ABA v Commissioner of Police, NSW Police Force
[2012] NSWADT 90
•11 May 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: ABA v Commissioner of Police, NSW Police Force [2012] NSWADT 90 Hearing dates: On the papers Decision date: 11 May 2012 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: 1. The application is dismissed insofar as it relates to the conduct of Inspector Coman, Officer Buckland or Officer Rhodes-Sands.
2. The matter is listed for a further planning meeting at 11 am on 3 July 2012.
Catchwords: Privacy and Person Information Protection Act - personal information - accuracy - use Legislation Cited: Administrative Decisions Tribunal Act 1997
Police Act 1990
Privacy and Personal Information Protection Act 1998Cases Cited: Commissioner of Police, New South Wales Police Force v YK (GD) [2008] NSWADTAP 78
Crewdson v Central Sydney AHS [2002] NSWCA 345
Department of Education and Training v GA (No.3) [2004] NSWADTAP 50
GA v Commissioner of Police, NSW Police [2004] NSWADT 254
GA v The University of Sydney (GD) [2010] NSWADTAP 31
GA v The University of Sydney [2009] NSWADT 230
HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214
JD v Department of Health (GD) [2005] NSWADTAP 44
KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18 Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44
MH v NSW Maritime [2011] NSWADT 248
PC v University of NSW (GD) [2005) NSWADTAP 72
Y v Director General, Department of Education & Training [2001] NSWADT 149Category: Interlocutory applications Parties: ABA (Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: ABA (Applicant in person)
Commissioner of Police, NSW Police Force (Respondent)
File Number(s): 113097
REasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): In these reasons the names of several private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as ABA. I have also limited my discussion of the evidence in order to avoid the possibility that the identities of individuals might be revealed.
ABA has applied to the Tribunal for review of a decision of the Respondent concerning alleged breaches of the Privacy and Personal Information Protection Act 1998 ("PPIP Act").
In January 2011 ABA made an application to the Respondent under section 53 of the PPIP Act for an internal review of conduct of certain officers of the Respondent. ABA's complaint referred to police placing onto police records, as if factual, false and misleading information from the NSW Department of Community Services ("DoCS"). The allegations relate to conduct during a joint program involving officers of both the Respondent and of DoCS ("the JIRT Investigation").
ABA asserted that records containing false and misleading information about welfare services were provided to the police. He says that the record falsely indicated, amongst other things, that ABA's family had access to a 24 hour psychologist, speech therapist paid for by a NSW Government agency and more services than other families with "similar disabilities".
ABA asserted that when he contacted the Respondent to request assistance in obtaining services he was told that the Respondent does not question information from DoCS, despite being told it was false and misleading. The Respondent refused ABA's request to investigate and correct the false information.
ABA also asserted that officers of the Respondent used the false and misleading information in denying his family assistance to obtain the health and welfare services required for his children's development and wellbeing and that they did so without adequately checking that the information was relevant, accurate, up to date, complete and not misleading having regard for the purpose it as collected as required by section 16 of the PPIP Act.
ABA also asserted that the Respondent failed to take any action to correct the false evidence provided to the Respondent by DoCS as required by Section 15 of the PPIP Act or take any other remedial action.
Applicable legislation
Section 4(3)(h) of the PPIP Act states:
(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.
...
(3) Personal information does not include any of the following:
...
(h)information about an individual arising out of a complaint made under Part 8A of the Police Act 1990,
ABA's applications to the Tribunal alleged contraventions of the Information Protection Principles ("IPPs") set out in sections 15 and 16 of the PPIP Act. He seeks orders requiring the Respondent to correct the record to reflect the services that were available to ABA's family and that officers be counselled to not accept false or misleading information from colleagues.
IPP 8, contained in section 15 of the PPIP Act provides:
15 Alteration of personal information
(1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information:
(a) is accurate, and
(b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading.
(2) If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought.
(3) If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency.
(4) This section, and any provision of a privacy code of practice that relates to the requirements set out in this section, apply to public sector agencies despite section 25 of this Act and section 21 of the State Records Act 1998 .
(5) The Privacy Commissioner's guidelines under section 36 may make provision for or with respect to requests under this section, including the way in which such a request should be made and the time within which such a request should be dealt with.
(6) In this section (and in any other provision of this Act in connection with the operation of this section), "public sector agency" includes a Minister and a Minister's personal staff.
IPP 9, contained in section 16 of the PPIP Act provides:
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.
Section 20 of the PPIP Act provides:
20 General application of information protection principles to public sector agencies
(1) The information protection principles apply to public sector agencies.
(2) The application of the principles to public sector agencies:
(a) may be modified by privacy codes of practice, and
(b) is otherwise subject to this Act.
(3) Sections 8-11 do not apply in respect of personal information collected by a public sector agency before the commencement of this Part.
(5) Without limiting the generality of section 5, the provisions of the Government Information (Public Access) Act 2009 that impose conditions or limitations (however expressed) with respect to any matter referred to in section 13, 14 or 15 are not affected by this Act, and those provisions continue to apply in relation to any such matter as if those provisions were part of this Act.
Section 27 of the PPIP Act provides:
27 Specific exemptions (ICAC, ICAC Inspector and Inspector's staff, NSW Police Force, PIC, Inspector of PIC and Inspector's staff and NSW Crime Commission)
(1) Despite any other provision of this Act, the Independent Commission Against Corruption, the Inspector of the Independent Commission Against Corruption, the staff of the Inspector of the Independent Commission Against Corruption, the NSW Police Force, the Police Integrity Commission, the Inspector of the Police Integrity Commission, the staff of the Inspector of the Police Integrity Commission and the New South Wales Crime Commission are not required to comply with the information protection principles.
(2)However, the information protection principles do apply to the Independent Commission Against Corruption, the Inspector of the Independent Commission Against Corruption, the staff of the Inspector of the Independent Commission Against Corruption, the NSW Police Force, the Police Integrity Commission, the Inspector of the Police Integrity Commission, the staff of the Inspector of the Police Integrity Commission and the New South Wales Crime Commission in connection with the exercise of their administrative and educative functions.
Section 53 of the PPIP Act provides:
53 Internal review by public sector agencies
(1) A person ("the applicant") who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.
(1A) There is no entitlement under this section to the review of the conduct of a Minister (or a Minister's personal staff) in respect of a contravention of section 15 (Alteration of personal information).
Note: Any such conduct can still be reviewed by the Tribunal. See section 55 (1A).
(2) The review is to be undertaken by the public sector agency concerned.
(3) An application for such a review must:
(a) be in writing, and
(b) be addressed to the public sector agency concerned, and
(c) specify an address in Australia to which a notice under subsection (8) may be sent, and
(d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and
(e) comply with such other requirements as may be prescribed by the regulations.
(4) Except as provided by section 54 (3), the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practicable, a person:
(a) who was not substantially involved in any matter relating to the conduct the subject of the application, and
(b) who is an employee or officer of the agency, and
(c) who is otherwise suitably qualified to deal with the matters raised by the application.
(5) In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by:
(a) the applicant, and
(b) the Privacy Commissioner.
(6) The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for a review of the conduct concerned.
(7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following:
(a) take no further action on the matter,
(b) make a formal apology to the applicant,
(c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant),
(d) provide undertakings that the conduct will not occur again,
(e) implement administrative measures to ensure that the conduct will not occur again.
(7A) A public sector agency may not pay monetary compensation under subsection (7) if:
(a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and
(b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and
(c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.
(8) As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of:
(a) the findings of the review (and the reasons for those findings), and
(b) the action proposed to be taken by the agency (and the reasons for taking that action), and
(c) the right of the person to have those findings, and the agency's proposed action, reviewed by the Tribunal.
Section 55 of the PPIP Act
55 Review of conduct by Tribunal
(1) If a person who has made an application for internal review under section 53 is not satisfied with:
(a) the findings of the review, or
(b) the action taken by the public sector agency in relation to the application,
the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53.
(1A) A person ( "the applicant") who is aggrieved by the conduct of a Minister (or a Minister's personal staff) constituting a contravention of section 15 (Alteration of personal information) may apply to the Tribunal for a review of the conduct.
(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:
(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,
(b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,
(c) an order requiring the performance of an information protection principle or a privacy code of practice,
(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,
(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,
(f) an order requiring the public sector agency not to disclose personal information contained in a public register,
(g) such ancillary orders as the Tribunal thinks appropriate.
...
The nature of the Tribunal's review of conduct
The Tribunal's task on reviewing conduct is not one in which the Tribunal reviews the decision made on internal review, either on a merits review or error of law basis. Rather, the Tribunal reviews the conduct that was the subject of the internal review request. In JD v Department of Health (GD) [2005] NSWADTAP 44 the Appeal Panel explained -
"We note that at para [63] of its reasons, the Tribunal saw its role as to 'review the decision' of the agency as reflected in its internal review report, and then to make the 'correct and preferable' decision in relation to the matter. This is not correct. The Tribunal is clearly not engaged in the review of a reviewable decision. What occurs in this area is that the agency makes an original decision on the action it will take or not take in relation to the complaint. Then the Tribunal makes an original decision going to the same matter, taking account of the agency's report. What occurs is a second external review of the administrative actions or 'conduct' of the agency. The process is one that is connected conceptually to the administrative law theory that underpins a Tribunal of this kind when dealing with cases involving citizens and government, in that it involves the 'review' of a species of administrative action being 'conduct' rather than a 'decision'."
A review of conduct under the PPIP Act is not at large. It is confined in its scope by the initial request for internal review, reasonably construed: Department of Education and Training v GA (No.3) [2004] NSWADTAP 50, KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18 and Department of Education and Training v ZR (No 2)(GD) [2009] NSWADTAP 44. This is so as section 55 of the PPIP Act allows an applicant to seek review of the conduct that was the subject of the application for internal review under section 53, not other conduct.
The matter came before me for a planning meeting in June 20011 at which time the solicitor for the Respondent, Mr Gaha, indicated that the Respondent had no record of receiving ABA's application for internal review. The matter was adjourned to allow time for discussions between the parties and attempts to resolve the matter. The matter resumed in August 2011. Prior to that meeting ABA had provided the Respondent with a detailed document setting out his arguments. Mr Gaha indicated that the document was not an appropriate statement to be attached to the record pursuant to section 15(2) of the PPIP Act. In response, ABA undertook to give the Respondent a succinct statement to be attached to the record.
The matter again resumed in October 2011. On that occasion Mr Gaha indicated that the Respondent had received information provided by DoCS but that it had not used the information. Mr Gaha indicated that the Respondent's position is that it had not breached either of the IPPs as alleged. He invited ABA to indicate what conduct is alleged to have been in breach of the PPIP Act and what damages are said to flow from the alleged breach. The matter was again adjourned to allow ABA further time to consider his position. The matter resumed in November 2011. On that occasion ABA indicate that the Respondent had used the information in making the decision to not place his children's welfare as top priority. He also asserted that as part of that process a police officer, Officer Buckland, took the decision to not check the accuracy of the information.
Mr Gaha indicated that the Respondent's position is that an exemption from compliance with the IPPs applies in relation to the Respondent's law enforcement and child protection functions. He also indicated that the Respondent would argue that inactivity on the part of the Respondent does not constitute use for the purposes of the PPIP Act.
ABA indicated that he would accept the Respondent's offer to place material on its record. The matter was adjourned to allow a deed of release to be prepared and settled. The matter did not settle as was anticipated and the Respondent applied for the matter to be dismissed. I set a timetable for submissions to be made in relation to that application and directed that it be determined on the papers.
Each of the parties has filed written submissions.
Applicant's Submissions
ABA's written submissions comprised some 225 pages and gave a detailed outline of the events leading to the application. Much of that material is not relevant to this matter other than to provide a context in which the alleged conduct is said to have occurred.
ABA has referred to conduct of police officers, Officer Buckland, Officer Rhodes-Sands and Inspector Coman, however it is also difficult to ascertain the exact nature of the alleged conduct and alleged breaches of the IPPs. The allegations relate to conduct the JIRT Investigation. It appears that as part of that program DoCS supplied records to the Respondent. ABA says that those records falsely indicated, amongst other things, that ABA's family had access to a 24 hour psychologist, speech therapist paid for by a NSW Government agency and more services than other families with "similar disabilities".
ABA's set out his allegations in regarding to the Respondent's officers as follows (citations and annexure references deleted):
"60. Despite the responsibility to take the minimum legal action necessary to reduce the risk of harm to the children under 59(2)(c) of the Children & Young Persons (Care & Protection) Act police took this action knowing it was unnecessary ...
61. It is well known that "challenging behaviours" in disabled children place them at a risk of harm (DADHC Page attached) yet police, in their assessments in joint meetings as well as subsequent discussions refused to acknowledge this. They failed to make sure the information that was used by them was accurate for the purpose it was supplied. That is to reduce the risk of harm and improve the safety, welfare and development of the children.
62. Indeed police refused to acknowledge the welfare of the children as their priority at all and told me (a) I should not be concerned about their challenging behaviours because (b) they were disabled and (c) there is no evidence disabled people are at higher risk of harm from abuse (d) they cannot be charged with a criminal offence so their behaviour is of no consequence to their welfare.
63. Clearly they were either not interested in following the law, by having their principal concern as the welfare of the children (in both legal and administrative decisions) or they were trying to cover up the lies they had received from DoCS/DADHC. The research is clear that disabled children are at higher risk of abuse.
64. Being charged with a criminal offence is not the only harm that can come to a child with behavioural problems. Some other examples of harm from challenging behaviours that do not involve criminal law include being run over if they run on the road when told not to, medical staff choking them to death, or (as with [one of ABA's children]) medical staff abusing them by excessive force. NSW Police are still legally required to assist in preventing this harm, even if they consider it "incidental" to their role [s6(2)(c) Police Act].
65. I tried to have my version of events placed on record in the Local Court, including the lack of behaviour support for the children causing their challenging behaviours along with the domestic violence that increased their challenging behaviours as these issues are vital to the children's safety, welfare and development.
66. Being merely a parent and not the police or offender the Local Court refused to accept my submission. It should be noted that I explain how the police "advice" to my (ex) wife about the cause of harm actually increased the Domestic Abuse and hence the harm it did to the children and family (In fact my ex-wife reported that police made suggestions of her leaving me) along with the threats to have DoCS "investigate" me to take the children.
67. Police failed in their duty to protect [one of ABA's children] from injury as they failed to get the correct information in their risk assessment, they failed to investigate the false information to ensure the appropriate disability/behaviour interventions were provided to the children. [One of ABA's children] was harmed at the hospital only weeks later due to his behaviour.
68. As well a recent report from a professional psychiatrist has indicated the domestic abuse has caused significant problems with the children. As, it appears, no one listens to me. Being a male victim of domestic abuse, the Government authorities retaliate when I report it, the DV is wrongly attributed to me in the report.
69. These results clearly indicate that the decisions made by Det Buckland, based on her (mis)use of false information at several levels, was been severely detrimental to the children's safety , welfare and development."
Complaint against Officer Buckland
ABA asserts that Officer Buckland used information she received without ensuring it was up to date and relevant for the purpose it was recorded.
He says that Officer Buckland received information during the course of her investigation and did not use the information she received with the primary concern being the welfare of ABA's children, as required by NSW law. He says that Officer Buckland's use of the information demonstrated that she showed bias towards supporting her colleagues rather than using it in the interests of the children.
He says that Officer Buckland made decisions based on false information and that those decisions have been severely detrimental to the children's safety, welfare and development.
ABA asserts that Officer Buckland initially assessed that the lack of services placed ABA's children at "risk of harm" when it was claimed it was ABA's fault. However, when that claim was shown to be very likely to be false, Officer Buckland placed protecting her colleagues' reputation above the interest of ABA's children. ABA also asserts that Officer Buckland later claimed, in court, that the lack of available services was not relevant to the risk of harm, but rather, that ABA was a risk and not a "responsible adult". ABA says that the reasoning behind that claim was that ABA wanted the services to be provided.
ABA asserts that Officer Buckland's reported views of risk of harm are not based on the facts but are her personal views. He says that Officer Buckland did not make sure that the information was correct for the intended purpose i.e. to minimise the risk of harm to the safety, welfare and development of ABA's children. Instead, she used it to protect the dishonesty of her colleagues. ABA says that Officer Buckland labelled him a risk, despite having no real concerns, and that she did so in retaliation for ABA making a complaint to a Member of Parliament.
ABA says that the claim that he was a risk to his children, because he didn't believe the children had a disability, was made to justify the false claims that ABA was refusing to access services when in fact they knew that the services were not available.
He says that during the course of the investigation, every single adult witness they asked, that was independent of DoCS/DADHC, informed the Police that the information was false. Police were told three times that the information was false yet they failed to act to ensure the risk was correctly assessed. They instead relied on the false information in their risk assessments and final court documents.
ABA says that Officer Buckland sought information from Elizabeth Board and that Ms Board informed Officer Buckland that ABA had never refused to access services. However, Officer Buckland did not record either the question to Ms Board or the answer from her. After confirming with Ms Board that DoCS was providing false information Officer Buckland failed to follow this further to ensure the correct risk of harm was obtained and appropriate victim services were obtained.
ABA further asserts that Police refused to act on his assertions that DoCS was acting with a conflict of interest. Instead of getting the correct information, Police allowed DoCS to use the fabricated evidence in risk of harm evaluations despite ABA's objections to the conflict of interest. He submits that, given it had significant bearing on the conduct of the case and assessment of the risk of harm, the officers should have looked into it to make sure it was correct for that purpose. He says that under the PPIPA Act there is a legal responsibility to get it correct in order to assess the risk to the children properly.
ABA says that in response to his complaint he was told that Police didn't need to check the information.
Complaint against Officer Rhodes-Sands
ABA asserts that Officer Rhodes-Sands, in conjunction with Officer Buckland, failed to comply with the requirements of sections 15 and 16 of the PPIP Act. ABA says that the officer used false information to assess the risk to ABA's children, without ensuring it was up to date and relevant for the purpose for which it was recorded.
Complaint against Inspector Coman
Following the incident involving ABA and Officer Buckland, ABA lodged written complaints with both the NSW Independent Commission Against Corruption and the NSW Ombudsman alleging that Officer Buckland had engaged in misconduct in her dealings with ABA. Inspector Comans was charged by the Respondent with the task of investigating, reporting upon and providing a response to the complaints made by ABA.
ABA asserts that Inspector Coman's report is false and misleading by omission as his investigation completely leaves out the main issues in ABA's complaint i.e. Officer Buckland's misuse of information she had gained in the course of her duties.
ABA says that Inspector Comans failed to investigate why Officer Buckland repeatedly refused to investigate the information that she was given that was false in a material particular, but instead took a conscious choice to place the relationship with her colleagues above the legal responsibility to place the children's safety, welfare and development at the forefront of decision-making. She did so in circumstances in which she should have been reasonably aware that their actions were harmful to the safety, welfare and development of the children.
ABA asserts that Inspector Coman refused to consider that DoCS/DADHC officers had deliberately provided false evidence. He says that even before looking into the complaint Inspector Coman had biased it by relabelling it as a "miscommunication". From the outset Inspector Coman had biased his views and was not treating the complaint based on the evidence supplied to him.
Furthermore, ABA says that Inspector Comans tried to justify the "miscommunication" excuse by suggesting that it is reasonable for police to "trust" information from DoCS because they work as a team.
ABA also asserts that Inspector Coman failed to investigate ABA's claim that police officers had destroyed or lost incriminating evidence, indicating they knew they had done the wrong thing.
ABA says that his ICAC Complaint was very clear in that it was primarily about the misuse of information in a manner that shows partiality (favouritism towards their work colleagues rather than having the children's welfare as paramount as required by statute). It included the use of false evidence and fabrication of information by police. Despite this, Inspector Coman gave no reason why he failed to investigate this misuse of information other than his preconceived ideas and biases about DoCS workers. ABA says that Inspector Coman ignored the fact that Officer Buckland had the responsibility to ensure the information she received and used in her decision-making was true and correct for the purpose for which it was collected i.e. for the welfare of the children.
He says that while Officer Buckland was aware that every single witness independently indicated that the information she had received from DoCS/DADHC was false in a material particular and she knew of their conflict of interest in managing the investigation, Officer Buckland refused to place the children's welfare as paramount in her decision making.
Respondent's Submissions
In support of its application for dismissal of the matter the Respondent submits that the identification of "conduct" of a public sector agency is the "essential ingredient" which enables a public sector agency to conduct an internal review under this section. It argues that ABA failed to provide sufficient particulars of the conduct that he alleges breached his privacy.
Further the Respondent submits that ABA failed to identify any "service" which he considers the Respondent is supposed to or obliged to have provided to him or his family. Accordingly the Respondent asserts that it has been unable to conduct the internal Review sought.
Mr Gaha pointed to the Tribunal's decision in GA v Commissioner of Police, NSW Police [2004] NSWADT 254 ("GA") as authority for the proposition that a valid or competent application under section 53 of the PPIP Act requires an applicant to identify the conduct of which he complains. In GA Deputy President Hennessy stated at paragraph [7]:
"7 In my view, an applicant's entitlement to an internal review (and ultimately an external review) depends on that person identifying the conduct about which they are aggrieved in sufficient detail to allow the agency to determine whether it constitutes a breach of an information protection principle or a privacy code of practice or the disclosure of personal information kept in a public register. If the application does not identify the conduct with that level of particularity, then the agency should initially request further information from the applicant. If an applicant does not provide that information within a reasonable time, then the agency will be justified in declining to review the conduct."
In the matter of Y v Director General, Department of Education & Training [2001] NSWADT 149 at [69], [74] and subsequently confirmed by PC v University of NSW (GD) [2005) NSWADTAP 72 at [20] - [21]) the Tribunal confined the word "application" as relating only to a "competent" internal review application - that is, an application "which attracts the internal review jurisdiction of the agency".
The Respondent referred to GA in support for the submission that the jurisdiction of the Tribunal is predicated on three "pre-conditions" first being satisfied:
(i) the applicant has made a competent application for internal review under section 53 of the PPIP Act, and
(ii) the applicant is dissatisfied with the findings of the review or the action taken by the respondent in relation to the application, and
(iii) the applicant is now asking the Tribunal to review the conduct that was the subject of the internal review application.
The Respondent submits that ABA's application has never been the subject of an internal review by the Respondent. The Respondent contends that ABA has failed to supply sufficient details of the conduct that he alleges constitutes a breach of his privacy to allow an internal review to be conducted.
The Respondent concedes that the Tribunal could be considered to have acquired jurisdiction to entertain the application by virtue of the operation of section 53(6) of the PPIP Act. However, it submits that in the absence of any identified conduct it would be a futile and time wasting exercise to embark upon such an exercise.
The Respondent seeks that ABA's application be dismissed on the grounds that the Tribunal is unable to entertain the application because the prerequisite "conduct" has neither been articulated nor established by ABA which would allow the Tribunal to either exercise its powers of review or make any determination or subsequent orders as provided for by the PPIP Act.
As noted above, ABA subsequently provided written submissions. In reply to ABA's submissions, the Respondent contends that, in the main, the conduct that is the subject of ABA's application appears to be conduct associated with the care and protection of children, or conduct which ABA had expectations that the Respondent was to perform.
It is the Respondent's position that conduct associated with the care and protection of children falls squarely within the community protection functions of the Respondent as enunciated in section 6(2)(c) of the Police Act 1990. Section 6 of the Police Act outlines the Mission and functions of NSW Police Force as follows:
6 Mission and functions of NSW Police Force
(1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.
(2) The NSW Police Force has the following functions:
(a) to provide police services for New South Wales,
(b) to exercise any other function conferred on it by or under this or any other Act,
(c) to do anything necessary for, or incidental to, the exercise of its functions.
(3) In this section:
police services includes:
(a) services by way of prevention and detection of crime, and
(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and
(c) the provision of essential services in emergencies, and
(d) any other service prescribed by the regulations.
(4) A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force.
...
It is the Respondent's position that any conduct by the officer(s) in question (whether it be characterised by ABA as being either action or inaction), which is associated with the community protection functions of the Respondent are exempt from the provisions of the PPIP Act by virtue of the exemption provided to the Respondent in section 27 of the PPIP Act.
Section 27 of the PPIP Act provides the Respondent with a general exemption from compliance with the IPPs except in connection with the exercise of its administrative and educative functions.
The Respondent submits that the alleged conduct cannot be characterised as being either administrative or educative in nature.
Mr Gaha relies on views expressed by the Appeal Panel in Commissioner of Police, New South Wales Police Force v YK (GD) [2008] NSWADTAP 78 (YK), where it stated at paragraph [20]:
20 In our opinion, section 27(1) gives a blanket exclusion from the application of the Act to the named agencies in respect of all of their activities, subject only to the qualification set out in s 27(2). Therefore the starting point is that all functions of the Police Force have the benefit of the s 27(1) exclusion. It is not necessary to refer to the Police Act list of functions. The question is simply whether the activity is brought back under the regulation of the Act because it belongs to the 'administrative' or 'educative' services of the Police Force. In our view, the way 'administrative services' is depicted in para [30] of the President's reasons in HW, especially sentence one, captures the meaning intended for this term in sub-section (2).
The reference in the passage from YK to the reasons in HW is a reference to the decision in HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214. In that matter the Tribunal's President stated at paragraphs [28] - [30]:
28 In my view the activities of a police officer in supporting a prosecution, at least where he or she is asked to exercise independent discretion and judgment in performing a task, are activities that form part of the core responsibilities of the Police Service. ... This in my opinion was work of an investigative nature (though not connected with the crime itself) and related to the Police Service's core responsibilities.
29 It was not 'administrative' in the sense in which I consider this term is used in this Act. In order for the primary provision, s 27(1), to be given effect, the term can not be used to refer to the entirety of the administrative activity of the Police Service, which includes the investigation of crime. Read in context, I am satisfied that it is intended to have a narrower compass going to those aspects of the operation of the agency that, as I see it, do not directly involve the carrying out of the core responsibilities. As I see it, 'administrative' when used in contradistinction to s 27(1) and alongside the term 'educative' seeks to refer to those activities of the Police Service that have to do with providing administrative support for the conduct of its core responsibilities.
30 So, for example, corporate services areas performing functions such as personnel, budget and information technology involve the performance of 'administrative' functions. There may be areas of the Police Service where the characterisation of the activity in terms of core/administrative/educative may vary depending on context that has given rise to the conduct in issue. (The handling of criminal records may provide an example where in some instances the disclosures occur in the course of the investigation of crime, while in other instances they are done administratively, for example for background checks on prospective employees. The exception in s 27(2) may also cover licensing responsibilities vested in the Commissioner, such as for firearms licensing and security industry licensing. It is not necessary to pursue these questions any further here.)
31 As to the term 'educative functions' it seeks, as I see it, to refer to the work that the Police Service does in connection with community and school education programs, as well as in relation to its internal education and training programs. Section 27(2) makes the IPPs applicable to the way in which personal information is used in these contexts.
It is the Respondent's position that any conduct/function performed by Officer Buckland, and that of Officer Rhodes-Sands, in the circumstances as described by ABA was or would have been for a purpose associated with the Respondent's community protection/law enforcement functions and as such is exempt from the provisions of the PPIP Act by virtue of the exemption provided to the Respondent in section 27 of that Act.
In relation to that aspect of ABA's complaint that concerns Inspector Coman, the Respondent submits that any documentation report or response associated with Inspector Coman's investigation of ABA's complaint regarding Officer Buckland does not constitute personal information and as such is not subject to the provisions of the PPIP Act. As the information arising out of the Part 8A process does not constitute personal information under the PPIP Act, any conduct of Inspector Coman, which ABA alleges breaches his privacy, is not subject to the provisions of the PPIP Act: see section 4(3)(h) of the PPIP Act.
Mr Gaha also referred to an assertion that ABA made at paragraph 71 of his submissions in which he stated:
In my complaint it was asserted that police acted wrongly by supporting the use of the fabricated evidence in evaluating the risk of harm to the safety, welfare and development of the children as well as fabricating a whole lot of invalid reasons why they do not have to act with the welfare of the children as their principal concern. All these reasons are either (a) wrong at law, (b) incorrect in fact (i.e. police didn't know what they were talking about with the risk of harm to the children) or (c) morally corrupt (lazy) such as the children don't deserve disability services anyway.
Mr Gaha submits that these comments appear to suggest that ABA disagrees with the ultimate merits (or legality) of any decision made in respect of the risk assessment and any subsequent decisions regarding what services might have flowed to ABA's children. He submitted that the matter falls within the Appeal Panel's decision of GA v The University of Sydney (GD) [2010] NSWADTAP 31. The Appeal Panel dismissed an appeal from the decision of the Tribunal at first instance which had clearly stated that privacy law is not the vehicle to complain essentially against the merits or legality of agency decisions. In GA v The University of Sydney [2009] NSWADT 230 Judicial Member Molony stated:
31 In considering whether or not to amend information held by an agency it is important to remember, as Handley JA made clear in Crewdson v Central Sydney AHS [2002] NSWCA 345 at 24, that the FOI Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. His Honour said that an attempt:
'...to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected.'
For the reasons outlined above, the Respondent submits that the Tribunal has no jurisdiction to entertain ABA's application for review.
Consideration
The Tribunal's function in conducting a review under the PPIP Act is to review conduct falling within the scope of the complaint, fairly construed, in order to identify whether there has been a breach of an IPP or of a Privacy Code of Conduct
In conducting reviews of conduct under the PPIP Act the Tribunal usually has the advantage of an internal review that sets out the relevant facts, as established after investigation by the internal review officer, and considers whether there has been a breach of any relevant IPP's or Privacy Codes of Conduct. While the Tribunal must make its own finding of fact, a decision made on internal review usually provides a convenient basis for the Tribunal's review and simplifies the fact-finding process. That was not the case in this matter.
Despite several requests, ABA has not provided a succinct outline of his complaint. That failure prompted the Respondent's dismissal application. Mr Gaha has provided what I consider to be a reasonable summary of the substance of the complaint. Mr Gaha's submissions provide a response to what the Respondent understands the complaints to be. I doubt that any hearing time would be saved were an internal review completed, and it is probable that the process of an internal review would only result in delaying the proceedings, without benefit.
ABA's complaint concerns the conduct of a number of officers of the Respondent. It is my view that, reasonably construed, ABA's internal review request raised for consideration the question of whether the conduct of Officer Buckland, Officer Rhodes-Sands and Inspector Coman evidenced a breach of the Respondent's obligation under sections 15 and 16 of the PPIP Act.
ABA has also sought to have the record held by the Respondent corrected to ensure that it is relevant, up to date, complete and not misleading. The Respondent agreed to attach a statement from ABA to the information contained in the record, so that it could be read with the information. ABA initially agreed to that proposal but declined to agree to the terms of a deed of release proposed by the Respondent.
In my view, such an approach is reasonable in the circumstances. I appreciate the difficulty that confronts the Respondent in that any attachment must be succinct; otherwise the exercise would be futile.
ABA is invited to submit to the Tribunal and to the Respondent within 14 days of the publication of these reasons, a document for attachment to the Respondent's records pursuant to section 15(2) of the PPIP Act. The document should be no more than 400 words.
The matter will be listed for further planning meeting to consider this issue unless the Respondent notifies the Tribunal that it does not object to attachment of the proposed document to its records within 28 days of the publication of these reasons.
Insofar as the remainder of the application, it is my view that the Respondent's submission regarding the application of section 27 of the PPIP Act is correct.
It is my view that the conduct of Officer Buckland and Officer Rhodes-Sands to which ABA has referred would have been for a purpose associated with the Respondent's community protection/law enforcement functions and cannot characterised as being either administrative or educative in nature. The conduct is exempt from the provisions of the PPIP Act by virtue of the exemption provided to the Respondent in section 27.
I also agree with the Respondent's submission in relation to that aspect of ABA's complaint that concerns Inspector Coman. Any documentation report or response associated with Inspector Coman's investigation of ABA's complaint regarding Officer Buckland is not subject to the provisions of the PPIP Act.
Accordingly, the Tribunal has no jurisdiction to entertain ABA's application for review in relation to the conduct of Inspector Coman, Officer Buckland or Officer Rhodes-Sands.
I note, however, that there appears to be merit in ABA's allegations. I would encourage the Respondent to give further consideration to ABA's complaints. Notwithstanding that the conduct is not subject to the provisions of the PPIP Act, Officer Buckland was clearly dealing with vulnerable people at a time when the exercise of restraint and discretion was warranted.
The comments made by Judicial Member Molony at paragraph [127] of his decision in MH v NSW Maritime [2011] NSWADT 248 are equally applicable to the circumstances of this matter.
The proper and efficient functioning of public sector organisations such as [the Respondent] is highly reliant on the judgement of its delegates. They not only need to understand and adhere to the limits of their delegated powers, but to have the judgement and discretion to understand the unwritten limits of their responsibility, and to be attuned to matters which might arouse public attention or be regarded as sensitive. ... [H]igh reliance [is] placed on delegates such as [Police Officers] to know their own boundaries and be attuned to public sensibilities.
It brings no credit to any organisation when officers rely on information that they know is false or should reasonably be expected to know to be false.
Consideration
1. The application is dismissed insofar as it relates to the conduct of Inspector Coman, Officer Buckland or Officer Rhodes-Sands.
2. The matter is listed for a further planning meeting at 11 am on 3 July 2012.
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Decision last updated: 11 May 2012
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