AEC v NSW Police Force

[2013] NSWADT 32

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AEC v NSW Police Force [2013] NSWADT 32
Hearing dates:	Hearing on the papers
Decision date:	07 February 2013
Jurisdiction:	General Division
Before:	Judicial Member Naida Isenberg
Decision:	The decisions under review areaffirmed
Catchwords:	Privacy - disclosure of spent conviction - expunged record - disclosure to employer and another - administrative or educative function exemption Privacy - deletion of record
Legislation Cited:	Privacy and Personal Information Protection Act 1998 Public Sector Employment and Management Act 2002 State Records Act 1998
Cases Cited:	AFW v Workcover Authority of NSW [2012] NSWADT 136 Commissioner of Police, New South Wales Police Force v YK [2008] NSWADTAP 78 HW v Commissioner of Police, New South Wales Police Service and anor [2003] NSWADT 214 The Ombudsman v Laughton[2005] NSWCA 339 ACP v Commissioner of Police, NSW Police Force [2011] NSWADT 249
Category:	Principal judgment
Parties:	AEC (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	AEC (Applicant in person) Crown Solicitor's Office (Respondent)
File Number(s):	113170, 123111

Judgment

Background

1.   The applicant has sought review of the respondent's conduct in 2 matters, alleging breaches of the Privacy and Personal Information Protection Act 1998 ('PPIP Act').

Matter 113170: the disclosure complaints

2.   The applicant complained of disclosures alleged to have been made by the respondent as follows:

'Release of private information to my x-partner, [Ms X], as supported by her own affidavit dated 10 June 2010 ('the first disclosure')

Also police releasing information to my employer regarding same incident ('the second disclosure')'

3.   The first disclosure was described by Ms X in an affidavit to the effect that during Local Court proceedings in whichshe sought an AVO and the applicantwas charged with assault, the police told her that the applicant had a criminal record, of which she had beenpreviously unaware.The applicant in fact had a 'spent conviction' from the 1980s.

4.   As to the second disclosure, the respondent confirmed that it had disclosed to the applicant's employer,NSW Corrective Services ('the employer') that the applicant was the subject of court proceedings for common assault involving Ms X. That charge had been dismissed.

5.   The respondent considered that there was no breach of s. 18PPIP Act because of the following:

The s. 41 PPIP Act 'Direction on Processing of Personal Information by PublicSector Agencies is in relation to their Investigative Functions' ('the Investigative Functions Direction');

Section 25, PPIP Act read with clause 27 of the Public Sector Employmentand Management Regulation 2009 ('the PSEM Regulation'), which requires an employee to disclose the fact that he or she has been charged with a serious offence, that is, an offence punishable by imprisonment for 12 months or more (s. 48, Public Sector Employment and Management Act 2002 (PSEM Act'))

Part 5 of the Private Code of Practice (General) 2003 ("the Privacy Code')allows the employer to disregard the collection when receiving information from the respondent regarding the employer's employees.

6.   Following observations by the Office of the Privacy Commissioner ('OPC') the Respondent conducted…