I’m not sure if this is an emergency law case, a privacy case or a university administration case, but in either event it may be of interest to readers of this blog as more emergency service professionals undertake tertiary studies.

The case of AHC v Fire and Rescue New South Wales AHC v Charles Sturt University [2012] NSWADT 258 dealt with the release of information regarding a student’s results and qualifications from Charles Sturt University (CSU) to Fire and Rescue New South Wales (FRNSW) and whether or not CSU had breached the student’s privacy.

This case arose when a firefighter with FRNSW applied for a new, more senior job.  He was unsuccessful and appealed to the Government and Related Employees Appeal Tribunal (GREAT).  In his appeal he raised a number of claims as to why he was a better candidate than the person who was successful in applying for the job.  Some of the reasons given including his qualifications in fire investigation received from CSU.

After the appeal was lodged the successful applicant and the chair of the Committee that made the appointment both approached CSU to seek confirmation of these qualifications.  The Administrative Decisions Tribunal was concerned that it was these officers that made the enquiries as they were not parties to the appeal but they had been advised that they would be required to defend their appointment and the committee’s decision respectively.  This advice was wrong but it was what they were told.

Although the Tribunal was concerned about this process that was not the issue the Tribunal had to rule upon, it had to decide whether the correspondence from CSU detailing the applicants study was a breach of privacy.  In particular there was an issue about whether or not the applicant had received a Masters’ degree.  It turned out that he had been enrolled in a Masters, had submitted his thesis but had not completed necessary corrections at the time he made the application for the higher job but had, in a way that was ultimately found to be ‘ambiguous or unclear’ set out his academic qualifications, presumably applying that he had a Masters, not that he had been enrolled in the Masters’ programme.

In any event the employee from CSU confirmed, by email that the student had received Graduate Diploma of Fire Investigation but had not, at that stage, completed the Masters of Arts (Fire Investigation).

The matter was further complicated when the chair of the Committee made a formal complaint under the fire brigade disciplinary procedures to the effect that the applicant had “had falsified/misrepresented his qualifications and aspects of his experience in his application for the advertised position.”  This complaint was based on ‘informal information’ that was originally alleged to have come from CSU but later it was admitted the information had been “information that he ‘overheard at an industry conference’ he attended some time prior to making his complaint.”

The final issue involved the FRNSW making an application under Freedom of Information Act 1989 (NSW) and the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) which had replaced the FOI Act.

The applicant complained that the actions by CSU in

  1. Releasing information in response to the emails from the two officers
  2. Providing the ‘informal information’ that suggested he had falsified his qualifications and
  3. Releasing information in response to the FOI/GIPA application

Were all breaches of privacy principles as set out in the Privacy and Personal Information Protection Act 1998 (NSW).  He also alleged that the action of the officer who reported the ‘informal information’ was a breach of privacy.

The outcome

Before reading my summary of the findings, and in fairness to the applicant, it should be noted that the outcome of these events were:

  • The applicant was successful before GREAT that is GREAT determined that he should have been the successful candidate;
  • The complaint that he had “had falsified/misrepresented his qualifications and aspects of his experience in his application for the advertised position” was dismissed.  At worst it was found that the application stated his qualifications in ways that were ‘ambiguous or unclear’ but not false.
  • Although had not completed his Masters when he applied for the position, he did in fact complete and graduate with his Masters’ degree.

The Tribunal’s decision

As noted the Tribunal was concerned about a number of issues in the way the matter was dealt with but that was not what the Tribunal had to deal with, it was limited to the privacy issues.   On those issues, the Tribunal rejected the applicants’ claim.

The obligation upon institutions to maintain privacy is important but there are exceptions and the relevant exception in this case was that personal information does not include “information or an opinion about an individual’s suitability for appointment or employment as a public sector official” (section 4(3)(j)).

With the respect to the first claim, that is releasing information in response to the emails from the two officers regarding his qualifications, It was argued that information about the applicants qualifications were not relevant as they were not listed as essential requirements for the job but the tribunal found that the applicant had put the matters into issue by raising them in his appeal to GREAT.  Therefore information about his qualifications from CSU was ‘include ‘information … about … [his suitability for appointment or employment as a public sector official’ and therefore not ‘personal information’ and its disclosure was not a breach of the privacy legislation.

With respect to the second claim, that is providing the ‘informal information’ that suggested he had falsified his qualifications, there was no evidence that came from CSU so of course there could be no breach of privacy in that regard by CSU.

With respect to the third claim, releasing information in response to the FOI/GIPA application, the court noted that the Privacy and Personal Information Protection Act 1988 (NSW) did not affect the operation of the GIPA Act.   The GIPA Act provides a legal right to obtain government information and that should only be denied “if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.”   Although there were breaches of the GIPA Act given the procedures followed by CSU that again was not the issue before the tribunal.  The tribunal found that obtaining information under GIPA was not obtaining personal information and further the information released was not personal information because it was “information or an opinion about an individual’s suitability for appointment or employment as a public sector official”.

Finally with respect to the reliance by the senior officer on ‘informal information’ to base his complaint this too was not a breach of the privacy principles as hearing ‘informal information’ was not ‘collecting’ private information and so the information had not been collected by FRNSW for the purpose of the Privacy Act and its ‘release’ in the complaint was not a breach of the Act.

Discussion

As noted there were serious anomalies in the procedures followed by both FRNSW and CSU but that was not the issue the Tribunal was ruling on.

With respect to privacy issues, as an employee of a University I think it is only reasonable that an employer or potential employer should be able to verify a persons claimed qualifications with the institution.   With modern technology it is easy enough to fabricate a testamur (degree).  It is essential, and universities have an interest, in confirming that only people who have graduated from their institution are holding themselves out in that way.

The use of ‘informal information’ to base a complaint is a concern but it certainly warrants investigation.  We have seen in other areas (such as the current crisis surrounding the churches and child sexual assault) that the community won’t tolerate agencies not acting on information suggesting improper conduct because of some lack of form.  FRNSW do have an obligation, as I suggest any employer does, if they hear that there is an anomaly in someone’s appointment, to investigate that.  Reporting that sort of information to a relevant senior officer or even making a complaint and therefore bringing that to the attention of the service was not a breach of privacy (but whether it could be defamatory is another matter).

Legal Lesson

The legal lesson for emergency service personnel is to understand that the employers or potential employers can go back to your institution and check your degree but can go back to anyone to seek “information or an opinion about an individual’s suitability for appointment or employment as a public sector official”.   Reference writers will also know that revealing that sort of information is not a breach of privacy and this has to be for the good as it allows employers to act with greater certainty when choosing their employees and doesn’t let people fabricate or hide their true history (which to repeat, was suspected and investigated but did not happen here – the applicant did not falsify his application and any allegation of impropriety was dismissed).

Michael Eburn
15 February 2013.