to the respondent as attachments to the referral form, HQ1. The respondent argues that there was no relevant collection by it and that, in any event, any such collection was of information within the suitability for employment exemption .

20. It is convenient to consider the collection argument first, the respondent's submissions being set out in exhibit R11. The respondent clearly was an agency that held itself out as being able to render assistance, upon request, in relation to employees of other agencies and private enterprise organizations. It provided a wide range of services and it invited referrals consistent with its statutory functions. It also required referring agencies to submit particular information at the time of referral and it provided forms for this purpose. This much is clear from exhibit R3. There can be no doubt that the respondent took "positive steps" to obtain the information provided, or at least part of it, and the respondent's broad submission that it did not (exhibit R11 [4] and [5]) is not correct in point of fact.

21. The respondent then submits that, alternatively, it only required the submission of relevant information that could be obtained by it lawfully. This argument has cogency, as the respondent had little control over information that was in fact sent it at first instance, save for providing adequate directions in its standard forms. It needed an adequate opportunity to assess the information to determine whether it fell within its requirements. However, in this case the respondent continued to hold the information after receipt, despite having ample time to consider the applicant's submission that it should be returned. The respondent therefore must be taken to have accepted that the information as provided fell within the terms of its requests. This is sufficient to establish that the information accompanying the referral in question was solicited for the purposes of the legislation (see s.4(5) PPIP Act; s.10 HRIP Act) and therefore collected by the respondent. In any event, the information supplied was, in fact, as requested; for example, the recent medical certificates, the performance report, sick leave records and position description (exhibit R3 p 9). The point taken by the respondent that some of the medical certificates were not recent (exhibit R11 at [8]) is without any factual basis. The first certificate is dated 24.06.04, almost 3 years prior to the referral. However, that certificate and many of the earlier ones that follow, refer to both depression and work related stress and thereby indicate what could have been the commencement of the relevant illness. Also, the context is one where the report refers to "frequent illness". Consequently, in these circumstances, all of the certificates provided contained information that could reasonably be regarded as falling within the respondent's request. In any event, the certificates dated early in 2007 clearly were "recent" medical records. This information, or at least part of it, was therefore clearly solicited by the respondent in these circumstances.

22. Returning now to the suitability for employment issue . The relevant context may be generally described as the circumstances under which the respondent obtained the information. On this point it is necessary to focus on the respondent's own actions, rather than the conduct of RTA officers in compiling the referral documents. This, of course, does not necessarily exclude evidence about the conduct of RTA officers provided it is relevant, for one reason or another, to an issue concerning the respondent's own conduct or the receipt of the information.

23. The initial enquiry must be with respect to the referral documents themselves as it is here that much of the relevant context is to be found. These documents provide this context as, upon receipt and perusal, the respondent became aware of what they each contained. Every statement in these documents is information about the applicant, as she is clearly identified with respect to all such statements. The first part of the definitions of personal information therefore is clearly satisfied.

24. The information contained in the referral documents has been noted at paragraphs 4 and following above. On 20 June 2007 the respondent received a referral from the RTA about the applicant containing a number of documentary attachments, itemised in exhibit R1 paragraph 1 (and reproduced in exhibit A4 pp11 ff (in part) and exhibit R3 pp 7 to 74 (in toto)). Ex facie, this referral was entitled "Request for Services" (exhibit A4 pp 27 and 28) and sought an assessment of the applicant's "Fitness to Continue" (exhibit A4 pp11 ff). The request was signed by one Richard Boggan, an employee of the RTA on 14.06.07. The attachments received by the respondent bear a Healthquest stamp and date (20.06.07). By letter dated 18.06.07 Mr. Boggan advised the applicant about this referral, the letter enclosing copies of relevant documents (exhibit R3 page 10). This letter stated that "as a result of recent correspondence from you, the RTA is concerned about your health and is directing you to be assessed for your fitness to continue employment". The "recent correspondence" referred to is not identified in the letter.

25. The Request for Services form (HQ1, exhibit R3 p7) contains information about the applicant and identifies the service required as being that of assessing the applicant's fitness to continue (see also the "Checklist, exhibit R3 p9, in the same terms) . The form identifies a number of specific services that the respondent could provide as well as allowing for the circumstance that an employer may wish to identify some other type of service (see the box entitled "Any other (specify)"). The information contained in this document cannot, considered alone, be said to be about her suitability for employment. It is introductory information whose fate can only be determined by reference to whether the more critical information that was given to the respondent, such as sick leave records and litigation history, is, or is not, about her suitability for employment . If it is, then this introductory information could also fall within the exemption by reason of the context in which it is to be found.

26. A document accompanying this request form, entitled "Information for Referring Employees/Organisations", specifies the information that the respondent required in the case of a referral for fitness to continue (exhibit R3 p8). One such requirement was the submission of a written report. The report that was then submitted clearly contains information about the applicant. It initially notes that the referral was made pursuant to the RTA's Sick Leave policy and to its statutory obligation to ensure the health, safety and welfare of staff (at p10), and it gave a particular example of the situation where an employee is frequently ill so as to question the employee's fitness to carry out the duties of the position occupied. When briefly outlining the applicant's employment history, the report states that "displaced and excess staff are required to undertake projects or tasks that they have the ability to carry out" and it then notes the applicant's then current duties (exhibit R3, p10 paragraphs 1.3 and 1.4). The report comments on the applicant's sick leave history and attaches the applicant's sick leave records. It then notes a statement by her in an email dated 25.05.07 that her "health condition is currently deteriorating" (exhibit R3, p11, paragraph 2.4). Clearly, this statement by the applicant in that email was made by her in the context of the several work place issues between the applicant and the RTA that were then on foot (see the emails at exhibit R3 pp 72 to 74). These issues did not directly concern the applicant's professional expertise or her aptitude to carry out the duties of the position she then occupied, a point which is discussed further hereunder.

27. The report then outlines in detail the steps involved in the legal proceedings, referred to earlier, that were then on foot and, in particular, the several steps that the applicant had taken in pursuing these proceedings. This chronology culminates by stating that, on 08.03.07 and 16.03.07, the proceedings had been adjourned pending confirmation by way of a medical report and written undertakings that the applicant was fit to continue the proceedings (exhibit R3 p15). Three months after this adjournment, the HQ1 request was made to the respondent. In the interim, the report states that the applicant had sick leave between 14.03.07 and 17.04.07, and again in April and May 2007, and that she commenced further proceedings in another jurisdiction on 02.05.07.

28. Leaving the attachments to one side at the moment, it is quite clear that the report itself contains information about the applicant which identifies her. The information contained in this report is as has been just outlined. Of immediate concern is the chronology of the litigation in the Industrial Relations Commission of NSW and the statement that the proceedings had been adjourned pending confirmation of the applicant's fitness to pursue the proceedings. Considered alone, this information about the applicant is not information about the applicant's suitability for employment with the respondent. Any employee may have workplace disputes with an employer irrespective of whether that employee is suitable for employment. Of course, any such disputes may well be about whether an employee is suitable for employment, whether generally or in relation to an employee's current duties, as where the dispute is whether the employee is competent to carry out the duties in question. However, that is not the case here. The disputes in question, and the litigation in the Commission, were about the applicant's claims of victimisation. Nowhere in the report, or elsewhere, is there evidence that these claims, or the disputes or issues involved, were about the applicant's suitability for employment. Nowhere in the report, or elsewhere, is it alleged that the applicant did not possess the competence or aptitude to fulfil the duties of the position that she occupied, the only issue being raised in the report is as to the applicant's state of health and how this affected her employment, if at all. The test propounded in Y v Department of Education and Training is not satisfied. Without something more, there is no evidence in the proceedings before the Tribunal to persuade the Tribunal that the detailed chronological history of the litigation in the Commission, as provided in the report, was information about the applicant's suitability for employment, rather than being just general background simpliciter. These same arguments apply with greater force to the litigation in this Tribunal that also appeared in the chronology; there can be no nexus here with the applicant's suitability for employment.

29. The comment that the litigation had been adjourned pending confirmation of the applicant's fitness to continue the proceedings also cannot, considered alone, be information about the applicant's suitability for employment. There is no logical relationship between "fitness to conduct legal proceedings" and suitability for employment and, in any event, that comment is information about the applicant's health and her ability to continue the proceedings, simpliciter. It went no further than this.

30. These observations with respect to the litigation history and the fact that an adjournment had been granted must, of course, be understood as being subject to the respondent's general submissions, considered hereunder, which invoke the context in which these items of information are to be found.

31. The status of the remainder of the information in the report may be left until after consideration of the several attachments.

32. The report then attaches a series of documents to meet the respondent's requirements, which included an outline of the applicant's then current duties. Of interest here though is the provision of the applicant's sick leave documents. As noted above the report itself also contains several comments about the applicant's sick leave history. As well as the records, and these comments, the report also attached actual copies of medical certificates/reports covering the period between 25.06.04 and 08.06.07. The information about the applicant contained in these records, comments and actual certificates/reports may be considered together. The vast majority of these certificates/reports are headed "Workcover NSW Medical Certificate" (exhibit R3, pp 22 ff). During 2004, these certificates report depression, headaches and insomnia from harassment and work stress and, from July 2004, adjustment disorder with depression. During this period, and after, there are repeated references to the need for the applicant to report to another supervisor. Later certificates diagnose the applicant's medical condition as being adjustment disorder with anxiety and provide for closed periods off work. Again there are references to the need to report to a different manager (for example, exhibit R3 pp 44 ff). Some such certificates advise the applicant as being unfit for work for closed periods, however, others state that she is fit for suitable duties whilst recommending that she report to another supervisor. This is the situation in the later months of 2006 (exhibit R3 pp 44 ff). According to the certificates, the applicant was subsequently unfit to work for periods in the first few months of 2007, but on 27.04.07 she was said to be fit for suitable duties (p 68). Following this, the certificates report that the applicant had a few discrete days away from work on sick leave.

33. The question is whether these certificates/reports contain information about the applicant's suitability for employment. Clearly they do not. They contain information about the applicant's health, and no more. Whilst some of the information in them may be regarded as opinion that her employment is the source of her health problems, the references to work related stress for example, there is insufficient detail in the evidence to persuade the Tribunal that such opinions may be regarded as being about her suitability for employment.

34. The report further attaches a series of emails between the applicant and the RTA dealing with a number of issues and concerns, which are perhaps related to each other. These documents appear in exhibit R3 at pp 72 to 74. The first email is dated 30.04.07 and in it the applicant discusses several issues concerning her worker's compensation claim and the provision of medical certificates. The second email is a reply to the applicant dated 25.05.07. The Tribunal notes that these two emails may have been inadvertently provided to the respondent, given that the report specifically annexes the third email only. The third email is dated 25.05.07 and is from the applicant to Mr Boggan, the RTA officer mentioned earlier. The applicant states that her health is deteriorating due to stress she is experiencing in relation to work related administrative decisions concerning ongoing disputes. She also presses her request for the appointment of an Injury Manager Co-ordinator. The information in these emails, particularly the third one, is not about the applicant's suitability for employment. It relates only to administrative disputes that were then ongoing without canvassing, in any way, her aptitude or competence with respect to her employment. The information therefore is about these disputes, rather than her suitability for employment.

35. Again, these observations about the certificates/reports and the emails must, of course, be understood as being subject to the respondent's general submissions, considered hereunder, which invoke the context in which these items of information are to be found

36. The report then culminates with the request that the respondent report on 5 specific issues (page 16). In summary, the RTA wished to know whether the applicant was suffering a medical condition which would affect the performance of her current duties. If she suffered from a medical condition, the RTA wished to be advised what it was and whether it affected the applicant's fitness to carry out her current duties, either partially or totally. The RTA also sought to be provided with an assessment of what other duties (if any) the applicant could perform despite her medical condition together with a reasonable estimation of when the applicant could resume her then current duties. It is this aspect of the report which gives rise to the respondent's main submissions on this point (see exhibit R1 paragraphs 14 and following). These submissions affect all the information about the applicant contained in the referral documents.

37. The first submission, focussing, it is said, on the `"the context" in which the referral information was collected, is that "the provision of information was to enable the respondent to assess the applicant's fitness to perform the inherent requirements of her position" (exhibit R1 at [18]). This, it is argued, demonstrates that the applicant's suitability for employment was a live issue. However, this submission does not accurately reflect the entire evidence.

38. Firstly, on 18.12.06 the applicant had returned to work on limited duties and commenced to undertake a review of certain forms that were in use by the RTA at time. This information is conveyed to the respondent in the report referred to previously. Again, it is noted that there is no evidence suggesting that the applicant was experiencing any difficulties with respect to those duties.

39. Secondly, the report provided with the referral documents sought the respondent's views in relation to whether the applicant had a medical condition which would affect the performance of her current duties and, if so, what that condition in fact was; whether, by reason of any such condition, she was fit to perform all of the requirements of those duties; if she was not fit to perform all of those requirements, what particular duties was she fit to perform; if she was able to perform some of those duties, what restrictions should be imposed on such performance; and, finally, if the applicant was not fit to perform any such duties at this time, when is it reasonably likely that she would be fit to perform those duties. The only advice that was being sought by the report was whether the applicant had a medical condition affecting her performance of her current duties and, if so, to what extent and for how long. So characterised, this was a limited type of enquiry and one which was qualitatively different to an enquiry as to the suitability of an individual for employment. The report did not raise nor canvass the question whether the applicant's employment, by reason of her medical condition, should be terminated say by involuntary retirement. If this had been the case, the relevant "context" may well lead to a finding that suitability for employment was being canvassed. The requested report may well have been a step in this direction, or may have eventually become so, but the evidence is silent in this regard and no finding can be made that this requested report had any nexus with something of this nature. The submitted report, it should be noted, does not raise any issues as to the applicant's competence or aptitude to perform her duties as it only enquires as to the state of her health and how that did, or did not affect her ability to perform her current duties. An injured worker may well be regarded as suitable for employment even though unable to perform particular duties by reason of health restrictions. On the evidence, the enquiry went no further than this, there being no circumstances demonstrating that the enquiry went further so as to question her suitability for employment within the principles developed in Y v Department of Education and Training (op cit). In particular, Mr Boggon, when giving evidence, explained the referral to the respondent essentially upon the basis of his concern for the applicant's best interests and to ensure that she was getting the support required (transcript 22.02.10 at p55[10] to [24]). The Tribunal is well persuaded that this was the true position by the fact that the applicant had returned to work on limited duties and there being no evidence that she experienced any difficulties in performing those duties.

40. The respondent's second submission directed attention to the information contained in the referral documents (exhibit R1 at [19]) and argued that the information provided was the minimum necessary to conduct a "fitness to continue" assessment. Here, the respondent appears to be equating "fitness to continue current employment" with "suitability for employment as used in the exemption provisions of the two statutes. However, for the same reasons as given above, there is no evidence to suggest that the enquiry in fact went beyond health restrictions that may apply to continued employment and extended to "suitability for employment". Again, Mr Boggon's evidence explained the referral to the respondent essentially upon the basis of his concern for the applicant's best interests and to ensure that she was getting the support required (transcript 22.02.10 at p55[10] to [24]).

41. It will be apparent from these reasons that the Tribunal's view is that neither the information supplied to the respondent, nor the context in which that information was received, demonstrate that the applicant's suitability for employment was in fact a live issue. The situation had not yet reached this stage. This is of course different to the factual situation where the circumstances are such that any nexus with suitability for employment , once existing, has been severed. But the principles to be applied remain the same. It must be shown, by the nature of the information under review, or the context in which it is found, that the information is about an individual's suitability for employment. This means that the information, or the context, must demonstrate that the individual's suitability for employment is a live issue and that the individual's competence or aptitude for employment is being canvassed, following Y v Department of Education and Training (op cit).

42. The respondent's two submissions may be combined and dealt with in a simpler way. They, in substance, are based on the premise that whenever information about the health of an employee is to be considered as to what effect, if any, it may have on the ability of the employee to perform the duties of a currently held position, then, it necessarily follows, that the information is about the employee's suitability for employment . In general usage this is quite correct. However, to approach the issue with this premise in mind is to ignore the interpretations in relation to the exemption provisions that have been laid down by the authorities, as discussed above. These authorities show that whenever the circumstances are such so as to show that the information is about something which is qualitatively different, or different in kind, to an employee's suitability for employment then the exemption provisions are not engaged. The existence of such a qualitative matter will, as the authorities show, depend on the evidence adduced in each case and enquiry must be directed to the nature of the information itself and the context in which it is to be found.

43. Consequently, neither the nature of the information supplied with the referral nor the context in which the referral was made leads to the conclusion that the information was about the applicant's suitability for employment. It follows that none of the information about the applicant that was given to the respondent at the time of the referral falls within the exemption provisions under discussion. In addition, the chronology of litigation, the information that the litigation was adjourned pending proof of the applicant's fitness to continue the litigation; the medical certificates/reports; and the attached emails do not fall within the exemption provisions for the independent reasons set forth earlier in this decision.

44. Even if the construction of the exemption provisions adopted in these reasons is incorrect, the provision of the chronological data as to the litigation in the Commission cannot be information about the applicant's suitability for employment , given that the subject matter of the litigation has not been established to have been her ability to perform her duties. The same applies with greater force to the data concerning the other litigation in this Tribunal.

45. This of course does not mean that the applicant's situation could not be reviewed by the respondent. It simply means that the privacy legislation had application to the provision of the information in issue.

APPLICABLE LEGISLATION

46. Both the PPIP Act and the HRIP Act serve to govern dealings with an individual's personal information. However, they are mutually exclusive, a matter which turns on whether the information in question is "health information" (HRIP Act s.6 and PPIP Act s.4A). The Tribunal is persuaded that the respondent's submission that the information falls within the HRIP Act is correct. Some of the information contained in the referral documents may be properly regarded as information about health, by way of data or opinion, and the particular service to be provided by the respondent, to the RTA, could well be in the nature of health education. Also, s.6(b) of the HRIP Act applies to extend the scope of the legislation to related (or connected) information should that be required with respect to information that is clearly not directly about the applicant's health.

HEALTH PROTECTION PRINCIPLE 3

47. The applicant's submissions are set out in exhibit A 1 & 2 and, at times, they are difficult to follow. This is due to a failure to distinguish between actual claims and arguments in support of particular claims, and to the presence of repetition. This is, of course, not meant to be critical of the applicant, who has argued her case ably. However, the respondent's submissions do provide a convenient and concise summary of the applicant's claims based on the provisions of the HRIP Act and may therefore be used as a starting point for deliberations (see exhibit R1 [9] ff). The alleged breach of Health Privacy Principle 3 (HPP 3) may be considered first, the respondent's submissions appearing in R1 at [30] and following. These submissions accept that the referral information was not collected by the respondent only from the applicant and therefore they focus on the exception provisions provided for in the principle under discussion. The points first made are that "impractical" does not mean "impossible" and that "unreasonable" means "beyond the bounds of reason", both being arguments that the Tribunal accepts. It would certainly be impractical, and perhaps unreasonable as well, for the RTA to have referred the applicant to the respondent without supplying the applicant's name and contact details with the initial referral and without advising the respondent that it wished to obtain a fitness report. An employer may certainly provide such information as otherwise the enquiry process cannot go forward. To this extent, there is no breach therefore of HPP 3. However, it was certainly practical for the respondent to obtain information about the applicant's state of health, her litigation with the RTA, her history of sick leave, and her history of worker's compensation claims directly from the applicant. It was equally practical to obtain any relevant history of communications with the RTA, referring here to the emails that were sent, directly from her. It cannot be suggested that the applicant would not have at least some knowledge of these matters, even if she did not have copies of all of the medical certificates that she submitted and did not have a complete history of her absences on sick leave. If this were shown to be the case, then it would be impractical, in the sense that the process of collection such information from the applicant cannot be put into practice, to collect a sick leave history and medical certificates from her. But this cannot be simply assumed. For the same reasons, it was not unreasonable for the respondent to have sought such information from the applicant, at least as an initial step.

48. Consequently, the respondent, by collecting the subject information otherwise than from the applicant, has, in the circumstances outlined, acted contrary to this principle, and the Tribunal so holds.

HEALTH PROTECTION PRINCIPLE 1

49. The applicant advanced arguments in this regard in her submissions exhibit A1 and 2 at [169] and following (see also exhibit A5 at [169] ff). These submissions are difficult to follow as they concern the actions of RTA officers as well as the actions of officers employed by the respondent. These submissions do not focus on the actions of the actual respondent and, in many respects do not articulate the factual basis of the grounds argued (see for example exhibit A5 at [171]. Certainly the respondent's position is that there is no substance in these allegations. However, with the assistance of oral submissions, and focussing on the actions alleged against the respondent, the applicants submissions appear twofold.

50. First, it was said that the respondent had not exercised its statutory authority correctly as it had not properly established a new statutory Board at relevant times, which it had to necessarily do before it could carry out any lawful, in the sense of properly authorised, acts. The respondent disputes that this in fact was the case. However, even if this allegation be correct, there is no merit in the argument as the only conduct relevant here is the actual receipt of the information by the respondent. It is therefore irrelevant whether the respondent's internal mechanisms to enable it to carry out the proposed assessment were properly in place. This process did not proceed any further than an endeavour to arrange an interview with the applicant (see the evidence of Ms Hennessy (exhibit R3 and transcript 19.02.10).

51. In addition the applicant pressed several arguments that the actions of the RTA officers in compiling the referral documents were irregular, unauthorised or otherwise unlawful (exhibit A 1 & 2 at [61] ff). By way of example, the applicant argued that the referral report did not include information about her health issues and workplace adjustments. She also argued that the RTA sick leave policy was not complied with and, in addition, it did not authorise referrals to the respondent. This was because at the time she was on a graded return to work. In this regard, the actions of RTA officers in submitting the referral are irrelevant, even if the steps involved a number of irregularities or actions by those officers that were unauthorised or, in other ways, contrary to what they should have done. Here the applicant pressed an argument that the enabling statutes applicable to the RTA, which conferred power to refer employees to the respondent, did not apply. However, such irregularities, even if they invalidated the actions of the RTA officers, cannot not make the respondent's mere acceptance of the referral unlawful.

52. Secondly, it was argued that the referral documents were submitted for an improper purpose. This was a variant of the argument referred to above based on the scope of the statutes applicable to the RTA when referring employees. The additional element here though appears to be that it is alleged that the respondent was aware that the RTA was submitting the referral for some improper purpose, the suggestion being that it was submitted for some purpose other than an assessment of the applicant's fitness, perhaps for the purpose of effecting termination of her employment or as a step towards requiring her to maintain silence about a number of issues. The extraneous purpose was never fully articulated. Whatever it was alleged to be, this is clearly a serious allegation that requires proper proof to a significant level.

53. There was some evidence touching on this submission. Mr Boggon gave evidence that referring an employee to the respondent, when the employee was on a graded return to work, was not a usual practice. He also said that the applicant's supervisors were suffering stress (transcript 22.02.10 p79[23]). However, he explained the referral essentially upon the basis of his concern for the applicant's best interests to ensure that she was getting the support required (transcript 22.02.10 at p55[10] to [24]). Also, Ms Cvetkovic gave evidence that the direction to her to keep some of the applicant's records in a particular place was "different to the ordinary course" (transcript 19.02.10 p 15[34]). However, not too much significance should be given to these circumstances given the disputes that had occurred in the past and those current at the time. On reviewing the evidence, the Tribunal is not persuaded that there was any such extraneous or improper purpose. As noted above, the finding that the RTA had not yet reached the stage where it was considering anything other than the effects that the applicant's health may have on her ability to perform her current duties is clearly established on the evidence. The matter cannot be taken further on this point as the evidence stands.

54. Consequently, there as been no breach of HPP 1 by the respondent.

REMAINING SUBMISSIONS

55. The respondent's submissions in R1 deal with the remaining allegations as to breaches of HPP's 2, 4 and 10 (exhibit R 1). These submissions set out the relevant factual bases and the submissions that thereby follow in relation to these principles. The Tribunal agrees with those submissions and the factual material upon which they are based and accordingly holds that these alleged breaches have not been established.

56. The applicant's argument concerning her personal details, such as her telephone number, has been dealt with above.

DISCLOSURES OF INFORMATION BY THE RESPONDENT

POST REFERRAL

57. This is the final claim by the applicant. It is based on the fact that, after the referral documents were received by the respondent, the applicant engaged in communication with the respondent about the validity of this referral. Those communications were then disclosed, by the respondent, to the RTA, over the applicant's protests. Also, the applicant claims that the respondent ought to have returned the referral documents to her, but it refused to do so. The applicant's submissions are set out in exhibit A 1 & 2 (at [23] and [51]) and exhibit A5 (at [213] ff). These claims are within the relevant application for internal review and the application to this Tribunal, as a perusal of those documents demonstrates. The respondent's submissions are in exhibit R 1 (at [56] ff).

58. The relevant communications are contained in the s.58 documents, exhibit R 5, at tabs 5 to 11. The respondent's submissions provide a convenient summary (at [57]). Whilst this series of emails have been differentially communicated by the parties to different recipients, there are clear instances where the respondent has copied emails, to it, from the applicant, to the RTA (see for example tab 8 emails). The respondent does not contend otherwise. These copied emails contain information about the applicant's views concerning the referral process. They do not contain health information about the applicant and therefore fall within the provisions of the PIPP Act, and s.18 of that Act has potential application. The correspondence shows that the respondent, when doing this, relied upon the principles of natural justice. At hearing, the respondent relied upon precise formulations of the exemptions for which s.18 provides.

59. With respect to the email from the applicant dated 06.07.07, the provisions of s,18(1)(a) have application so as to permit the respondent to forward that email to the RTA, as the respondent submits (exhibit R 1 at [61]), and for the reasons there expounded. This was a user of the information for a purpose directly related to the purpose (of the respondent) in collecting that information. At that stage the applicant had not object to forwarding communications to the RTA and she had copied her earlier email to the RTA. Consequently, the respondent had no reason to believe that the applicant would raise objection in relation to copying that email to the RTA. These circumstances do not amount to breach.

60. However, on 10.07.07 the applicant advised that she did not consent to her emails being forwarded to the RTA, so from this point onwards s.18)1)(a) had no application.

61. With respect to email communications after this date though, the respondent relies upon s.18(1)(b) which it argues has application by reason that the applicant was advised, on 06.07.07, that all communications from her would be copied to the RTA. Thus she was made aware that this would be the case. The only question mark about this submission is that the section uses the words usually disclosed , rather than will be disclosed . However, the respondent advised that disclosure was required by reason of the principles of natural justice and this explanation is sufficient to have informed the applicant that, in circumstances like the present, the respondent would usually disclose the information supplied. Consequently, s.18(1)(b) has application, as the respondent submits, and the subsequent disclosures do not amount to breach.

62. The Tribunal makes orders, set forth above, in accordance with these reasons.

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