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 1.1 – Collection must be necessary for organisation’s functions or activities
Definition of ‘necessary’
- This decision is one of the first which interpreted the term ‘necessary’ to mean ‘reasonably required and legally ancillary’ under the IP Act. This interpretation was subsequently endorsed by the Victorian Supreme Court in Jurecek v Director Transport Safety Victoria [2016] VSC 285 (see case note) and applied to the PDP Act.
Determining the purpose of collection
- The decision also suggests that determining the purpose of collection is synonymous with understanding “not the motive but the effect which is sought to b[e] achiev[ed]” and that this is a subjective enquiry looking into the motives of the organisation’s collection, rather than an objective enquiry into the effect that the collection may have had. This interpretation has been subsequently applied in other decisions, such as Roberts v Anglicare Victoria [2014] VCAT 151 (see case note) and WOS v Victoria Police [2021] VCAT 1540 (see case note).
- However, this interpretation can be contrasted with other decisions, such as SET v Department of Health and Human Services [2019] VCAT 113 (see case note) which looked at the organisation’s statutory functions and enabling legislation to determine primary purpose.
IPP 2.1(a) – Use or disclosure is for a secondary related and reasonably expected purpose
What secondary purposes are ‘reasonably expected’
- The 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 investigating an employee and performance managing them owing to their poor classroom management skills was found to be closely linked to the primary purpose of collecting CCTV footage to manage student misbehavior in a classroom.
Facts and decision
- Mrs Ng was a teacher employed by the Department of Education (Department) at Box Hill Senior Secondary College (College) who had a history of poor classroom performance management.
- On one occasion, a fight broke out between two students in a computer room during a class that Mrs Ng was teaching.
- This prompted the Principal to investigate. The Principal reviewed the CCTV footage of the computer room during the time of the fight and subsequently took a series of performance management actions against Mrs Ng. These included: showing the CCTV footage to Mrs Ng and her representative at a meeting and writing to the Department’s Ethics Branch about Mrs Ngs’ conduct, referencing the CCTV footage.
IPP 1.1 — Collection must be necessary for an organisation’s functions or activities
Submissions
- Mrs Ng alleged that the Department interfered with IPP 1.1 when it collected the CCTV footage because it was not necessary to collect this information for the purposes of an investigation/performance management. There was other personal information available, including interviewing students.
Decision
- VCAT held that there was no interference with IPP 1.1. VCAT interpreted the term ‘necessary’ to mean “doing of the thing which are reasonably required or which are legally ancillary to its accomplishment” and not indispensable. Here, the operation of the CCTV was reasonably required and ancillary to the Department’s functions in operating a school system and ensuring the safety and wellbeing of students.
IPP 1.2 — Method of collection must be lawful, fair, and not unreasonably intrusive
Submissions
- Mrs Ng alleged that the collection of her personal information from the CCTV footage interfered with IPP 1.2 because:
- she was unaware that she would be recorded, there being no sign informing patrons of the computer rooms of the recording; and
- the Department’s Guidelines prohibited the use of CCTV for employee performance management.
Decision
- VCAT held that there was no interference with IPP 1.2. VCAT largely disagreed with Mrs Ng on the facts, holding:
- there was a sign outside the computer room that read “Warning this property is under constant surveillance”;
- Mrs Ng herself had, on a previous occasion, attempted to access CCTV footage which indicated that she knew that recordings occurred; and
- Mrs Ng only became aware of the Guidelines after the CCTV footage had been taken. She could therefore not rely on them to form an expectation that she would not be recorded.
IPP 2.1 – Use and disclosure
Submissions
- Mrs Ng alleged that the Department breached IPP 2.1 when using and disclosing the CCTV footage for the purpose of investigating and performance managing her. Mrs Ng contended that this purpose was unrelated to the primary purpose of collection, being to minimise vandalism and monitor student use of computers. This was the purpose stated in a memo that the Principal had sent to all staff when the CCTV cameras were installed.
Decision
- VCAT held that the use and disclosure of the CCTV footage was an authorised secondary purpose under IPP 2.1(a):
- Primary purpose of collection — VCAT characterised the primary purpose of collecting CCTV footage to capture and manage student misbehavior and inappropriate conduct.
- Secondary purpose — VCAT interpreted ‘purpose’ to mean “not motive but the effect which is sought to achieve — the end in view” and that this was an objective rather than subjective enquiry. In this case, using and disclosing the CCTV footage was for the purpose of investigating and performance managing Mrs Ng and this was a secondary purpose.
- Related to the primary purpose – VCAT held that managing student misbehavior and investigating a teacher’s classroom management were two sides of the same coin, given the duty of care that the Department has to the care and safety of students, so the two purposes were inextricable linked.
- Reasonably expected – VCAT held that the nature of the link between the two purposes was “so close as to render it reasonably foreseeable by a reasonable teacher” that the CCTV footage would be used for the purposes of investigation and performance management. VCAT also highlighted that, subjectively, on some level, Mrs Ng also should have expected that the CCTV footage may be used for this purpose as, on a previous occasion, she herself had requested access to CCTV footage relating to another incident for the purpose of self-reviewing her classroom management abilities.
About this decision
Venue: VCAT
Date of decision: 06/06/2005
Tags:
- IPP 1.1 ,
- IPP 1.2 ,
- IPP 2.1 ,
- IPP 2.1(a)