CBL v Southern Cross University

Collection and disclosure

The Applicant submitted that the interception and redirection of his emails to the Legal Unit, the failure to provide a lawful purpose for the collection of his emails by the Legal Unit, and failure to inform him of the purpose for the collection of his emails by the Legal Unit, was the conduct subject to the application under s53 of the PPIP Act by the Applicant.
Having identified the conduct, the Tribunal is to determine whether, pursuant to s52(1) of the PPIP Act, that conduct is a contravention by the Respondent of an information protection principle. The Applicant submitted, with respect to the alleged contraventions of the PPIP Act: 42. With regard to the privacy principle set down in PPIP Act Section 8, that is, Principle #1,1 contend that the University has yet to articulate what the lawful purpose is for which my personal information is being collected by the SCU Legal Unit, how this supposedly is directly related to a function or activity of the University, and how the collection of the information is reasonably necessary for that purpose. 43. I therefore contend that the University is in breach of PPIP Act Section 8, that is, Principle #1. 44. If I am correct in my own view as to the purpose of the action of the Vice-Chancellor, then I contend this was not and is not a lawful purpose, as this involves a breach of the PID Act Sections 6E(l)(c), 21 and 22, in that: a) The purpose or object of the action was/is to avoid the statutory responsibility of the Vice-Chancellor to assess PID reports which have been forwarded to him; b) The purpose or object of the action is contrary to the statutory responsibility of the Vice-Chancellor (and the University) not to take any action against a person for making a PID; c) The purpose or object of the action is contrary to the statutory responsibility of the Vice-Chancellor (and the University) to maintain confidentiality regarding PIDs. 45. With regard to the privacy principle set down in PPIP Act Section 10, that is, Principle #3, I re-iterate that the University has yet to articulate what the purposes for which the information is being collected, that is, the purposes for which the information is being sent to and thus collected by the SCU Legal Unit. 46. With regard to the privacy principle set down in PPIP Act Section 11 (a), that is, Principle #4, I contend that it is difficult to determine with certainty whether the collection of information is relevant to the supposed purpose, as the University has yet to identify with certainty the purpose for the collection of the information. 47. With regard to the privacy principle set down in PPIP Act Section 11 (b), that is, Principle #4, I contend that the collection of the information does intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates, in that the emails often contain confidential information, and, in the case of the Designated Emails, these emails contain confidential information about PIDs and confidential information about a meeting between the Vice-Chancellor and CBL. 48. With regard to the privacy principles set down in PPIP Act Section 18, that is, Principle #11, I contend the action of the University in automatically sending PID reports to the SCU Legal Unit may be in breach of PID Act, as explained above.
The Applicant contends that the University may be in breach of NSW Information Protection Principles 1, 3 and 4 in relation to the collection of the information by the University's Legal Unit. The Applicant also contends that the University may be in breach of NSW Information Protection Principle 11 by automatically sending Public Interest Disclosure ("PID") reports to the University's Legal Unit, in contravention of the Public Interest Disclosures Act 1994 ("PID Act"). He submitted that the decision to redirect his emails was done for an unlawful purpose, to ostracise him because he was a whistleblower.
The Applicant's complaints rely on an interpretation of the PPIP Act whereby the collection principles apply to each internal movement of personal information within an agency. The respondent submitted that this interpretation of the PPIP Act would be unworkable in practice.
Sections 8, 10 and 11 of the PPIP Act relate to the collection of personal information by an agency. In ZR v NSW Department of Education and Training (GD) [2009] NSWADTAP 69 ("ZR") the Appeal Panel at [64] - [65] held: 64 Sections 8 to 11 apply, in our view, to a planned process of collection relating to what the agency sees as the exercise of its official functions. The opposite party to the relationship must be an 'individual', and, normally that would be an individual belonging to the ordinary community - a 'citizen', using that term broadly. These provisions are not concerned with internal movements of personal information within agencies. The position is different where the agency is collecting information from its own personnel for administrative purposes connected with, for example, the employment relationship. In that circumstance, while it might be said that this in an 'internal' activity, the personnel are entitled to the usual protections other members of the community have in relation to compliance with the Collection Principles. 65 What happened in this case was that officers of the agency briefed a relevant senior officer in relation to the matters raised at the meeting. They referred to concerns they had as to the appropriateness of the way the matters had been raised, and the impact on them of what had occurred. The senior officer took notes and composed a letter of reply. Circumstances like this will often give rise to the creation of records containing personal information that, thereby, attract the obligations imposed by the Privacy Act. In our view, the Tribunal was correct in approaching the issues that arose by reference to the Use and Disclosure principles. It would be artificial in the extreme to apply the Collection Principles to the internal recording process that took place.
Section 4(5) of the PPIP Act states that personal information is not collected if the receipt of the information is unsolicited. Whether and to what extent the Applicant's emails were generally "solicited" or "collected" by the respondent was the subject of findings by Senior Member Lucy in proceedings 1510350, between the same parties. However in those proceedings, the Tribunal had no evidence, for the reasons expressed in Senior Member Lucy's decision, that any of the emails were solicited: One of the difficulties in these proceedings was there was very little evidence put on by [CBL]. [CBL] did not file any evidence of any direct invitations sent to him by the University to provide information, nor did he provide any of the emails in which he said his personal information had been mis-used, or collected wrongfully, or anything similar, despite the Tribunal having made orders giving him an opportunity to do that. I am not satisfied that [CBL]'s personal information was collected by the University when he sent emails to persons other than persons in the legal office in circumstances where the University had directed him only to contact the legal office if he contacted the University at all. For those reasons, I do not accept that the collection principles apply.
In these proceedings, the Respondent accepted that the Applicant's emails dated 17 February 2016, 12 April 2016, 29 May 2016 and 3 June 2016 were solicited, and in evidence accepted that the email of 24 June 2016 was solicited, but maintained that the email of 15 March 2016 was not solicited. The Applicant submitted that the email of 15 March 2016 was sent by him in response to an email from the Respondent's Vice Chancellor of 21 February 2016 requesting him to "Please provide me with possible meeting dates". On review of the evidence I accept that submission and find that the email of 15 March 2016 was also solicited by the Respondent in a similar manner to the emails of 17 February 2016, 12 April 2016, 29 May 2016, and 3 June 2016.
It is not disputed that the solicited emails contained personal information of the Applicant, as the respondent accepted in the internal review decision that each of the solicited emails constituted the collection of the Applicant's personal information by the Respondent. The difference between the Applicant and the Respondent's position in these proceedings is whether the automatic redirection of the solicited emails from the intended recipients in the Respondent's email system to the Respondent's Legal Unit email address legal@scu.edu.au makes any difference to the collection being lawful.
The Applicant submitted that the evidence filed by him, in concert with the factual chronology in this case, supported a reasonable inference that the decision of October 2011 to send all emails from him to legal@scu.edu.au "was not a proper and lawful one". It was common ground that the redirection of his emails to legal@scu.edu.au was made at the instruction of the Respondent's Vice Chancellor. The Applicant filed extensive evidence which, broadly speaking, includes chronologies and summaries of his allegations of wrongdoing, misconduct, conflict of interest and corruption against the Respondent and various officers of the Respondent, including the Vice Chancellor, regarding the Respondent's negotiation and application of casual academic contracts, investigation of complaints, and handling of the Applicant's PID reports over a period of more than ten years. I find that his evidence does not demonstrate any impropriety or unlawfulness in the Respondent's decision to implement the subject email redirection. The Applicant has fundamentally misconceived the application of the "lawful purpose" requirement for collection of personal information under the PPIP Act. Further, the decision to implement the email redirection did not "solicit" or "collect" the Respondent's personal information. The solicitation was done by the particular employees or officers of the Respondent who requested a response or information from the Applicant, regarding his allegations and complaints against the Respondent. The collection was done by the Respondent agency.
In these proceedings the Tribunal does not have jurisdiction to make findings regarding the conduct of the Respondent at large, only whether its conduct in dealing with the solicited emails breached the PPIP Act. The evidence relevant to the determination of whether there was a lawful purpose for the Respondent's collection of the Applicant's personal information via the solicited emails, is the undisputed fact that the Applicant made a complaint to or allegation against the Respondent or its employees. The Applicant has not provided any evidence or submissions which suggest that there is any unlawfulness in the Respondent's employees or officers seeking written clarification or meetings with the Applicant to discuss those complaints or allegations, which comprised the solicitation under the PPIP Act. In the circumstances, I find that there is a lawful purpose for the Respondent's solicitation of the subject personal information.
The requirements for lawful purpose and lawful means of collection in section 8 of the PPIP Act are applicable to the Agency's functions or activities. Here, the solicited emails constituting the applicant's personal information were collected by the Respondent Agency for the purpose of arranging a meeting between the Applicant and an employee of the Respondent, or for the purpose of an employee or officer of the Respondent considering the Applicant's allegations of wrongdoing against the Respondent, both of which were in the context of the Applicant's allegations against the Respondent. I find there is nothing unlawful in the purpose for collection or in the means of collection of the Applicant's responses, which comprise and contain the personal information collected.
The Applicant submitted that the automatic redirection of emails distinguished it from cases involving an "internal movement" of information, such as ZR, and submitted that the final sentence in ZR at [64], to the effect that an agency collecting information from personnel for administrative purposes connected with the employment relationship is still required to comply with the Collection Principles, could apply to former personnel such as himself. I disagree that the internal, automatic redirection of the solicited emails makes any difference to whether or not the receipt of those emails resulted in collection of the Applicant's personal information by the Respondent Agency. In the circumstances, it does not matter who within the Respondent Agency received the Applicant's emails - whether they were received by the intended recipients, whether they were automatically redirected and received by another individual or individual within the Respondent Agency, or whether they were intentionally or unintentionally forwarded from one recipient to another within the Respondent Agency. They were solicited, and they were lawfully collected by the Respondent as an Agency. They therefore attract the obligations imposed by the PPIP Act.
Applying the requirements of the PPIP Act Collection Principles at sections 8, 10 and 11 of the PPIP Act, I find that the Respondent has not breached any of those provisions in its collection of the solicited emails: 1. Section 8(1)(a): as discussed above, the information was collected for a lawful purpose that is directly related to a function or activity of the agency, being the organisation of meetings with the Applicant and investigations into his allegations against the Respondent and its employees and officers. 2. Section 8(1)(b): there is no evidence or submissions before the Tribunal which suggest that the solicited emails and their collection requested excessive or irrelevant information. The collection of the information from the Applicant is reasonably necessary for the purpose of organising meetings with the Applicant and investigating his allegations against the Respondent and its employees and officers. 3. Section 8(2): there is no basis on which the Tribunal could find that the Respondent has collected the personal information from the Applicant by any unlawful means, and therefore no such finding is made. 4. Section 10(a): The Applicant was aware that the personal information contained in his emails was collected by the Respondent, because he sent the email to the Respondent's employees or officers. He was also aware by 2015 that the Respondent's Vice Chancellor placed an automatic redirection on his emails to the Respondent's Legal Unit. I accept the Respondent's submission that "The Applicant was aware at the time the emails were sent they would be redirected to the Respondent's Legal Office", on the basis of the Applicant's chronology: 4 October 2011. At 4:29pm, the Personal Assistant to Professor Lee emails Ms Emma Fountain, of the SCU Legal Unit, with a copy to the IT Head at SCU: "Can you work with IT to set up filters so that any email from [CBL] is diverted solely to Legal, and not received by other staff members (including VC)." 2 November 2011. SCU Legal Office confirms to CBL that a direction to request University Officers not to communicate with CBL came from the Vice-Chancellor. … 6 March 2013. 4.36pm. SCU Legal Office emails Professor Evans, Head of Social Sciences: "Due to a longstanding matter, on the direction of the Vice-Chancellor, all emails from [CBL] to SCU recipients are diverted to the SCU Legal Office". This email and the following was part of an email exchange which was disclosed by the University on 1 October 2015. 1. Section 10(b): The Applicant was aware that the personal information contained in his emails was being collected by the Respondent for the purpose of arranging meetings with him and investigating his allegations. 2. Section 10(c): The Applicant was aware of who would receive the emails he sent the Respondent, as he was informed by 1 October 2015 that there had been a diversion of his emails to the Respondent's Legal Unit. 3. Section 10(d): The supply of the information by the Applicant was voluntary and there is no evidence of any consequences which would arise if the Applicant had not responded to the requests for information or confirmation by the Respondent's employees and officers which resulted in the solicited emails. 4. Section 10(e): There was no submission made by the Applicant that he required or desired any access to or correction of the information he sent the Respondent, and there is no suggestion that he could not do so. 5. Section 10(f): There is no suggestion that the Applicant was unaware of the Respondent Agency's name and address. 6. Section 11(a): There is no basis on which the Tribunal could find that the information collected was not relevant to the purpose of organising meetings with the Applicant and investigating his allegations against the Respondent and its employees and officers, that it was excessive, inaccurate, out of date, or incomplete. 7. Section 11(b): There is no basis for the Tribunal to find that the collection of the information intruded to an unreasonable extent on the personal affairs of the Applicant. The Applicant submitted that "the emails often contain confidential information, and, in the case of the Designated Emails, these emails contain confidential information about PIDs and confidential information about a meeting between the Vice-Chancellor and CBL" but this does not amount to intrusion in the applicant's personal affairs by the collection of the information, only that the Applicant seeks to ascribe confidentiality to its content. Section 11(b) is concerned with the method of collection intruding into the Applicant's personal affairs, not the content of the information.
As discussed in ZR at [65], the findings at 21 above demonstrate the artificiality in applying the Collection Principles to the collection of the Applicant's solicited emails by the Respondent: 65 …Circumstances like this will often give rise to the creation of records containing personal information that, thereby, attract the obligations imposed by the Privacy Act. In our view, the Tribunal was correct in approaching the issues that arose by reference to the Use and Disclosure principles. It would be artificial in the extreme to apply the Collection Principles to the internal recording process that took place.
The Applicant submitted that the purpose for the redirection of his emails was: …in part, to limit the capacity of CBL to raise questions about irregularities within the 2008 investigation process, to limit the capacity of CBL to uncover that the 2008 investigation was a corrupt and dishonest one, and ultimately to limit public scrutiny of the 2008 investigation. … …in part, to limit the capacity of CBL to communicate directly with the University Chancellor, the Hon. Justice John Dowd, given that, due to Justice Dowd's experience as an eminent jurist, there was a possibility he would discern that senior officers of the University had been involved in corrupt and dishonest conduct.
I agree with the Respondent's submission that there is no requirement under the PPIP Act for the Respondent to articulate a lawful purpose for the internal redirection of the emails to the Respondent's Legal Unit. The "lawful purpose" requirement attaches to the collection of the emails by the Respondent Agency, as discussed above. The redirection is distinct from the Respondent Agency's collection of the personal information, for which I have found there is a lawful purpose. The reason or purpose for the redirection is more relevant to the question of whether, once collected by the Respondent, there was any breach of the PPIP Act requirements for use and disclosure.
The Use and Disclosure Principles are those contained in sections 16 to 18 of the PPIP Act. There were no specific submissions made about improper use of the Applicant's personal information and no findings in the reviewable decision relevant to use. To the extent necessary, I accept the Respondent's undisputed evidence that the only use made of the solicited emails was to arrange the meetings which were the subject of the emails, and for the Respondent to clarify and deal with the Applicant's complaints and PID statements.
The Applicant submitted that the redirection of his emails resulted in a breach of section 18 of the PPIP Act on the basis that his PID reports went automatically to the Respondent's Legal Unit, instead of the intended recipient. He therefore also sought review by the Tribunal of whether the redirection constituted any breaches of the PID Act. The respondent submitted that any reviews of alleged breaches of the PID Act are outside the Tribunal's jurisdiction in the current proceedings. I accept the Respondent's submissions that the Tribunal's review in these proceedings is confined in its scope by the initial request for internal review, reasonably construed, as expressed in VZ v University of Newcastle [2011] NSWADT 245 at [4], Department of Education and Training v GA (No.3) [2004] NSWADTAP 50, 'KO' & 'KP' v Commissioner of Police, New South Wales Police [2005] NSWADT 18 and Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44. The Tribunal will not determine in these proceedings whether there has been a breach of the PID Act, but whether the conduct constituted a breach of section 18 of the PPIP Act.
Internal disclosures are not generally unlawful: AQK v Commissioner of Police NSW Police Force [2014] NSWCATAD 55 at [47]; but in certain circumstances may be. In CTH v The University of New South Wales [2017] NSWCATAD 244 (CTH) this Tribunal recently considered internal disclosures with regard to the decision in KJ v Wentworth Area Health Service [2004] NSWADT 84 (KJ) which addressed the discrete circumstances of when 'disclosure' within an agency might amount to disclosure of the purposes of the IPPs. At paragraphs [48] to [51] of KJ the Administrative Decisions Tribunal observed: 48 The Privacy Commissioner has submitted that there may be instances where a dissemination of information within an agency amounts to disclosure, either because the agency concerned consists of a number of discrete units, or the information is of such a confidential nature that it is reasonable to describe the manner in which it is disseminated as disclosure, or because of a combination of such factors. It is further submitted that an artificial distinction between use within an agency and disclosure outside may not be consistent with an individual's reasonable expectations of how their personal information, particularly sensitive personal information as defined in section 19, will be handled by an agency. Finding in relation to IPP 12 49 Again I am in general agreement with the views expressed by the Privacy Commissioner. The Privacy Act does not clearly define what is meant by a public sector agency. In my view, the expression should be given a broad interpretation, consistent with the principle that personal information should be dealt with in an open and accountable manner. For example a statutory body that is administratively part of a larger public sector agency can constitute an agency in its own right. What constitutes a public sector agency will be a question of fact to be determined on a case by case basis. 50 While generally speaking the expression "disclosure" refers to making personal information available to people outside an agency, in the case of large public sector agencies consisting of specialised units, the exchange of personal information between units may constitute disclosure. 51 In the circumstances of this matter, I am satisfied that the Agency disclosed KJ's personal information in contravention of the requirements of section 19 of the Privacy Act as KJ has alleged. The exceptions provided by sections 26 and 28 of the Privacy Act are not applicable. I have no evidence on which I can determine whether this contravention of section 19 was wider than the Psychiatrist's sending letters to two outside doctors. Nevertheless, it is my view that by placing the sensitive information on KJ's general medical file, the Agency was at risk of disclosing that information. The exchange of the information between units within the Agency could, in my view, constitute disclosure. The Agency has acted prudently in separating the information from KJ's general file. The Agency should ensure that there is not further disclosure of the psychological information in contravention of IPP 12.
In KJ the Tribunal generally agreed with the Privacy Commissioner's submission that dissemination of information within an agency may amount to disclosure, either because the agency concerned consists of a number of discrete units, or the information is of such a confidential nature that it is reasonable to describe the manner in which it is disseminated as disclosure, or because of a combination of such factors.
The respondent submitted that these proceedings followed the decision in CTH, where the Tribunal found on the facts of that case that there was no disclosure. In CTH the Tribunal found: In the current matter, HR provided one item of personal information (on two occasions) to the applicant's supervisor for stated business reasons. It is both the context and basis of providing that address, and the circumstances of what the respondent employer was trying to achieve, which in my view sanction that use of the information, when one has regard to the relevant legislative provisions, and I so find. I also find that on the basis of the cases outlined above, and an analysis of the facts in the current case, for the reasons outlined above that there has been no disclosure, even of the type contemplated in the case of KJ.
I disagree with the respondent's submissions that these proceedings are analogous to those in CTH. Although both concern Universities as Respondent Agencies, the similarities end there. However the Respondent Agency is not a large public sector agency with discrete units comparable to the Respondent Agency in KJ. As noted in CTH at [63]: 63. The question being whether the nature of the information being internally disclosed was sufficiently of such a confidential nature so as to depart from the collection and use principles to the extent that it amounted to disclosure for the purpose of section 18.
The personal information in these proceedings comprises the Applicant's name, contact details, and responses to the questions asked by the Respondent Agency's employees and officers for the purpose of clarifying and dealing with the Applicant's complaints and allegations against the Respondent Agency. I find that this information is not of a sufficiently confidential nature so as to consider their diversion to the Legal Unit's email address a disclosure for the purposes of section 18 of the PPIP Act.
Even if it was a disclosure under the PPIP Act, section 18(1)(b) provides an exception on the basis that the Applicant was aware that a diversion had been placed on his email address in the respondent's email system so that anything he sent to the Respondent's email addresses would be diverted and therefore disclosed to the Legal Unit's email address. Accordingly I find that there has been no breach of section 18 of the PPIP Act.

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Judgment (6 paragraphs)

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