No action over privacy complaint by teacher

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No action over privacy complaint by teacher

A school teacher's complaint that release of confidential health information was a breach of NSW privacy legislation was not substantiated, the Administrative Decisions Tribunal (NSW) has found.

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A school teacher's complaint that release of confidential health information was a breach of NSW privacy legislation was not substantiated, the Administrative Decisions Tribunal (NSW) has found.

Legislation

The Privacy and Personal Information Protection Act 1998 (NSW) was in issue - in particular sec 16:

'16 Agency must check accuracy of personal information before use:

'A public sector agency that holds personal information must not 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.'

Background

The employee in these proceedings was a teacher at a Central School. She complained under the Privacy and Personal Information Protection Act 1998 (PPIP Act) about the Director General, Department of Education and Training (the employer's) use of certain personal information about her.

The information was contained in a letter and enclosures sent on 18 October 2000 by a District Superintendent to the Principal of another school to which the employee had been referred (the new Principal).

The letter was written by the District Superintendent and the enclosure was a report written by the Principal of the school where the employee was teaching.

The background to these proceedings is that the employee complained to the Principal of the Central School (the first Principal) about alleged stalking and harassment by a parent and harassment from staff members and the previous Principal.

In the course of making those complaints to the first Principal, the employee disclosed that she was taking anti-depressants and using alcohol heavily.

On 21 June 2000, two parents complained to the first Principal about the employee's teaching methods and behaviour. The first Principal investigated these complaints by interviewing the parents and the employee, among other things. A member of the Teachers' Federation and a support person were present at the meeting with the Principal and the employee which took place on 27 June 2000. The Principal outlined the details of the complaint to the employee at that meeting.

Use of the information

The respondent submitted that it did not 'use' the information in the report because it merely sent it by facsimile to the Principal of a school who did not read it. Furthermore, the District Superintendent did not indicate that the report should have a particular use.

The Privacy Commissioner disagreed with that submission maintaining that the use of the information is the act of sending it by facsimile to the new Principal and that whether he read it or not is irrelevant.

The Tribunal stated on this point: 'The fact that the new Principal did not read it, and that the District Superintendent did not specify an intended use for the report, does not mean that it was not employed for a purpose. Consequently, the respondent has used the information as provided by s 16.'

Reasonable steps

The Tribunal stated:

'The purpose for which the document was conveyed, according to the respondent, was not that it was an up to date assessment, but in an effort to provide the new Principal with background information of what had occurred in relation to the applicant. In the respondent's view there were no other steps which the first Principal could reasonably have taken at that time.

'The applicant submitted that the respondent should have consulted her and obtained her side of the story before using the information. In addition, the District Superintendent should have written in the covering letter to the document that Healthquest had now assessed her as being fit for work.

'I accept the respondent's submission that the document was provided "for information" or as background material ... I also agree that the purpose for which the document was conveyed was not that it was an up to date assessment of the applicant, but in an effort to provide the new Principal with background information.

'The respondent interviewed the applicant on 27 June 2000 and outlined the allegations in the complaint. The content of the document set out the results of the investigation into the complaint.

'The respondent had already taken reasonable steps to ensure that the report was, accurate, up to date, complete and not misleading.

'In my view it was not necessary, in order to comply with section 16, for the respondent to consult with the applicant before sending the report to her new Principal. Reasonable steps had already been taken in relation to the content of the report and its purpose was not to provide an up-to-date assessment of the applicant's fitness for employment. ...

'Conclusion

'Having reviewed the conduct about which the applicant complained, I find that there has been no contravention by the respondent of an information protection principle or privacy code of practice with which it was obliged to comply at the relevant time.'

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

See: GL v Director General, Department of Education & Training [2003] NSWADT 166 - Hennessy N - Magistrate (Deputy President) - 11 July 2003.

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