Cavallaro v Commissioner of Police

[2020] NSWCATAD 132

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Cavallaro v Commissioner of Police [2020] NSWCATAD 132

Hearing dates:

28 February 2020

Date of orders:

28 February 2020

Decision date:

14 May 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Gracie, Senior Member

Decision:

(1) Affirm the respondent's Notice of Decision made under the Government Information (Public Access) Act 2009 dated 10 December 2019; and
(2) Affirm the findings of the respondent's Internal Review made under the Privacy and Personal Information Protection Act 1998 dated 20 June 2019.

Catchwords:

ADMINISTRATIVE REVIEW - government
information - reviewable decision - exempt information - personal factors - balancing of public interests

 

ADMINISTRATIVE REVIEW - privacy - personal information - exemption for agency - policing and investigative functions - administrative and educative functions

  SUMMONS - production of documents - partial production - relevance

Legislation Cited:

Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Criminal Code 1995 (Cth)
Government Information (Public Access) Act 2009
Police Act 1990
Privacy and Personal Information Protection Act 1998

Cases Cited:

BXK v Western Sydney University [2016] NSWCATAD 235
CEU v University of Technology Sydney [2018] NSWCATAD 13
Cianfrano v NSW Ombudsman [2007] NSWADT 273
Commissioner of Police, NSW Police Force v YK (GD) [2008] NSWADTAP 78
Department of Education and Training v GA (No 3) [2004] NSWADTAP 50.
Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44
DF v Director General, Attorney General's Department [2002] NSWADT 164
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286
Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46
Hurst v Wagga Wagga City Council [2011] NSWADT 307
HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214
KO and KP v Commissioner of Police, NSW Police Force (GD) [2005] NSWADTAP 56
Leech v Sydney Water Corporation [2010] NSWADT 298
Miller v Director of Public Prosecutions [2012] NSWADT 38
OD v Department of Education and Training [2005] NSWADTAP 74
Raethel v Director-General, Department of Education & Training [1999] NSWADT 108
Watson v NSW Trustee and Guardian [2015] NSWCATAD 139
YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None

Category:

Principal judgment

Parties:

Frank Cavallaro (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2019/00178031; 2019/00220075

Publication restriction:

Order under section 64 (1) of the Civil and Administrative Tribunal Act 2013 that the evidence, submissions and record of that part of the proceeding conducted in private on 28 February 2020 not be released to the applicant or the public.

reasons for decision

Introduction

1. The applicant is a former serving member of the NSW Police Force (NSWPF). He served from 2002 to 2018. He has filed two applications against the respondent.

2. The first is an application for administrative review of a decision made by the respondent on 10 December 2019 pursuant to an access application for documents made by the applicant under section 9 (1) of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) (GIPA Application).

3. The second is an application for administrative review of an Internal Review of the respondent's conduct pursuant to an application made by the applicant under section 53 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) (PPIP Application).

4. The parties consented to the two applications being heard together.

5. The applicant also filed a Summons for the production of documents and at the hearing he challenged the adequacy of the respondent's compliance with the Summons.

GIPA Application

Background

6. The GIPA Application brought by the applicant has had a long and rather complicated history. The applicant has made a series of requests for access to documents held by the respondent and in respect of which the respondent provided several notices of decision. The chronology of this is briefly as follows:

1. first access application dated 25 October 2017 (first access application);

2. first notice of decision made by the respondent dated 3 January 2018 (first notice of decision);

3. second access application dated 26 April 2019 which sought access to the same documents as the first access application (second access application);

4. second notice of decision made by the respondent dated 8 May 2019 (second notice of decision);

5. Application for Administrative Review filed by the applicant in the Tribunal on 6 June 2019. That application was different and wider in its scope to the second access application. That application attached to it a document dated 24 April 2019 signed by the applicant and headed "GIPA Request" (GIPA Request). The documents sought in the applicant's GIPA Request have been referred to by the parties as the "Additional Documents".

6. on 9 July 2019, the Tribunal directed the respondent to reconsider its second notice of decision, having regard to request for the "Additional Documents";

7. the respondent provided its reconsideration decision dated 1 August 2019, which varied the second notice of decision (Reconsideration Decision);

8. the parties participated in a mediation on 25 September 2019;

9. following a case conference on 26 November 2019, the Tribunal directed the respondent to make a further decision about documents relating to the applicant's transfer out of Public Transport Command (PTC) and risk assessments associated with that transfer. For convenience, these have been referred to by the parties as the "Employment Documents";

10. the respondent issued a notice of decision dated 10 December 2019 in relation to the Employment Documents.

7. The respondent allowed access to the applicant of some of the Employment Documents and refused access to others in part or in full by its notice of decision dated 10 December 2019 on the basis that the withheld information was subject to an overriding public interest against disclosure under the GIPA Act. It is that decision by the respondent which is now the subject of administrative review by the Tribunal under the applicant's GIPA Application.

GIPA Act - Legislative Scheme for Review

8. The applicant seeks access to documents under the provisions of section 9 (1) of the GIPA Act which relevantly states:

"A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information".

9. Section 100 of the GIPA Act provides that a person aggrieved by a "reviewable decision" of an agency may apply to NCAT for an administrative review of that decision under section 9 of the Administrative Decisions Review Act 1997 (ADR Act).

10. Section 63 of the ADR Act provides that in reviewing the decision of a respondent agency, the Tribunal may on application, undertake an administrative review of the decision and determine the correct and preferable decision, having regard to any relevant factual material before it:

11. The time at which the Tribunal is to determine the correct and preferable decision is the time that the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].

12. In determining an application under section 63 of the ADR Act, the Tribunal may decide to affirm, vary or set aside the reviewable decision. In setting aside a reviewable decision, the Tribunal may make a decision in substitution of the reviewable decision or remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of Tribunal.

GIPA Act Provisions

13. There are several key provisions of the GIPA Act relevant to the Tribunal's consideration of the respondent's reviewable decision dated 10 December 2019.

14. Section 5 of the GIPA Act provides:

"There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure."

15. Section 12 of the GIPA Act further provides that there "is a general public interest in favour of the disclosure of government information".

16. Section 13 of the GIPA Act sets out a "public interest test" which requires a determination of whether, "on balance," there are public interest considerations against disclosure which outweigh the public interest considerations in favour of disclosure.

17. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307 the Tribunal confirmed that the "public interest test" under section 13 requires agencies (except those cases coming within Schedule 1 of the GIPA Act) to:

1. identify the public interest in favour of disclosure;

2. identify the public interest against disclosure with reference to the items coming within the clauses of the Table to section 14 of the GIPA Act (the Table) ; and

3. determine where the balance lies.

18. The Table lists the matters which may be taken into account as "public interest considerations" against the disclosure of government information: section 14 (2).

19. Section 55 (1) provides that in determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take "personal factors" into account. These are described as:

1. the applicant's identity and relationship with any other person;

2. the applicant's motives in making in the access application;

3. any other factors particular to the applicant.

20. Section 55 (2) provides that the personal factors of the applicant can also be taken into account "in favour of" providing an applicant with access to information.

21. Section 55 (3) provides that such personal factors of the applicant may be taken into account as matters against providing access if those factors are relevant to the agency's consideration of whether the disclosure of the information could reasonably be expected to have any of the effects referred to in clauses 2-5 of the Table (but not under clauses 1, 6 or 7 of the Table).

Applicant's Submissions

22. The applicant's documentary evidence and written submissions for both the GIPA and PPIP Applications was filed on 7 February 2020. The material included a signed statement by the applicant dated 7 February 2020. The applicant was not cross examined on his statement.

23. The applicant's submissions traversed a range of contentions in which he sought to re-agitate and raise issues associated with many of the earlier matters set out above in paragraph [6] of these reasons. This introduced some difficulty in determining what precisely the applicant was seeking in the present administrative review. In part this was also because there were two separate applications being dealt with at the same time at the hearing. The parties' oral submissions often crossed over from one application into the other because the documents under consideration were often relevant to both applications but for different reasons and purposes.

24. At the hearing, the applicant submitted that it was the document headed "GIPA Request" dated 24 April 2019 and the Additional Documents which were the subject of the present GIPA Application and for determination by the Tribunal. These were however concerned with the Reconsideration Decision and not the respondent's notice of decision dated 10 December 2019 concerning the Employment Documents and with which the present GIPA Application is concerned.

25. The applicant's submissions concerning the Employment Documents challenged the redactions and non-disclosure of those documents by the notice of decision dated 10 December 2019. The applicant submitted that it was in the public interest that the Employment Documents be released. He submitted this on the basis of the "personal factors" applicable to him under the GIPA Act because the documents specifically concerned him. Further, he contended that it was in the public interest that documents relating to the respondent's management of NSWPF officers and decision-making in the transfer process applying to those officers, be open and transparent.

Respondent's Submissions

26. On 3 February 2020 the respondent filed the redacted documentary evidence that it sought to rely upon in both the GIPA and PPIP Applications (the section 58 documents). The respondent filed two sets of written submissions: a submission in chief filed on 14 January 2020 and another in reply on 14 February 2020.

27. The respondent submitted that the notice of decision dated 10 December 2019 was the only "reviewable decision" the subject of the applicant's GIPA Application, being "a decision to provide access or to refuse to provide access to information in response to an access application" under section 80 (d) of the GIPA Act. That reviewable decision only concerned the Employments Documents.

28. However, like the applicant, the respondent raised a number of issues and made submissions which were outside the matters for consideration and review under the present GIPA Application.

29. This was perhaps to avoid any suggestion that the respondent did not dispute or challenge some of the wide-ranging submissions made by the applicant. It has however often made it more difficult to precisely identify the particular issue being challenged by the respondent in the specific context of the present GIPA Application and the issues relevant to the Tribunal's consideration of the decision of 10 December 2019 which is under review.

30. The respondent raised three broad grounds relevant to the notice of decision concerning the Employment Documents in its decision of 10 December 2019 to refuse the access sought by the applicant:

1. First, the respondent had conducted adequate searches in accordance with section 53 of the GIPA Act and submitted that there are no reasonable grounds to believe that it holds further documents within the description of the Employment Documents.

2. Secondly, under the "public interest test", having regard to the public interest in favour of disclosure and the matters in the public's interest against disclosure in the section 14 Table, on balance, the public interest weighed against the disclosure of those documents (or parts thereof) withheld from the applicant under the reconsideration and reviewable decisions.

3. Thirdly, under section 60 (1) (b) of the GIPA Act, the Respondent may refuse to deal with an access application where it has decided a previous application seeking the same information.

Consideration

Public Interest - Employment Documents

31. The Employment Documents were the only documents the subject of the respondent's decision dated 10 December 2019 and which can be the subject of review under the present GIPA Application.

1. In that "reviewable decision", the respondent:

1. released in full:

1. a document described as "Proposed Management Initiated Transfer Letter";

2. the Management Transfer submissions;

2. released in part:

1. a Transfer Application/Nomination form and Risk Assessment by Acting Superintendent Wall;

3. refused to release in full:

1. the Health and Safety Risk Assessment form 16.6.17; and

2. the Health and Safety Risk Assessment form 7.2.18.

32. In that decision, the respondent concluded that there were public interest considerations against the disclosure of some of the Employment Documents (or parts thereof) under Clause 1 (h) of the Table. Clause 1 of the Table has the sub-heading of "Responsible and Effective Government" and relevantly provides in the case of clause 1 (h):

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

....

(h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

Confidential Parts of the Employment Documents

33. To assist in understanding the factual basis on which the respondent advanced its submissions with respect to Clause 1 (h) of the Table, a private hearing was conducted in the absence of the applicant.

34. During the private hearing, I received confidential material into evidence (Confidential Exhibit A) and ordered pursuant to section 64 (1) of the Civil and Administrative Tribunal Act 2013 (CAT Act) that the evidence, submissions and the record of that part of the proceeding conducted in private not be released to the applicant or the public.

35. Having reviewed the un-redacted and confidential Employment Documents, the respondent made confidential submissions detailing how the information in the Employment Documents that was withheld from the applicant, concerned details about the risk assessment framework used by the respondent when it decided to transfer the applicant to another command.

36. This explained the context of the respondent's decision to only release "in part" the Transfer Application/Nomination form and Risk Assessment by Acting Superintendent Wall and its refusal to release "in full" the two Health and Safety Risk Assessments that were part of the transfer process concerning the applicant.

37. Having conducted the private session, although I gained an understanding of what has been withheld from disclosure to the applicant by the respondent, I am satisfied that there is sufficient open material for me to determine this aspect of the applicant's application without specifically referring to or relying upon any of that redacted and confidential material.

"Open" Evidence: Employment Documents

38. The applicant contended that in accordance with section 12 of the GIPA Act, there is a general public interest in favour of disclosing government information, including his employment records. He submitted that any failure to disclose the documents requested by him "only encourages officers to behave dishonestly with prejudice in the decision-making process by providing false information against the officers subjected to these reports without the accuracy of the document being confirmed."

39. The applicant contended that the public interest considerations weighing in favour of disclosing the withheld information are significant in that the records generally contain personal information relating to him. There are limited personal considerations in support of the applicant's submission that disclosing the withheld information to him is in the public interest.

40. Also as set out above, section 55 (3) of the GIPA Act, provides that the "personal factors" set out in section 55 (1) for consideration in the public interest test, do not apply to a consideration relied upon by an agency which is listed under clause 1 of the Table. In this case, the respondent had relied upon clause 1 (h) of the Table to refuse access.

41. In relation to the considerations relied upon in clause 1 (h) of the Table, it is only necessary for the respondent to establish that those matters relied upon by it "could reasonably be expected" to have the effect identified. This calls for an objective test to be made from the perspective of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. It is a question of fact, based on real and substantial grounds and not just a "mere risk or chance": Flack v Commissioner of Police (NSW) [2011] NSWADT 286 at [41]; also Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].

42. In its case, the respondent relied upon a signed statement by Acting Inspector Andrew James of the Office of General Counsel of NSWPF dated 13 January 2020 (Exhibit 2).

38. Acting Inspector James deposed that the release of the information withheld by the respondent could reasonably be expected to have a future prejudicial effect on the functions of the respondent. He said that could result in those officers conducting or otherwise involved in the transfer process being less willing to provide frank and candid comments about a decision to initiate and support a transfer if they knew that the officer concerned may have access to their comments.

39. Acting Inspector James deposed that:

1. it is important when conducting the risk assessment as part of the transfer process that officers provide frank and candid comments concerning the reasons for the transfer and their opinion as to potential risks and issues associated with the transfer;

2. command-initiated transfer can be a difficult process to manage from an employment perspective and often gives rise to industrial issues;

3. the content of the risk assessment is important when considering all the factors for or against a transfer;

4. officers are informed of the outcome of the transfer process but are not provided with a copy of the risk assessment paperwork;

5. disclosure of the risk assessment framework in a command-initiated transfer process would have a negative effect on NSWPF's transfer process in the future.

45. Acting Inspector James was available but was not cross-examined.

46. I am satisfied on the basis of the unchallenged evidence of Acting Inspector James that the respondent has established that there is a public interest founded on the grounds set out in the GIPA Act for not disclosing the content and methodology used in its risk assessments. I am also satisfied that if it did so, this would allow people to "work around" and manipulate that process and cause them to be less candid when providing their input and opinions about the transfer of a particular officer.

47. I accept that the content of a risk assessment is important when considering all of the factors for and against a transfer. I also accept that from the perspective of the respondent, it is important when conducting a risk assessment as part of a transfer process, that officers provide "frank and candid comments" in relation to that decision-making. For that reason, it was said by Acting Inspector James that as a matter of usual practice, officers are informed of the outcome of the transfer process but are not provided with a copy of the risk assessment paperwork.

48. I am satisfied that disclosure of the risk assessment framework in a command-initiated transfer process could have a negative effect on the respondent's transfer processes in the future, particularly if an affected officer may have access to those comments. If that was to occur, I accept that officers who may become involved in that process may be less willing to provide frank and candid comments in respect of any decision to initiate and/or support a transfer.

49. On balance, I find that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. The public interest considerations against disclosure based on clause 1 (h) of the Table and the evidence to which I have referred above, are significant and compelling.

50. I therefore affirm the respondent's reviewable decision dated 10 December 2019.

Other Employment Documents Not Disclosed

51. The applicant also submitted that he had identified documents which he asserted were within the scope of the Employment Documents and which had not been disclosed by the respondent's decision dated 10 December 2019.

52. The respondent submitted that any such request for access to that information is new and is in addition to the Employment Documents the subject of the respondent's decision dated 10 December 2019. Accordingly, the respondent contended that such a request is outside the scope of the present review proceedings and therefore no searches have been made to locate those further documents.

53. I accept that submission. There has been no decision made by the respondent relating to any request by the applicant for any further documents coming within the description of the Employment Documents. It is beyond the scope of the present application for me to now consider or review any such request by the applicant.

Additional Documents - Not Within the Reviewable Decision

54. The applicant raised various contentions which did not come within the scope of the respondent's decision dated 10 December 2019.

55. The applicant contended that he became aware of the likely existence of other documents which had not been released to him as part of the Additional Documents.

56. I cannot make a determination of the applicant's contentions in relation to the Additional Documents. The applicant is seeking to re-agitate matters that have been the subject of earlier notices of decision and the Reconsideration Decision. These are not matters now within the scope of the present GIPA Application and the Tribunal's jurisdiction for administrative review, which only concerns the respondent's reviewable decision of 10 December 2019 in relation to the Employment Documents.

PPIP Application

Background

57. On 7 April 2019 the applicant sought an internal review by the respondent under section 53 of the PPIP Act in relation to the respondent's conduct in the collection and disclosure of the applicant's personal information.

58. Acting Inspector James conducted the Internal Review of the complaint and provided his findings in a report dated 20 June 2019 (Internal Review).

59. The Internal Review identified the material considered for the purpose of the review as follows (emphasis in the original):

"(a)   your Application;

(b)   a copy of an email dated 7 February 2019 and attachments (the Open Letter email);

(c)   a copy of an email dated 8 February 2019 (the Hayston Direction);

(d)   a copy of a letter dated 21 February 2019 (the Cease and Desist Letter); and

(e)   a copy of an email dated 21 February 2019 (the Owen Direction)".

60. The Internal Review identified the matters for consideration as follows:

"I understand your complaint to generally be about two matters being the Owen Direction, and the use of your email address".

61. In relation to the Owen Direction, the complaint by the applicant was described in the Internal Review in the following terms:

"(i)   the Owen Direction was unlawful;

(ii)   the Owen Direction was a breach of the collection principles as the NSWPF failed to notify you of why and for what purpose your personal information was been collected;

(iii)   the Owen Direction unreasonably intruded on your privacy;

(iv)   the Owen Direction ruined your reputation".

62. As to the use of the applicant's personal email address, the Internal Review described the complaint as follows:

"In relation to the use of your email address you assert that there was no valid reason for sending the Cease and Desist Letter by email."

63. There was a series of events leading to the issuing of the Owen Direction and the Cease and Desist letter which were the subject of the respondent's Internal Review. These may be set out briefly as follows:

1. on 7 February 2019 the applicant emailed his Open Letter to several former colleagues in the NSWPF, which as mentioned above, identified the names of complainants in a particular matter;

2. on 8 February 2019 an officer of the respondent (Inspector Renee Hayston), sent an email described as the "Hayston Direction," to all recipients of the Open Letter giving certain instructions to those recipients as to how they should deal with that Open Letter;

3. on 21 February 2019 the Office of General Counsel of NSWPF sent the Cease and Desist Letter to the applicant, using the same email address used by the applicant to send his Open Letter. That letter informed the applicant of the possibility that he may have committed certain offences by sending his Open Letter and to refrain from any such further conduct;

4. also on 21 February 2019, the Owen Direction was sent to all recipients of the Open Letter which gave further directions to them in relation to the Open Letter. The Owen Direction also informed those officers that there would be an investigation conducted into whether the applicant had committed any offences in sending his Open Letter.

Findings of the Internal Review

64. Acting Inspector James determined that the relevant "Information Protection Principles" (IPPs) for consideration under the PPIP Act in the Internal Review were the "Collection" and "Use" IPPs. The Internal Review found no contravention by the respondent of the Collection or Use IPPs.

65. The Internal Review concluded that the statutory exemption provided by section 27 (1) of the PPIP Act applied to the respondent's conduct because the Owen Direction concerned a policing and investigative function performed by the respondent and not an administrative or educative function. Therefore, the Collection and Use IPP's under the PPIP Act did not apply to Owen Direction.

66. In relation to the use of the applicant's personal email when sending the Cease and Desist Letter, the Internal Review concluded (relevantly) that the use of that email was directly related to a purpose for which the personal information was collected and the respondent did not therefore contravene the Use IPP by using the applicant's personal email address.

67. In his PPIP Application, the applicant challenged the respondent's Internal Review on the basis that the review was completed out of the time prescribed by the PPIP Act and because the applicant was "not satisfied with the findings of the review".

68. It is the findings of the respondent's Internal Review in response to the applicant's section 53 application which is the subject of the Tribunal's consideration in the present PPIP Application.

PPIP Act - Legislative Scheme for Review

69. Section 53 (1) of the PPIP Act provides that a person who is aggrieved by the conduct of a public sector agency may apply for a review of that conduct by the agency concerned.

70. The purpose of such an internal review by an agency is to determine whether any conduct by that respondent agency amounted to a contravention of one or more of the IPPs or privacy codes in the PPIP Act: Department of Education and Training v GA (No 3) [2004] NSWADTAP 50.

71. The relevant "conduct" is defined in section 52 of the PPIP Act and is limited to:

1. the contravention by a public sector agency of an information protection principle that applies to the agency,

2. the contravention by a public sector agency of a privacy code of practice that applies to the agency,

3. the disclosure by a public sector agency of personal information kept in a public register.

72. Section 55 (1) of the PPIP Act provides that a person who has made an application for internal review under section 53 and is not satisfied with the findings of the review or the action taken by the agency in relation to the application, may apply under the ADR Act to the Tribunal for an administrative review of the conduct that was the subject of the application under section 53.

73. In an application for administrative review under section 55 (1) of the PPIP Act, the Tribunal is limited to reviewing the scope of the application for the internal review by the agency: KO and KP v Commissioner of Police, NSW Police Force (GD) [2005] NSWADTAP 56 at [13]; OD vDepartment of Education and Training [2005] NSWADTAP 74; BXK v Western Sydney University [2016] NSWCATAD 235 at [13].

74. The Tribunal does not have jurisdiction to review conduct that was not the subject of the application for internal review to the agency: Department of Education and Training v GA (No 3) [2004] NSWADTAP 50 at [7]; Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44 at [17]; CEU v University of Technology Sydney [2018] NSWCATAD 13 at [76].

75. Section 55 (2) of the PPIP Act provides:

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

PPIP Act Provisions

76. There are several provisions of the PPIP Act relevant to the applicant's PPIP Application.

77. The first is Section 4 (1) and (2) which provides:

"(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.

(2)   Personal information includes such things as an individual’s fingerprints, retina prints, body samples or genetic characteristics."

78. Section 4 (3) contains a list of matters that do not constitute personal information for the purposes of the PPIP Act.

79. Section 4 (4) then provides:

"For the purposes of this Act, personal information is "held" by a public sector agency if -

(a)   the agency is in possession or control of the information, or

(b)   the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement, or

(c)   the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998.

80. And section 4 (5) provides:

"For the purposes of this Act, personal information is not "collected" by a public sector agency if the receipt of the information by the agency is unsolicited".

81. Section 8 of the PPIP Act sets out the conditions under which a public sector agency may collect such "personal information", which includes when the information is collected for a lawful purpose that is directly related to a function or activity of that agency and the collection of the information is reasonably necessary for that purpose.

82. Section 9 of the PPIP Act provides that a public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates, except in certain specified circumstances.

83. Section 17 of the PPIP Act prescribes the circumstances in which a public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected, unless:

1. the individual to whom the information relates has consented to the use of the information for that other purpose, or

2. The other purpose for which the information is used is directly related to the purpose for which the information was collected, or

3. the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person."

84. Section 21 of the PPIP Act provides:

"A public sector agency must not do anything, or engage in any practice, that contravenes an information protection principle applying to the agency".

85. Section 27 (1) of the PPIP Act provides a complete exemption for specified agencies (which includes NSWPF) in having to comply with the IPP's. That exemption is subject only to the qualification imposed by section 27 (2), which is that IPPs will still apply in connection with the exercise of a specified agency's "administrative and educative functions".

Applicant's Submissions

86. The applicant challenged the respondent's reliance on section 27 (1) the PPIP Act in relation to the Owen Direction to exempt the respondent complying with the Collection and Use IPPs.

87. The applicant submitted that the Owen Direction constituted an administrative and not a law enforcement function "as the recipients of the email are compelled to abide by his direction and the email was purely for administrative purposes and not a criminal investigation ...".

88. The applicant also submitted that there was no criminal investigation conducted by the respondent so as to raise the operation of section 27 (1). He contended that there was only ever a purported investigation by Detective Inspector Owen and that there was no evidence provided by the respondent from any person directly involved in the purported Owen investigation.

89. The applicant also submitted that the purported investigation by Detective Inspector Owen was finalised on 26 March 2019. The Owen Report apparently confirmed that "no criminal actions be taken against Cavallaro at this stage unless there is a breach of the conditions of the cease and desist letter".

90. In relation to the use of his personal email address in the Cease and Desist Letter, the applicant submitted that section 62 (1) of the PPIP Act prohibited a public sector official, otherwise in connection with the lawful exercise of his or her official function, from disclosing or using any "personal information" (as defined) about another person to which the official has had access in the exercise of his or her official function. He submitted that the respondent breached that provision in the way it used his personal information when sending the Cease and Desist Letter by email to him.

91. The applicant also submitted that the Hayston Direction constituted an administrative function in the management of the respondent's employees by the issuing of directions to recipients of the Open Letter. This was by instructing them to do certain things in relation to the Open Letter, including its deletion, non-dissemination and to not discuss the contents of it with other officers "except the PTC S/SW [South/South West] Commander and Duty Officers".

92. The applicant submitted therefore that the PPIP Act also applied to the respondent's conduct with respect to the Hayston Direction because it did not constitute a law enforcement function by the respondent.

Respondent's Submissions

93. The respondent submitted that the PPIP Application before the Tribunal only concerned the two matters identified in the Internal Review, being in relation to the Owen Direction and the use of the applicant's personal email in sending him the Cease and Desist Letter.

94. The respondent submitted that the applicant's complaint about the Hayston Direction and other conduct in relation to his former employment with the NSWFP is outside the scope of the present PPIP Application and the Tribunal does not have jurisdiction to review that conduct.

95. In relation to the Owen Direction, and as the Internal Review concluded, the respondent contended that section 27 (1) of the PPIP Act applies. The respondent submitted that the Owen Direction was in direct response to the contents of the Open Letter. The Cease and Desist Letter provided the context to the Owen Direction. It raised with the applicant the possibility that he may have contravened section 62 of the PPIP Act relating to corrupt disclosure and use of personal information by a public sector official, as well as section 474.17 of the Criminal Code 1995 (Cth) by using a carriage of service to menace, harass or cause offence.

96. The respondent submitted that the Owen Direction was part of a broader response in relation to a criminal investigation being conducted into the applicant's Open Letter. The respondent submitted that an investigation into a crime, including the detection of whether a crime has been committed, is a core function of the NSWPF and as such, is exempt under section 27 (1) so that the IPP's under the PPIP Act do not apply to that document.

93. In relation to the use of the applicant's personal email address, the respondent relied upon two matters:

1. First, the Open Letter was not solicited by the respondent and therefore not collected by the respondent agency within the meaning of section 4 (5) of the PPIP Act. Accordingly, section 8 of the PPIP Act relating to the collection of personal information for lawful purposes does not apply and/or section 9 of the PPIP Act relating to the collection of personal information directly from an individual does not apply; and

2. Secondly, although the applicant's personal email address was not collected by the respondent agency, section 17 (b) of the PPIP Act provides that personal information must not be used for a purpose other than a purpose directly related to the purpose for which it was collected. The respondent submitted that if it had "collected" the personal email address of the applicant within that meaning in the PPIP Act, it had complied with section 17 (b) in circumstances where it replied to the applicant's correspondence to the same email address used to initiate the correspondence, so that constituted the use of the applicant's personal information for a purpose directly related to the purpose for which the information was "collected".

Consideration

98. In accordance with the authorities to which I have referred above, the issue for consideration by the Tribunal must only concern the conduct that was the subject of the section 53 application for an internal review. This only concerned the Owen Direction and the use of the applicant's personal email in sending him the Cease and Desist Letter.

99. The applicant did not challenge the correctness of the issues which the Internal Review described as being the respondent's "understanding" of his complaint in his section 53 application. That complaint in the section 53 application did not concern the Hayston Direction. The applicant did not make any submission to the effect that the respondent, in conducting its Internal Review, misconstrued or misunderstood the nature of his complaint insofar as it was concerned with the relevant principles and operation of the PPIP Act.

100. I have therefore determined that the applicant's submissions with respect to the Hayston Direction are outside the scope of the Tribunal's jurisdiction to review the conduct of the respondent under the present PPIP Application.

The Owen Direction

101. As discussed above, section 27 of the PPIP Act provides a specific exemption to NSWPF to comply with IPP's, subject only to the qualification imposed by section 27 (2), which provides that IPPs will still apply in connection with the exercise of NSWPF's "administrative and educative functions".

102. I am satisfied that properly construed and having regard to the nature of the documents under consideration, the Owen Direction comes within the functions of the NSWPF in section 6 of the Police Act which "includes services by way of prevention and detection of crime" and that it cannot reasonably be characterised as an "administrative" function within the meaning of section 27 (2) of the PPIP Act.

103. The purpose of the Owen Direction was not administrative: it was in part a preventative measure. It was sent the same day as the Cease and Desist Letter and expressly referred to that letter. Together with the Cease and Desist Letter, Detective Inspector Owen was obviously seeking to prevent any further communication with the applicant and any further possible contraventions of the law.

104. The Owen Direction was also clearly and expressly written in the context of an investigation being immediately commenced to detect whether any crime had been committed by the applicant in sending his Open Letter. There can be no other proper construction placed on the Owen Direction other than the "criminal investigation" referred to would include an investigation of the possible contraventions of (at least) provisions of the PPIP Act and Criminal Code which are set out in the Cease and Desist Letter.

105. By the Owen Direction, the recipients of the applicant's Open Letter were also advised that they may be required to provide a statement as part of any investigation "to assist in forwarding any action". Detective Inspector Owen also said that there "are a number of legal avenues to be explored...".

106. Several authorities have held that the words "relating to a function" of an agency should be applied generously: DF v Director General, Attorney General's Department [2002] NSWADT 164 [9] and [23]-[25], Miller v Director of Public Prosecutions [2012] NSWADT 38 at [19]-[23], citing Cianfrano v NSW Ombudsman [2007] NSWADT 273 and Raethel v Director-General, Department of Education & Training [1999] NSWADT 108.

107. In Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 at [15], the Tribunal held that in each case, "the question is the extent which the information in issue has a connection with the specified function."

108. The applicant placed emphasis on the wording of the Cease and Desist Letter which alleged that the applicant "may" have committed certain offences by sending his Open Letter. He submitted that the detection of crime involves three steps. First, that a crime "has" been committed and not "may" have been committed. Secondly, the process required the identification of the suspect. Thirdly, there was the need to collect sufficient evidence to indict the suspect before a court.

109. The applicant submitted that there was no offence which was found to have been committed under the Criminal Code and that:

"... no investigation was conducted into this matter. No Police event was created, no victim statements were obtained, the Applicant was not interviewed or queried in relation to his comments and there is no evidence of menacing, harassing or offensive behaviour as the Applicant has provided factual information in the open letter which was not questioned by any member of the NSW Police Force."

110. I am satisfied that both the content and the context in which the Owen Direction was made was inextricably linked with one of the main functions of the NSWPF, being the prevention and detection of crime. I do not accept the applicant's submission that the Owen Direction was a purely or mostly administrative function on the part of the respondent.

111. In HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214 at [27], the Tribunal held that a broad interpretation of "administrative functions" may be appropriate in a legislative scheme which does not "otherwise compartmentalise the functions of a public sector agency". In the context of section 27 of the PPIP Act, the Tribunal described a "division" between the "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."

112. Further, the Tribunal held (at [28]) that to give effect to the primary provision of section 27 (1), the term "administrative":

"... cannot 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 the 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".

113. The example given by the Tribunal in that case was "corporate services areas performing functions such as personnel, budget and information technology [which] involve the performance of 'administrative' functions" (at [30]).

114. The applicant's emphasis on the word "may" as to whether an offence was committed is with respect misplaced. The statement that the applicant "may" have committed an offence or offences in the Cease and Desist Letter is entirely consistent with the notion of a crime possibly having occurred. The need to ascertain that matter with some measure of factual certainty is the very purpose of the type of investigation mentioned in the Owen Direction. It does not matter that the investigation did not proceed to the laying of a charge or a prosecution or even if it did not find any contravention of a law. None of those matters change the relevance or characterisation of the matters for consideration at the time the Owen Direction was issued or its stated purpose at that time.

115. Even accepting the applicant's submission that there was an administrative aspect or purpose to the Owen Direction, clearly that was not its only or its primary purpose. The email has an overriding connection with the functions of the NSWPF in preventing and detecting crime. This is not a case where the considerations "might lie on the boundary": DF v Director General, Attorney General's Department [2002] NSWADT 164 at [24].

116. The presumption to start with is that section 27 (1) applies unless the qualification in section 27 (2) can be made out. In Commissioner of Police, NSW Police Forcev YK (GD) [2008] NSWADTAP 78 at [20], the Appeal Panel held:

" ... 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."

117. The Internal Review was correct in concluding that section 27 (1) of the PPIP Act applied and that the qualification contained in s 27 (2) is not enlivened.

118. Accordingly, I find the PPIP Act does not apply to the matters complained of by the applicant in the PPIP Application with respect to the Owen Direction.

Use of the Applicant's Personal Email

119. It is not in dispute that the Cease and Desist Letter was sent to the applicant's personal email address.

120. The Cease and Desist Letter was sent in response to the applicant's Open Letter and on the same date as the Owen Direction. The Cease and Desist Letter stated that the applicant's Open Letter was sent by email to several serving NSWPF officers, that it made numerous allegations against several officers, it revealed the identity of internal police complainants involved in complaints against the applicant and attached confidential and sensitive documents relating to disciplinary investigations into his conduct.

121. As stated above, the letter expressly raised the possibility that by sending the Open Letter, the applicant may have committed one or more possible offences.

122. The source and use of the applicant's personal email address was presumably the applicant's own Open Letter. The applicant did not suggest otherwise. Indeed, the applicant's description of his own email as an "Open Letter" suggests a somewhat curious concern later on his part resulting from the respondent's use of the same email address which he used in his "Open Letter". It was not, for example, marked "private", "personal" and/or "confidential".

123. Having regard to section 4 (5) of the PPIP Act, there is no evidence that the Open Letter was solicited by the respondent to attract the operation of the PPIP Act. I am therefore not satisfied that the applicant's personal email address was "collected" by the responded agency within the meaning of sections 8 and 9 of the PPIP Act.

124. However, even if the respondent obtained the Open Letter by receiving a copy of it from one or more of the recipients and in those circumstances it may be said to have constituted a "collection" of personal information (which I doubt), upon receiving it, the respondent then forwarded the Cease and Desist Letter. In that sense, if it was "collected" in the widest meaning of that word, I am satisfied that it was collected for a lawful purpose directly relating to the respondent's policing and investigative functions and obtaining that personal information was reasonably necessary for that purpose.

125. Further, even if the personal email address was "collected" within the meaning of the PPIP Act, in circumstances where the respondent sent a communication concerning the applicant's Open Letter directly to the email address used by the applicant in that same Open Letter, that was a very specific and limited use of that personal information. In holding that personal information, the information was then only used by the respondent in a manner contemplated and permitted by section 17 (b) of the PPIP Act.

126. Therefore, if I am wrong in my primary finding that the personal email address of the applicant was not "collected" within the meaning of the PPIP Act, I find that in any event, the purpose for which the information was used, which was to provide a response to the matters contained in the applicant's Open Letter to the same email address as used by him in that Open Letter, was directly related to purpose for which the information was "collected" and did not contravene the PPIP Act.

127. Having regard to all of the circumstances surrounding the forwarding of the Cease and Desist Letter to the applicant, I find that the respondent's use of the applicant's personal email address was not in contravention of the Use IPPs or any other provisions of the PPIP Act.

Summons Issued by the Applicant

128. The applicant filed a Summons on 17 January 2020 seeking production of five categories of documents from the respondent.

129. The Summons was first returnable on 3 February 2020. The Deputy Registrar recorded that the respondent had agreed that categories 1 and 2 would be included by the respondent in the section 58 documents for the hearing of both applications. This in fact occurred but the Hayston Direction had been redacted in some respects. Category 3 was made subject to the outcome of the applicant's GIPA Application. Categories 4 and 5 remained opposed by the respondent on the grounds of relevance.

130. There was some discussion about the status of the Summons and what documents were still under challenge at the time of the hearing. The orders made by the Tribunal on 3 February 2020 provided for the unresolved issue of production under the Summons to be determined at a preliminary hearing by a Tribunal Member and before the present hearing of the two applications.

131. However, that did not occur given an unexpected development with the availability of the Tribunal Member originally assigned to hear this matter.

132. I therefore informed the parties that I would record my preliminary decisions in relation to outstanding or unresolved categories of documents under the Summons in these reasons.

Challenged Categories of Documents

Category 2

133. The applicant sought an un-redacted copy of the Hayston Direction.

134. The applicant submitted that the copy of the Hayston Direction in the section 58 documents had been altered or modified from the original. In part this submission relied upon the accepted fact that the copy of the Hayston Direction in the section 58 documents did not identify the names and email addresses of the recipients at the top of the email.

135. After some discussions between the parties during the hearing, the respondent's solicitor undertook to have an officer of the respondent on her return to work on 2 March 2020 conduct a search and provide the applicant with copies of the Hayston Direction with the names and email addresses of each of the recipients not removed as it had been in the section 58 documents filed in the Tribunal.

136. After the hearing, the respondent provided the applicant and the Registry with copies of the Hayston Direction comprising fifteen separate emails containing the names and email addresses of each of the recipients. All except one email, which was a group email of thirteen recipients, had a single recipient identified. There appeared to be no other redactions or alternations to the emails.

137. The applicant provided a written submission dated 4 March 2020 in response to the respondent's production of the fifteen Hayston Direction emails after the hearing. I have considered those submissions which concern matters extending far beyond the question of whether the respondent complied with the Summons or the scope of the agreement for the production of copies of the Hayston Direction made between the parties during the course of the hearing.

138. The respondent provided short written submissions in reply on 10 March 2020. The respondent submitted that the Hayston Direction, as I have already found above, is not a matter within the scope of any reviewable decision under the GIPA Act or any review of the respondent's conduct the subject of the Internal Review under the PPIP Act.

139. Having considered the further Hayston Direction emails provided by the respondent, I am satisfied that the respondent has complied with the request for production of those documents sought under category 2 of the Summons.

Category 3

140. Given my findings above in relation to the GIPA Application, the Owen Report is not a matter within the respondent's reviewable decision dated 10 December 2019 concerning the Employment Documents. Also, given my findings in relation to the scope of the application made by the applicant for internal review under section 53 of the PPIP Act, the Owen Report is not a matter which can presently be the subject of review under the PPIP Act.

141. The Owen Report is irrelevant to the matters presently for determination by the Tribunal and the I uphold the respondent's grounds for objecting to its production

Categories 4 and 5

142. The documents in these two categories concern emails sent by or received from Senior Constable Shane Callaghan and it is convenient to deal with these categories together.

143. The respondent again objected to production on the grounds of relevance. During the hearing, the applicant did not adduce any evidence or make any submission which would cause me to change my initial position that the respondent's objection to the production of these documents is justified.

144. The evidence is that Senior Constable Callaghan is an officer at Campbelltown PTC and also serves as the Chairperson of the Police Association PTC, Campbelltown Branch. The applicant submitted in the submissions filed on 17 January 2020 in support of the Summons, that Senior Constable Callaghan was a former colleague of the applicant and his role in the Police Association is "to protect, support and represent members with any issues arising with their employment with the NSW Police".

145. Sergeant Brad Cooper is described by the applicant as "Organiser - Non LAC 2 & 4 of the Police Association of NSW".

146. The fact that Senior Constable Callaghan and Sergeant Cooper are office holders of the NSW Police Association does not make emails to or from either of them - even if they do concern the Owen Direction - relevant to the matters under consideration by the Tribunal.

Summary

147. In relation to the GIPA Application, I affirm the respondent's notice of decision dated 10 December 2019 in relation to the Employment Documents and find that:

1. there is an overriding public interest against disclosure of the information withheld by the respondent to the applicant; and

2. whether the respondent has conducted all reasonable searches for further documents which the applicant contends have not been released to him is not a matter which arises for consideration by the Tribunal.

148. In relation to the PPIP Application, I affirm the findings of respondent's Internal Review dated 20 June 2019 and find that:

1. the PPIP Act does not apply to the contents of the Owen Direction by virtue of section 27 (1) of the PPIP Act; and

1. the respondent did not solicit the personal email address of the applicant or contravene the PPIP Act by any use of the applicant's personal email address.

Orders

149. I make the following orders:

1. Affirm the respondent's Notice of Decision made under the Government Information (Public Access) Act 2009 dated 10 December 2019; and

2. Affirm the findings of the respondent's Internal Review made under the Privacy and Personal Information Protection Act 1998 dated 20 June 2019.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 14 May 2020