BWY v Secretary, Department of Education

Evidence of BWY

1. In two signed statements provided to the Tribunal, BWY said that she had worked for the Department for 27 years, commencing in 1992. In 2014, she was appointed Head Teacher of HSIE at the School. Following conflict with a staff member, she said, she was removed from the school for 12 months, returning in 2016. She says that she experienced interpersonal difficulties with the Principal, and was referred to the Employee Performance and Conduct Directorate (EPAC) for investigation.
2. Following investigation, BWY was notified of the outcome by letter dated 14 December 2018, a copy of which she provided to the Tribunal. With effect from 17 December 2018, BWY was demoted to the position of classroom teacher, transferred on disciplinary grounds to another school to be selected, and placed in a twelve-month monitoring program to commence when she began teaching at her next school. She was at that stage on leave without pay. In 2019 a suitable school was selected, and BWY's transfer there took effect from March 2019.
3. BWY considers that the outcome of this investigation was unjust, and that at least some of the evidence on which it was based was inaccurate. While acknowledging the considerable body of character references and third-party evidence about the events which she has produced, the correctness or otherwise of the Department's decision in December 2018 is not an issue for determination in these proceedings. The jurisdiction of the Tribunal is confined to the alleged breaches of the Act set out in her complaint of 16 April 2019, and particularised by her in the manner recorded above.
4. On or shortly after 19 May 2018, BWY had lodged a complaint with the Department about the conduct of the Principal towards her and other staff. That complaint was dismissed on 6 December 2018.
5. BWY says that she undertook secondary employment with the educational software provider as a 'learning innovation associate'. That involved working with schools which had purchased the software to ensure that they were happy with it and obtaining the maximum benefits from it. She was not involved in sales.
6. This employment appears to have commenced in about September 2018, as she said her employment became permanent in February 2019, after a six-month probation period. The Department had approved the secondary employment on 24 July 2018 on condition that, among other things, BWY must 'ensure that she does not tutor students from [the School]'. On 29 January 2019, she was seen by a casual teacher presenting the software to staff at another school. The Department insisted that she re-apply for permission to undertake secondary employment, which she did. This was again granted on 2 April 2019, subject to conditions.
7. On 25 March 2019, the salesman told her that he was due to attend a meeting at the School the next day. An image of text messages between him and BWY on 26 March 2019, using messaging software called 'Slack', was before the Tribunal.
8. BWY asked (by text), "So no mention of me? I'm safe?" He replied (by text): 'Yes they did bring up your name but I redirected to product and trial. … The DP questioned whether you were a presenter of ours for any of our subjects as she said that would cause issues at their school if they were to run a trial. I said no you are not. To be honest [BWY] I don't want to know what happened between you and the school as it is none of my business. It's between you and them.'
9. In a subsequent phone conversation on 28 May 2019, BWY said the salesman told her: 'Yes I'm sure I told you in the slack message that I would be informing [officers of the software vendor] of what was said in the meeting about you having such a negative impact on staff and students that they wanted nothing to do with us if you were involved and I did that on the day. They then contacted Hayley and had further conversations about the situation. Look [BWY] I told them I thought this woman had bullied you but I don't know what was said in the other conversations.'
10. When BWY suggested that the School had contacted him only to denigrate her, he observed: 'She directly told all the executive that the resource was too expensive which I thought was unfair given I was standing there.'
11. On 3 June 2019, BWY's doctor issued a certificate indicating that she had no capacity for work until 5 July 2019, as a result of a deterioration of her depression, anxiety and adjustment disorder 'due to the current principle [sic] behaviour'. He specified the dates of injury as being 26 March 2019 and 3 June 2019.
12. BWY said she claimed workers compensation from the Department as a result of the principal's actions, and negotiated a termination of her employment with the software provider, having regard to the disclosures made by the Principal about her to them, and the probability that other disclosures had been made in subsequent conversations which 'I can only guess at', which would prejudice her secondary employment.

Evidence of the Principal

1. There was also before the Tribunal an affidavit affirmed by the Principal on 27 February 2020.
2. She explained that the eight other teachers in BWY's faculty of HSIE had found BWY difficult to work with, that some had taken leave on account of their interactions with BWY, that some had expressed the view they could not continue, and that as a result the Principal had arranged trauma counselling for the whole faculty through the Employee Assistance Program, costing thousands of dollars. She also paid a 'life coach' to work three times with BWY. It was the Principal's view that these staff would be at risk of further injury (presumably, of a psychological nature) if BWY were to return to demonstrate the software, or appear on videos.
3. The Principal also indicated that she herself had been adversely affected by her interactions with BWY, and had received medical advice to take a week's leave as a result. She said that at least four students had complained in writing about BWY's behaviour.
4. She said that in March 2019, the salesman contacted her with a view to selling certain video tutorials and quizzes relevant to the Higher School Certificate. She agreed to meet him at the School on 26 March 2019, and invited two of her deputy principals to attend. The meeting occurred in the morning, lasting thirty to forty-five minutes. She did not keep minutes, or otherwise document what was said. The salesman demonstrated the software, indicated the price per student, and answered questions. He said the vendor would send someone to show students and staff how to use it.
5. There was a further meeting a few weeks later between the salesman and the school executive of 13 persons, after which the School agreed to a free trial of the product, but ultimately did not purchase it.
6. The Principal understood that BWY had been on leave since 13 April 2018 but was 'still technically employed at the school'. Having regard to the Departmental letter of 14 December 2018 summarised above, it seems the latter understanding was incorrect.
7. Some time before the meeting, the Principal conducted an internet search of the vendor's business name. She discovered a newsletter published by a high school south of Sydney which indicated that BWY had demonstrated the vendor's software to that school. The Principal notified the Department about that matter, as she had not authorised any secondary employment for BWY.
8. According to the Principal, at the meeting of 26 March 2019, when the salesman indicated that the vendor would send someone to demonstrate how to use the software, one or other of the three teachers present said: 'I understand that BWY is working at [the vendor]. Will she be a presenter?'
9. One or other of them then said: 'It's not a good idea for [BWY] to come here, it wouldn't be well received if she did the demonstration.'
10. When the salesman assured them that the product would be demonstrated, not by BWY, but by someone else, one of the teachers asked if BWY would be in the videos, to which the salesman answered in the negative, explaining, 'I don't think we have any material for geography'.
11. In her affidavit, the Principal explained: 'The only reason that I checked with [the salesman] that [BWY] wouldn't be coming to the school was to protect my staff and students.'
12. I infer that it was the Principal's recollection that she enquired at the meeting of 25 March 2019 whether BWY would be demonstrating the product.
13. Having regard to the adverse effects which BWY had on staff and students, the Principal indicated in her affidavit, "I knew I couldn't have her back into the school'.
14. She produced Departmental policy documents which described, among other things, her accountability as principal for the welfare of students and staff at the school.

Email evidence

1. On 19 June 2019, the Principal sent her recollections of the meeting by email to one of the deputy principals who had been present. That recollection is consistent with the Principal's affidavit evidence, but adds that, at the meeting of 26 March 2019: 1. the salesman indicated that a representative would come to show the staff how to use the software, and on another occasion to show the students; and 2. in response, 'we told the consultant that it would not be wise for [BWY] to be our consultant as there were many staff and students negatively affected by [BWY]'.
2. The latter recollection is consistent with the salesman's recollection, conveyed by phone to BWY on 28 May 2019.
3. On 19 June 2019, the deputy principal emailed her own recollection as follows to the Principal: 1. 'At the initial meeting with [the salesman], we discussed the initial stages of implementation of [the product]; I heard the principal ask who would be doing the presentations and questioned [sic, question] whether it would be [BWY]. I heard the Principal say it would not be a good idea if [BWY] presented at the school.'

Findings of fact

1. The Tribunal has before it the evidence of three persons who attended the meeting: the salesman, the Principal and one of the deputy principals. The evidence of the salesman is produced directly by way of text message and indirectly through BWY's recollection of a subsequent phone conversation with him. The evidence of the Principal is produced by affidavit and an email written three months after the event. The evidence of the deputy principal is contained in an email message of the same date.
2. Their evidence, though not identical, is broadly consistent. From their evidence, and the other evidence summarised above, I am satisfied of the following. 1. On the morning of 26 March 2019, the Principal and two of her deputies met with the salesman at the School to discuss the possible purchase of the vendor's educational software. 2. Prior to the meeting, the salesman was aware that BWY had been a teacher at the School. 3. At that meeting, he gave an initial demonstration of the product, and said that the vendor would send someone to present the product in more detail, first to staff, and later to students. 4. Notwithstanding the salesman's reference to 'DP' (Deputy Principal) in his text message, at that meeting the Principal said to him words to the following effect: 'I understand that BWY is working at [the vendor]. Who will be doing the presentations? Will it be BWY?' 1. The salesman was given an explanation for the enquiry, in words to the following effect: 'It's not a good idea for [BWY] to come here. It wouldn't be well received if she did the demonstration. Many staff and students have been negatively affected by her.' 1. The salesman's contemporaneous recollection was that the person who gave the explanation was the same person who had made the enquiry. That is consistent with the recollection expressed by the Principal in her email. I find that that person was the Principal. 2. As the explanation immediately followed the enquiry, it is a reasonable inference that it was provided with the object of ensuring that the vendor understood it was important to the School that BWY not present the product, and that the vendor did not send her to the School. I make that finding. 3. The salesman assured the Principal that BWY would not be a demonstrator, and that someone else would demonstrate the product. 4. One of the deputy principals asked whether BWY would appear in the videos, and the salesman indicated that she would not, explaining, 'I don't think we have any material for geography'.
3. I am not satisfied that there was any disclosure to the salesman that BWY had been the subject of investigation or disciplinary action, or of the outcomes of any such investigation, either at the meeting of 26 March 2019 or otherwise.
4. Having regard to the evidence of the Principal and of BWY, I am also satisfied of the following: 1. The Principal's duties included ensuring, so far as reasonably possible, the wellbeing of staff and students at the school. 2. BWY experienced seriousness interpersonal difficulties in her relationships with the Principal, a number of staff members, and some students at the School, at least between her return to duties there in 2016 and her taking leave in about April 2018. 3. The Principal and BWY are at issue concerning where the fault lies for those difficulties. 4. By 26 March 2019, the Principal had formed a view that BWY's return to work at the School in any capacity would put the wellbeing of many staff and at least some students at risk. 5. In the circumstances, regardless of whether the disciplinary action taken by the Department in December 2018 had been just, that view was reasonably available to the Principal on the evidence. 6. In making the enquiry of the salesman and explaining the reasons for it in the manner in which she did, the Principal was motivated by a wish to protect the health and safety of her staff (including herself) and students, having regard to past interactions with BWY.

Whether personal information was 'held' by the agency

1. The applicant complains that, at the meeting of 26 March 2019, the Department breached sections 17 and 18 of the Act, by disclosing personal information about her to the salesman.
2. As he already knew that she was an employee of the vendor, and that she had taught at the School, there can be (and is) no suggestion that information to that effect was 'disclosed'. The information the subject of the complaint is the following expression of opinion, which I have found was made by the Principal at that meeting: 'It's not a good idea for [BWY] to come here. It wouldn't be well received if she did the demonstration.'
3. As indicated, I am also satisfied that the Principal said that many staff and students had been negatively affected by BWY, but this did not form part of the complaint the subject of review. Having regard to the findings below, nothing turns on it.
4. Sections 17(1) and 18(1) of the Act prohibit a public sector agency 'that holds personal information' from: 1. using it for a purpose other than that for which it was collected - section 17(1), or 2. disclosing it to a person or other body - section 18(1), except in certain circumstances.
5. Both prohibitions apply only to personal information which is 'held' by the agency.
6. 'Personal information' is defined in section 4 to mean: 'information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.'
7. Section 4(4) provides: 'For the purposes of this Act, personal information is held by a public sector agency if - (a) the agency is in possession or control of the information, or (b) the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement, or (c) the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998.'
8. To establish that section 17 or 18 was breached at the meeting of 26 March 2019 by a disclosure of personal information, the applicant must establish that the information was in the 'possession or control' of the Department or one of its employees.
9. As the Court of Appeal found in Vice-Chancellor Macquarie University v FM [2005] NSWCA 192, the oral disclosure of an opinion held in the mind of an employee does not breach the Act, unless the opinion itself is recorded in a document or other record. In that case, an officer of Macquarie University disclosed to an officer of another university an opinion that a former PhD student who had applied for enrolment at that other university, was likely to cause trouble, indicated that his candidature had been terminated by the University's disciplinary committee following reports of his conduct, and recounted his own adverse observations of the behaviour of the student.
10. In finding that the information was not 'held' by Macquarie University, the Court of Appeal observed at [34]: 'The natural and ordinary meaning of the words "possession or control" does not, in my opinion, extend to material held only in the mind of a person. Both words connote some form of physical object upon which or within which an information or opinion is recorded. A person is neither in "possession", nor in "control", of the contents of her or his mind.'
11. The reasoning in FM was applied by the former Appeal Panel in GR v Department of Housing (No 2) [2006] NSWADTAP 34. In that case, the oral disclosure by a media liaison officer to a radio outlet that a tenant of the Department of Housing was a known trouble maker and had a history of disputes with the Department was found not to constitute personal information 'held' by the agency.
12. In this case, the Principal expressed opinions which she held in her own mind, to the effect that presentations by BWY would not be well received, because she had negatively affected staff and students. There is no evidence that she was expressing an opinion reduced to writing, or which was otherwise held in the records or databases of the respondent. The principle in FM applies. I am not satisfied that her opinion, orally expressed, was information in the respondent's possession or control. Accordingly, the information was not 'held' by the respondent, and does not attract the operation of sections 17(1) or 18(1).
13. Even if the information had been held by the agency, its disclosure to the salesman did not constitute a 'use' for the purposes of section 17. In that context, the word 'use' refers to use of information by an agency internally, and is to be distinguished from its disclosure to third parties: CYL v YZA [2016] NSWCATAD 314 at [100], citing PN v Department of Education and Training [2010] NSWADTAP 59. Here, there was disclosure of personal information to a third party, as distinct from its internal use by the agency.

Whether Department exempted from compliance

1. Having regard to the findings I have made, it is unnecessary to consider whether section 25 exempted the Department from compliance with sections 17 or 18. However, in deference to the submissions the parties have made, I indicate my view that it would have exempted the Department from compliance, had sections 17 or 18 operated to prevent the disclosure of the information concerned.
2. Section 25 provides: 'A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if - (a) the agency is lawfully authorised or required not to comply with the principle concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).'
3. As indicated, the Principal asked the questions she did, and expressed the opinion she did, in order to obviate the risk posed to staff and students by the possible return of BWY to campus, even in the capacity of a demonstrator.
4. Section 28 of the Work Health and Safety Act 2011 provides that a worker must take reasonable care for his or her own health and safety, and that his or her acts or omissions do not adversely affect the health and safety of other persons.
5. The opinion expressed by the Principal to the salesman was made for the purpose of ensuring that BWY did not attend the school, in the interests of the wellbeing of staff and students.
6. Given the history of conflict between BWY on the one hand and staff (including the Principal) and some students at the School on the other, I am satisfied that, in the particular circumstances of this case, the prevention of BWY's attendance at the school, and the Principal's expression of opinion which was designed to achieve that end, were actions which were reasonably contemplated by section 28.
7. It follows that, even if sections 17 or 18 of the Privacy and Personal Information Protection Act 1998 applied to prevent the disclosures made, section 25 would exempt the respondent from compliance.
8. It is unnecessary to consider whether non-compliance was otherwise permitted, necessarily implied or reasonably contemplated under any other Act or law.

Whether function exercised otherwise than in good faith

1. As indicated, the applicant asks the Tribunal to form a view as to whether an employee of the Department 'has failed to exercise in good faith a function conferred or imposed on the … employee by or under this Act (including by or under a privacy code of practice)' in terms of section 55(5) and, if so, to refer the matter for the attention of the Minister.
2. The expression by the Principal to the salesman of the opinions which she held was not in my view a 'function conferred or imposed' on her under the Privacy and Personal Information Protection Act 1998 or privacy code of practice. It is properly characterised as a function of her leadership role as Principal of a high school, endeavouring to secure the purchase of appropriate educational software, and in the course of that endeavour to avoid potential harm to staff and students by ensuring that the applicant did not attend the campus. If the function was 'imposed' by any law, it was imposed by section 28 of the Work Health and Safety Act 2011.
3. Even if the expression of her opinion had been made in the exercise of a function conferred or imposed under the Act or privacy code of practice, nothing in the evidence persuades me that it was exercised otherwise than in good faith. On the contrary, I am satisfied that the opinion was expressed in order to avoid placing staff and students at risk of potential distress through contact with the applicant. Notwithstanding the parlous state of the relationship between BWY and the Principal, the evidence does not satisfy me that any disclosure or use of personal information was made with malice, or otherwise than in good faith.

Conclusion

1. For the reasons given, I: 1. find that the respondent did not, on 26 March 2019, breach sections 17 or 18 of the Privacy and Personal Information Protection Act 1998 as alleged, and 2. decide not to take any action on the matter.

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

Amendments 03 September 2020 - Parties and Representation corrected. 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: 03 September 2020