BMY v Department of Family and Community Services

Legislation

1. Section 55 of PPIPA permits a person to apply to the Civil and Administrative Tribunal for an administrative review of the conduct that was subject to an Internal Review under s53 of PPIPA if a person is not satisfied with the findings of the internal review or action taken by the agency as a result of the internal review. The Tribunal's jurisdiction is to review the conduct subject of the Internal Review.
2. Before an order for compensation can be made the Tribunal must be satisfied the applicant has suffered financial loss, psychological or physical harm because of the conduct of the agency: Section 55(4)(b) PPIPA.

Evidence

1. At the hearing the following affidavits were tendered: Applicant dated 5 February 2015 [not for publication] [not for publication] [not for publication] [not for publication] [not for publication] [not for publication]
2. The Applicant, CB, LS, MG, CH, and JR also gave oral testimony.

Did the conduct breach the Information Privacy Principles?

Filenote

1. The applicant complained to the respondent that the account of events contained in the Filenote (Exhibit R4, Annexure A) was "false" without specifying the information said to be 'false'. (Exhibit A1, Annexure X) The applicant attached her version of events to the complaint and emailed a version to a supervisor, SG.
2. The subsequent Internal Review found that the information in the Filenote referring to 'the Clinician' and the 'LWB clinician' is the applicant's personal information. Having considered the Filenote content, I am satisfied that that information is the applicant's personal information.

Section 8

1. Section 8 provides a public sector agency must not collect personal information unless the information is collected for a lawful purpose. The Internal Review found no breach of section 8 on the basis that State Records Act 1998 required it to record its exercise of the statutory role of parental responsibility, and both the Act and the responsibilities provided a lawful purpose: Exhibit R1, Annexure M1, p10-11.
2. The respondent submits that it did not breach section 8 because it is a lawful purpose of the agency to exercise parental responsibility for 'S' under the Children and Young Persons (Care and Protection) Act 1998 and caseworkers and managers are delegated officers: Respondent's Submissions, [2]-[3].
3. At [6] and [34] of the Brief Submissions, the applicant made submissions relevant to the use of information not its collection. These are dealt with under the relevant provision.
4. There is no dispute that CB was 'S's departmental intensive service support caseworker, that his involvement in the events was related to his role and that he later caused the Filenote to be entered into the departmental computer system. There is nothing in the Filenote that does not relate to the events. On the basis that CB made the Filenote in his departmental role concerning his interactions with 'S' and his direct observation of 'S's interactions with the applicant, I accept the respondent's submission and am satisfied that there was a lawful purpose in making the Filenote.

Section 9

1. Section 9 of PPIPA requires agencies, in collecting personal information, to collect the information directly from the individual to whom the information relates. The Internal Review found no breach of section 9 on the basis that it is not reasonable or practicable to require LWB staff to provide input about matters which the caseworker was told by LWB staff, observed himself or about which S provided information: Exhibit R1, Annexure M1, p11.
2. The applicant submits that the respondent was required to collect her personal information in the Filenote directly from her or obtain her authorization to collect it and that it did not.
3. The respondent submits that section 9 requires the department to collect information directly from the person concerned, unless it is unreasonable or impracticable to do so: Respondent's submissions [6]-[8]. Section 20(2) of PPIPA provides that the information protection principles may be modified by privacy codes of practice. The respondent submits Clause 11 of the Privacy Code of Practice (General) 2003 alleviates the respondent of collecting personal information directly from the applicant where it is "unreasonable or impracticable to do so".
4. I agree with the respondent's submission that the Code of Practice modifies section 9.
5. The effect of the applicant's submission is that, during the course of casework, and in the exercise of parental responsibility, on every single occasion that the young person mentions another person, or the case officer observes another person, the respondent cannot make a record of that without first collecting the detail of the occurrence from the person involved.
6. In my view such a proposition is unreasonable and impracticable.
7. In submitting that section 4(5) of PPIPA provides that personal information is not 'collected' if the receipt of personal information is unsolicited (Applicant's Brief Submissions [7]-[11]), the applicant raises the relevant question as to whether the applicant's personal information was solicited or unsolicited. The respondent submits the information was not collected: Respondent's Submissions [6]-[10].
8. The text of the Filenote shows that the information concerning an ambulance being called was reported in a phone call made to CB. It is obvious from the Filenote that a primary purpose of the phone calI was to advise CB of 'S's location given he was to pick 'S' up and take her to school.
9. The Filenote goes on to record CB's direct observations of 'S' and other people including the applicant at the office, and the hospital. The Filenote also records information 'S' told him about the applicant, i.e. that the applicant had rung the ambulance. I consider this information to be unsolicited information in the sense that it was either given to or observed by CB and not asked for. In my view none of this personal information was solicited by CB. It follows that it was not 'collected'.
10. I am therefore satisfied that the respondent had no obligation arising under section 9 which concerns the collection of information. I am also satisfied that the respondent did not breach section 9 because the obligation to collect the information from the applicant in the circumstances was unreasonable and impracticable.

Sections 10 and 11

1. Section 10 requires an agency in the collection of personal information from an individual to take reasonable steps to ensure the individual is aware of certain matters. Section 11 requires an agency in the collection of personal information from an individual to take reasonable steps to ensure the information collected is relevant, not excessive and is accurate, up to date and complete and does not unreasonably intrude on the personal affairs of the individual.
2. The Internal Review found no breach of sections 10 and 11 on the basis that the respondent did not collect information from the applicant for the purposes of making a Filenote.
3. The applicant submits she should have been notified of the personal information the respondent collected in the Filenote. The applicant also submits that the context in which the words 'clinician' and 'LWB clinician' are used in the Filenote is inaccurate.
4. The respondent submitted that CB's recording of his own observations and the record of matters relevant to 'S' in the Filenote is not an exercise in 'collecting' personal information under the Act. CB collected information from 'S' and recorded his own observations. I accept the respondent's submissions for the reasons given under the heading 'Section 9'. I find that there was no collection of the applicant's personal information because the information was unsolicited. As both sections 10 and 11 concern the collection of information, and there was no collection of information, the obligations as submitted by the applicant do not arise.
5. For these reasons I am satisfied that the respondent did not breach either section 10 or 11.

Section 15

1. Section 15 requires an agency to make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information is accurate, related to the purpose it was collected, is relevant, up to date, complete and not misleading.
2. The Internal Review concluded that the Filenote was not inaccurate and recommended an annotation to include the applicant's comments.
3. The applicant seeks removal of the Filenote and an annexure of her account of the events on 22 October 2012.
4. The applicant submits that the Filenote, to the extent that it refers to 'Clinician' and 'LWB Clinician' is inaccurate because the context is inaccurate: Applicant's Brief Submissions, [17]-[18]. The applicant submits the context is inaccurate because the respondent did not collect the information directly from her and because the respondent did not investigate the incident correctly in order to correctly identify whether the information was accurate and complete. These submissions have been dealt with elsewhere in this decision.
5. The applicant referred to WL v Randwick City Council [2007] NSW ADTAP 58 and stated that the Tribunal there used the context in which photographs were taken to define the photographs as 'personal information' of the property owners. WL can be distinguished from the present case because the personal information in this case is not comprised by photographs. Also WL was considering a different question; whether the information was personal information. The question in this case is whether the Filenote should be amended to ensure it is accurate, complete and not misleading, an entirely different question.
6. The Filenote information alleged to have caused the applicant harm is the information that "suggests she unreasonably called an ambulance for 'S' and that applicant argued with 'S'": Applicant's Brief Submissions, [50]. On it face I can identify the latter but not the former in the Filenote.
7. Having considered all of the affidavit material, oral testimony and submissions before the Tribunal, I have deduced that what the applicant means by the context being inaccurate is that the Filenote omits detailed information about what she said and did during the events. That is, the Filenote is inaccurate, incomplete and misleading because it does not contain details of what the applicant did. I do not accept this argument because the Filenote is a witness account of what CB saw and heard in relation to 'S' during the events; the applicant is not the subject of the Filenote. The Filenote is not an investigation report which analyses various witness accounts to arrive at a single account.
8. The respondent submitted that the appropriate way to deal with this issue is by attaching the applicant's version of events to the file. The applicant made no submissions as to the inaccuracies of the Filenote. The inaccuracies alleged were detailed in an email to the Internal Reviewer dated 5 April 2014: Exhibit R1, Annexure D1. The accuracy of each statement is considered in turn. "The Ambulance was called due to her aggressive behaviour
9. The words appear in the Filenote in the following context: "I was to pick up S and take her to school. I received a phone call from the house and was told she was misbehaving and had been taken to the office. I was further told the Ambulance had been called due to her aggressive behaviour."
10. The applicant's objection to the statement was "I am not sure who stated this to CB, I called the Ambulance due to the YPs erratic, bizarre behaviour and my concerns included her level of aggression."
11. (YP means young person)(In her affidavit, the applicant states that it was LW who called the ambulance and the operator subsequently asked to speak with the applicant: Exhibit A1, [44]-[48].
12. On the applicant's own account in the email to the reviewer, aggressive behavior was one of her concerns: Exhibit A1, App affidavit, [43]-[49]. It is therefore apparent that the basis for applicant's claim that the statement is inaccurate is that the Filenote does not fully reflect her personal observations of 'S' on the day and her full assessment of 'S's behaviour that informed her view that an ambulance should be called.
13. The Filenote on its face is a record of what a third party told CB. It is not a record of the applicant's assessment. No evidence was adduced to suggest that the Filenote does not accurately record what CB was told by the third party.
14. On this basis I am not prepared to make an alteration to this aspect of the Filenote. "I arrived at the office to find the YP in the foyer swearing at the Clinician"
15. The applicant's objection to this statement is that it was her recollection that CB and 'S' came together into the foyer where she was i.e. the Filenote is inaccurate as it infers CB arrived alone.
16. The applicant's argument on this aspect of the Filenote appears to me to be that CB's record of 'S' swearing at her must be false because his statement that he arrived together with the YP does not accord with her own recollection of the event. However in my view the applicant's own version of events tends to support the fact that 'S' was swearing at the applicant at the point in time CB arrived at the office (whether alone or with 'S'). The applicant's version of events states: "'S' returned to Office with (CB). Was happy to go to Boardroom with him, S continued to speak disrespectfully to me." (Annexure A1, Annexure G.
17. Under cross examination the applicant would not repeat the actual words said by 'S' but she did indicate that what she meant by the words 'speaking disrespectfully' was "lots of swear words, rude and disrespectful." That is, at the point in time CB arrived at the office (whether alone or together with the young person), the applicant says the young person was swearing at her, confirming CBs account of 'S's behaviour. to her and was continuing to do so. At this point in time CB describes 'S's behavior as "swearing". At the hearing CB gave oral testimony that the Filenote was an accurate account of what he observed and I accept his affidavit and oral testimony on that point.
18. I am satisfied that no basis has been established for the inaccuracy of this aspect of the Filenote. I am not prepared to alter it. "I calmed her down and took her into the meeting room."
19. The applicant's issue with this aspect of the Filenote is that "When the YP and CB entered the reception/foyer area CB stated he wanted to take the YP to the meeting room, I asked the YP would she like me to join her and CB and she responded yes, I walked into the meeting room with the YP and CB": Exhibit R1, Annexure D1.
20. The applicant's real issue with this aspect of the Filenote is that it omits her recollections of her own actions. I do not consider that the omission of these details in any way makes the Filenote inaccurate, incomplete or misleading.
21. In fact in my view the applicant's version at [50], in her affidavit [51] and version of events (Exhibit A1, Annexure G) all confirm the accuracy of this aspect of the Filenote.
22. On this basis I am not prepared to alter this aspect of the Filenote. "At this time the Clinician came in and the YP started to swear at her" for calling an ambulance
23. The applicant maintains the above did not happen. On the applicant's version, she asked the young person if she would like her to also come into the Board Room and 'S' replied that she didn't mind. The applicant denies the young person started to swear at her. In my view this version of events appears to be somewhat inconsistent with the applicant's contemporaneous written version of account which states that "Was happy to go to Boardroom with (CB), S continued to speak disrespectfully to me": Exhibit A1, Annexure G.
24. The applicant's notation shows that 'S' continued to swear at the applicant as she went to the Boardroom, coincidentally with her enquiry of 'S' and 'S's response. It appears from the applicant's evidence that at the time 'S' returned to the Office with CB 'S' immediately started to swear at the applicant and when CB went to the Boardroom with CB, 'S' continued to speak disrespectfully to her, which includes swearing. This conveys the very strong impression that the young person continually spoke disrespectfully to her, including swearing at her.
25. It is common ground between the parties that 'S' had been swearing at the applicant at the office: Exhibit A1, Applicant's affidavit, [42]; Exhibit R4, Annexure 1. Under cross-examination on this point by the respondent, the applicant agreed that CB and her own versions of events had similarities and the respondent submitted that this fact pointed to the accuracy of the record.
26. I am not prepared to make an alteration to this aspect of the Filenote on the basis that the Filenote represents CB's recollection of events, he has attested to the Filenote's accuracy, there is evidence from the applicant that 'S' had been swearing at her, and there is some inconsistency in the applicant's versions of events on this point. "I asked her (the Clinician) to leave and calmed the YP down again."
27. In her email to the Internal Reviewer, the applicant denies this occurred.
28. At the hearing CB gave oral testimony that the Filenote is an accurate reflection of CBs recollection, his perceptions and opinion of what took place during the events. This aspect of the Filenote has consistency with a pattern that both the applicant and the respondent have attested to.
29. It is common ground between the parties that an ambulance was called by LW on the applicant's suggestion for the purpose of taking 'S' to hospital for a mental health assessment. Police were also called. There is no dispute between the parties that CB calmed 'S' down (Exhibit A1, App Aff, Annexure G, p2) and on the arrival of the ambulance and/or police 'S' ran off. There is no dispute between the parties that CB and the police located her, that CB persuaded 'S' to go in the ambulance to the hospital, CB went with 'S' to the hospital, that 'S' was settled at the hospital, that 'S' became agitated upon the applicant's arrival at the hospital (Exhibit A1, App Aff, Annexure G, p2), that the applicant left the hospital (p2), and CB waited at the hospital for three hours with 'S' who was subsequently assessed. The pattern is that CB was able to calm 'S' down however 'S' became agitated in the presence of the applicant.
30. At hearing the applicant conceded under cross examination that other witnesses to events may have different recollections, perceptions and opinions.
31. I am not prepared to make an alteration to this part of the Filenote as I am satisfied by the testimony CB gave as to its accuracy that it is an accurate reflection of CB's recollection, his perception and his opinion of what took place. This does not exclude the accuracy of the applicant's version of events as a record of her own recollection, perceptions and opinion of what took place. "The LWB Clinician came in and started to argue with the YP over the incident, I told her to leave."
32. The applicant denies that this occurred.
33. The internal review report states that the applicant provided the reviewer with her recollection of events stating "I arrived at the mental health assessment room at the hospital to find the YP settled, sitting with CB on a lounge chair. YP did become agitated when I entered the room stating that she did not want to come to the hospital, she stated she was angry with me for calling an Ambulance. I adopted a non-confrontational body position, lower than the YP and stated to her that I did not want to upset her that I wanted to check if she was okay and not alone, that I was pleased that she may be able to speak with a doctor about how things were going for her." (Exhibit R1, Annexure M1)
34. The applicant's contention was that the fact she adopted a non-confrontational body position proved that she did not argue with 'S'. At hearing the applicant put it to CB that she had adopted this position. He could not recall this detail.
35. The applicant submitted based on her affidavit that the fact that she had adopted this position made it impossible for her to be arguing with 'S' as CB had recorded. She asked the tribunal to decide that CB's Filenote was shown to be inaccurate on this basis and make an order for the Filenote to be altered. I do not accept that submission. In my view the adoption of the posture described is not capable of proving the inaccuracy of the Filenote.
36. The applicant attested in her affidavit that she emailed her version of events to her supervisor MVDB the day after the events and that version was annexure 'G'. In a line of questioning under cross examination the respondent raised questions about whether or not the version of events was a contemporaneous version essentially because parts of it read like a post hoc justification of the applicant's actions. The fact that the applicant did email a version of events to MVDB shortly after the events is corroborated by the LWB Incident Review Report (Exhibit R1, Annexure L, p2) which states that the applicant was not asked for a written account of the events because she had already provided one to MVDB. I accept that the version of events contained in Exhibit A1, Annexure G is the version provided to MVDB.
37. That being the case, the applicant's version of events contained in Annexure G is her earliest record of recollection of events. In that version of the events (p2) the applicant records that "I walked into this room and 'S' commenced her verbal attack on me, I responded to her verbally and appropriately and left the room to avoid her escalating again."
38. The applicant's own evidence is 'S' immediately commenced a verbal attack on the applicant. It is possible that in the face of a verbal attack the applicant did adopt a non-confrontational position lower than 'S'. The applicant's version of events also points to the applicant being aware that unless she left the room, 'S's behaviour was likely to escalate.
39. The applicant told the Internal Review that YP did become agitated when she entered the room stating that she did not want to come to the hospital, she stated she was angry with me for calling an Ambulance.
40. As part of the interchange, the applicant states that she indicated to 'S' that she was pleased 'S' was able to speak with a doctor. In my view the applicant asserting her view that she was pleased 'S' could speak with the doctor, in essence that calling an ambulance for a mental health assessment was the right decision, in circumstances where 'S' was stating that she did not want to go to the hospital and that she was angry with the applicant, could be described as an argument, using any plain English meaning of that word. On the basis of the applicant's evidence, I am satisfied that CBs record of the interchange as 'arguing' is not inaccurate.
41. On receiving a copy of the Internal Review the applicant became aware that CB told the internal reviewer what he recalled the applicant said to 'S' and that in his view, what the applicant said at the hospital had upset 'S'. (Exhibit R1, Annexure M1, p4) The applicant denies saying those things and feels aggrieved by CB's statements to the internal reviewer: Exhibit R1, Annexure M1, p4. None of this information is recorded in the Filenote and in my view it is unnecessary to resolve these differences to make a decision about the alteration of the Filenote.
42. The applicant argument at hearing and in the materials essentially was that that the Filenote was deliberately 'falsified' by CB as a result of (i) NM and LS advising him of concerns about her past dealings with young people in care before he wrote the Filenote; (ii) the applicant's belief that NB (and others) had a vendetta against her, evidenced by her continuing to raise historical concerns that were never effectively resolved and by making enquiries of LWB as to what her qualifications were; NB arranging a meeting with LWB to discuss her and asking for her to be excluded from that meeting.
43. In considering this submission, I have considered the following factors.
44. Firstly, under questioning the applicant admitted that she had known CB for a long period of time and that there was nothing arising out of their relationship which would motivate CB against the applicant.
45. Secondly, CBs and the applicant's versions of events are similar and the applicant conceded this under cross-examination.
46. Thirdly, CBs account does not exclude the accuracy of the applicant's version of events which primarily records what she herself did and said while CB's account primarily recorded what had happened to 'S'.
47. Fourthly, CB's filenote does not mention the applicant by name, nor does it record all the applicant's words and behaviour that LS deposed he had been distressed by.
48. Fifthly, during his debrief on return to the office after the events with LS and then with LS and NB, CB told LS and NB the details of what had happened at the hospital. LS gave affidavit and oral evidence to this effect: Exhibit R2. CH's affidavit annexures minutes of a meeting which record NB's independent recollection of what CB said at the debrief: Exhibit R5. In my view the consistency of the evidence of what CB told LS and NB on return to the office with the content of the Filenote proves that the Filenote was not 'falsified' because he had been 'polluted' by knowledge of the historical allegations and NBs vendetta against the applicant.
49. Lastly, the decision to exclude the applicant from the meeting must have been a joint one irrespective of who asked and this is confirmed by the applicant deposing to the fact that it was SG from LWB who asked the applicant to leave the meeting: [77].
50. On the basis of these considerations, I do not accept the applicant's submission that the Filenote was falsified because NB, LS and then CB formed a vendetta against her. NBs actions in raising the historical allegation and making enquiries of the applicant's professional qualifications were subject of a complaint which was separately investigated by the respondent.
51. For all the reasons given above I am not prepared to make any alteration of the Filenote.
52. The applicant submitted that the respondent must, if so requested, take reasonable steps to attach to the information, any statement provided by that individual of the amendment sought. This submission is correct with one important qualification provided in section 15; the agency must take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by the individual. The applicant submitted that she wishes her version of events to be attached to the departmental record. The respondent does not object to that. The respondent should carry out this step in accordance with the legislation and as it has agreed to do by contacting the applicant without further delay.

Section 16

1. Section 16 requires an agency that holds information not to use the information without taking such steps as are reasonable in the circumstances to ensure that having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.
2. The Internal Review did not consider a breach of section 16.
3. The applicant submits that the respondent used the Filenote information in the meeting and that the respondent ought to have checked the accuracy of the applicant's personal information contained in the Filenote: Applicant's Brief Submissions, [24]- [27].
4. The respondent submitted that it did not use the information in the Filenote until it was used during the Internal Review. It also submitted that the Filenote was not inaccurate: Respondent's submissions, [13]-[14].
5. The Internal Review completed by JR states that CB generated a file note on 31 October 2012 in the departmental computer system. In her affidavit, JR deposes at [3] that on 31 October 2012 CB created the Filenote in the departmental records: Exhibit R1. Although this is not evidence of the fact of what CB did, it is evidence of how JR understood the information recorded in the Filenote.
6. At oral hearing CB had no recollection of when he made the Filenote. He stated that his usual practice was to make a note around the time and that if he did not enter the Filenote into the computer system on the day of the event or shortly afterwards, he would have made another record and entered the Filenote later.
7. The FiIenote Record itself records (i) the start date under the heading 'DoCS Worker' as 31 October 2012; and (ii) the end date under the heading against the home visit of 22 October 2012 is recorded as being 31 October 2012: Exhibit R4, Annexure A.
8. I find on the basis of JR's affidavit evidence and the Filenote Record itself that the Filenote was entered into the computer system was 31 October 2012.
9. That being the case, I am satisfied that the Filenote was not in existence by the date of the meeting which occurred on 24 October 2012. It therefore follows that the Filenote could not have been used at the meeting on 24 October 2012 as was submitted by the applicant at [25] Applicant's Brief Submissions.
10. The Filenote itself does not provide evidence of what was said at the meeting on 24 October 2014; it provides evidence of CBs recollections of the events on 22 October 2014. On this basis I accept the respondent's submission that it did not use the information in the Filenote at the meeting as alleged. I reject the applicant's submission that the respondent was obliged to check the accuracy of the Filenote before using it during meeting on the basis that the department could not have checked the accuracy of the Filenote because it was not in existence.
11. The respondent submitted on the basis of a previous Tribunal decision that it was under no obligation to check the accuracy of the information recorded in the filenotes of conversations with the applicant and that the appropriate response to the complaint about inaccuracies in the Filenote was to invite the applicant to provide a statement of her version of the events in the file: ZR v NSW Department of Education and Training [2008] NSWADT 199 at [152]. I agree with the respondent's submission.
12. Sections 16, 17 and 18 of PPIPA concern personal information held by the agency. There is a question as to whether information held in an employee's mind about matters they have witnessed is information held by the agency: Vice-Chancellor, Macquarie University v FM (GD) [2005] NSWCA 192 @ [28]. In that matter the Court of Appeal held that an agency does not hold information by virtue of it being in the mind of an employee. The circumstances were where the university disciplinary committee had made an adverse decision on a student's candidacy and the employee, who had witnessed the student's conduct subject of committee deliberations, disclosed the student's conduct to another university where the student was seeking enrolment. No specific submissions were made on this point by the parties in relation to ss 16, 17 or 18.
13. I am satisfied on the basis that the Filenote did not exist that the respondent was under no obligation to check its accuracy before the meeting. I am also satisfied that the respondent was under no obligation to check the accuracy of information recorded in the Filenote of conversations involving the applicant.

Sections 17 and 18

1. Section 17 provides that a public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless among other things, the other purpose is directly related to the purpose for which the information was collected. The Internal Review found no breach of section 17 on the basis that the Filenote was created for the purposes of providing services to 'S' and it was used to improve service provision to 'S'.
2. Section 18 obligates an agency not to disclose personal information it holds unless the disclosure is directly related to the purpose of which the information was collected.
3. Under the heading section 16 I found that the Filenote was created on 31 October 2012, after the date on which the applicant alleges it was used and disclosed.
4. For the reason the Filenote did not exist at the relevant time, I am satisfied it was not used and there was no breach of sections 17 or 18.

Information disclosed concerning applicant's role in events on 22 October 2012

1. CB, SG and LW were present for various aspects of events on 22 October 2012, with LW deciding to and calling the ambulance on the suggestion of the applicant: Exhibit A1, App Aff [45]-[46].
2. The participants at the meeting were CB, LS, (Manager of Casework and CB's supervisor), NB, (Regional Psychologist) for the respondent [17] and SG (Operations Manager), and LW (Manager, Client Services) for LWB: Exhibit A1, [75]. No evidence was adduced from the LWB participants.
3. The Internal Review records that CB told the reviewer that he could not remember the meeting nor could he remember saying anything 'private' about the applicant. CB gave oral testimony to similar effect. CB however does depose to the fact that he discussed the events with his supervisor LS when he returned from the hospital: Exhibit R4, [6]. This is uncontraverted evidence.
4. In her affidavit LS recalls a decision to meet with LWB about the events on 22 October 2012, to clarify and determine future client critical incident procedures and develop a plan moving forward: Exhibit R2, [16]. LS states that at the meeting the incident with 'S' was discussed, as well as LWB procedures regarding the call out of emergency services. She states a plan was discussed for NB to complete client support for 'S' at the LWB residential house, including a Behaviour Management Plan for 'S'. I accept LS testimony in relation to the purpose of the meeting.
5. LS gave oral testimony that she did a lot of talking at the meeting and all she knew about the events was what CB had told her. Both of these statements are consistent with her managerial role. In her affidavit LS deposes that on return from the events CB told her that the applicant had called an ambulance in response to her assessment of 'S's behaviour and that 'S's behaviour had escalated as a result of the ambulance arriving and then further still when the police arrived. [11] She recalled CB reporting that 'S' had run off when the police arrived and he had to assist police find her, then he accompanied her to the hospital. LS recalled being told that at the hospital the applicant arrived and escalated 'S's behaviour again by challenging 'S's behaviour and saying certain things. LS recalled CB being distressed by the applicant's actions and comments. LS deposes that she and CB then spoke with NB to debrief and discuss behaviour management strategies for 'S'. During this meeting other alleged historical matters concerning the applicant were raised. LS deposes that it was agreed at the meeting that they would meet with LWB to discuss the events to clarify and determine future client critical incident procedures and develop a plan moving forward.
6. The Internal Review report records LS telling the reviewer that they went to the meeting to talk about the events, to find out what the LWB procedures were about calling an ambulance, and to clarify the role the applicant had played with 'S' as there had been previous issues with the applicant visiting a young person outside working hours. I also accept this to be an accurate representation of the purposes of the meeting.
7. In her affidavit, NB deposes that at the meeting there was a discussion of the events that led up to 'S' being assessed in hospital; that she suggested the applicant should be trained in mental health assessment to avoid possible future trips to the hospital for 'S' and other young people: Exhibit R6, [5]-[6].
8. On the basis of this evidence it appears likely that LS disclosed to LWB CB's version of what transpired on the arrival of the applicant at the hospital. I am also satisfied that given that one of the purposes of the meeting was to discuss the callout of emergency services, events at the LWB office were also discussed and the role the applicant played. It is not possible to make a finding about who said what about events at the office or what was actually said, as two of the LWB participants were also witnesses to events at the office and are also likely to have contributed to the discussion.
9. I find that it is likely that the manager participants discussed, drawing on their own sources of information, with some assistance from CB and NB, how CB had been able to calm 'S' down a number of times during the events (on arrival at LWB, on locating 'S' after she had run away, at the hospital and after the applicant left the hospital for the three hour wait to see the psychiatrist.) It is also probable that CB's ability to engage and calm 'S' down was contrasted with how 'S' responded to the applicant. The question as to whether 'S' was in need of a mental health assessment as assessed by the applicant or behaviour management was undoubtedly discussed and in either case, whether an ambulance was required to transport 'S'. It is probable that the discussion about the need of a mental health assessment included information known to LWB, CB's observations of 'S' on the day and the psychiatric assessment done on the day.
10. In her oral testimony JR stated that the respondent regarded any occasion where emergency services were called as a major incident requiring a brief to the Minister.

Section 17

1. Section 17 provides that a public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless among other things, the other purpose is directly related to the purpose for which the information was collected. The Internal Review found no breach of section 17 with respect to the discussion of the information concerning the events.
2. The applicant submits that the purpose for which the respondent collected the information as stated in its Internal Review on page 12 is inconsistent with the purpose stated on p11: Exhibit A1, App Brief Submissions [30]-[32]. The applicant quotes the page 12 reference as "to provide services to S to determine if Life Without Barriers should be provided with feedback about its decision to call an ambulance for S and [the applicant's] decision to come to the hospital to raise certain issues with S". I can find no such words on page 12 of the Internal Review. The purpose for the generation of the Filenote stated on page 12 of the Internal Review is "for the purpose of providing services to S".
3. With respect to the applicant's submissions, I find that the accountability purposes for making the Filenote as recorded on p11 of the Internal Review to be directly related to the purpose recorded on p12 of the Internal Review.
4. Neither party made submissions about whether the information was held by the respondent.
5. The respondent submitted that the word "use" in this context means "to avail oneself of; apply to one's own purposes" with reference to FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 at [42]. It was further submitted that section 17 is concerned with "internal use" of personal information by an agency: Director-General, Department of Education and Training v MT (GD) NSWADTAP 77 (23 December 2005) at [39]. I am satisfied the respondent's submission is correct and I am bound to follow the Appeal Panel's decision.
6. On that basis I am satisfied that the disclosure of the information at the meeting as an 'external use' does not comprise 'use' of the information and as such I am satisfied that there is no breach of section 17.

Section 18

1. Section 18 obligates an agency not to disclose personal information it holds unless the disclosure is directly related to the purpose of which the information was collected. The Internal Review found no breach of section 18 as the disclosure fell within three of the exceptions contained in the section and because the provision of another piece of legislation allows non-compliance.
2. With respect to the Filenote the applicant submitted that the respondent had disclosed her personal information for a purpose other than providing services to 'S' i.e. to discuss the reputation and professional ethics of the applicant: [39]; [34]; [35]. The applicant also submitted that because the information was inaccurate, the respondent ought to have reasonably believed that the applicant would have reason to believe that the applicant would object to the disclosure.
3. The respondent submitted that the disclosures about 'S' to LWB were authorised by section 245C of the Children and Young Persons (Care and Protection) Act 1998. PPIPA provides that an agency is not required to comply with section 18 if the agency is lawfully authorised or required not to comply with the principle concerned.
4. Section 245C is a provision to permit the free flow of information between authorized carers and the department if it would assist either party to make any decision, assessment or plan or initiate or conduct and investigation, or to provide any service, relating to the safety, welfare or wellbeing of a child, or to manage any risk to the child.
5. Section 245H of the Children and Young Persons (Care and Protection) Act 1998 states that section 245C overrides the obligations on the respondent concerning disclosure under section 18 PPIPA.
6. The applicant submits that the respondent is not authorised under that section to "facilitate joint case planning and service provision between FACS and NGOS", nor to "discuss the applicant's reputation and professional conduct in a rumour-monger manner." I reject the applicant's submission on the basis that s245C expressly authorises the respondent to provide information if it would assist LWB to make any plan or to provide any service related to the well-being of the young person and vice versa, both entities being a prescribed body as defined by the legislation. The provision authorises either party to freely discuss issues arising in the case management of young people even issues that may concern the judgement, skill and actions of individual staff members, including the applicant in this case, as they affect a specific young person, in this case 'S'.
7. I am satisfied that the respondent's obligations under section 18 PPIPA were overridden in the circumstances and as such no finding of a breach of section 18 is capable of being made.

Information concerning previous employment

1. In her affidavit LS deposed to two matters concerning the applicant in her past employment as a school counsellor being "mentioned" at the meeting: the applicant interacting with a young person in the care of the Minister outside school hours and the applicant not reporting suicidal thoughts in a timely fashion to the department: Exhibit R2, [18]. This is supported by the affidavit evidence of NB and CH.
2. In her uncontroverted affidavit NB deposed that she became aware of a contact report made by the applicant several days after a young person had disclosed her intention to suicide: Exhibit R6, [2]. Upon noticing that the respondent may not have taken any appropriate follow-up action, NB drew that fact to the attention of the caseworker and Manager, who was LS. There was no evidence before the Tribunal that NB took any other action. JR's oral testimony was that she caused a search for and failed to find any documentation related to the issue. In an email from the applicant to JR dated 26 August 2014 the applicant states that NB never raised this allegation with her or her employer at the time: Applicant's second submission, Attachment D.
3. In her affidavit CH deposes that NB told her that she had suggested at the meeting that the applicant required more professional development in the area of mental health assessment and implementing appropriate responses especially in an emergency situation and that she supported this statement by citing a previous incident where she considered that the applicant had not taken the appropriate action when she was working with a distressed young person in her role as school counselor: Exhibit R5, [9].
4. Based on LS's affidavit evidence and oral testimony outlined in the first section of this decision concerning the meeting, it is likely that LS disclosed at the meeting the allegation concerning the applicant contacted a young person outside of school holidays. It is LS's uncontraverted evidence that the previous Manager had told her of the alleged issue. JR's oral testimony is that she caused a search for and failed to find any documentation related to the issue. In an email from the applicant to JR dated 26 August 2014 the applicant states that NB never raised this allegation with her or her employer at the time: Applicant's second submission, Attachment D.
5. No submissions were made about what if any of this information is held within the minds of employees.

Section 17

1. The Internal Review found that there was a breach of section 17 when the applicant's personal information was used not for a purpose it was held i.e. providing services to those children in the parental responsibility of the Minister.
2. The applicant submitted that the respondent had admitted it had used the personal information internally to discuss the reputation and professional ethics of the applicant without checking its accuracy and that it was not used for the purpose for which it was collected: Applicant's Brief Submissions, [37]. The applicant has not specified the internal use, which could either be a reference to the discussions between CB and LS and between CB, LS and NB on 22 October 2012, or alternatively, the applicant may be referring to conduct described in a letter at Exhibit A1, Annexure Z2 which refers to a conversation between MG and LS about what had occurred: Exhibit A1, App Aff, [133].
3. The conduct complained about and considered by the Internal Review is the disclosure of the personal information to LWB at the meeting, not internal discussions between departmental officers. Any allegation of internal useage was not conduct subject of review under section 53, and is therefore outside the jurisdiction of the Tribunal to administratively review: s55 PPIPA.
4. The applicant submitted that the respondent has admitted in the Internal Review that the information is personal information, that it was used in the meeting and that it was collected: Applicant's Brief Submissions, [36].
5. The respondent submitted at [15]-[17] in its submissions that the Appeal Panel had confined the meaning of the word 'use' in section 17 to internal use of the information. Being bound by decisions of the Appeal Panel, I am satisfied that the 'use' of the information in the meeting does not amount to a 'use' as intended by section 17.
6. Neither party made submissions as to whether the personal information was 'collected' or 'held'.
7. In finding there was no use of the information, I am satisfied that no breach of section 17 occurred.

Section 18

1. The Internal Review report concluded that the disclosure of the information breached section 18 on the basis that the disclosures were not relevant to the service provision for 'S' and were not relevant to the meeting held with LWB about 'S'.
2. The applicant submitted that the respondent admitted that it disclosed the applicant's personal information to LWB to discuss the reputation and professional ethics of the applicant without checking its accuracy in breach of section 16 and that it was not disclosed for the purpose for which it was collected.
3. Section 16 concerns circumstances where the agency 'uses' information. In the sub-heading Section 17 I decided that disclosure of the information did not amount to a 'use' of the information. I am therefore satisfied that no obligation fell on the respondent to check the accuracy of the information and that there was no breach of section 16.
4. At [19] of its submissions the respondent acknowledged the Internal Review decision and conceded the disclosures were not for the purposes of planning for 'S' or any other child in out of home care. I accept that submission.
5. Neither party made submissions about whether or not the information was held by the respondent.
6. I am satisfied that the respondent breached section 18 by disclosing historical allegations concerning the applicant in her role as school counsellor.

Action taken

1. The Internal Review recommended that if the applicant requested, the applicant's comments be attached to the Filenote. This step is yet to be taken by the respondent. The applicant has requested her version of events be attached and the respondent has agreed to do so.
2. The Internal Reviewer recommended a formal written apology be issued by the Deputy Chief Executive Operations for the distress suffered by the applicant. The letter was sent: Exhibit R1, Annexure N1. Although under no PPIPA obligation, the letter of apology acknowledges that the meeting should not have occurred without the applicant's input. By letter dated 20 October 2014 the respondent also wrote to Chief Executive, LWB explaining the respondent had breached the applicant's privacy.
3. At hearing the applicant also sought a "public apology she could take to her community" to restore her reputation. I do not consider a public apology to be warranted I circumstances where the action comprised a disclosure of personal information to LWB managers, not to the public at large. I also consider the apology of a senior departmental officer to be adequate in the circumstances.
4. The Internal Reviewer also recommended MG contact the applicant to discuss the outcomes of the Internal Review with MG and JR and to arrange a meeting with LWB, about the outcomes of the internal review.
5. At [141] of her affidavit the applicant deposes that she is seeking a removal of the inaccurate incident reports, an apology for the breaches as well as compensation for loss and damages caused as a result of adverse treatment, physical and psychological harm, loss of employment, loss of company vehicle and loss of opportunity. The Tribunal has found that it is not prepared to alter the Filenote and that the respondent is obliged by legislation to attach the applicant's version of events to the departmental record.

Loss and damages

1. Compensation can only be considered where the Tribunal finds alleged loss or harm was 'because of' or 'caused' by contravening conduct: s 55 PPIPA; HP v Hunter New England Area Health Service [2009] NSWADT 186. A finding that loss or damage has occurred because of conduct does not automatically mean the applicant is entitled to compensation: s55 PPIPA; FM v Macquarie University [2003] NSWADT 78.
2. In her second letter of complaint emailed to SG and PK on 9 November 2012 the applicant stated that the errors by the departmental officers in disclosing information at the meeting "created a snowball effect of distress and damage to (her) both personally and professionally." This is effectively repeated in her application for administrative review where she also claimed "unaccountable adverse treatment in (her) workplace, personal and professional loss of credibility and reputation, health deterioration and final termination" and in her Third Submission [3].
3. These claims however are inconsistent with the evidence the applicant gave the Tribunal. The respondent questioned the applicant under oath on an event which occurred prior to the section 18 breach. The respondent put a series of questions to the applicant on a document written by the applicant entitled "My Story: Working for NGO Life Without Barriers": Exhibit R1, Annexure J.
4. Under cross-examination the applicant stood by the content of that document and conceded that the issues documented therein about her first client, KR, arose prior to the events concerning 'S'. In summary, KR's carer complained about the applicant after their initial meeting because she had pushed the carer to meet urgently with KR because the applicant considered KR had suicidal ideation. The carer would only agree to a meeting a month away. The applicant had also prepared a Behavour Management Plan for KR which included a safety plan which "I designed calling an Ambulance as part of the intervention (this was prior to my Supervisor and AOM stating I was not allowed use this strategy)."
5. During the subsequent investigation of the complaint by SG, the applicant reported both the carer and KR to be aggressive and rude, the outcome was that the applicant was found to have spoken inappropriately with the carer and as a result, her supervisor provided scripted communication for the applicant to use with the carer, and that the applicant had to include another staff person with her when she arranged future meetings, amongst other actions. The scripted communication included specifics such as "How is the young person going?"
6. On the basis of this evidence I am satisfied that the applicant's difficulties with her employer started before the events with 'S' occurred. This is supported by the evidence contained in [39] of Exhibit R3 and attested to under cross-examination wherein LS deposed that at the meeting LWB staff LW and SG were "giving off non-verbal cues that encouraged LS and NB" when the alleged historical allegations were discussed. The issues the employer raised concerning KR were similar to the ones that emerged in the Incident Review of the events with 'S'. None of these difficulties are related to the privacy breach.
7. In her Second Submission [6] the applicant submitted that the evidence to support the loss and damage suffered as a consequence of the breach of section 18 is comprised by: Termination letter from LWB dated 20 August 2014 Applicant's letter to JR dated 3 February 2014, during initial request for a review of the respondent's actions Email to CH dated 6 June 2012 Email chain between the applicant and SG dated 15 July 2013, 16 July 2013 and 2 August 2013 Email to JR dated 20 August 2014 Points of claim WorkCover certificates of capacity
8. I have considered each of these documents and am satisfied that none of them comprise evidence of loss or damage because of the section 18 breach.
9. The termination letter for example, although it refers to the events clearly refers to them as historical circumstances. None of the findings and grounds of the termination have anything to do with the privacy breach itself. The length of time- almost two years between the breach and the termination suggest that the privacy breach had no effect on the progress of the applicant's employment and outcome.
10. Other documents including the WorkCover certificates by and large reflect what the applicant has told other people.
11. Under cross-examination the applicant conceded that PK had assisted her in making her complaint to the respondent about the privacy breach. The applicant agreed that PK was prepared to forward the applicant's complaint dated 9 November 2012 about the disclosure of historical allegations to the respondent and did so because she agreed the disclosure was inappropriate and that PK advocated to the respondent about the inappropriateness of the disclosures. This is supported by documentary evidence.
12. The Incident Review Report dated 20 December 2012 (Exhibit A1, Annexure L) evidences the follow-up LWB planned to take as a result of the concerns raised about the disclosure of the historical allegations because they considered the disclosure to be inappropriate.
13. In my view the uncontraverted email from PK to the applicant dated 18 February 2013 (Exhibit A1, Annexure N) is significant. In it PK states "The issue of the incident with 'S' has been addressed by us internally. We also had concerns around your approach as outlined in my report and follow up meeting. We advised FACS of the concerns around the statements/concerns made by NB. If you wanted to pursue this further then this would not be part of LWB particularly as this also related to your previous employment."
14. In my mind this piece of evidence establishes two facts relevant to whether the privacy breach caused any loss or damage to the applicant. Firstly, it establishes that LWB itself had concerns about the applicant's involvement in the events despite anything said about the applicant in the meeting by the respondent. This concern was independent of any disclosure of historical allegations. This fact is corroborated by PKs report dated 28/2/13 (Exhibit A1, Annexure O) which states on page 1 that "[Applicant]' s supervisor (MVDB) was made aware of these concerns by SG. MVDB also raised concern around the incident and the applicant's involvement in this matter. The applicant had sent an outline of events to MVDB that led to a discussion with PK (MVDB's supervisor). Secondly, it shows that LWB put in place a process to resolve the historical allegations, considered the applicant's complaint resolved and did not wish to be involved in further agitation about that issue.
15. PKs report dated 28/2/13 (Exhibit A1, Annexure O) is also significant as it outlines the action taken by LWB as a result of the disclosure of the historical allegations.
16. The applicant attached to her Fourth Submissions an email from PK dated 15 July 2013. This email confirms LWB followed up the privacy breach and that the respondent's staff had been counselled. It confirms that this had been discussed with the applicant on a number of occasions. It confirms PKs view that the privacy breach was inappropriate.
17. I am satisfied that the applicant's evidence shows that LWB management supported the applicant in the resolution of the section 18 breach, thought the disclosure was inappropriate and took action to resolve the matter well before the applicant applied for WorkCover and well before she was terminated. I am also satisfied that the performance plans and termination of the applicant had nothing to do with the disclosure of the historical allegations.
18. The respondent submits that the applicant has not provided any evidence that there is a connection between the section 18 breach and her employer's actions in instituting a number of 'Performance Improvement Plans' and her termination. The respondent also submits that the applicant has not provided any evidence that there is a connection between the disclosure in breach of section 18 and any proven physical or psychological illness. I agree with those submissions.
19. In summary, LWB had significant concerns with the applicant's performance prior to the events. LWB undertook its own review of the events and were critical of the applicant's involvement. The LWB took appropriate action to resolve the applicant's concerns about the privacy breach and considered the matter resolved before the applicant took sick leave. None of the documents referred to by the applicant provided evidence that the applicant's sick leave and termination was because of the privacy breach.
20. I am not satisfied that the loss and damage suffered by the applicant was in any way caused by or contributed to by the privacy breach.
21. On that basis I am unable to consider whether compensation may be appropriate in the circumstances.

Decision I have decided not to take any action. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 February 2016