AEZ v Commissioner of Police. NSW Police Force (No 2)

[2013] NSWADT 91

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AEZ v Commissioner of Police. NSW Police Force (No 2) [2013] NSWADT 91
Hearing dates:	On the papers
Decision date:	29 April 2013
Jurisdiction:	General Division
Before:	P H Molony, Judicial Member
Decision:	The application is dismissed.
Catchwords:	Privacy and Personal Information Protection -
Legislation Cited:	Police Act 1900 Privacy and Personal Information Protection Act 1998
Cases Cited:	ACP v Commissioner of Police, NSW Police Force [2011] NSWADT 249 Commissioner of Police v N [2003] NSWSC 943 Commissioner of Police, New South Wales v YK (GD) [2008] NSWADTAP 78 GA v Commissioner of Police, NSW Police [2005] NSWADT 121 HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214
Category:	Principal judgment
Parties:	AEZ (Applicant) Commissioner of Police. NSW Police Force (Respondent)
Representation:	AEZ (Applicant in person) Sparke Helmore (Respondent)
File Number(s):	113230

reasons for decision

Background

1. On 12 August 2011 AEZ filed an application with the Tribunal seeking a review of conduct by the Commissioner of Police, NSW Police Force (the Agency) under the Privacy and Personal Information Protection Act 1998.

1. In March 2011 AEZ had applied to the Agency to delete information concerning her in connection with an AVO application made by Police, which had been withdrawn at hearing. She sought to have four COPS Event Summaries "deleted without trace" under s 15 of the PPIP Act. On 9 May 2011 the Agency refused to make those deletions on the ground that s 27 of the Act provides that the Agency, except when exercising its administrative or educative functions, is exempt from the PPIP Act. That decision was confirmed on internal review by the Agency.

1. If that decision is correct then the Tribunal has no jurisdiction because the PPIP Act does not apply.

Does the PPIP Act apply?

1. Section 27 of the PPIP Act relevantly provides -

(1) Despite any other provision of this Act, ... the NSW Police Force ... are not required to comply with the information protection principles.

(2) However, the information protection principles do apply to the ... NSW Police Force .... in connection with the exercise of their administrative and educative functions.

1. Section 15 of the Act, under which AEZ sought to have the COPS Event Summaries "deleted without trace," contains the information protection principle concerned with ensuring that personal information held by an agency is accurate and, having regard to the purpose for which the information was collected, is relevant, up to date, complete and not misleading.

1. The agency relied on the open statement of Sergeant Hobbs to demonstrate that the Computerised Operation Policing System (COPS) is "primarily an operational policing system" used by Police officers on a daily basis in relation to the Agency's core functions "being the prevention and detection of crime and the protection of persons from injury or death."

1. This accords with the mission and functions of the NSW Police Force as set out in s 6 of the Police Act 1900. Relevantly that section provides -

(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.

1. In his statement Sergeant Hobbs also briefly outlined the use of the COPS for intelligence gathering and assessment, and the use of that information when creating strategies and responses relevant to the Agency's core functions. He also acknowledged a role the COPS played in enabling quality review and monitoring of process and investigations. He said that the COPS does have some administrative functions, such as "the monitoring and allocation of job or role specific profiles and auditing."

1. In submissions AEZ acknowledged this evidence, but argued that the "function of recording and collecting information about her in the COPS database is an administrative function of NSW Police" and therefore not protected by s 27(1) of the PPIP Act.

1. Secondly, AEZ submitted that "the function of determining whether to amend or delete her personal information already in the COPS database is an administrative function" of the Agency.

1. In HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214 the President considered the operation of s 27 of the PPIP Act. He said -

27 ... However in s 27 the Parliament has taken a compartmentalised approach to the functions of the law enforcement agencies mentioned. The division, as I see it, is as between their core responsibilities and those responsibilities which are not part of their core responsibilities. In particular the meaning of the word `administrative' is to be read down so as not to embrace those core responsibilities. Similarly `educative' responsibilities, which might on one view simply be a component of `administrative' activity are to seen as separate from administrative responsibilities and again not forming part of the core responsibilities.

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. The fundamental responsibility of the Police Service is the investigation of crime. While the Police Service's responsibility for investigation is usually at an end by the time a case has gone to the District Court for trial, there may be a continuing need for some activity of that kind. In this instance the prosecution team called for a further narrow work of an investigative kind to be done. The means to be used was a subpoena for documents. This in my opinion was work of a 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.

1. In making the first of her submissions AEZ accepted that the decision of the Tribunal in GA v Commissioner of Police, NSW Police [2005] NSWADT 121, in which the Tribunal followed HW, was to contrary affect. She argued, however, that her submission was consistent with the meaning of "administrative function" in s 39 of the Freedom of Information Act 1989, as found by Cripps AJ in Commissioner of Police v N [2003] NSWSC 943. In that case his Honour found that that words did not describe a given set of functions among many, but were generic.

1. In GA however Deputy President Hennessey referred specifically to Commissioner of Police v N and had to decide whether or not to adopt a similar interpretation of the words 'administrative function" in s 27 of the PPIP Act. Like the present case GA dealt with information collected and recorded by Police in connection with an AVO. Hennessey DP said -

14 Despite the logic of interpreting words in the same way when they appear in similar statutes within the same jurisdiction, this principle is not determinative. The overarching principle of statutory construction is set out in s 33 of the Interpretation Act 1987 which provides that:

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

15 This provision requires the Tribunal to take into account the purpose of the legislation even if the meaning of the provision is clear. The Tribunal should consider the purpose of the legislation to determine whether there is more than one possible construction. If there is, then the construction which is consistent with the purpose of the legislation should be preferred. (Mills v Meeking (1990) 91 ALR 16 at 30-31.) In this case the words "administrative function" could either be interpreted narrowly to refer to non-core functions or broadly to refer to all those functions performed by NSW Police which relate to the management and execution of its responsibilities as derived from common law, statute or government arrangement.

16 One of the purposes of the PPIP Act, as evidenced by its long title, is to "provide for the protection of personal information, and for the protection of the privacy of individuals generally". That protection is not absolute. The PPIP Act places limits on the protection of personal information so that potentially competing objectives in other legislation, such as the Police Act 1990, are not usurped. The PPIP Act gives several agencies including NSW Police a blanket exemption from compliance with all the Information Protection Principles. That exemption is qualified only in relation to administrative and educative functions. The PPIP Act is beneficial legislation and, in the words of , Brennan CJ and McHugh J in I W and the City of Perth (1997) 191 CLR 1 at 12:

...It is to be given "a fair, large and liberal' interpretation rather than one which is 'literal or technical". Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural...

17 In my view, considered in context, it would be unreasonable and unnatural to interpret the term "administrative functions" as covering the process of recording and using information relevant to the detection and prevention of crime in the COPS data base. In addition, the consequences of a such an interpretation must be taken into account. If those consequences are, for example, extraordinary, capricious or irrational then it can be assumed that the legislature did not intend that meaning. (Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151 at 169-170 per Mason and Wilson JJ.) If "administrative functions" were interpreted broadly so that it applied to all information recorded in the COPS data base, NSW Police would be required to apply all the Information Protection Principles to that information. That would, in general, require police officers to collect the information directly from the person concerned (s 9). Police routinely collect information other than from the person concerned. Compliance with s 9 would effectively prevent police officers from gathering intelligence about suspected criminal activity from anyone other than the person concerned. That situation would be totally irrational and absurd. Similarly, the requirement under s 10 to inform the person that the information had been collected and the purpose for which it had been collected would communicate to that person the nature of the intelligence the police had and perhaps the fact that they were suspected of committing a criminal offence. Nothing could be more patently absurd. While it is obviously important to protect people's privacy and ensure that information is as accurate as possible, in the context of gathering, recording and using information in relation to the prevention and detection of crime, police officers would not be able to effectively perform their law enforcement functions if they were constrained by the information protection principles in the PPIP Act.

18 I accept that the information recorded in the COPS system is used not only for the direct purpose of preventing and prosecuting crimes but also indirectly for that purpose, namely to ensure that police officers are following the appropriate procedures and are fully investigating matters. Supervisors assess the information in the COPS data base in a process known as "Quality Review". GA has not complained about any conduct involved in the Quality Review process or indeed in any other of the processes that are necessary in order to ensure that the operational system works effectively. Despite the evidence from Senior Constable Stacey that the COPS system has administrative aspects, I am not satisfied that those functions are necessarily administrative functions within the meaning of that term in s 27. They are indirectly associated with the core activity of the prevention and detection of crime. Even if some aspects of the COPS system involve administrative functions, that does not mean that the aspect of recording and using information for the purpose of preventing and detecting criminal activity is part of NSW Police's administrative or educative functions.

1. The Appeal Panel in Commissioner of Police, New South Wales v YK (GD) [2008] NSWADTAP 78 set out the relevant approach to the s.27 exemption -

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).

1. That approach was followed by the Tribunal in ACP v Commissioner of Police, NSW Police Force [2011] NSWADT 249. In my opinion that is the correct approach, and one I am bound to follow.

1. As a consequence I reject AEZ's submission that recording and collecting information about her in the COPS database is an administrative function. In my opinion it was collected and recorded in connection with a core Police function.

1. Next, AEZ argued that the process of considering a request to amend or delete information under s 15 of the PPIP Act is an administrative functions, unrelated to the core function of the Agency. I do not accept this submission.

1. I agree with the Agency that information collected and held in connection with a core function does not change its character as a result of being held by the Agency (see ACP v Commissioner of Police, NSW Police Force at [27]) or because an application is later made to amend or delete it. The Agency holds the information in connection with its core function of providing Police services in the sense described in HW, and not in connection with its administrative or educative functions. An application to amend or vary that information does not change the character of the information, nor is does it change the function with respect to which the agency holds the information. It remains information held in connection with the provision of Police services, a core function of the Agency.

Conclusion

1. It follows from the above that I agree with the Agency that the COPS event summaries cannot be amended or deleted under the PPIP Act. The Agency is exempted from the operation of the Act and has immunity from the information protection principles with respect to them.

1. As a result AEZ's application must be dismissed.

**********

Decision last updated: 29 April 2013