Taylor v Victorian Institute of Teaching [2013] VCAT 1290

Commentary

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

s 12 – Exemption for publicly available information

Information must be publicly available at the time of the alleged act or practice

  • This decision confirms that if relying on the exemption from s 12 of the PDP Act, the information must be in a generally available publication or public register at the time of the alleged act or practice that interfered with privacy. That is, the exemption is unlikely to apply to acts or practices engaged in prior to the information being added to a generally available publication or register.

IPP 1.3 – Collection notices

Whether information in a privacy policy can constitute reasonable steps under IPP 1.3

  • In this decision, VCAT considered the information provided in the Victorian Institute of Teaching’s (VIT) Privacy Policy a reasonable step that the VIT had taken to make Mr Taylor aware of the matters listed in IPP 1.3 (Collection notice). This appears to have been reasonable in the circumstances because of: (i) Mr Taylor’s familiarity with the VIT’s statutory functions and Privacy Policy itself, and (ii) the Privacy Policy explicitly talking about maintenance of a register (which was the topic of contention in this case).
  • However, we would caution against organisation’s attempting to follow such an approach generally. This is because, as highlighted by OVIC’s IPP Guidelines at paragraph 1.68, Privacy Policies are often not “detailed enough to explain the required matters in IPP 1.3 regarding the specific collection” and, in our view, organisations often do not take any active steps to draw the individual’s attention to their Privacy Policy.

Facts and decision

  • Between 2009 and 2011, Mr Taylor changed his name two times and notified the VIT.
  • The VIT published any determinations it made relating to teacher misconduct on its website. Separately, the VIT also maintained a register (the Register) on its website which contained the names of registered teachers, their registration number, the type of registration held, the status of their registration, and details of any misconduct they had been found to have engaged in (if any). Published determinations were not linked to/from the Register.
  • In 2004, the VIT granted full registration to Mr Taylor as a teacher and created an entry in the Register to reflect this using the Mr Taylor’s name at that time (name 1).
  • In 2009, a formal hearing panel of the VIT found that Mr Taylor had engaged in misconduct, cancelled his teacher’s registration (first determination), took down his entry from the Register, and published the first determination on its website (2009 web page).
  • Mr Taylor appealed the formal hearing panel’s decision to VIT’s tribunal who overturned the first determination and instead suspended Mr Taylor’s registration until January 2011 (second determination). The VIT created a new entry on the Register showing Mr Taylor’s teacher registration status as suspended and his name at that time (name 3). The VIT also updated 2009 webpage from ‘name 1’ to ‘Name 3 (formerly name 1).’
  • Mr Taylor alleged that the VIT interfered with IPP 1.3 and IPP 2.1 when it published name 3 on the 2009 webpage. Mr Taylor was aggrieved because he had changed his name to “start again in life” and this was frustrated by linking the first determination to his identity.

Submissions and decision

S 12 – Exemption for publicly available information

Submissions and decision

  • The VIT contended the information (name 3) was available in a generally available publication covered by the exemption in s 11 of the IP Act (similar to s 12 of the PDP Act).
Whether the information was in a ‘generally available publication’?
  • VCAT held that the information within the Register was a ‘generally available publication’ because:
    • under the Education Training and Reform Act 2006 (Vic.) (ETRA), the VIT was required to maintain such a such a register and make a copy of it available for public inspection – which is what the VIT did by publishing the Register on its website; and
    • the ETRA also proscribed the types of information that the VIT was required to maintain in the Register – these types of information were what was contained in the Register.
Whether the information was in a generally available publication at the time of the alleged interference?
  • Mr Taylor contended that when his name was updated in the 2009 webpage, name 3 was not in the Register (the Register showed name 1 or name 2) and therefore name 3 could not be personal information contained in a generally available publication at the time of the alleged act or practice that interfered with privacy.
  • Whilst VCAT agreed with Mr Taylor that the information must be contained in a generally available publication at the time of the alleged act or practice that interfered with privacy, VCAT rejected Mr Taylor position that this was not the case here.
  • VCAT’s reasoning behind this is, in our view, unclear. It appears that VCAT was influenced by the factor that names are information which identify a teacher and that the VIT was entitled to use and disclose names in such a way to help identify registered teachers in the least misleading and confusing way.

IPP 1.3 (Collection notice)

Submissions

  • Mr Taylor alleged that the VIT interfered with IPP 1.3 because it did not take reasonable steps to inform him that it would use the notification of his name change to update the 2009 webpage.
  • The VIT alleged that it had complied with IPP 1.3 because:
    • its Privacy Policy explained that it collected, used, and disclosed personal information to meet its statutory obligations as required by the ETRA, including to maintain the Register; and
    • following the first determination, Mr Taylor was aware of the VIT’s functions in relation to professional misconduct and that it would publish its decision on its website which would show his name.

Decision

  • VCAT held that the VIT had not interfered with IPP 1.3, largely agreeing with the VIT’s position.

IPP 2.1 (Use and disclosure is for the primary purpose of collection) and IPP 2.1(a) (Use or disclosure is for a related and expected secondary purpose)

Submissions

  • Mr Taylor alleged that the VIT interfered with IPP 2.1 when it published name 3 on the 2009 webpage as the purpose VIT used and disclosed the personal information was to name and shame him as there was nothing in the ETRA that required the VIT to publish reasons for its determinations.
  • The VIT contended that it the use and disclosure of the name 3 was authorised under:
    • IPP 2.1 – the primary purpose of collection being to give effect to its statutory functions, one of which is the protection of the public; and/or
    • IPP 2.1(a) – if the protection of the public was seen as a secondary purpose, then this should have been reasonably expected by a reasonable person in Mr Taylor’s position as any person who notifies the VIT of their name change would expect the VIT to refer to them by their new name.

Decision

  • VCAT held that the use and disclosure of name 3 was authorised under:
    • IPP 2.1 – the primary purpose that VIT used and disclosed name 3 was to carry out its statutory function, which extended to include: regulating the education profession, investigating the conduct of teachers, and maintaining the Register; and/or
    • IPP 2.1(a) – the secondary purpose was to update records containing the Mr Taylor’s former name, which a reasonable person ought to expect that the 2009 webpage would be updated with name 3 as its purpose is to identify teachers who have been found to engage in misconduct.

About this decision

Venue: VCAT
Date of decision: 03/05/2013