Dodd v Department of Education and Training [2005] VCAT 2207

Commentary

  • This decision was based on the preceding legislation to the Privacy and Data Protection Act 2014 (Vic.) (PDP Act), the Information Privacy Act 2000 (Vic.) (IP Act).

IPP 2.1(a) – Use or disclosure is for a secondary related and reasonably expected purpose

What secondary purposes are ‘reasonably expected’

  • Like in Ng v Department of Education [2005] VCAT 1054 (see case note), this decision suggests that a secondary purpose can be ‘reasonably expected’ where its link to the primary purpose of collection is so close that it would make it reasonably foreseeable to a reasonable person. In this case, the secondary purpose of VIT conducting an enquiry into a registered teacher as to their fitness to teach was found to be directly related to the primary purpose of collection, being an original disciplinary hearing where the teacher was alleged to have engaged in serious misconduct by his employer.

Facts and decision

  • The Department of Education and Training (Department) was holding a disciplinary hearing into one of its employees, Mr Moran, who was alleged to have engaged in serious misconduct.
  • During the hearing, there was a breach of confidence which resulted in Dr Dodd learning details of evidence provided by Ms Kelsall, a colleague of Mr Moran.
  • Upon hearing these details, Dr Dodd wrote a letter to Ms Kelsall in which he accused her of lying, provided a version of events he thought to be correct, and threatened legal action if she did not correct her evidence.
  • This letter was then submitted in the disciplinary hearing by Ms Kelsall. The solicitors for the Department wrote to Dr Dodd seeking the identity of his source of information and expressing their concerns with his letter (the letters).
  • Under s 27 of the Victorian Institute of Teaching Act 2001 (Vic.) (VIT Act), the Department had an obligation to inform the VIT if it had taken action against a registered teacher in relation to serious misconduct and provide the VIT with any information the VIT may reasonably require to conduct its own inquiry into the registered teacher’s fitness to teach.
  • Accordingly, the Department notified the VIT of its disciplinary hearing into Mr Moran and provided access to the disciplinary hearing’s files, which included copies of the letters.
  • Subsequently, Dr Dodd, a qualified but not practicing lawyer, began acting for Mr Moran in some capacity in anticipation of future proceedings against him by the VIT.
  • During this time, Mr Moran submitted a freedom of information request to the VIT and learned that the Department had disclosed the letters to the VIT.
  • Mr Moran then advised Dr Dodd, who made a privacy complaint, alleging that in disclosing the letters which contained his personal information to the VIT, the Department interfered with IPP 2.1.

IPP 2.1(f) — Disclosure required or authorised by law

Submissions and decision

  • VCAT held that the disclosure was authorised under IPP 2.1(f) as s 27(2) of the VIT Act required the Department to provide access to the VIT in respect of its disciplinary hearing files, which included Dr Dodd’s personal information contained in the letters.
  • Dr Dodd alleged that the Department had a responsibility to consider the relevance of the letters in relation to any potential enquiry into Mr Moran’s conduct by the VIT before making them available to the VIT. VCAT rejected this argument on the basis that it was for VIT to determine, not the Department, what information was relevant to its enquiry.
  • This was based on the statutory interpretation of s 27(2) of the VIT Act, with regard to the following factors: (i) the VIT was given the power to make its own enquiries into the fitness to teach of a registered teacher, (ii) VIT was not bound by the Department’s findings arising from its disciplinary hearing, and (ii) the VIT had to consider evidence afresh and come to its own conclusion.

IPP 2.1(a) – Use or disclosure is for a secondary related and reasonably expected purpose

Submissions and decision

  • Whilst VCAT did not make a definitive ruling on whether the disclosure was also authorised under IPP 2.1(a) (as it was satisfied that the disclosure was authorised under IPP 2.1(f)) it did form the view that it could have been:
    • secondary related purpose – the letters were collected as part of the Department carrying out its disciplinary hearing and disclosed to the VIT for the secondary purpose of assisting the VIT with its enquiry. VCAT was of the view that both these purposes were related as the letters indicated that there was dispute about the validity of evidence at the disciplinary hearing, which would be relevant to VIT’s enquiry.
    • reasonably expected – VCAT held that this is an objective test, and in these circumstances, a teacher under investigation for serious misconduct would reasonably expect for evidence from the disciplinary hearing to be disclosed to the VIT.

About this decision

Venue: VCAT
Date of decision: 21/10/2005